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II. BACKGROUND
A. POLITICAL AND ECONOMIC FACTORS
The number of Burmese women recruited to work in Thai brothels has soared in recent years as an indirect consequence of repression in Burma (Myanmar) (3) by the ruling State Law and Order Restoration Council (SLORC) and of improved economic relations between Burma and Thailand.
Human rights violations, war and ethnic discrimination had displaced hundreds of thousands of Burmese between 1962, when Burmese strongman Ne Win took power in a coup, and September 1988, when mass street protests against the government in Rangoon and elsewhere led to a crackdown by the Burmese military. An estimated 3,000 people were killed, and thousands fled the country. Mounting domestic and international pressure led the government to hold elections in May 1990 that the opposition, led by Nobel Peace Prize laureate Aung San Suu Kyi, won handily. The military, however, refused to hand over power and tightened its control, arresting thousands and forcing thousands more to flee into Thailand or join forces with several armed ethnic insurgencies operating along the Thai and Chinese borders.
Despite some cosmetic changes and some widely publicized prisoner releases (not including Aung San Suu Kyi who remains under house arrest), little has changed since then. (4) Late 1991 saw the beginning of one of the most intensive dry-season offensives ever mounted by Burmese troops against minorities living along the borders of Thailand, China and Bangladesh. The military operations appeared to be directed not only at ending armed insurgencies which had been active along the borders since the 1940s, but also at promoting an ethnically Burman, Buddhist culture. (5)
By the end of 1993, fighting was at its lowest level in years, and SLORC was engaged in a concerted effort to negotiate cease-fires with different minority groups. But throughout 1992 and 1993, the Burmese army continued to employ the "four cuts" strategy, designed to cut off the rebel armies' food, funds, intelligence and recruits. This meant forced removals of entire villages along the Burmese side of the Thai border and the transformation of populated areas into no-man's-lands, leading in turn to a mass exodus of villagers into Thailand. Thai officials in June 1993 estimated that 1,200 Burmese a month were coming across the border from the war-torn Mon and Karen states, because of unemployment, commodity scarcities and fear of being conscripted as porters by the Burmese military. (6)
Since 1990, the United Nations Commission on Human Rights has undertaken to investigate the human rights situation in Burma, first through a confidential procedure and in 1992 and 1993 through the appointment of a Special Rapporteur, Professor Yozo Yokota of Japan. In February 1993, Professor Yokota presented his first report to the Commission based on a visit the previous December, noting a pattern of systematic government abuse including torture, arbitrary executions and disappearances. (7) He returned to Burma in November 1993 and submitted a preliminary report to the U.N. General Assembly at the end of November, noting a few developments which "may lead to improvements" in the human rights situation but emphasizing the "many serious restrictions and grave violations of human rights and fundamental freedoms continuing in Myanmar." (8) These restrictions included at least 500 political leaders still in detention, including Aung San Suu Kyi whom Professor Yokota was not permitted to visit; widespread violations of the right to life and freedom from torture and slavery; and ongoing problems with forced labor and forced relocation. General restrictions also continued on the freedoms of expression, association and assembly.
International Response and Thai-Burmese Relations
Most donor countries responded to the 1988 crackdown and subsequent human rights abuses in Burma with economic sanctions and withdrawal of foreign aid. (9) SLORC, desperate for foreign exchange, turned to Thailand at the end of 1988, offering a range of economic concessions for fishing, logging, gem mining and exploitation of gas and other natural resources. The beneficiaries were often highly placed Thai officials with the ability to influence foreign policy. When he was Supreme Commander and Army Chief of the Thai army, General Chavalit Yongchaiyudh secured profitable logging and fishing concessions after an official visit to Rangoon on December 14, 1988. In January and February 1989, he deported over 300 Burmese student refugees back to Burma in an apparent effort to keep his relations with the SLORC leadership intact. (10)
Such economic links led to official openings of new border crossings along the Thai-Burmese border. In the past, the crossings operated on an informal basis and were poorly regulated by both governments. The formalization has allowed both Thai and Burmese citizens to more easily cross their common border. (11) For example, in April 1993, the Thai Cabinet approved a proposal from the Ministry of the Interior to open fourteen temporary border crossings to facilitate the importation of logs. (12) An Interior Ministry spokesman said that relevant government agencies would have to ensure that the logs were properly felled and that "the smuggling of war weapons, drug and illegal commodities is not involved in the logging business." (13) Two months later, the Burmese government threatened to end timber and fishing concessions, apparently because of the income they provided to armed rebels from ethnic minority groups operating in and around many of the logging areas.
