Can Transitional Justice Bring Peace to Thailand’s Deep South?

February 25, 2015

By Patrick Barron

The conflict in Thailand’s Deep South, which has killed almost 7,000 people since 2004, is currently Southeast Asia’s most deadly. So what role might transitional justice play in nudging the South toward peace?

Transitional justice (TJ) is a set of temporary mechanisms, such as prosecutions or tribunals, that improve access to justice and help states and societies respond to widespread human rights violations after periods of conflict or political disruption. TJ is built on the assumption that a lack of justice is a cause of conflict and instability and that there must be responses to injustices if peace is to be achieved and for it to be long-lasting. Employed in countries in Latin America, East Asia, and Eastern Europe as they were swept along by the third wave of democratic transition, which saw the number of democracies double between 1974 and 1990, TJ has also more recently been used as a peacebuilding tool with peace settlements in the Bangsamoro (Philippines), Aceh (Indonesia), Nepal, and Timor-Leste.

TJ focuses on boosting access to three types of justice: retributive justice (bringing those who have committed abuses to justice), restorative justice (providing compensation), and procedural justice (fixing systems to ensure injustices don’t recur).

To achieve this, four mechanisms have been used:

1. Prosecutions, either using domestic or international tribunals or hybrid systems.
2. Truth-seeking processes, such as Truth and Reconciliation Commissions (TRCs) that establish facts and generate a common narrative.
3. Reparations that provide cash to conflict victims, and
4. Longer-term institution-building efforts that seek to reform dysfunctional security and judicial bodies.

Together, these TJ mechanisms are viewed as promoting peace by redressing the grievances that underpin conflict, building state legitimacy, and enhancing confidence between belligerents.

However, history shows that at least three conditions are necessary if TJ is to succeed: one, it is backed by political will; two, it is accompanied by policies that limit new grievances; and lastly, an agreement between those that control both sides can be achieved. Unfortunately, none of these conditions currently exists in southern Thailand.

TJ only works where it is backed by strong political will. Prosecuting crimes requires governments to agree that some of their own will face time behind bars. Launching TRCs, and following their recommendations, creates vulnerabilities. And pursuing longer-run reforms can be difficult given political-economic incentives to maintain the status quo. Without strong leadership, TJ is likely to be confined to the provision of reparations, watered-down fact-finding missions (if at all), and the prosecution of small fry.

Lack of such will has been apparent in Thailand’s recent approach to TJ. Pressure from ASEAN neighbors and members of the King’s Privy Council to address escalating violence led former Prime Minister Thaksin Shinawatra to create a National Reconciliation Commission (NRC) in 2005. The commission was tasked with assessing the causes of violence. Yet the final report made little impact on policy with most recommendations ignored. A NRC fund (around 5,000 baht allocated per family) was established to compensate victims, but these were simply one-off payments. No senior security personnel were prosecuted. From 2004-2012, 12 additional case-specific fact-finding committees were established. But none had any impact on the government’s strategy.

Second, TRC mechanisms are only effective when they are accompanied by policies that limit the production of new grievances. This is difficult, and perhaps impossible, during times of conflict. Counter-insurgency, even when executed well, inevitably heightens perceptions of victimhood among many locals. For this reason, TJ initiatives, beyond reparations and some efforts at institutional reform, are almost never successful when conflict is raging.

With the conflict in the Deep South continuing, it is hard to see how TJ will change local views towards the state. Providing reparations, with 7.5 million baht now given per victim, is seen by many as an attempt to coopt dissidents. The security approach of the government since the May 2014 coup, which has seen the military outsource security work to local villagers and increase attempts to hunt down militants, may have slowed violence with incidents plunging from 1,298 in 2013 to 793 in 2014. But it provides little room for any benefits from TJ.

Third, TJ only works well if implemented in concert with strategies that forge an “elite” deal – a deal between those who control the power on either side of the conflict. Even if initial grievances are addressed, violence will not ebb unless those who control the means of violence on both sides board the peace train.

Any such elite agreement between the government, military leaders, and insurgents is likely far off. Peace talks in early 2013 stalled. A new three-step plan has seen the government establish a negotiation team. But few see fresh talks as imminent or, if they occur, of agreement being reached in the near term.

Indeed, steps necessary to bring the insurgents to the table may run counter to TJ goals. A major obstacle has been the refusal of the Thai state to provide amnesty with one reported precondition for talks being a list of ‘wanted’ men being presented by insurgent leaders. Legal assurances will be needed if senior insurgents are to participate in talks. But TJ aims to fight the impunity that such an amnesty accord would imply. It may be that there is a need to delay key TJ activities such as prosecutions and truth seeking until after any peace agreement is reached.

Does this mean that TJ is not suitable for Thailand’s South? Yes and no. Most TJ initiatives are likely to be ineffective while an elite peace deal has not been reached, political will is lacking, and military offensives continue. But important preparatory work can be undertaken now that could prove useful later.

First, research can be undertaken on the ways in which Thailand’s legal framework allows for future implementation of TJ activities.

Second, it is worth thinking through what elements of regional and international TJ experience fit with the Deep South. Exposing those working in the South to other contexts can be useful. Understanding the demands and needs of those who have suffered from abuses is also important.

Third, there is a need to build local capacity to advocate for and undertake (future) activities such as fact-finding and ensuring access to justice. Work is already underway in this area but more can be done. Capacity can take years to build and investments now may bear fruit later.

Fourth, work on institutional reform is important. Institution-building work is typically neglected until the later stages of peace processes. Yet assistance in key areas such as criminal prosecutions, access to justice, and community policing can provide foundations for the future.

An edited version of this article was originally published on February 19 by Bangkok Post.

Patrick Barron is The Asia Foundation’s regional director for Conflict and Development based in Thailand. He can be reached at [email protected]. The views and opinions expressed here are those of the author and not those of The Asia Foundation.

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