Asia Rights

Journal of Human Rights, Media and Society in Asia and the Pacific

Why Thailand Needs a Judge Like Baltasar Garzón

by Dr. Tyrell Haberkorn. See here for the original article at Prachatai.com

In a recent interview on Democracy Now on 12 May 2011, Judge Baltasar Garzón talked with Amy Goodman about atrocity, terror, and the universal need for justice. Garzón is perhaps most well-known for ordering the arrest of Augusto Pinochet, the former murderous Chilean dictator.  While in Britain tending to a health problem, EU law made it possible for a Spanish arrest warrant to be executed in London. For eighteen months, Pinochet was under house arrest in London while the British and Spanish authorities negotiated over his case. Ultimately, Pinochet was not extradited to Spain and was released by the British authorities and allowed to return to Chile, where he spent the years until his death in 2006 embroiled in a string of legal proceedings in which his self-given immunity was constantly revoked and granted again. While he died without ever being convicted for the torture, disappearances and murders of thousands of Chileans, Judge Garzón began the process of holding him to account. In subsequent years, Judge Garzón was the lead judge in a case brought against former navy officer Adolfo Scilingo, who was convicted of crimes against humanity in Spain in 2005 for torturing and murdering dissidents during the Dirty War in Argentina between 1973 and 1976. Among Scilingo’s actions, he threw political prisoners out of planes into the sea. Adolfo Scilingo is now serving a 640-year sentence in a Spanish prison.

In recent years, Judge Baltasar Garzón has turned his attention closer to home. Discussing the atrocities committed by the Spanish authorities during the regime of Francisco Franco (1939-1975), he told Amy Goodman that between 150,000 and 200,000 people were disappeared during the regime, and “It’s still not known where the victims lie buried. It’s a permanent crime and therefore it cannot be absolved by an amnesty law.” Garzón is adamant that justice must be secured – the length of time that has passed is immaterial. The Spanish government disagrees. After supporting his careful and courageous use of the idea of universal jurisdiction to use Spanish courts to try crimes against humanity including torture and disappearance, he has now been indicted and suspended from his work as a judge for “exceeding his authority” in opening the investigation into state crimes committed during the Franco regime. His investigation came too close to home, it seems. Listening to Judge Garzón talk about justice and history with Amy Goodman, I could not help but think about Thailand.

If Thailand had a judge like Baltasar Garzón, what unresolved crimes committed by the state, or with state collusion, might s/he investigate? In addition to the mass violence of 14 October 1973, 6 October 1976, May 1992, and April-May 2010, a preliminary, partial list might include:

The use of Article 17 (มาตรา ๑๗) during the regimes of Field Marshal Sarit Thanarat and Field Marshal Thanom Kittikachorn: Article 17 was an absolute power measure first promulgated by Field Marshal Sarit as part of the 1959 Interim Constitution. The article was used to summarily detain and execute individuals that the Prime Minister deemed to be a threat to the monarchy, national security, or the broader state of law and order; Article 17 also mandated that all acts committed under it were considered in line with the law. Sarit used the measure to order the executions of 11 people. Article 17 was in force until the 1974 Constitution was promulgated, and Thanom used it 65 times to authorize executions and 113 times to authorize detentions. In total, then, there were 76 executions in which the individuals in question were executed without ever seeing the inside of a courtroom or having the chance to defend themselves against the alleged charges. These are killings which the state claimed were legal, but which I would argue should be treated as extrajudicial violence. Questioning the alleged legality of acts committed under Article 17 and investigating the summary detentions and executions of alleged criminals as crimes themselves would significantly challenge impunity in Thailand.

The Red Drum (ถังแดง) killings: Villagers reported that between 1,000 and 3,000 residents of Phatthalung province were arrested as suspected Communists, interrogated without ever being arrested or charged, tortured, and then burned alive by state counterinsurgency forces in large oil drums in August 1972 during the dictatorial regime of Thanom Kittikachorn. Silenced at the time, the killings were exposed in February 1975 following the transition to democracy in October 1973. In response to citizen demands for accountability, the Ministry of Interior launched an investigation. The full report was never made public, but it was reported that the Ministry noted that “only 70-80 villagers” were killed in this manner, not the larger number presented by the villagers. They chose not to punish any of the state officials involved, because it might discourage them in their important work fighting Communism.

The use of torture: Torture has been used routinely by the police, army and other state security forces across different periods. The Coordinating Group on Religion in Society (CGRS | กลุ่มประสานงานศาสนาเพื่อสังคม) reported that in late 1976 in Nakorn Sri Thammarat, people accused of being Communists reported that usual methods of detention at the army camp where they were detained included: “tying the victims’ hands behind their back to cause paralysis of the arms, putting them into sacks and giving them series of severe strokes, threatening to drown them into the sea from a helicopter, tying big chains around their necks and pulling hard, and also threatening to shoot through their heads.” In more recent times, Amnesty International has reported the use of torture against national security detainees in southern Thailand and the Asian Human Rights Commission has reported the regular and systematic use of torture across various parts of the state security apparatus. Thailand ratified the UN Convention Against Torture in 2007, but there is not yet a precise provision in Thai law criminalizing torture.

Disappearance: Like torture, disappearance has long been a strategy of the Thai state. For example, the Coordinating Group on Religion in Society reported a case of disappearance in Surat Thani province in May 1977. A man named Sumrerng Thani-ruth, who was preparing to ordain as a Buddhist monk, was arrested without charge by army soldiers. Sumrerng was at Wat Baan Song at the time and his arrest was witnessed by monks at the temple. A few days later, his father found his dead body in a jute sack in a neighboring district. CGRS noted that, “the evidence implied that Mr. Sumrerng was stuffed in a sack and drowned to death by a military group.” Yet there was and remains no confirmation of who was behind his death. A more present-day case is the disappearance of Somchai Neelaphaichit in March 2004. Somchai, a noted human rights lawyer, was pulled out of his car by five plainclothes policemen in Bangkok and never seen again; his body has never been recovered. As the Asian Human Rights Commission has noted, the lack of the category of disappearance within Thai law has meant that no one has been held to account for his disappearance. Instead, they were the five policemen were charged with theft and coercion. A series of evidentiary and other problems means that at present, they have been acquitted.

This is only a small slice of the entire body of cases of state violence or state collusion in violence committed since the end of the absolute monarchy and the beginning of the modern Thai state in June 1932 that demand investigation. The reason why Thailand needs a judge like Baltasar Garzón is because a judge might have the power to compel state testimony and open state files on the institutionalization of torture, disappearance, assassination and other extrajudicial forms of injustice across time and across agencies. The other reason why Thailand needs a judge like Baltasar Garzón is because he has been willing to question the state apparatus within which he works, even as he has faced high personal costs. During his Democracy Now interview, Judge Baltasar Garzón told Amy Goodman that with regard to the crimes committed during the Franco years: “It is the obligation of a judge to investigate the cases and search for truth, justice and reparation for the victims of these crimes.” I would go further. It is the responsibility of everyone concerned with human rights in Thailand to ask what crimes are permanent, for what crimes should amnesties be questioned, and how might accountability be secured. Judge Garzón’s example is a reminder that these questions are not negotiable for people concerned with creating a just future.

Tyrell Haberkorn is a scholar activist concerned with histories of state violence in Thailand and a research fellow in Political and Social Change at the Australian National University. Her first book, Revolution Interrupted: Farmers, Students, Law, and Violence, is available from the University of Wisconsin Press.

Tyrell Haberkorn

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