Nevertheless, cross-border trade appeared to be increasing. Cease-fire and trade agreements between SLORC and minority groups in northern Burma led to the opening up in 1992 of the northeastern corner of the country, facilitating trade with Thailand and China. Both Thailand and Burma began promoting tourism to the Golden Triangle area, (14) and the Thai press reported plans for the construction of a major new road through China, Burma and Thailand. The new road would link Mae Sai on the Thai side with Keng Tung in Burma, an area from which many of the women and girls we interviewed for this report originally came. (15)
The opening of trade and border crossings has facilitated the rise in trafficking of Burmese, men, women and children, with the same routes used to transport people as are used to transport drugs and goods. (16) The most important towns for cross border trade are Mae Sai, in the northwest corner of Thailand, just across the border from the Burmese town of Taichelek; Mae Sot across from Myawaddy; Three Pagodas Pass bordering Thailand's Kanchanaburi Province and Burma's Ye Township; and Ranong, in southern Thailand across from Kawthaung. The association between improved Thai-Burmese trade relations and the increasing number of Burmese women in Thai brothels is most obvious in the southern Thai town of Ranong, where fishing and logging concessions in Burma have provided the primary source of income since the 1988 uprisings. According to the Bangkok Post of September 13, 1992, "Ninety-nine percent of all business in Ranong involves border trade with Burma and/or depends on Burmese labor." The number of brothels in the town multiplied threefold between 1988 and 1992. (17) The chief police inspector of Ranong, Lieutenant General Sudjai Yanrat, explained the high concentration of Burmese women in brothels there as follows:
In my opinion, it is disgraceful to let Burmese men frequent Thai prostitutes. Therefore I have been flexible in allowing Burmese prostitutes to work here. Most of their clients are Burmese men. (18)
Conservative estimates of Burmese girls and women working in brothels in Thailand now range between twenty thousand and thirty thousand, with approximately ten thousand new recruits brought in each year. A non-governmental organization (NGO) monitoring the trafficking in Mae Sai estimates that an average of seven Burmese girls a day were brought into Thailand through the Mae Sai immigration point alone in 1992.
Economic Factors
The flourishing trade in Burmese women and girls in Thailand must be understood in the context of economic conditions in both countries. In Burma, there has been perceptible economic growth in urban areas such as Mandalay and Rangoon since the early 1990s, a direct result of SLORC's decision to loosen some government controls over trade. In the countryside, however, there has been a steady deterioration in the rural economy, with declining productivity, decreasing availability of basic commodities, such as cooking oil, skyrocketing prices, and heavy taxation. Rural villages face ever more dire poverty -- hence the attraction of work in Thailand.
The overvaluation of the Burmese currency, the kyat, also fuels the exodus to Thailand. One US dollar is worth 6.7 kyat by the official exchange rate, 100 kyat on the black market. Any foreign currency, including Thai baht, is preferable to the Burmese currency.
On the Thai side, the steady supply of illegal Burmese workers stokes a burgeoning economy nationwide with a 1992 growth rate of close to eight percent; (19) a border boom brought about by the increased trade with Burma; and a profitable tourist industry.
Burmese and Thai border towns, as noted above, have been flourishing economically since SLORC, in search of hard currency, opened its borders (and its natural resources) to Thai businesses. The growth has generated an increased demand for labor and services, in the fields of construction, food processing, fishing, commercial agriculture, and prostitution. In early 1993, the regional army commander in Ranong complained of police crackdowns on illegal immigrants. He said the crackdowns "could scare away the immigrant workers and seriously affect the local economy, which needed the cheap labor to sustain its growth." (20)
The boom, together with the tourist industry, has increased the demand for women, especially for young girls, free of infection. According to one source, tourism generates some $3 billion annually, and sex is one of its "most valuable subsectors," (21) employing anywhere from 800,000 to two million people throughout the country. (22) The Burmese women and girls are thus only a fraction of the total. Burmese trafficking and health researcher Hnin Hnin Pyne notes that in 1989,
Tourism, which has been an increasingly profitable industry...exploded, becoming the country's major source of foreign exchange, surpassing even exports such as rice and textiles. Thailand's image as a "sexual paradise" plays a significant role in this tourist boom. (23)
However, the tourist trade is less a factor in the sex industry than the local demand. It is estimated that seventy-five percent of Thai men have had sex with a prostitute, and that forty-eight percent experienced their first sexual intercourse with a prostitute. (24) The potential for profit and incentive to "look the other way" -- is high.
Brothels are a hugely lucrative business. Despite expenses incurred in employing a network of agents to recruit new workers, paying protection money to police (25) and giving minimal daily allowances to the women and girls, the brothel owners can make substantial profits. The owners collect anywhere from 100 to 250 baht ($4 to $10) per client. A typical brothel employs several dozen workers, each taking some six to ten clients a day, twenty-five days a month. The workers generally receive a little over 25 baht ($1) a day from the owner as an allowance and can keep tips from their clients, about 20 cents per man. With these meager resources, they must cover their own expenses for food, clothing, personal effects and medicine. The owner, who frequently owns more than one brothel, clearly stands to make an enormous amount of money. Agents, local police and others involved in the business also benefit.
