Thailand: Investigate Forced Returns, Urgently Implement Screenings To Prevent Refoulement

Three men reportedly returned to Myanmar by Thai authorities feared detained in Myanmar

(BANGKOK, April 14, 2023)—Thailand should investigate the reported forced return of three Myanmar nationals who are at significant risk of torture or death in Myanmar, and Thai authorities should urgently implement screening procedures to prevent future refoulements, said Fortify Rights today. Last week, Thai authorities reportedly forced three men back to Myanmar and potentially into the custody of the Myanmar military-affiliated Border Guard Force (BGF). Photographs analyzed by Fortify Rights show the men in Thai custody and then two of the men bound and blindfolded in the back of a vehicle, reportedly in the custody of the BGF.

“This incident should be immediately investigated. Thai authorities should not have forced these men back to Myanmar, where torture and persecution are widespread and systematic,” said Patrick Phongsathorn, Senior Advocacy Specialist at Fortify Rights. “The risks of death, torture, and persecution in Myanmar are significant for anyone opposed to the junta. Thai authorities should conduct protection screenings to prevent sending anyone into a situation where they could face torture, persecution, or other serious violations.”

Fortify Rights obtained a leaked document believed to be from Thailand’s National Security Council (NSC) detailing the refoulement of the three men and others. The document states that “three individuals referred to in the widely circulated news articles were held in custody by the Thai security forces on 31 March 2023 at around 2 pm at the Ban Huay Hin Fon checkpoint while riding on a public bus.” The document lists the three men as Saw Phyo Lay, 26, Htet Nay Win, 31, and Thiha, 38. The document continues: “The authorities then brought the three individuals to a detention facility of the Tak Immigration Office in Tha Sai Luad, Mae Sot, Tak, awaiting deportation according to the 1979 Immigration Act’s Section 54 . . . On 4 April 2023, the three arrestees were then deported along with other detainees of Myanmar nationality.”

The leaked document is consistent with multiple news and social media reports about the incident. News reports further allege that the Thai authorities forced the men back to Myanmar via boat across the Moei River near the village of Ingyin Myaing in Karen State, Myanmar.

The three Myanmar men are believed to be pro-democratic resistance fighters, putting them at an especially grave risk of torture or persecution in Myanmar.

Fortify Rights was unable to independently confirm the authenticity of the NSC document or the whereabouts and status of the three men. However, Fortify Rights analyzed three photographs, one of which was included in the leaked Thai NSC document, that appear to show the three men in the custody of Thai security forces, and a later photo that Fortify Rights has reason to believe shows two of the men in the custody of the Myanmar BGF.

In one photograph on file with Fortify Rights, Saw Phyo Lay, Htet Nay Win, and Thiha are seated in front of a row of seven standing men dressed in the uniforms of Thailand’s immigration department, army, and police force. A sign behind the Thai officials says “Tak Immigration” in Thai and English languages. A man seated in the center of the photograph, whom Fortify Rights confirmed to be Htet Nay Win, wears short pants and displays two distinctive shin tattoos—one of a woman in a headdress on his right shin and one of a Polynesian-style pattern on his left shin. In another photo on file with Fortify Rights, which Fortify Rights has reason to believe was taken by a BGF soldier in Myanmar, two blindfolded men appear stretched across the seat and footwell in the back of a black pickup truck, handcuffed, and chained to interior handlebars of the vehicle. The man lying across the backseat is barefoot, his ankles are cuffed together, and the same distinctive tattoos can be seen on his shins. There is a khaki-green-colored combat vest slung over the front-left driver's side seat.

Just four days before the arrest of the three men, the Thai government published procedures in the Royal Gazette on March 27, 2023 establishing criteria to identify individuals eligible for potential protection under a “National Screening Mechanism.” This screening mechanism is expected to prevent refoulements. However, Thai authorities have yet to put the mechanism into practice, and Fortify Rights found that the recently published eligibility criteria includes problematic exclusionary provisions. The procedures suggest that only certain individuals who apply for protection will be eligible to participate in the screening process.

“Despite its commitments and having promising laws on the books to prevent refoulement, Thailand continues to forcibly return people into situations where they are likely to be tortured, persecuted, and possibly killed,” said Patrick Phongsathorn. “Although the fate of these three young men is currently unknown, the odds are not in their favor, particularly if they are in the hands of the Myanmar military. Thailand should urgently implement screening mechanisms to prevent refoulement.”

Thailand has a legal mandate under international and domestic law to prevent forced returns or refoulement. The prohibition of refoulment is considered part of customary international law and binding on all states. Under this principle, states are obligated to assess the risks of torture, persecution, or other serious human rights violations before facilitating the transfer of a person to another country. This duty exists regardless of whether the person has expressed a protection concern or requested protection from the state. Furthermore, as clarified by the U.N. Office for the High Commissioner for Human Rights, the principle of non-refoulement is not only applicable to refugees but “applies to all migrants at all times, irrespective of migration status.”

Section 13 of Thailand’s recently enacted Prevention and Suppression of Torture and Enforced Disappearance Act states, “No government organizations or public officials shall expel, deport, or extradite a person to another State where there are substantial grounds for believing that the person would be in danger of torture, cruel, inhuman, or degrading treatment, or enforced disappearance.” Section 12 further provides that: “No special circumstances including war or imminent threat of war or domestic political instability, or a state of emergency may be invoked as a justification of any offense under this Act.”

In January 2023, Fortify Rights and 16 individuals from Myanmar filed a criminal complaint with the Federal Public Prosecutor General of Germany under the principle of universal jurisdiction against senior Myanmar military generals and others for genocide, war crimes, and crimes against humanity. Since the Myanmar military launched a coup d’état on February 1, 2021, Fortify Rights continues to document atrocities committed by the Myanmar military. Such crimes have forced tens of thousands of refugees to flee Myanmar, many of whom have sought protection in Thailand.

In response to the coup in Myanmar, the Thai government increased its military presence on the Myanmar-Thailand border and authorized authorities to return refugees to Myanmar. Fortify Rights has since documented the refoulement of refugees from Thailand.

“There must be accountability in this case,” said Patrick Phongsathorn. “The anti-torture act is a positive change in Thailand’s law, but changes in policy and practice need to happen to prevent future cases like this from occurring.”

© Scoop Media