Committee on the Rights of the Child

Fifty-ninth session

Summary record of the 1684 th meeting

Held at the Palais Wilson, Geneva, on Wednesday, 25 January 2012, at 3 p.m.

Chairperson:Mr. Zermatten

Contents

Consideration of reports of States parties (continued)

Initial report of Thailand on the implementation of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict (continued)

Initial report of Thailand on the implementation of the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (continued)

Concluding remarks by country rapporteurs

The meeting was called to order at 3 p.m.

Consideration of reports of States parties (continued)

Initial report of Thailand on the implementation of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed c onflict (continued)

At the invitation of the Chairperson, the delegation of Thailand took places at the Committee table.

Mr. Pollar said that implementation of article 38 of the Convention on the Rights of the Child required compliance with the Geneva Conventions of 1949, in particular the fourth, which dealt with the protection of civilians, and asked to what extent those conventions were observed in the country’s southern provinces. The fourth Geneva Convention required that persons taking no active part in the hostilities should be treated humanely, but the Committee had information suggesting that children received inhumane treatment in the southern provinces. Could the delegation shed any light on the situation? He also wondered if the delegation could comment on reports of unlawful killings carried out by non-State armed groups and the State party’s security services.

He asked the delegation to comment on reports that the authorities of Thailand restricted access by United Nations agencies to areas in which non-State armed groups from Myanmar operated, thereby hindering efforts to prevent the recruitment of children by those groups. There had been reports of attacks on schools and teachers by non-State armed groups and the use of schools as bases by the State party’s security forces and paramilitary groups. He asked how the State party intended to put a stop to such actions. He also wished to know whether the death penalty had been carried out on anyone under the age of 18 for offences related to participation in armed conflicts.

He asked what protection measures were in place for children who had participated in armed conflicts and whether direct participation in armed conflicts was properly defined under the law. He reminded the delegation that, under article 4 of the Optional Protocol, the recruitment of children by non-State armed groups should be criminalized, and asked whether perpetrators of such offences could be prosecuted in Thailand. He asked if steps had been taken to prevent the recruitment of children and underlined the need to ensure that children who had been members of armed groups were not repatriated to countries where they might run the risk of being recruited again. He would also like to know whether the State party had met the requirements for being removed from the list, drawn up under Security Council resolution 1612 (2005), of States in which children were recruited to participate in armed conflict.

Ms. Varmah said that she would like to know whether children attending military schools, who were as young as 12 years of age, received military training.

Mr. Gastaud asked whether anyone had been prosecuted in the State party for recruiting children into armed groups operating in Thailand or neighbouring countries. He also wished to know whether children arrested under martial law in the country’s southern provinces were subsequently tried by military or civilian courts.

Ms. Wijemanne asked whether the State party kept statistics on the number of children being recruited, whether the trend was upward or downward and whether the Government had any procedures for releasing such children.

Mr. Gongsakdi (Thailand) said that the official position of the Government of Thailand was that there was no armed conflict in the southern provinces, but rather violent criminal activity carried out by groups with no military structure. None of them controlled any territory and violence was limited to certain areas and sporadic in nature. Thailand was not on the list established under Security Council resolution 1612, but was mentioned as a country of concern. The Government did not agree with that assessment.

Mr. Madi said that, according to information before the Committee, there had been more than 10,000 violent incidents and many deaths in the southern provinces in a period of seven years. He asked why the State party had imposed martial law in the area if it considered those incidents to be criminal rather than military matters.

Mr. Gongsakdi (Thailand) said that the situation was complex and that the Government had made efforts to limit the areas affected by emergency laws. As and when circumstances permitted, those laws would be lifted.

Mr. Muntarbhorn (Thailand) said that an emergency decree was in effect in four southern provinces and martial law in three of them. The Criminal Code and the Act Instituting Juvenile and Family Courts and the Juvenile and Family Procedures of 1991 also applied. Young people were dealt with exclusively by juvenile courts. The International Committee of the Red Cross and other international agencies had access to the southern provinces and Thailand was a party to all four of the Geneva Conventions of 1949. He noted, however, that those conventions applied only to international conflicts and not internal disturbances. The State party recognized nonetheless that international human rights instruments applied in all circumstances. He reiterated that, in the Government’s view, the situation in the south of the country was not one of armed conflict.

