A false dawn: No sign of progress despite ISOC’s dropping of charges against 3 HRDs

 
On May 17, 2016, the military’s Internal Security Operations Command (ISOC) Region 4, which is responsible for national security operations in the southern border, filed a criminal complaint in Yala against human rights defenders (HRDs); Pornpen Khongkachnkiet (Director of Cross-Cultural Foundation), Somchai Homla-or (Advisor to the Cross-Cultural Foundation) and Anchana Heemmina (President of the Duay Jai group). The criminal complaint is based on a report produced and published on February 2016 that documents 54 cases of alleged torture of mostly ethnic Muslim insurgent suspects in the period of 2014-15. The complaint accuses the three HRDs of criminal defamation under the Penal Code and publicizing false information online under the Computer Crimes Act.
 
In a turn of events, on March 7, 2017, ISOC Region 4 spokesperson, Colonel Pramote Promin, has stated that ISOC has dropped the charges. However, ISOC has demanded 3 conditions:
1.      the reports on torture would be examined by NGOs and state representatives before publication,
2.      an independent committee would investigate claims of torture,
3.      a joint working mechanism would be set up to enact the first 2 conditions.
 
While the military has received praise in some quarters for dropping the charges, an in-depth interview with Pornpen Khongkachnkiet has shown that the legacy from this case has created a dangerous environment for torture victims and the operation of civil society and HRDs. While the military states that they are using the legal process to ascertain truth, Ms. Pornpen’s history of persecution from ISOC clearly demonstrates that the use of such instruments has a clear precedent of being politically motivated. Even if the charges were dropped, it would have induced greater fear among torture victims to speak up and for civil society organisations to publish controversial discoveries implicating ISOC. In addition, there is a possibility that the new screening and investigative committee being proposed by the military would lead to a culture of silence. Ms. Pornpen thinks that the ISOC’s intention to establish investigative committees does not signal any progress as this investigative framework is just a resumption of the current model which was interrupted with her most recent charge.
 
 
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Q: If you had been charged, what would have been the penalty?
A: I would have been charged for a maximum of 7 years. It consisted of 2 years for the defamation charge and 5 years for importing the information on the published report into the computer system.
 
Q: Can you tell us more about the procedure for the withdrawal of the charge?
A: The procedure was started by ISOC’s legal team that went to the police station to give an intention note that they are willing to withdraw the complaint. The authorization of the withdrawal of the complaint came from the Army Chief in Bangkok.
 
Q: Has the case against the 3HRDs now been resolved legally? Or are there any remaining procedures?
A: It has not been fully resolved.  After the meeting on the 7th March, we agreed on some cooperation in the future about the investigation of torture allegations. As torture always takes place in a secret detention facility, it has been difficult to determine the identity of the perpetrator. As the report contains details of the victims’ testimonies from 54 cases, ISOC Region 4 wants to form a joint committee to review the allegations of torture found in the report.
 
Q: Was there any cooperation on torture allegation before this conflict?
A: This process has always been a practice of our work in the Deep South for a long time. Usually, we have an ad hoc independent investigative committee on a case by case basis. Some of the members are appointed by the army and others consist of NGO workers, imams and schoolteachers. As we do know that if we continue with the normal criminal investigation process does not work with cases of torture and enforced disappearance, we need to have a panel to be able to present and review all facts in the cases. After the investigation process, the case can be addressed and compensation can be provided. 
 
The request from ISOC Region 4 was that they wanted to include their account of the case in our reports. For example, if a detainee reported that he or she was forced to strip naked during interrogation, ISOC Region 4 wants to be able to state that the detainee was not forced to perform such an act. In the future, we shall submit the cases and victims’ testimonies for investigation to this ad hoc panel.
 
Q: Before this case, what is the role of the CrCF on documenting torture in the South? How long have you been documenting torture cases?
A: We have started working on the Deep South since 2004, after we observed the trial of the disappearance of Somchai Neelapaijit. We started with documenting enforced disappearances. Later we found credible information of around 30 cases of enforced disapperance, not 100 cases as rumors. The issue of enforced disappearances has been resolved in that we have documentation and more action has been taken, compensation has been provided to the victims’ families.
 
However, CrCF heard about the widespread use of torture, arbitrary detention, restriction of victim’s visitation rights to lawyers, doctors and family members. Thus, we started creating a systematic proper documentation, a proper database and questionnaire in the years 2011-12. We started training local activists to be able to understand the complication of evidence surrounding torture cases.
 
