Thailand's prosecution in tourist deaths violated human rights

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Two young British tourists were murdered on the Thai island Ko Tao, on September 15, 2014.[1] David Miller and Hannah Witheridge, both university students, had met just hours earlier with their friends while staying in the same complex on the island.[2] Both bodies were found battered and washed ashore on the beach.[3] The brutal murders sparked an international controversy, with Britain demanding justice for its citizens.[4] Though murder rates are relatively low in Thailand, in 2015 foreign tourist deaths shot 54% above 2014 numbers.[5] The sudden deaths of these two students brought notoriety to the increase.[6]

Thai authorities immediately began to investigate the murders for possible suspects. Dozens of officers began interviewing locals, foreign nationals, visitors, and migrant workers.[7] After the murders, Thai Prime Minister Prayuth Chan-ocha expressed concern about the potential effect on the country’s tourist industry.[8] Tourism is Thailand’s biggest industry and makes up more than 10% of its GDP.[9] Any international press painting Thailand as a danger zone instead of a tropical paradise could harm its economy – especially in the wake of the county’s 2014 coup d’etat.

Thai police immediately ruled out the possibility that Thai nationals could have committed the murders and limited their search to migrant workers.[10] Two 22-year-old Burmese migrants, Zaw Lin and Win Phyo, became the lead suspects in the case after allegedly forced confessions.[11] Throughout trial proceedings and interactions with the migrants, translators were ill-equipped to interpret or communicate with the migrants.[12] One of the interpreters later admitted he was unable to read the Thai documents he was enlisted to translate for the migrants. Zaw Lin and Win Phyo were convicted and sentenced to death in December 2015.[13]

Allegations of International Law Violations

Thailand may have violated international law in conducting the murder trial. As a party to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Thailand has committed to “take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.”[14] Under the Convention, “[n]o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”[15]

Diving Boats off Ko Tao
Scuba diving boats in Ao Lok Bay on Ko Tao. The tiny island is home to about 2,000 people, and
its economy revolves around Western tourists who come to explore its magnificent coral reefs.
The murders of two U.K. nationals in 2014 precipitated an allegedly sham investigation and the
alleged torture of two Burmese migrant workers. Photo: Chris Bagley, ILJ Online Editor

Thailand’s domestic law also offers detainees basic protections while in custody. Detainees are entitled to legal counsel, medical treatment, and to be informed of their rights while in custody.[16] The Thai government began reforming its justice system and has invited human rights groups and the media to assess and monitor its performance.[17] To monitor potential torture violations, detainees are examined when they enter and leave custody.[18] Any signs of wounds or torture are to be reported to Thailand’s Department of Corrections, the Rights and Liberties Protection Department, and the National Human Rights Commission.[19]

While in custody, Zaw Lin and Win Phyo were allegedly tortured into giving a confession they later retracted.[20] The two men claim they were beaten, handcuffed naked, kicked, threatened with electric shock, suffocated with plastic bags to the point of asphyxiation, and threatened with death.[21] They say their murder confessions resulted from the abuse, not from any guilt. If they are now telling the truth, then Thailand violated its obligations under the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.[22]

Torture allegations have been persistent in Thailand. The UN Committee Against Torture has investigated such allegations.[23] The Convention Against Torture has mandatory reporting mechanisms for all countries that are party to the treaty.[24] The UN Committee Against Torture reviews country reports, oversees the implementation of the treaty, and issues comments on countries’ treaty compliance.[25] In remedying treaty violations, the Committee publicly records treaty violations, provides guidance on how best to comply with treaty obligations and works with States to train local officials on how to recognize and prevent torture.[26]

In 2014 the Committee voiced its concerns about the treatment of prisoners in Thailand:

The Committee is seriously concerned that, in practice, all arrested and detained persons are not provided with all the fundamental legal safeguards from the very outset of their deprivation of liberty. Such legal safeguards include, but are not limited to . . . the right of detainees to be informed of their rights, the right to promptly receive independent legal assistance . . . and the availability of judicial and other remedies to detainees and persons at risk of torture and ill-treatment that would allow them to have their complaints promptly and impartially examined, to defend their rights and to challenge the legality of their detention or ill-treatment.[27]

The Report highlighted Thailand’s lack of investigation of torture allegations, consistent torture allegations against state officers, judicial disregard of torture allegations, and “the almost total absence of criminal sanctions against responsible officers.”[28]

The Convention requires Thailand to investigate torture allegations – though it doesn’t specify standards or mechanisms – and then compensate any bona fide victims.[29] If Myanmar isn’t satisfied with that result, it could conceivably lodge a torture complaint against Thailand to the UN Committee Against Torture on behalf of its migrants.[30] This would probably be a merely symbolic gesture, since Thailand has not recognized the Committee’s Competence to investigate such complaints directly, though it could conceivably do so.[31] Furthermore, Myanmar’s own history of human-rights violations makes such a complaint seem unlikely. Additionally, a non-governmental organization could submit an inquiry about human-rights violations to the Committee against Torture and request further investigation.[32]