Admitting that the recruitment of children was not covered by a specific law in the State party, he said that other legislation, including the Child Protection Act of 2003 and the Criminal Code, contained articles that could be applied to that offence. Penalties provided for under the Act were admittedly mild but those of the Criminal Code were tougher. As an indication of the growing prevalence of the application of civilian law in the southern provinces, he pointed out that eight cases had been brought under the Child Protection Act in 2011, as opposed to none in the preceding year.

Mr. Purgchaipaew (Thailand) said that the minimum age for attendance at the Royal Thai Navy school was 12 years but that it would be raised to 15 years in 2014 to bring it into line with schools run by the other branches of the Armed Forces. Curricula in those schools were similar to those in regular schools but focused also on discipline. Pupils did not receive weapons training.

Mr. Preecha (Thailand) said that the situation in the southern border provinces was not as violent as portrayed by the media. On the whole, most people were able to lead normal lives. No residents had been evacuated because the area was not a war zone. Only 9 per cent of the more than 10,000 reported violent incidents had involved fatalities. Of the 4,000 people who had died in that period, only 28 per cent had been killed in clashes with armed groups. The remainder had died in feuds between varying interest groups, including local drug-trafficking mafias.

Nevertheless, efforts were made to shield children from the impact of violence. Campaigns were conducted in villages, schools and religious institutions to raise children’s awareness of risks and dangerous areas. In an attempt to prevent their involvement with chor ror bor (village defence militias), the authorities maintained a constant dialogue at the provincial, district and village levels with various agencies, village councils and the general public. The militias kept detailed lists of their membership and anyone found to be responsible for recruiting persons under the age of 18 years was liable to prosecution. The military authorities monitored the militias constantly.

The authorities had had little choice but to impose martial law and enforce the emergency decree in the southern provinces in order to facilitate the arrest of members of armed groups, most of whom had taken oaths to reveal nothing of their activities and whom it would be difficult to prosecute under civilian law. Prior agreement between the military, police and local authorities was needed before arrests could be made. Village chiefs and religious authorities were also consulted. Young people suspected of involvement in armed groups were brought before a juvenile court within 24 hours of their arrest. Army and police officials received human rights training and operated along guidelines contained in a handbook on the subject. The emergency decree would be lifted as soon as possible and had indeed already been lifted in 5 out of 37 districts.

Mr. Madi, noting that anyone arrested under martial law could be held in detention for up to 7 days, asked if it was true that detainees under the age of 18 were held together with adults in military detention centres.

Ms. Aidoo asked whether the handbook contained guidance on how to deal with children and on their rights, and whether provincial child protection committees were able to ensure that children received proper treatment under the emergency decree and martial law.

Mr. Karamic (Thailand) said that people under the age of 18 arrested in the southern provinces were held in police detention centres. Boys and girls were held in separate quarters from those of adult detainees and their parents were permitted to visit them daily.

Mr. Preecha (Thailand) said that the handbook did provide guidance on how to deal with arrestees under the age of 18, in line with the Act Instituting Juvenile and Family Courts and the Juvenile and Family Procedures.

The Chairperson asked which specific legal provision prohibited the recruitment of children into village defence militias, how the Government was responding to the recruitment of children into other non-State armed groups in the southern provinces, and whether schools were used as bases for the activities of village defence militias.

Mr. Gongsakdi (Thailand) said that his country’s domestic law, including the Criminal Code and the Child Protection Act, prohibited the recruitment of children under the age of 18 into the Armed Forces and their involvement in armed conflict. Representatives of his Government’s security forces visited troops in the southern provinces regularly to brief them on the international instruments governing the use of children in armed conflict.

Clear policies and standard operating procedures were in place regarding child soldiers from Myanmar. The standard policy was not to repatriate children, especially those identified as former child soldiers, to Myanmar. Children in temporary refugee camps in Thailand were registered in line with the recommendations of the United Nations High Commissioner for Refugees. The situation was a delicate one for his country, which could be accused of supporting soldiers involved in fighting against a neighbouring country’s Government. The operations of the Provincial Admission Board had been suspended for some time and there was a case backlog involving some 4,000 people, but the Board’s activities were expected to resume in the first quarter of 2012. Family reunification would be added as a criterion for fast-tracking applications, which would help in clearing the backlog.