Immigration Policy
The trafficking in women must also be viewed against the background of migration into Thailand from Burma more generally. As noted earlier, the deteriorating political and economic situation in Burma has spurred a significant outflow of Burmese into Thailand: students fleeing imprisonment in Burma, ethnic minorities fleeing counterinsurgency operations, and economic migrants, including some of the women and girls lured into brothels. Thai government officials have given estimates ranging from 200,000 to 500,000 Burmese living illegally in Thailand, and all illegal immigrants are vulnerable to abuse.
The problems of Burmese men, women and children, are particularly striking because in many cases, their entry into Thailand is facilitated or actively encouraged by Thai officials eager to attract cheap labor or make a personal profit. (26) At the same time, the fact that they are in the country illegally becomes a potent form of control in the hands of their employers, because if they protest, refuse demands or disobey, they can be summarily arrested under the Thai Immigration Act and eventually deported.
The Immigration Act is often used not to keep Burmese from entering Thailand, but to ensure compliance and obedience once they are there. This is particularly true in the case of women and girls trafficked into prostitution, who in virtually every case enter Thailand with the knowledge and complicity of border guards and police. Most are forced to remain in the brothels because of their debt to the owner and their fear of arrest as illegal immigrants.
Under the Thai Immigration Act of 1979, as amended in 1980, illegal entry into Thailand is a criminal act, punishable by detention of up to two years or fines of up to 20,000 baht ($800). Among the eleven categories of persons to be denied entry under Section 12 of the law are:
-- those not in possession of valid travel documents, although Section 13(2) of the law exempts from carrying passports "citizens of the countries having common borders with Thailand who temporarily cross the border in compliance with the mutual agreement made between Thailand and those countries."
-- those without means of subsistence
-- those seeking work as unskilled laborers
-- those who have engaged in prostitution, trading in girls or children, drug trafficking, or other immoral activities. (27)
Burmese women in the brothels can run afoul of any of the above provisions. Aiding and abetting illegal entry is a more serious crime than the entry itself, punishable by up to ten years in prison. In theory, Thai prisons should be full of the agents, recruiters and officials who benefit from or turn a blind eye to the steady stream of Burmese. They are not.
Over and above the use of the Immigration Act as a form of control, all Burmese suffer from its arbitrary and discriminatory enforcement. Members of some Burmese groups opposed to SLORC operate with the knowledge and protection of central or local Thai officials, for example, while others are more prone to arrest, detention and deportation. (28) Burmese workers in certain industries -- saw mills along the border, for example, or the tourist industry in Chiangmai -- are less vulnerable to arrest and deportation than women and girls working in brothels who become the target of highly publicized "crackdowns," in part because the industrial workers are not easily replaced and earn enough to pay the requisite bribes.
Fear of arrest as an illegal immigrant is especially pronounced among Burmese because it can mean deportation back to a country with one of the most abusive governments in Asia. For the women and girls who are victims of trafficking a particular set of problems arises. If they are arrested under the Immigration Act and sent to the Immigration Detention Center in Bangkok, they often face further sexual abuse as described in Chapter V. The IDC and other detention centers where many illegal immigrants end up are substandard, overcrowded, and characterized by corruption, extortion and physical abuse. If the women are deported, they face not only the possibility of forced conscription on the Burmese side of the border, but also arrest in Burma on charges of both leaving the country illegally and engaging in prostitution. To avoid deportation, many look for any way to stay in Thailand -- which makes them particularly vulnerable to renewed exploitation by the brothel agents.
The problem for Burmese women is also exacerbated by the fact that Thailand has no coherent policy on asylum-seekers. As far as Burmese are concerned, Thai authorities make little meaningful distinction between those who have a valid claim to refugee status and those who do not. (29) The result is that deportation decisions for the most part ignore considerations of how deportees are likely to be treated on their return to Burma. Corruption makes a mockery of those decisions in any case, since virtually anyone can avoid deportation for a price.