The enforcement mechanisms are difficult. In the Committee’s Report on Thailand’s treaty compliance, it recommended that “the State party should unambiguously reaffirm the absolute prohibition of torture and publicly condemn all practices of torture, accompanied by a clear warning that anyone committing such acts or otherwise complicit or participating in torture will be held personally responsible before the law and will be subject to criminal prosecution and appropriate penalties.”[33]

Mistreatment of migrants is especially common in Thailand. The international NGO Human Rights Watch conducted research among migrant workers, Thai government officials, and interviewed more than eighty migrants about their experiences in Thailand to explore migrant issues.[34] In the ensuing report, migrants discussed how “police in the area physically abused migrants on a regular basis.”[35] Migrants’ complaints to authorities often remain resolved[36] – a finding consistent with those of the UN Committee Against Torture.[37]

The International Response: Protest, Hack, Appeal

The death sentences ignited protests across Myanmar. About 1,000 protesters gathered outside the Thai embassy to protest.[38] Protesters also gathered on the Thai-Myanmar border to demand justice for the convicted migrants. Myanmar army chief General Min Aung Hlaing has encouraged Thailand to “review the evidence” that resulted in the convictions in order to “avoid a situation in which the innocent . . . were wrongly punished.”[39] A team of Thai lawyers appointed by Myanmar’s ambassador has appealed on behalf of the Myanmar migrants.[40] The new trial is set for March 24.[41] Myanmar President U Thein Sein has tasked a team of Myanmar lawyers with reviewing the trial and reporting updates to the embassy.[42]

In response to the death sentence, the international hacking group Anonymous hacked seven Thai Police websites.[43] Anonymous hijacked the sites and replaced their content with the stark message “Failed Law. We want Justice. #BoycottThailand” on a black background. [44] Anonymous also posted a video deriding the Thai government for blaming the tragedy on migrants rather than conducting a thorough investigation.[45]

The issues in this case highlight larger issues in international law for Thailand and the broader international community. During the case, Britain provided support to the prosecution without sharing any evidence to defense council.[46] Though this conduct may not be an outright violation of international law, the International Covenant on Human and Civil Rights and the European Commission on Human Rights stresses the importance of ensuring a fair trial – especially when the death penalty is foreseeable.[47] Additionally, the European Union is staunchly opposed to the death penalty, and its abolition is a precondition for EU accession.[48]

Furthermore, the torture allegations, mishandling of evidence, and DNA contamination highlight a botched trial and the larger plight of migrants as second-class citizens. In response, the international hack shutting down several Thai police websites illustrates a larger, amorphous movement taking justice into its own hands. Instead of submitting complaints to the UN Committee Against Torture that would probably go unheeded, the Anonymous hack has raised the profile of the migrant’s plight with a blackout screen.


[1] Thailand backpacker murders: Two on trial over Britons’ deaths, BBC News (July 8, 2015), http://www.bbc.com/news/uk-33438693 [https://perma.cc/9RZY-MDHR].

[2] Peter Walker, Thailand backpacker murders: David Miller and Hannah Witheridge - two lives cut short, Guardian (Dec. 23, 2015), http://www.theguardian.com/world/2015/dec/24/thailand-backpacker-murders-david-miller-and-hannah-witheridge-two-lives-cut-short [https://perma.cc/JSB6-THMZ].

[3] Andrew Buncombe, Thailand beach murders: Both Hannah Witheridge and David Miller suffered severe head wounds, Independent (Sept. 17, 2014), http://www.independent.co.uk/incoming/thailand-beach-murders-both-hannah-witheridge-and-david-miller-suffered-severe-head-wounds-9738170.html [https://perma.cc/V3CB-T28G].

[4] See id.

[5] Chadamas Chinmaneevong, Spike in tourist deaths sparks ministry concern, Bangkok Post (Feb. 11, 2016), http://www.bangkokpost.com/news/special-reports/859948/spike-in-tourist-deaths-sparks-ministry-concern [https://perma.cc/Q2ZS-QA9F].

[6] Thailand sees a worrying increase in tourist deaths, Asian Correspondent (Feb. 11, 2016), https://asiancorrespondent.com/2016/02/thailand-sees-a-worrying-increase-in-tourist-deaths [https://perma.cc/6ZB6-SEBX].

[7] Buncombe, supra note 3.

[8] Id.

[9] Id.

[10] See id.

[11] Yves Dam Van & Jocelyn Gecker, Myanmar migrants found guilty of killing British backpackers, Associated Press (Dec. 24, 2015), http://bigstory.ap.org/article/4990031147134ea89ac4227a97a0d1c7/thai-court-set-rule-murder-british-backpackers [https://perma.cc/49GQ-N6HE].