The Chairperson said that, according to information provided to the Committee, some former child soldiers from Myanmar had been recruited from the camps by persons from Myanmar representing non-State armed groups from that country. He asked whether children in the camps received psychological support during the identification and registration phase and whether they were protected against further recruitment.

Mr. Gongsakdi (Thailand) said that, while the camps were under the overall supervision of the Thai authorities, day-to-day administration was performed by committees of residents, which posed some challenges.

His Government maintained that no recruitment occurred in the camps. If United Nations agencies or NGOs had any information to the contrary, they were requested to report the cases concerned to the Thai authorities, since the sources of the allegations were clearly not cooperating with the authorities.

Protection and counselling for former child soldiers was usually provided by the Office of the United Nations High Commissioner for Refugees (UNHCR) or the United Nations Children’s Fund (UNICEF) either directly or through NGOs. The Ministry of the Interior cooperated with UNHCR in alerting camp residents to the prohibition of non-civilian activities.

The Chairperson emphasized that, under the Optional Protocol, the State party had an obligation to provide children within its jurisdiction who might have been involved in armed conflict in another country with assistance, including psychological support.

Mr. Gongsakdi (Thailand) stressed that his country had been a good host to displaced persons from Myanmar, providing them with health care, education and sanitation facilities.

The Chairperson said that the Committee recognized the State party’s efforts in the difficult context of the conflict-besieged border and the resulting migration. The fact remained, however, that the State party was responsible for the welfare of children present on its territory.

Mr. Pollar, referring to the earlier discussion of whether the Geneva Conventions of 1949 applied to the situation in the State party’s southern provinces, noted that common article 3 of the conventions, on the treatment of prisoners, referred to armed conflict not of an international character.

Initial report of Thailand on the implementation of the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography (continued) (CRC/C/OPSC/THA/1; CRC/C/OPSC/THA/Q/1 and Add.1)

Ms. Kashemsanta Na Ayuddhaya (Thailand) said that since acceding to the Optional Protocol her country had developed the National Plan of Action on the Prevention and Suppression of Trafficking in Children and Women of 2005–2010, which was the framework for addressing issues related to the sale of children. The Anti-Trafficking in Persons Act had come into force in 2008 and the Anti-Trafficking in Persons Committee had been established. In reply to a question about the definition of child pornography and the sale of children, she said that the Act did not directly define those notions but, inasmuch as it addressed trafficking, included language that could be considered to indirectly define them.

Ms. Nores de García said that the definition of trafficking in the Act did not cover the definitions in the Optional Protocol. That implied that not all the issues addressed in the Optional Protocol were covered in the State party’s legislation.

The Chairperson said that the Optional Protocol was not on trafficking but on the sale of children, child prostitution and child pornography. The State party’s legislation must therefore address those specific activities. The definitions in articles 2 and 3 of the Optional Protocol needed to be reflected in national legislation.

Mr. Gongsakdi (Thailand) said that a draft law dealing with provocative materials had been submitted to the Cabinet by the Ministry of Social Development and Human Security. However, his delegation did not have a copy of the draft and thus could not provide the wording of any definitions in it. His delegation would provide further information about the issue later.

The Chairperson said that a ministerial decree was not sufficient: the provisions in the Optional Protocol must be reflected in the Criminal Code itself.

Ms. Aidoo asked whether the draft legislation mentioned by Mr. Gongsakdi was based on the definitions in the Optional Protocol, given that the State party had already acceded to it.

Ms. Chutikul (Thailand) said that she was not sure whether Thailand had a specific law corresponding to the Optional Protocol, though it had various laws on matters such as prostitution and trafficking. She agreed that the Optional Protocol’s provisions needed to be integrated into her country’s legal framework.