B. RELEVANT NATIONAL AND INTERNATIONAL LAW
Prior to the abolition of slavery in Thailand by King Rama V in 1905, prostitutes were recruited from the slave markets and sold either as "slave wives" or "slave women." (30) Slavery's abolition brought about an immediate increase in prostitution, as former women slaves were drawn into the sex trade. From 1905 until 1960, prostitution was legal in Thailand, regulated primarily by the Control and Prevention of Venereal Disease Act of 1909 (VD Control Act), which established government control over prostitution through a system of licensing and fees and required registered prostitutes to be "free of infectious disease." (31)
The VD Control Act provided that brothel owners "must get approval from the government and secure a license;" (32) that "no girls shall be forced to stay in the business against her will;" (33) that brothel operators "must not confine a prostitute;" (34) and that "the girls must be at least fifteen years of age." (35) Penalties were provided "for anyone who seduces or forces a girl to enter or remain in prostitution." (36)
According to a 1957 paper prepared by Morris G. Fox, then a U.N. Social Welfare Advisor, from 1905 through 1957 prostitution was "big business" in Thailand and the under-registration of both brothels and prostitutes was common. A recent preliminary study by the Foundation for Women, found that in the years 1957, 1958, 1959 and 1960, the number of registered prostitutes arrested were 524, 344, 308 and 298 respectively. During the same years, the number of illegal or unregistered prostitutes arrested was 6,747, 8,990, 9,400 and 7,876 respectively. (37) Then, as now, there was a "special premium for virgins." Ninety percent of the prostitutes were reported to be between the ages of fifteen and twenty, averaging about five clients a night. The vast majority were Thai, although some were "Chinese and other nationalities." (38)
The 1928 Anti-Trafficking Act
The presence of foreign nationals in the Thai brothels led the government to pass a 1928 law expressly prohibiting trafficking in women and girls. According to the Trafficking in Women and Girls Act (Anti-Trafficking Act), any person who brings women or girls into Thailand for the purpose of having sexual intercourse with other persons, and any person who is involved illegally in the trading of women or girls brought into the country for such purposes, will be liable to not more than seven years imprisonment or a fine of not more than 1,000 baht ($40 in 1993 currency) or both. (39) Women and girls trafficked into Thailand are exempt from imprisonment or fine, but must be sent to a state reform house for thirty days, a period that can be extended by a judge.
The absolute prohibition on trafficking clearly distinguished it from prostitution, which was legal at the time. However, when prostitution was itself criminalized in 1960, this important distinction blurred. As a result, key protections for trafficking victims under the Anti-Trafficking law, for example exemption from fines and imprisonment, were not available under Thailand's Anti-Prostitution Law, and have been ignored. Although these protections should urgently be made available, the Anti-Trafficking Act also needs serious reform. The Foundation for Women notes that the Act does not prohibit trafficking in boys, nor does it address the selling of Thai women and girls outside of Thailand. Finally, the Act's proscribed punishments are very light and no minimum penalty is established for traffickers. Trafficking victims, meanwhile, are remanded to a penal reform institution for not less than thirty days.
1960 Criminalization of Prostitution
The clear failure of the VD Control Act meaningfully to suppress illegal prostitution, coupled with the drafting at the United Nations of the 1949 Convention for the Suppression of the Traffick in Persons and the Exploitation of the Prostitution of Others, eventually led to the criminalization of prostitution in Thailand. In 1960 Thailand adopted the Suppression of Prostitution Act (hereinafter the Anti-Prostitution law), still in effect today, which outlaws prostitution and penalizes both prostitutes and those who procure prostitutes or benefit from their exploitation. According to historian and women's rights activist Sukanya Hantrakul, the ban culminated in a social purification campaign driven by Field Marshal Sarit Thanarat, who ruled Thailand in the late 1950s and early 1960s. Sarit believed that "uncleanliness and social impropriety...led to the erosion of social orderliness...." (40) Eliminating prostitution was one of his main obsessions. (41)
Under the new legislation, prostitutes were liable for imprisonment of not more than six months or a fine of not more than 2,000 baht ($80) or both; procurers for imprisonment of not more than three months or a fine of not more than 1,000 baht ($40) or both; and brothel owners for imprisonment of not more than one year or a fine of not more than 4,000 baht ($160). (42)
The law was intended, at least in theory, to criminalize prostitution. But its main purpose -- and the thrust of the majority of its provisions -- was the reform of prostitutes. Sections 11 to 16 of the 1960 Act provide that convicted prostitutes "should be given medical treatment, vocational training or both," be "committed to an assistance center [for a period] not exceeding one year from the day the person has satisfied the sentence of the court," and be penalized if they seek to flee the center by "imprisonment for not more than three months or fine of 1,000 baht or both." The Act further empowers the Director General of Public Welfare "to issue rules on disciplinary and work regulations for assisted persons," and to punish those breaking these rules by "(1) confinement...of not more than fifteen days...or (2) cutting off or reducing benefits or facilities provided by the assistance center." (43)
Since its inception this law has been denounced by many Thai women's rights advocates as weak, ill-defined and discriminatory. Penalties for procurers under the Anti-Prostitution law are lower then those under the Penal Code (discussed below). The definition of "places of prostitution" contained in the law is extremely vague and therefore largely unenforceable. The law does not explicitly exempt persons forced into prostitution from punishment and, finally, it penalizes prostitutes, but not their clients.