[12] Charlie Campbell, Suspects in the Koh Tao Murder Trial Were Given Woefully Unqualified Interpreters, Time (Aug. 21, 2015), http://time.com/4005983/koh-tao-murder-trial-interpreters-backpackers.

[13] Id.

[14] Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. II, Dec. 10, 1984, 1465 U.N.T.S. 85 [hereinafter Convention Against Torture], available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx [http://perma.cc/NP3G-QYBU].

[15] Id.

[16] Comm. Against Torture, Concluding observations on the initial report of Thailand Addendum: Information received from Thailand on follow-up to the concluding observations, 2, U.N. Doc. CAT/C/THA/CO/1/Add.1 (May 29, 2015).

[17] Id. at 6.

[18] Id.

[19] Id.

[20] Dam Van & Gecker, supra note 11.

[21] Id.

[22] Convention Against Torture, supra note 14.

[23] Comm. Against Torture, Concluding observations on the initial report of Thailand, 2, U.N. Doc. CAT/C/THA/CO/1 (June 20, 2014).

[24] Fact Sheet No. 17, The Committee Against Torture, U.N. Ofc. High Comm’r on Human Rights, 1–2 (June 20, 2014), http://www.ohchr.org/Documents/Publications/FactSheet17en.pdf [https://perma.cc/8A59-RCC4].

[25] Id.

[26] See id. at 6–7.

[27] Comm. Against Torture, supra note 23.

[28] Id. at 3.

[29] Convention Against Torture, supra note 14, arts. XII–XIV.

[30] Convention Against Torture, supra note 14, art. XXI.

[31] See Committee against Torture to hold fifty-sixth session in Geneva from 9 November to 9 December 2015, Committee Against Torture (Nov. 5, 2015), available at http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=16713&LangID=E [http://perma.cc/8A59-RCC4] (omitting Thailand from list of countries that recognize the Committee’s authority to investigate within their borders); Convention Against Torture, supra note 14, arts. XXI–XXII.

[32] Fact Sheet No. 17, The Committee Against Torture, supra note 24.

[33] Id.

[34] From the Tiger to the Crocodile: Abuse of Migrant Workers in Thailand, Human Rights Watch (Feb. 23, 2010), https://www.hrw.org/report/2010/02/23/tiger-crocodile/abuse-migrant-workers-thailand [https://perma.cc/5GBL-AWAJ].

[35] Id.

[36] Id.

[37] Comm. against Torture, supra note 16.

[38] Hnin Yadana & Amy Sawitta Lefevre, Deathsentence for Myanmar men prompts protest at ‘shameless’ Thais, Reuters (Dec. 25, 2015), http://www.reuters.com/article/us-thailand-britain-murder-idUSKBN0U708C20151225 [https://perma.cc/W6F9-FAA2].

[39] Protests in Myanmar as Thailand issues death sentences,Al Jazeera (Dec. 29, 2015), http://www.aljazeera.com/news/2015/12/protests-myanmar-thailand-issues-death-sentences-151229133645597.html [https://perma.cc/XZ9F-RR2B].

[40] Myanmar envoy enlists Thai lawyers, Bangkok Post (Dec. 31, 2015), http://www.bangkokpost.com/news/general/811692/myanmar-envoy-enlists-thai-lawyers.

[41] Id.

[42] Defence gets extension to appeal Koh Tao death penalties, Myanmar Times (Jan. 21, 2016), http://www.mmtimes.com/index.php/national-news/18595-defence-gets-extension-to-appeal-koh-tao-death-penalties.html[https://perma.cc/QFG3-RWR9].

[43] Oliver Holmes, Anonymous hacks Thai police sites over Burmese jailings for British backpacker murdersGuardian (Jan. 5, 2016), http://www.theguardian.com/world/2016/jan/06/anonymous-hacks-thai-police-sites-over-burmese-jailings-for-british-backpacker-murders [https://perma.cc/VY65-CXSA].

[44] Id.

[45] Id.

[46] Peter Walker, Why UK role in backpackers murder case still worries rights groups, Guardian (Dec. 23, 2015), http://www.theguardian.com/world/2015/dec/24/why-uk-role-in-backpackers-case-still-worries-rights-groups [https://perma.cc/9AZP-HJZH].

[47] International Covenant on Civil and Political Rights, art. XIV, Dec. 16, 1966, 14668 U.N.T.S. 999, available at http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx [https://perma.cc/Z3K3-MPMB].

[48] EU Policy on the Death Penalty, Eur. Union External Actionhttp://eeas.europa.eu/human_rights/adp/index_en.htm [https://perma.cc/C6YK-5FA4] (last visited March 2, 2016).


Posted by Keturah T. Reed on Wed. March 2, 2016 10:26 PM
Categories: Immigration, International Human Rights, Reports (longer, analytical blog posts), Thailand

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