Mr. Winitnaiyapak (Thailand) said that there were two types of protection for child victims and witnesses: protection in general, and protection in the context of legal proceedings. The Ministry of Justice was responsible for overall protection, which was governed by laws, regulations and procedures. For legal proceedings, child-friendly procedures had been developed for use with children under the age of 18. If children were required to identify perpetrators, that could be done without the perpetrator being able to see the child. Judges were encouraged to question children through social workers or psychologists, though some preferred to question them directly. Defence attorneys were required to conduct their cross-examinations through intermediaries. If a judge believed that questioning a child in court could harm the latter’s emotional or physical well-being or right to privacy, or if the child could not appear in court for some other reason, the child’s testimony could be videotaped.

The Chairperson asked whether the Code of Criminal Procedure imposed any limit on the number of times that a child witness could be heard in court and whether the judge could turn down a request by the alleged offender for a confrontation with the witness. He also wished to know whether provision was made for payment of a lawyer or other trusted person to assist a child witness during the proceedings and whether there was a State fund to cover damages or compensation if the offender was unable to pay.

Mr. Winitnaiyapak (Thailand) said that a videorecording of testimony by a child witness could be viewed only once in court. Investigators avoided putting the same question repeatedly to the child. Judges sometimes objected to that approach since they preferred to put questions directly to witnesses rather than through a social worker or psychologist. The judge would not permit a confrontation with the alleged perpetrator under any circumstances. The child was placed in a separate room with a trusted person and a social worker or psychologist. He or she was not questioned directly by the judge, the defence attorney or the prosecutor. Child victims were represented by public prosecutors throughout the country but they could hire a lawyer if necessary. If the court awarded financial compensation, the public prosecutor would ensure that it was paid either by the offender or from a public fund.

Ms. Nores de García asked whether action could be taken under the existing legislation against legal entities that were engaged in child prostitution and pornography. Would they be prosecuted, for instance, if they advertised their services?

Ms. Wijemanne asked whether there was any legislation governing cyberspace and Internet pornography.

The meeting was suspended at 4.25 p.m. and resumed at 4.50 p.m.

The Chairperson asked whether the State party could invoke extraterritorial jurisdiction in respect of crimes under the Optional Protocol committed by a Thai national or resident. The Code of Criminal Procedure seemed to require dual criminal liability in such circumstances.

Mr. Winitnaiyapak (Thailand) said that Thailand could not rely solely on the Optional Protocol to establish extraterritorial jurisdiction. Sections 5 to 11 of the Criminal Code dealt with the extension of the jurisdiction of domestic courts to certain crimes committed outside the Kingdom. Section 11 of the 2008 Anti-Trafficking in Persons Act stipulated that anyone who committed an offence under section 6, which concerned trafficking in persons overseas, would be subject to prosecution in Thailand. The 2008 Extradition Act stated the principle of dual criminal liability, whereby the offence must be a criminal offence pursuant to the law of both the requesting State and Thailand and it must be punishable with the death penalty or imprisonment for a minimum period of 1 year. It was not necessary for the offence to be classified under the same chapter or to bear the same name in the two countries. Thailand had concluded extradition treaties with many countries and could accommodate extradition requests on the basis of the reciprocity principle.

Mr. Cardona Llorens noted that the reciprocity principle was based on quite stringent requirements. He drew attention to article 5, paragraph 2, of the Optional Protocol, which stated that the Protocol could be considered as a legal basis for extradition. Thailand was therefore entitled to consider that it had an extradition agreement with all States parties to the Optional Protocol.

The Chairperson stressed the importance of ensuring that the offences that were extraditable pursuant to the Protocol were clearly defined in Thai legislation.

Mr. Winitnaiyapak (Thailand) said that legal entities could be held responsible for child prostitution and pornography and many had been prosecuted. In practice, companies were normally fined and managers sentenced to prison terms. The company’s assets could also be confiscated under the Money Laundering Control Act.

Mr. Imjairach (Thailand) said that the dissemination of pornography or information relating to pornography was an offence under the 2007 Computer Crime Control Act. The Government was giving high priority to such issues through the Ministry of Information and Communication Technology. Section 287 of the Criminal Code prohibited the sale or distribution of pornographic materials and the Supreme Court’s definition of pornography included materials such as pictures, advertisements or films. The Ministry of Social Development and Human Security had drafted a bill concerning provocative and morally dangerous pornographic items.

The Chairperson asked whether the bill defined the offence of “cyber-grooming”, or making use of the Internet to lure minors into child prostitution or the production of child pornography.