Moreover, as noted by Hantrakul, the Anti-Prostitution law depicts prostitutes as women in need of "moral rehabilitation." (44) The law explicitly provides for the early release of the convicted prostitute who "has reformed...." (45) In Hantrakul's view, the law represents a de facto institutionalization of discrimination against women in Thai society, suppressing "female promiscuity," but tolerating similar behavior in males.
The Entertainment Places Act and the Penal Code
The government's commitment to suppressing prostitution was called into serious question a scant six years after the Anti-Prostitution law's passage with the introduction of the Entertainment Places Act of 1966. This act regulates nightclubs, dance halls, bars and places for "baths, massage or steam baths which have women to attend male customers," by requiring them to obtain operating licenses from local police. The use of such licensed establishments for prostitution is expressly outlawed, but police enforcement is lax and many "places of service" do not bother to register at all.
The Entertainment Act's passage coincided with a national policy to increase state revenue from tourism, particularly from the "Rest and Recreation"(R&R) activities of U.S. armed forces stationed in Vietnam. According to researcher Hnin Hnin Pyne, the presence of U.S. Army bases in Thailand "stimulated the growth of massage parlors, hired-wife services and bars for soldiers." (46) In 1967, one year after the passage of the Entertainment Places Act, Thailand and the U.S. military agreed to allow American soldiers stationed in Vietnam to visit Thailand for R&R. According to researcher Tranh Dam Truong, "[I]n 1967 it was estimated that the spending of the U.S. military personnel on R&R in Thailand came to approximately five million dollars. By 1970, the amount rose to approximately twenty million dollars, or as much as one-fourth of total rice exports for that year." (47) According to Hanktrakul
Scrutinizing the Entertainment Places Act one could not help but conclude that it was enacted to pave the way for whorehouse to be legalized in the guise of massage parlors, bars, nightclubs, tea houses etc. (48)
The Anti-Prostitution and Entertainment laws developed alongside the Thai Penal Code, adopted on November 13, 1956, (49) which did not prohibit prostitution, but did criminalize procurement for the purpose of prostitution and assigned higher penalties to this offense than those contained in the Anti-Prostitution law. The Code, as amended, specifically outlaws procurement, both forcible and not, of women for "indecent acts" and the abduction of women for the same. Article 282 provides that
any person who in pandering to the wanton desires of other persons, undertakes to furnish, seduce or persuade for the purpose of obscene acts, a woman, with or without her consent, shall be liable to one to ten years imprisonment and a fine from 2,000 - 20,000 baht.
Article 283 further punishes any person who
undertakes to furnish, seduce or persuade for the purposes of obscene acts...by any fraudulent or deceitful means, threat, violence, exercising undue influence or coercion, shall be punished with imprisonment from five to twenty years and a fine from 10,000 - 40,000 baht. (50)
Penalties increase if either offense is committed against girls under eighteen years old and again if committed against girls under fifteen years old. If such offenses are committed against a descendant or a person under the offender's "tutorship, guardianship,or curatorship," the punishment is increased by one third.
The Penal Code also severely penalizes rape, which it defines as an extra-marital offense, and punishes sexual intercourse with minors, providing in section 277 that
Any person who commits an act of rape on a girl aged under 15 years, who is not his wife, with or without the consent of such a girl, shall be liable to imprisonment from four to twenty years and fine from 8,000 - 40,000 baht.
For wrongdoing pursuant to the proceeding paragraph against a girl aged under 13 years, the perpetrator shall be liable to imprisonment from seven to twenty years and fine from 14,000 - 40,000 baht.
The section sets forth higher penalties for gang rape or rape with a deadly weapon of under age girls. It also establishes that criminal liability can be eliminated for rape of a girl over thirteen but under fifteen, with the girl's consent, if "subsequently the Court has permitted the man and girl to get married." (51)
By 1990, Thailand had at least four separate legal regimes addressing various and sometimes overlapping components of both trafficking and prostitution. The Immigration Act also contains relevant prohibitions. (52) As a result, inconsistencies and even contradictions emerged: the Penal Law severely penalizes persons who have sex with minors, the Anti-Prostitution law does not; the Anti-Trafficking law exempts women trafficked into prostitution from imprisonment or fines; the Anti-Prostitution law makes no such exemption; the Suppression of Prostitution Act penalizes prostitution, the Entertainment Places Act, at least indirectly, regulates and even taxes it. These inconsistencies, while clearly not insurmountable, undermined the development of a clear legal sanction on prostitution and trafficking and, to some extent, contributed to several Thai governments' utter failure actually to suppress or even meaningfully control prostitution and/or trafficking, both of which rapidly expanded in the period between 1960 and 1990.