First, we compiled 92 cases of torture, which we submitted to the CAT Committee. Many of the recommendations are submitted to the army including improving detention facilities, visitation rights of detainees, and building in oversight by experts over death in custody, etc. However, no action has been taken given the turbulent political context.
 
Q: Is this case your first time facing legal harassment by the military?
In 2014, I was charged for publishing a letter about 1 torture case, even though I knew that the case was politically motivated due to my submissions about detailed cases of torture to the CAT Committee. The case did not receive a lot of coverage but it was later dropped by the prosecutor of Yala as the letter is based on public interest. Having known the torture victim’s family quite well, we are confident that the documentation that we have on the case is true.
 
Q: How did you and the other accused members feel when you were informed of the charges?
A: I received many warnings from ISOC stating that we would be charged for not cooperating by giving the army the names of victims. Obviously, we cannot do that as that information is confidential, given that victims want redress. This project is funded by the UN Voluntary Fund for victims, so they are providing direct assistance to victims.
 
Q: When Anchana handed the report to the army, what was their initial response?
A: There was no response from the Army Chief of ISOC Region 4 and the generals in charge of the peace talks.
 
Q: Once a report on torture or any other human rights violation is complete, what is the following procedure ie engaging authorities?
A: Normally, we have a discussion on a case-by-case basis. From time to time, I went to see them together with other human rights defenders to conduct dialogue with ISOC Region 4. When there is a case, I would go to the military officers to advocate for the rights of the detainee, especially for the right to be represented by a lawyer and for his or her visitation rights by doctors and family members. Before the May 2014 coup, ISOC was more cooperative then, but after the coup, they were much less so. The coup seemed to change ISOC’s policy to be tougher on detainees.
 
Q: In the report published, what facts was the army accused for fabricating? What evidence did the army use to back this up?
A: ISOC Region 4 mentioned 12 statements from 11 victims were fabricated. They did not have any evidence to back this, however, ISOC simply dismissed the allegations by stating there was no evidence for to prove the torture allegations. Indeed, the burden of proof for human rights violations differs greatly from the traditional criminal cases.
 
Q: Ms. Anchana, another accused, faced summons to an Army camp, lengthy questioning by Army officers, and intimidation by unidentified men. Can you explain more on such intimidation?
A: While I just received a phone call, Anchana did face the harassment you described. I heard she was visited by the army from the local area before the charge and after. Also, there is a website by ISOC presenting our story as fabricated. The website states that we are destroying the nation and that we are publishing a story that lacks credibility. The army also stated that since we are receiving foreign funding, we are part of a foreign-backed plan to undermine the nation.
 
Q: When the Deputy Spokesperson for ISOC Region 4 stated that the military had withdrawn charges against the 3 HRDs, did they give any justification?
A: Publicly, they stated they did not intend to put us in jail. They said they wanted to get the truth out using the court procedures.
 
Q: The ISOC spokesperson stated that in the future, ISOC will work more closely with CSOs to verify reports about human rights violation? Is this a victory or is this a negative setback for CSOs and HRDs?
A: Nothing has changed as this framework existed before the coup. The screening process is about giving the accused people a say in alleged violations by the military. We might send them a case for review and investigation. As routine police investigation does not work in the context of armed conflict, we need to send the case information to the military. The proposed screening and investigation process in ISOC’s statement is not a new framework, it’s just a re-emphasis of the existing one. The problem is that the charges against us stopped any dialogue and this screening and investigation process.
 
Q: Given that your case has received domestic and international attention, will the military review their previous approach to torture allegations?
A: After a dialogue on 28th March, ISOC had already stated they will review their regulations. They will build in more protections, for example on detention facilities and visitation rights. However, these protections have yet to be publicly declared. Thus, the exercise of these rights is still arbitrary and up to the discretion of ISOC. Also, even if there are regulations, it still does not mean that they will be effected.
 
Q: Could you explain to us the negotiation process that led to these conditions? Who were the parties and how was this agreement reached?
A: We learnt that the Ministry of Justice has been very active. Also, several military personnel disagreed with the charge. On the other hand, ISOC Region 4 is pushing hard for the charges, possibly because they are an alleged perpetrator. The international community is working hard on lobbying on many levels including to the General Prayuth and Pravit Wongsuwan.
 
Q: If the relationship between CrCF and the government has been downgraded, how will this affect the right of victims for redress and justice?
A: It has an effect, especially in the Deep South. This will cause victims of torture to be scared to come forward for fear of being punished. Thus, the CrCF has less documentation as there is less access to victims.
 
 
 
 
 
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