Mr. Imjairach (Thailand) said that any encouragement or invitations of that nature via the Internet were already deemed to be illegal.

With regard to child sex tourism, he said that the Ministry of Social Development and Human Security, the Ministry of Tourism and Sports and the police had collaborated with other agencies in preventing such crimes. The Tourist Police assisted child victims who had been lured into prostitution with or without their consent, for instance in cases of human trafficking. NGOs and foreign embassies had also sought the assistance of the Tourist Police in investigating or arresting suspects. A number of foreign nationals had been arrested as a result.

The Chairperson said that tourism agencies in some countries undertook to comply with certain standards in order to curb sex tourism in general and child sex tourism in particular. Was the Thai tourism industry bound by a code of conduct?

Mr. Imjairach (Thailand) said that Thai tourism agencies were rarely involved in such criminal activities. Most of the offenders were foreign nationals who had private contacts in Thailand.

Mr. Gongsakdi (Thailand) said that the authorities were cooperating with UNICEF on programmes to protect children, especially those at risk, against abuse, neglect and all forms of exploitation. Children who benefited from the programmes ranged from child beggars to those involved in pornography. The Ministry of Tourism and Sports had collaborated with the network known as End Child Prostitution, Child Pornography, Child Sex Tourism and Trafficking in Children for Sexual Purposes (ECPAT International), Child Wise and Accor Asia Hotel in implementing the Code of Conduct for the Protection of Children from Sexual Exploitation in Travel and Tourism.

Mr. Pinkaew (Thailand) said that the Anti-Trafficking in Persons Fund had been established to compensate victims of human trafficking, including those currently outside Thailand, under the 2008 Anti-Trafficking in Persons Act. The victims were initially entitled to a sum of 3,000 Thai baht, which was equivalent to about 100 United States dollars, and to additional compensation if they were unemployed. The budgetary allocation for 2012 was roughly 117 million baht, which was equivalent to more than 30 million dollars.

Ms . Kiattikul (Thailand) said that a nationwide campaign had been conducted against human trafficking and that 5 June each year had been designated National Anti-Human-Trafficking Day. Campaigns were also conducted by the print media, television and radio. Career development programmes had been introduced for women and children in high-risk areas. Child victims were encouraged to resume their education by means of study loans and a scholarship fund. Monitoring and surveillance networks were being established with women’s organizations in Europe and other parts of the world.

Mr. Cardona Llorens enquired about the methods used by the State party to collect data concerning children involved in child prostitution. The figures provided in the report, which ranged from 60 to 70 children in recent years, did not match the information available from other sources. An in-depth knowledge of facts on the ground was a prerequisite for the adoption of appropriate policies.

Ms. Kashemsanta Na Ayuddhaya (Thailand) said that the Anti-Trafficking in Persons Committee established under the Anti-Trafficking in Persons Act was responsible for the data collection system. There was a macro database containing countrywide information and a micro database containing more focused data. The information was divided into two categories, concerning child victims and the prosecution process respectively. Unfortunately the tables and data provided in the report and the replies to the list of issues were somewhat fragmentary and might be inaccurate due to human error. A more systematic approach was required and any recommendations that the Committee could make in that respect would be greatly appreciated.

Mr. Tharathep (Thailand) said that a new data collection system had been introduced at the One-Stop Crisis Centre in 2009 in order to create individual records for all the children it helped. In 2011, some 600 migrant workers had turned to the Centre for help. Most of the foreign children who went to the centre were from the Lao People’s Democratic Republic; about 10 per cent of them had been involved in child prostitution.

The Chairperson asked whether the Government’s priority was to return foreign children who had been victims of the sale of children, child prostitution and child pornography to their countries of origin, or to care for them in Thailand.