However, the root cause of the Thai government's failure rigorously to combat prostitution and trafficking as required by law lies not as much in the inconsistencies among the relevant statutes, as it does in the Thai government's routine failure to enforce even the most straightforward prohibitions, like those penalizing procurement or statutory rape or trafficking in women and girls. According to Vitit Muntarbhorn, an associate professor of law at Chulalongkorn University in Bangkok, in the period from 1960 to 1991
...many governments...tried to stem the tide of prostitution but much has also resulted in lip service. More often than not, they seem to wait for a catalytic incident...before pushing the authorities to take action and where action is taken the fervor dies down after a period. (53)
To a large extent this fact reflects the tension inherent in Thai policy between abhorring and prohibiting prostitution, while at the same time promoting and profiting from tourism which, explicit or implicitly, includes sex tourism, and from the local demand for commercial sex.
This has proved to be particularly true for Thai law enforcement officials who routinely profit from the Anti-Prostitution and Anti-Trafficking laws' non-enforcement by extorting protection fees from brothel owners or independent prostitutes. The 1992 U.S. State Department Country Reports on Human Rights Practices found that "senior [Thai] government officials have cited corruption as a major factor in police willingness to turn a blind eye to the problem. Reliable sources report that police can earn $120-200 per month in protection fees." (54)
International Law
Thailand has yet to ratify or accede to most of the international human rights instruments relevant to trafficking in women and girls, particularly the Convention for the Suppression of Traffic in Persons and of the Exploitation of the Prostitution of Others (The Trafficking Convention) and the International Covenant on Civil and Political Rights (ICCPR). On March 29, 1993 Prime Minister Chuan Leekpai publicly announced that his government
is undertaking the necessary steps for Thailand to accede to the International Covenants contained in the International Bill of Human Rights, thus consolidating further the efforts made by previous Thai governments. (55)
As of January 1994, however, the process of accession was not complete, and the Chuan administration had made no discernible effort to ratify or accede to the Trafficking Convention.
Since 1985, however, the Thai Government has been a party to the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which obligates states parties to eliminate discrimination and, under Article 6, to take all appropriate measures to suppress all forms of traffick in women. While CEDAW does not set forth what measures states parties should institute with regard to the suppression of trafficking, earlier conventions that address trafficking of women should give content to CEDAW's directive.
The international community first denounced trafficking in the Trafficking Convention, which was approved by the General Assembly in 1949. The Convention calls on states parties to punish traffickers and to protect all persons against such abuse. The Convention also calls on states parties "so far as possible" to "make suitable provisions for [trafficking victims'] temporary care and maintenance;" to repatriate persons "only after agreement...with the State of destination," and, where persons cannot pay the cost of repatriation, to bear the cost "as far as the nearest frontier." (56)
Despite its failure to ratify many of the other pertinent international conventions, Thailand has clear obligations under customary international law with regard to many of the violations documented in this report. International law clearly condemns slavery and slave-related practices. It is well established that the prohibition of these practices has attained the status of customary international law. (57) Under customary international law the Thai authorities are also obligated to protect against and punish prolonged arbitrary detention and torture or cruel, inhuman or degrading treatment or punishment. (58) Resolutions adopted by the United Nations General Assembly also urge member nations to conform to basic principles of due process, enumerated in the ICCPR and elsewhere.
C. The Current Crackdown: The Anand and Chuan Administrations
The Anand Panyarachun administration, installed in 1991 (59) following the Thai army's overthrow of the civilian government of Chatichai Choonhavan, sought to respond to the rising prostitution and trafficking problem, particularly forced and child prostitution. In response to the escalating scare of acquired immunodefiency syndrome (AIDS), Dr. Saisuree Chutikul, then Minister to the Office of the Prime Minister for Women, Children, Youth, Education and Social Development, introduced a bill seeking to legalize prostitution by women eighteen years or older, who work voluntarily and regularly check their health. In attempting to legalize voluntary prostitution, Dr. Saisuree sought to strengthen law enforcement in the area of compulsory and, particularly, child prostitution and trafficking. However, the bill lapsed following the end of Anand's administration after the March 1992 elections and, as with previous administrations, the endeavor to address prostitution faltered. Nonetheless the Anand administration did put in place some notable reforms with ramifications for forced and child prostitution and trafficking.
Most notably, Anand established a unit within the Crime Suppression Division (CSD), a division of the Central Investigation Bureau that has national jurisdiction. The CSD is empowered to make criminal investigations and inquiries anywhere in the country. (60) The CSD's newly formed anti-prostitution task force was charged with rescuing those forced into slavery, in particular children compelled into prostitution.
