Enforced disappearance is the technical term for a heinous crime whereby a person or persons are deprived of their liberty, such as detention in an unknown place ("incommunicado"). This is accompanied by a cover-up by the state.
In Thailand, there have been scores of cases throughout the years, many of which remain unresolved. They often concern human rights defenders and environmental activists, perceived to be in conflict with various vested interests.
The UN adopted a declaration to castigate the malpractice in 1992. This was preceded by the establishment of the UN Working Group on Enforced or Involuntary Disappearances in 1980; this UN special procedure has a mandate to receive complaints about that crime, even when a state declines to cooperate with it. Many cases from Thailand have appeared before this working group. The latter has acted consistently to call for justice, even though it is not a court of law.
More recently, there was a move towards a more defined instrument in the form of a legally enforceable treaty, with detailed provisions and a monitoring mechanism in the form of a vetting committee. Thus, the International Convention for the Protection of All Persons from Enforced Disappearance came into effect in 2010. While Thailand signed this treaty a while ago, it ratified the convention in May 2024, with the treaty being enforced one month later -- on June 13, 2024.
Basically, there are two key features requiring implementation, namely, substantive and procedural. A state party is required to adopt laws, policies and practices to comply with the convention's provisions. Enforced disappearance has three elements: deprivation of liberty, refusal to reveal the whereabouts of the person or related concealment, and committed by state officials or their agents. The acts of non-state actors, such as non-state armed groups, are covered indirectly with the prescription that the state must take action against them.
The convention's stipulations include the need to apply its definition of "enforced disappearance", coupled with a law to criminalise the misdeed, effective jurisdiction, investigation, extradition and mutual legal cooperation. There must be an absolute prohibition of the crime, and claims of national security or equivalent are not permissible. Push-back of victims to countries where the danger of enforced disappearance lurks is also forbidden.
Enforced disappearance is considered to be an ongoing offence -- it continues until the whereabouts of the victim are known. It is only at that moment in time when the time limitation period ("prescription period") starts for the period allowed for criminal and other proceedings.
For instance, when a victim is pushed into car, thus "enforcibly disappeared", the limitation period does not start at the time of deprivation of liberty (the push into the car), but only starts when the whereabouts of the person are known. This does not depend on finding a corpse. The limitation period for taking action against the culprits should be a reasonable length and proportionate to the crime. In one European country, a 30-year period has been adopted as the period for criminal proceedings. In Thailand, it is 20 years.
Protection of victims and their families is essential. Article 17 of the convention states that "No one shall be held in secret detention" -- an apt message concerning Thailand's Emergency Decree and martial law. There is a prohibition against malpractice affecting children linked with secret adoptions. There is a call to access a range of remedies, mixing criminal sanctions and civil reparation.
There is an international body -- the Committee on Enforced Disappearance (CED committee) -- which reviews the record of a member state periodically. The state is bound to send its first report to the committee within the first two years after ratification, and the committee will then issue recommendations in the form of concluding observations for follow-up. While the committee is not a court of law, it has leverage to press for transparency and justice.
In serious cases where the malpractice is widespread or systematic, the crime is elevated to the status of a crime against humanity, and it can be cross-referred to the UN General Assembly for further pressure.
There are special procedures of note. There is the urgent action procedure whereby the victim(s) or their families can access the committee to ask for measures directed to the concerned state to find the victim and to protect the safety of both the victims and their families, with a reporting back process to the committee. There is no need to exhaust local remedies, such as to use local courts beforehand. This procedure binds the state automatically and does not depend on a separate declaration by the state party to accept the procedure.
However, the convention has other provisions whereby an individual victim (or the representative) and or another state party can complain against the erring state and seek pressure for justice and accountability more generally. The latter depends on a separate declaration by a member state to confer jurisdiction on the said committee. Thailand has not made a declaration in this regard. It has also entered a reservation, declining to accept the power of the International Court of Justice to resolve disputes.
The committee only has the power to cover cases that occurred after the convention came into force for the member country. For Thailand, this implies that only cases happening after June 13, 2024, will fall under the committee's competence. Older cases will need to be pursued under the working group mentioned, which has an older mandate and is not dependent on the provisions of the new convention.
How has Thailand fared, so far? To prepare for ratification, Thailand passed the Prevention and Suppression of Torture and Enforced Disappearance Act 2022. It adopted the definition of the crime under the convention, criminalising the malpractice.
There have also been innovative provisions for compulsory recording of detention and questioning of persons from the beginning of the process by officials, with checks and balances offered by prosecutors and administrative officials. A regulation will provide a higher rate of compensation to the victim(s).
Yet the real challenge lies with implementation. The country still suffers from perpetrators' pervasive impunity under officialdom. There is a tendency to "pay up" rather than "own up" to that universal crime.
Vitit Muntarbhorn is a Professor Emeritus at the Faculty of Law, Chulalongkorn University. He is currently a UN Special Rapporteur under the UN Human Rights Council, Geneva. He is also the author of 'The Core Human Rights Treaties and Thailand'.