Ms. Chutikul (Thailand) said that the aim was always to ensure a full cycle of care for victims, starting with shelter, medical assistance, counselling and legal aid. Adults who had to remain in the country until court proceedings had ended were given vocational training and, in line with a recent Cabinet decision, the labour ministry also helped them to find a job. Once court proceedings were over, the repatriation process began with the authorities contacting the relevant embassy or consulate to identify the child’s family. The Thai authorities did their utmost to ensure that children who were repatriated would be properly cared for on their return and that a reintegration programme was provided for them. Social workers sometimes accompanied children who were returned to the Lao People’s Democratic Republic and coordinated with their counterparts in Vientiane to ensure the children reached their families. Likewise, children being repatriated to Myanmar were often accompanied to Yangon, where every effort was made to guarantee that they were reunited with their families. However, circumstances did not always allow the Thai authorities to be certain that the children had safely reached their destination. Where necessary, the Government used its links with journalists and international NGOs working in the relevant countries to monitor the situation of the children. Every effort was made to ensure that victims were cared for in line with the United Nations Principles and Guidelines on Human Rights and Human Trafficking.

Concluding remarks by country rapporteurs

Ms. Aidoo (Country Rapporteur for the Convention) commended the State party for the progress it had made economically and socially and welcomed the adoption of many international human rights instruments and relevant domestic laws, policies and plans. Nevertheless, the Government needed to ensure that children were protected from the harmful effects of pollution, particularly in industrial areas, environmental degradation in coastal regions, and the negative impacts of tourism. Many children in the State party were victims of discrimination on the grounds of their region, ethnicity, minority or migrant or refugee status, which was undermining the Government’s efforts to uphold their rights. Despite strong economic growth, poverty continued to deprive many children of their rights; it disproportionately affected children in rural areas and those in the north, the north-east and the south, as well as migrant and refugee children.

While there was legislation on children’s rights, it was not effectively implemented. The State party should ensure that officials and childcare professionals received in-service training to update their knowledge and ability to implement current laws and policies. It should also take steps to minimize corruption, which also often rendered Government policies and programmes ineffective.

While the Committee found the State party’s categorization of “externally displaced persons” to be highly ambiguous, it welcomed the measures being taken to protect migrant and refugee children. She urged the Government to treat them as children on its territory who enjoyed the same rights under the Convention as Thai children.

She called on the Government to expedite its ratification of several international human rights instruments, including the optional protocol to the Convention on a communications procedure, the Convention against Discrimination in Education of the United Nations Education, Scientific and Cultural Organization and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.

Ms. Nores de García (Country Rapporteur for the Optional Protocol on the sale of children, child prostitution and child pornography) welcomed the State party’s many achievements. However, it should take urgent steps to incorporate in its Criminal Code an explicit prohibition of the sale of children, child prostitution and child pornography that was in line with the definitions in the Optional Protocol. The State party should also review its jurisdiction to ensure that it could protect children inside and outside its territory, regardless of where crimes were committed. Given that few companies had been punished for their part in crimes involving the sale of children, child prostitution and child pornography, more steps should be taken to implement the relevant legislation in that regard. Similarly, further measures should be taken to protect children from Thailand and non-nationals who worked in domestic service and in fisheries from the harmful effects of dangerous work. The Government needed specific data on the implementation of the Convention and the two optional protocols in order to draw up effective plans of action.

Mr. Madi (Country Rapporteur for the Optional Protocol on the involvement of children in armed conflict) urged the State party to specifically criminalize the recruitment of children under the age of 18 in all circumstances and settings. The situation in the southern border provinces required more attention in order to promote and protect children’s rights there. Until the state of emergency could be lifted, the Government should act swiftly to implement juvenile justice legislation in all circumstances relating to children aged under 18, with no exceptions. Progressive policies and programmes were also needed to protect the rights of children in camps and children of asylum-seekers and to allow United Nations agencies to have permanent, unimpeded access to the camps along the border with Myanmar.

Mr. Gongsakdi (Thailand) assured the Committee that the Government was already working to resolve many of the problems the Committee had raised. Full and effective implementation of domestic legislation without discrimination was a clear priority. Thailand was firmly committed to improving respect of children’s rights; to that end, his delegation would report the dialogue and the Committee’s concluding observations to the Cabinet in order to drive change. As a result of the 2011 universal periodic review by the Human Rights Council, the Government had pledged to improve its laws to protect women and children and to promote the right to education for disadvantaged and marginalized children to enable them to access education on an equal basis with others. The Government had also accepted the recommendation to issue a standing invitation to all United Nations special rapporteurs.

The meeting rose at 6 p.m.