When Torture is a Duty: The Murder of Imam Yapa Kaseng and the Challenge of Accountability in Thailand

Abstract

On 19 March 2008, Imam Yapa Kaseng was arrested in Narathiwat in southern Thailand and detained as a suspected insurgent by Special Task Force 39 under the provisions of martial law and the Emergency Decree on Public Administration in an Emergency Situation (hereafter Emergency Decree). Two days after his arrest, he died in the custody of the army. On 25 December 2008, the Narathiwat Provincial Court ruled that "the cause of death is that the deceased was physically assaulted by state officials … while he was in the custody of soldiers who were performing their civil service duties". This ruling is paradoxical: Thai state officials are named as responsible for a death in custody, yet torture is categorised as a "duty". Since the ruling, Imam Yapa's family has pursued criminal, civil and internal state methods of redress, but the case has been stalled and the responsible state officials have not been held accountable. In response, I challenge this paradox by reading the inquest decision in light of both relevant national and international legal instruments and the testimonies given during the hearings. Drawing on the testimonies given during the inquest hearings, I construct an alternative narrative of suffering and state accountability.

Torture in Thailand at the Limits of Law

“…This manner of foregrounding duty goes to the third principle in the jurisprudence, which is that where physical bodily injury is proof of torture and no alternative explanation for the injury exists other than that a captive was tortured, then torture should be excused in the name of duty, or elements of the torture situation should be subtracted from the case so as to reduce its significance. Haberkorn (2015) has offered the keenest interpretation of how this principle works in torture cases in Thailand, through her reading of the files on Imam Yapa, who died in a police truck parked at a military post in the compound of a Buddhist temple in Yala during 2008. Although the imam did not survive, the experiences and observations of others in the group of six held for over two days in the truck with him tell us something of what he went through in his last days.…”

“…40 Contra that position, judges in the Songkhla Administrative Court in 2012 said that state officers in those places nevertheless perform their duties by virtue of the legal authority vested in them through the state, and its emergency regulations and martial law, and therefore judges are entitled to decide on matters pertaining to these instruments (FS09C-05). That is to say, in the obverse situation to "when torture is a duty" (Haberkorn 2015), even when torture is not a duty, the duty officer is still on duty and his office legally liable for his actions-at least insofar as questions of compensation go.…”

Anticipating the Struggle against Everyday Impunity in Myanmar through Accounts from Bangladesh and Thailand

“…The uneasy place of torture within the Thai polity is reflected sharply in the work of judicial institutions and lends particular characteristics to everyday impunity that in many respects resonate with the story of Ko Par Gyi. The case of the torture and murder of Imam Yapa Kaseng in the southernmost part of Thailand both illustrates this unease and yet simultaneously suggests how the factual truth, if not accountability, might be recovered (Haberkorn ).…”

“…The section in this article on Thailand is based largely upon Haberkorn (). In addition to sources cited, information on the Ko Par Gyi case is based upon personal communications with the lawyer representing his wife in the postmortem inquest, and with human rights defenders following the case.…”

Pattani central mosque in Southern Thailand as sanctuary from violence

“…17 One of the striking victims of the law of enforcement of the martial law and the emergency decree was Imam Yapa Kaseng, killed during detention by Army Special Task Force 39 of the Thai Government. 18 enforced there. Furthermore, it has created confusion amongst the population to which the laws are applied.…”