Unfortunately, the CSD's task force was plagued from its inception with problems of understaffing and inadequate funding. According to the former task force head, Police Colonel Bancha Charusareet, his unit was
supposed to raid every brothel that has child prostitutes or detains unwilling girls for prostitution anywhere in the country, but it has a staff of only six people and one vehicle. (61)
The Division's efforts were further hampered by the lack of cooperation from the local police officers in whose jurisdiction the CSD was mandated to intervene. Other local analysts also accused the CSD units with inconsistencies in their work and taking bribes from brothel owners and other police units.
Nonetheless, in 1991 the Bangkok Post reported nine brothel raids by the police. (62) According to researcher Pyne, out of these (and other) raids a new trend began to emerge: "[o]ver 200 of the 342 women discovered came from Burma." (63) Pyne notes that the Center for Protection of Children's Rights (CPCR), which maintains a shelter for women and children rescued from the brothels, estimated that in 1991, ten to twenty percent of the prostitutes were Burmese. The increase in the number of non-Thai women and girls, particularly among those brothels most associated with involuntary and child prostitution, signaled a rise in trafficking of women into the country for the purposes of prostitution.
The presence of Burmese women and girls in Thailand's most abusive brothels was increasingly evident in 1992. Statistics for 1992 compiled by CPCR estimate that roughly thirty to forty percent of the children they assisted were Burmese. (64) Major CSD/police raids on several brothels in Ranong in June and July 1992 turned up an estimated 153 Burmese women and girls. (65) Raids earlier in the year had rescued an additional 147 women and girls. (66)
The increasing presence of foreign nationals in these raids prompted the Anand administration to take another notable step to address this problem. Initially, according to researcher Hnin Hnin Pyne, most of the Burmese caught in the government raids in 1991 were either deported immediately or transferred to the Immigration Detention Center in Bangkok to be deported three to six months later. (67) However, reports of deported women and girls being arrested upon return to Burma for prostitution or illegal immigration, and unconfirmed statements that some HIV positive returnees were murdered by Burmese authorities, raised concerns about summary deportation for both NGOs and the Thai government.
Faced with this dilemma, Dr. Saisuree Chutikul tried to develop an alternative to the Burmese women and girls' summary deportation. Rather than arresting and imprisoning the girls as illegal immigrants, Dr. Saisuree arranged for at least one group of them to be sent to the penal reform institution of Pakkret (68) pending an officially sanctioned repatriation in cooperation with the Burmese authorities. From June through July 1992, the majority of the Burmese women and girls "rescued" from brothels were sent to Pakkret. (69)
The Thai NGOs working with trafficking victims supported Dr. Saisuree's attempt to find an alternative to the arrest and summary deportation of the Burmese women and girls as illegal immigrants. However, they argued that the Dr. Saisuree's plan was problematic both because the penal reform institutions are discriminatory in nature and unduly punitive, and because the safety of the women and girls upon return to Burma could not be monitored or guaranteed.
Dr. Saisuree, who after the September 1992 became an adviser to the new Chuan government, defended the Pakkret scheme. In an interview she gave to an NGO called End Child Prostitution in Asian Tourism (ECPAT), she argued that the Burmese women and girls posed a problem for Thai authorities because they were in the country illegally and possessed no papers. They were not classified as refugees because they did not flee their country of origin. Under existing Thai law they had no legal right to remain in Thailand. She disputed NGO contentions that the women and girls faced dangers on their return to Burma, citing assurances from SLORC that the women and girls would not be harmed and could be visited subsequent to their return to establish their well-being. (70) Although she pledged that all 150 women and girls in Pakkret as of mid-1992 would be repatriated at Thai government expense (71) in late September, only ninety-five of the 150 Burmese women and girls were officially repatriated.
It was in this context that on November 2, 1992, Prime Minister Chuan Leekpai announced to provincial governors that he intended to crack down on child and involuntary prostitution, and child labor abuse. He told the governors of Thailand's seventy-five provinces that they must "take responsibility and give special attention to child prostitution and child labor abuse." (72) Several days later, the Minister of Interior, General Chavalit Yongchaiyudh, announced that he wanted all brothels shut down in two months. (73) In subsequent speeches, the Chuan administration pledged to get "concrete results" in three months. (74)
In large measure, Chuan's announcement came in response to growing national and international condemnation of child and forced prostitution, particularly in the wake of the 1992 raids. It was also prompted by efforts, particularly by the United States Congress, to deny trade preferences to countries making use of child or forced labor. (75) The Thai government highlighted these latter concerns in announcing the crackdown and the Prime Minister told local journalists that "Thailand's trading partners would boycott our products if these two problems continue to exist." (76)
In making his announcement Chuan was careful to distinguish between forced and child prostitution and prostitution more generally. He clearly stated that he would not attempt to touch prostitution in general, telling reporters
I won't talk about what is impossible, if the problem cannot be solved, I won't order the authorities to tackle it. (77)
Instead, Chuan argued that the numbers of child and forced prostitutes were smaller and the problem therefore easier to address.
