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Thai law ends forced returns of refugees, but scepticism persists over implementation
Image caption: In Burmese refugee camp near Mae Sot, Tak Province, Thailand.
Thailand’s new Anti-Torture Act, which became law in late October, will prevent those seeking refuge in the country from being returned should there be a legitimate threat posed to their safety. But human rights activists remain sceptical as to what extent it’ll be implemented.
The southeast Asian country is not a signatory to the 1951 UN Refugee Convention, which means refugees can currently be ‘treated as illegal aliens’. It has, however, committed to the Global Compact for Safe, Orderly and Regular Migration and the Global Compact on Refugees, and currently hosts over 95,000 refugees. The majority are of an ethnic minority and have arrived from Myanmar. They live in nine camps along the country’s Thai–Myanmar border, with many having resided there for decades.
However, those more recently seeking refuge – usually individuals escaping violence in Myanmar triggered by the military coup in early 2021 – have typically had to travel back across the border after a brief reprieve. ‘In general, Thailand has been exemplary in providing access to asylum and refuge for neighbouring countries’, says Duncan McArthur, co-executive director of The Border Consortium, which provides food, shelter and capacity-building support to refugees from Myanmar. But since the military coup in Myanmar there have been restrictions, he adds.
Between February 2021 and July 2022, the UN Refugee Agency (UNHCR) estimates that 20,000 refugees entered Thailand from Myanmar. The majority have only been given temporary access before having to return. Since Myanmar’s coup began, local Thai media have reported a commitment by Thailand’s Prime Minister Prayut Chan-o-cha to offer humanitarian support and to see refugees only return to Myanmar on a voluntary basis.
This legislation has a massive impact on the refugee world. It can’t be understated
Aleksandar Stojicevic
Refugee Officer, IBA Immigration and Nationality Law Committee
In May 2021, over 2,000 refugees who had been accounted for by local authorities were reportedly ‘convinced to return’ to Myanmar by the Royal Thai Army, according to an inter-agency update published by the UNHCR. In March meanwhile, the human rights non-governmental organisation Fortify Rights reported that a footbridge facilitating passage into Thailand had been intentionally destroyed by soldiers.
However, the Prevention and Suppression of Torture and Enforced Disappearance Act 2022, better known as Thailand’s Anti-Torture Act, would position Thailand as a country that provides greater protection to refugees. While mainly focusing on criminalising the torture and enforced disappearances of suspects in custody in Thailand, section 13 of the Act states that: ‘No government organizations or public officials shall expel, deport, or extradite a person to another country where there are substantial grounds for believing that the person would be in danger of torture, cruel, inhuman, or degrading treatment, or enforced disappearance.’
‘This legislation has a massive impact on the refugee world. It can’t be understated’, says Aleksandar Stojicevic, Refugee Officer of the IBA Immigration and Nationality Law Committee and Managing Partner and co-founder of MKS Immigration Lawyers in Canada. Stojicevic refers to the Act as a U-turn on Thailand’s approach to refugees thus far and explains that it means that ‘refoulement as a concept has now been moved into Thai law’. He adds that the Act could spur similar action in other southeast Asian countries.
The Act was published on 25 October in Thailand’s Royal Gazette but will officially come into effect 120 days later in February 2023, as per the country’s legislative procedure. There are concerns however as to whether the Act will be adhered to in practice. ‘Thailand always has a law on paper, but implementation is still a problem’, says Kornkanok Wathanabhoom, a Thailand human rights associate with Fortify Rights. For example, a national screening mechanism that would help to identify refugees, which in 2019 was earmarked for creation by the Thai government, has yet to come to fruition.
‘Will there be a limit to [the Act’s] interpretation in terms of Thai authorities themselves? Will they ignore it? That’s possible but at least there’s something that these same organisations can point to in terms of their ability to represent people that are facing this type of thing’, says Stojicevic. He explains that the Thai courts will have to respect the Act. Duncan McArthur of the Border Consortium says that, up until now, the focus has been on the legislation but now it’ll be on monitoring how the Act is implemented. ‘We just take it one step at a time’, he says.
Wathanabhoom adds that it’ll be difficult for a refugee to provide evidence demonstrating they’re at risk of being tortured or harmed. ‘Even an injury on your body doesn’t mean it’s from the authorities’, she says. She hopes that the fact that ‘everyone knows there’s a war inside Myanmar’ will mean that authorities automatically opt not to send people back because the danger to their lives will be very clear, and that there’s no discrimination.
Wathanabhoom highlights that on some occasions, there’s an influx of refugees on the Thai–Myanmar border and the Thai authorities push back, claiming that there’s ‘no violence’ in Myanmar. Wathanabhoom says this reaction is justified by the authorities on account of there being no ‘gun sounds’ at the border. She hopes that, going forward, these situations do not arise.
The Thai government was contacted by Global Insight in respect of these concerns but had not provided a response at the time of publication.
As of May, estimates by the Institute for Strategy and Policy put the post-coup violence death toll in Myanmar at over 5,600 civilians. Typically, these deaths have been the result of shootings or torture. ‘I wish for the government to implement [the Act’s] section 13 with respect to […] the Myanmar people who have the danger of torture all the time’, Wathanabhoom says.
Image credit: antonel/AdobeStock.com