Will Thailand protect Hakeem Al-Araibi?

[Caroline Stover is a lawyer focusing on human rights law and refugee law in Southeast Asia.] 

Mr. Hakeem Al-Araibi, a Bahraini footballer, dissident, refugee, and Australian legal permanent resident, has been detained in Bangkok since late last month, as Thailand considers whether it will send Mr. Al-Araibi back to Bahrain, or allow him to return to Australia. If returned, Mr. Al-Araibi is at risk of torture or other serious human rights abuses on account of his political opinion. This case is an important test of both the Thai courts and the executive’s willingness to uphold human rights principles.

It is unclear what precisely prompted Thailand’s decision to arrest Mr. Al-Araibi, though the Thai Ministry of Foreign Affairs has released a statement saying that the arrest came “in response to the red notice alert received from the INTERPOL National Central Bureau of Australia and the formal request from the Bahraini Government for his arrest and extradition.” (As an aside, the red notice has now been removed by Interpol, but the case is another example of one fundamental flaw in Interpol’s refugee policy, in that the policy relies on refugees proactively requesting removal of a red notice when, in many cases, refugees are not well-placed to know that a red notice exists.) In any case, Mr. Al-Araibi is now in a precarious situation in a country that has acquiesced to several similar requests in recent years, as well-documented by Amnesty International in a 2017 report.

In the report, Amnesty International highlighted the 2014 forcible return of another Bahraini, youth activist Mr. Ali Ahmed Ibrahim Haroon. According to a submission by OHCHR during Thailand’s Universal Periodic Review, his return “reportedly succeeded after the individual was sedated and beaten, allegedly by the police authorities of the country of origin who had come to Thailand in search of the individual.” His family reported to Amnesty International that he had been tortured after arriving back in Bahrain. The brutal treatment of Mr. Haroon was a clear violation of Thailand’s obligation of non-refoulement under international law, as would be the removal of Mr. Al-Araibi.

In contrast to the Haroon case, news reports indicate that extradition proceedings will take place in Bangkok Criminal Court in relation to Bahrain’s request. That is somewhat remarkable, as many of the returns documented in Amnesty’s report did not involve formal extradition. As demonstrated in the Haroon case, Thailand seems to prefer making returns quickly, through the executive. This practice remains. In February 2018, for example, Cambodian activist Sam Sokha was removed from Cambodia to Thailand based on her immigration status, rather than through an extradition process, despite the fact that authorities had arrested her on the request of Cambodian officials. She is now serving a two-year prison sentence.

The fact that Mr. Al-Araibi has not been immediately removed from the country could indicate that Thailand is considering a different approach. The problem is that Thailand, like most states in ASEAN, lacks effective laws to ensure that those facing extradition are not returned to torture, persecution, or serious human rights abuses, i.e., refoulement. Thailand is not a party to the Refugee Convention and has no comprehensive domestic legal framework to protect the rights of refugees. Thailand’s Extradition Act (unofficial translation here), while containing a political offense exception, has no provision to protect against refoulement. Thailand has ratified the Convention Against Torture, but has yet to domesticate the CAT’s provisions, though a Draft Prevention and Suppression of Torture and Enforced Disappearance Act is currently pending.

The draft torture law is not without its problems, and the absence of a non-refoulement provision is one. In a letter to the Permanent Secretary of the Ministry of Justice, the International Commission of Jurists (“ICJ”) urged Thailand to retain section 12 of the proposed law, which would prohibit “the forcible transfer of individuals to where they would subsequently be at risk of torture or enforced disappearance.” According to the letter, the National Legislative Assembly had raised concerns about the section. In a 30 April 2018 submission to the Committee Against Torture, ICJ reported that the section relating to non-refoulement had, in fact, been removed. As the draft law has not been released publicly, it is unclear whether this article remains.

Passing the law with a non-refoulement provision would be a positive step towards securing protection against non-refoulement in Thailand. If so passed, it could provide at least one legal basis for denying return to countries where the returnee may face torture. However, it is unlikely the law, which is focused on torture only, would be broad enough to satisfy the entirety of protection provided by non-refoulement under customary international law. This protection extends not only to those who face risk of torture, but also of persecution and other serious human rights violations.

For now, there are a few possible resolutions that could still protect Mr. Al-Araibi. First, the Office of the Attorney General may decide not to proceed with the extradition. The Office of the Attorney General has the authority to drop the case where it believes the alleged offense does not satisfy the requirements of the Extradition Act.

Second, it is entirely possible that a Thai court will find that the extradition request lacks sufficient evidence to proceed. The extradition case is based on Mr. Al-Araibi’s 2014 conviction in absentia for allegedly vandalising a police station. Mr. Al-Araiabi states that he was playing in a televised football match at the time of the alleged offense.

Third, even if the court finds there is sufficient evidence to make Mr. Al-Araibi extraditable, the court could find that Mr. Al-Araibi’s actions fall under the Extradition Act’s political offense exception. A 2003 case involving “16 Lao nationals who raided a Lao customs and immigration office in Champassak Province” and later “lowered the communist flag and replaced it with a Lao Royalist flag” is an interesting example. (The legal aspects of the case are helpfully discussed by Professor Vitit Muntarbhorn at page 11 here). There, the court rejected extradition on the basis that the motivations of the accused were political. Under the same reasoning, it is possible the court could find Mr. Al-Araibi’s motivations political, evidenced by his public statements against Bahrain, providing a separate basis for finding Mr. Al-Araibi not extraditable.

Fourth, if Mr. Al-Araibi is found extraditable by a court, enforcement of this decision lies with the executive. At this stage, Thailand could still prevent an extradition.

Thailand still has several opportunities to protect Mr. Al-Araibi against return to Bahrain. Doing so would promote Thailand’s compliance with international law, and most importantly, would protect Mr. Al-Araibi from serious harm.