Chuan's announcement was greeted by local activists with a measure of optimism, particularly because he pledged, for the first time in the history of Thai government crackdowns on forced or child prostitution, to address the involvement of government officials in such abuse. He told the governors that in some areas of Thailand the problems were caused by police and military officers and noted that Thailand's "problems...will be less if the ones who have the weapons and enforce the law are not the sources of the involvement." (78)
Not all Thai police welcomed Chuan's plan. Soon after Chuan's announcement, Deputy Police Director General Police General Pongammart Amartayakul told reporters that sex-related crimes would probably increase if the brothels were shut down. He reportedly said that men in the seaside provinces would have "a lot of pent-up sexual aggression" and would have to relieve themselves. He suggested that the rate of rapes and other sex-related crimes might rise as men find no place to satisfy their "sexual desires." (79)
The Chuan administration must be commended for undertaking such a high-profile effort to combat involuntary and forced prostitution, which by definition includes trafficking, and for publicly acknowledging the involvement of government officials in perpetrating and profiting from such abuse. However, in the year since Chuan's November 1992 announcement, several serious problems have emerged with his policy that raise questions about the depth of the government's commitment to end forced and child prostitution. Where the Burmese trafficking victims in particular are concerned, that policy may have exacerbated the problem.
First and foremost, the trafficking of Burmese women and girls into Thailand continues, virtually unchecked. Moreover, despite clear evidence that Thai law enforcement and immigration officials remain directly involved in the flesh trade, not a single officer has been prosecuted or punished for such abuse. Brothel owners, pimps and recruiters have also been largely exempt from punishment. In fact, the main targets of the Chuan administration's crackdown on forced and child prostitution have been the victims themselves.
Some of these problems might have been avoided had Chuan undertaken the necessary legal reforms and adopted the relevant international instruments. Local women's rights NGOs have proposed a number of reforms in the existing Anti-Trafficking and Anti-Prostitution laws that would, among other measures, stiffen the penalties for trafficking and procurement for prostitution, reduce or remove the remand of prostitutes or trafficking victims to penal reform institutions, and clearly punish clients who engage in statutory rape. Unfortunately these legal reforms have yet to become law. In addition, while Thai NGOs have called on the Chuan administration to ratify or accede to ICCPR and the Trafficking Convention, both of which would provide clear guidelines for addressing trafficking and compulsory prostitution, neither ratification has been actively pursued by the government.
Even in the absence of such legal reform, however, Thailand's existing national and international obligations could yield more effective and equitable results. As noted above, the existing Anti-Prostitution, Trafficking and Penal laws clearly penalize recruitment and a range of other abuses associated with trafficking and forced and child prostitution, and Thailand's obligations under CEDAW provide clear guidance with regard to eliminating both discrimination and trafficking. Thailand's existing laws also clearly protect the victims of forced and child prostitution, and of trafficking in particular, from imprisonment, fines and summary deportation. Unfortunately, the Chuan administration has failed to issue a clear mandate to its law enforcement officials to enforce these prohibitions. As a result, police are routinely tolerating traffickers and arresting trafficking victims on charges of prostitution and illegal immigration, although as a matter of both fact and law they should not be liable for either crime.
The crackdown's problems might have been mitigated had the Thai government created procedural mechanisms to ensure that corrupt police were penalized and forced and child prostitutes and trafficking victims were treated fairly. Instead, and over the objections of local NGOs, the Chuan administration weakened one of the key official mechanisms, the Crime Suppression Division, which although not without problems of its own, had the authority to override local police and to deal with forced and child prostitution directly. Instead Chuan, in late 1992, disbanded the CSD's anti-prostitution task force in favor of a new CSD "Coordination Center for the Prevention and Suppression of Child Prostitutes and Child Labor Abuse," which was mandated to maintain a database on brothels. The Coordination Center was required to carry out the raids and rescues in cooperation with other local police units, many of which local NGO observers suspect "are actively involved in the sex trade or on the payroll of the brothel owners." (80) In addition, the Chuan administration appears to have abandoned the non-punitive, coordinated, official repatriation of Burmese women and girls entirely.
Thus, in the months following Chuan's November 2, 1992 announcement, the myth that his administration is "rescuing" forced and child prostitutes has been shattered. Except for the few women and girls whom NGOs are able to take to emergency shelters, it is clear that government's high profile "rescues" actually are arrests.