New anti-torture legislation in Thailand could help reduce ill-treatment in custody, but could also have an impact on potentially fatal ‘push back’ policies.

By Patrick Phongsathorn in Southeast Asia Globe

Thailand took a momentous step on 24 August  —not only because of a shock decision by the Constitutional Court to suspend Prime Minister Prayut Chan-o-cha from his duties, but also because parliament finally passed a historic anti-torture bill.

Once fully enacted, the Bill, formally known as the Act on Prevention and Suppression of Torture and Enforced Disappearances, will give effect to the provisions of the U.N. Convention Against Torture and enable Thailand’s ratification of this keystone human rights treaty.

What’s been overlooked in the debate surrounding this new law is the impact it may have on Thailand’s problematic refugee policies and practices. Significantly, Section 13 of the new legislation enshrines in Thai law the principle of non-refoulement, an international legal principle that prohibits states from returning refugees, asylum seekers, and other individuals to situations where they may face the risk of torture and other grave human rights abuses. 

Developed in the wake of World War II and the revelation that certain European states had forced Jews back into the hands of their Nazi persecutors, the principle of non-refoulement has since become regarded as an unconditional norm of international law incumbent on all states to follow, regardless of provisions within their domestic law.

Despite its public claims to the contrary, the Thai government has long failed to respect the principle of non-refoulement and has regularly forced refugees and others seeking protection in the Kingdom back to situations where they face credible risks of torture and other grave human rights abuses.

The non-refoulement provisions in Thailand’s new anti-torture law carry particular significance given the human rights and humanitarian catastrophe unfolding in neighbouring Myanmar. 

Since the 1 February 2021 coup in Myanmar, Fortify Rights has documented several instances of Thai authorities pushing refugees back to the chaos and destruction occurring next door. In May 2021, for example, Fortify Rights documented how Thai authorities returned at least 2,000 refugees fleeing renewed violence in Myanmar’s southeastern Karen State. 

According to the U.N., the number of internally displaced men, women, and children in Myanmar has well exceeded one million, including more than 866,000 since the military takeover. Estimates from an assessment led by the U.N. High Commissioner for Refugees (UNHCR) in February, suggests that close to 16,000 Myanmar refugees have sought protection in Thailand since the coup.

These refugees include individuals from the largely rural, ethnic minority states along Myanmar’s borders, many of whom have faced decades of persecution at the hands of the Myanmar military. The International Institute for Strategic Studies estimates that almost all of the country’s  330 townships – the country’s basic units of administration – are now affected by war. 

Fortify Rights has also documented systematic and widespread atrocities, including murders, massacres, torture, and the denial and destruction of humanitarian aid in many of these ethnic-minority areas in recent years. 

Other Myanmar refugees in Thailand include community leaders, human rights defenders, and political activists who face systematic persecution by the junta for their anti-coup stance. These individuals are largely well-educated professionals from Myanmar’s urban hubs, including Yangon and Mandalay. Speaking out against the military’s brutality has cost them dearly. 

Many who Fortify Rights has spoken with have seen friends, colleagues, and relatives killed by the junta—and now they face life in exile and the ever-present threat of forced return to the hands a murderous regime.  

One refugee who fled to Thailand when the junta discovered she was supporting striking teachers told us that if she were sent back to Myanmar, “[The junta forces] would beat me to death.”

Thailand has not ratified the 1951 Refugee Convention nor its 1967 Protocol and currently has no system in place to screen, register, or protect refugees. The official system proposed in 2019 for this purpose, the “National Screening Mechanism,” is still un-implemented and questions remain about its future efficacy as a tool for refugee protection, particularly for refugees from Myanmar.

Moreover, according to a UNHCR-led assessment from February, the Thai government has not allowed traditional humanitarian actors access to newly-arrived Myanmar refugees being held in so-called “Temporary Safety Areas” along the border.

As such, there’s no effective oversight of how the authorities have managed and assisted these refugees, nor whether their conduct has been in line with domestic or international law, including the principle of non-refoulement.

To ensure that non-refoulement provisions under the new anti-torture bill are respected, the Thai government must immediately grant UNHCR full and unfettered access to all Myanmar refugees, especially at the border. The government should also establish a holistic system to screen, register, and give legal status and protection to Myanmar refugees or, barring that, allow UNHCR to fulfil its global mandate to do this.

Thai authorities must end their decades-long practice of refugee push-backs and stand by commitments they’ve made under international law as well as their own new anti-torture law. The new torture legislation is a step in the right direction for Thailand’s treatment of refugees but, as is ever the case, this law must now be followed up by rigorous rights-respecting implementation.

This article was originally published in Southeast Asia Globe here.

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