Asian Affairs: An American Review

ISSN: 0092-7678 (Print) 1940-1590 (Online) Journal homepage: https://www.tandfonline.com/loi/vasa20

Chapter 3: Peace Process and Transitional Justice:

The Comparative Study of Mindanao, Colombia,
and Thailand’s Deep South

Fareeda Panjor & Anchana Heemmina

To cite this article: Fareeda Panjor & Anchana Heemmina (2018) Chapter 3: Peace Process and
Transitional Justice: The Comparative Study of Mindanao, Colombia, and Thailand’s Deep South,
Asian Affairs: An American Review, 45:2, 78-97, DOI: 10.1080/00927678.2019.1584279

To link to this article: https://doi.org/10.1080/00927678.2019.1584279

Published online: 28 Apr 2019.

Submit your article to this journal

View Crossmark data

Full Terms & Conditions of access and use can be found at

https://www.tandfonline.com/action/journalInformation?journalCode=vasa20
Asian Affairs: An American Review, 45:78–97, 2018
# 2019 Taylor & Francis Group, LLC
ISSN: 0092-7678 print/1940-1590 online
DOI: 10.1080/00927678.2019.1584279

Chapter 3: Peace Process and

Transitional Justice: The Comparative
Study of Mindanao, Colombia, and
Thailand’s Deep South

FAREEDA PANJOR AND ANCHANA HEEMMINA

Prince of Songkla University

Abstract: The objective of this study is to understand the linkage between peace
processes and transitional justice in armed conflict areas, comparing three experien-
ces from Mindanao (the Philippines), Colombia, and Thailand’s Deep South in the
implementation of transitional justice (TJ). The study found that the substantial suc-
cess of conflict transformation in the Mindanao and Colombia peace processes
resulted from balancing and emphasizing human rights and peace processes by
applying significant transitional justice innovations at the implementation stage.
Although the peace processes in Mindanao and Colombia evolved prior to 1996 and
1990, respectively, the peace process in Thailand’s Deep South commenced more
recently, in 2013. Despite the time differences, this study helps us understand the
relevance and importance of peace processes and transitional justice from each coun-
try, providing lessons for the progress of the peace process in Thailand’s Deep South.

Keywords: conflict transformation; peace process; Mindanao; Colombia;

Thailand’s Deep South

Address correspondence to Fareeda Panjor, Center for Conflict Studies and Cultural
Diversity (CSCD), Prince of Songkla University, Pattani campus, Pattani, Thailand.
E-mail: fareeda028@gmail.com
Anchana Heemmina is director of Duayjai group, a prominent human rights protection organ-
ization in southern Thailand. She focuses on torture prevention and access to transitional justice.

78
Chapter 3: Peace Process and Transitional Justice 79

Introduction

This study aims to explore and compare the involvement of transitional just-
ice (TJ) in the implementation dimension of the peace processes of three con-
flict areas. The study focuses on why TJ is important for building peace and
how it has been applied in different conflict areas. For Colombia, transitional
justice has worked since 2005 to strengthen national mechanisms for the pro-
tection of victim’s rights to truth, justice, and reparation, which happened
before the final agreement between the FARC-EP guerrillas and the
Colombian government in 2016.
For the conflict in Mindanao, the Philippines, the design of post-conflict
transitional justice was well underway with the endorsement of the 2012
Framework Agreement on the Bangsamoro, along with the transitional justice
and reconciliation commission report that was released in 2016. In Thailand’s
Deep South, where conflict has long raged between the state and local combat-
ants, although peace talks have yet to reach any agreement, discussions have
been initiated about the need for transitional justice and transitional-justice
mechanisms following important cases of human-rights violations since vio-
lence intensified in 2004 (especially the Krue se mosque raid and
Takbai massacre).

Peace Process, Transitional Justice, Conflict Transformation, and Dealing

with the Past
The term peace process can best be understood as an effort to resolve an
armed conflict by creating the basis for a new inclusive political settlement
and support reconciliation. The concept of what constitutes a resolution of con-
flict is linked to a party’s perception of the causes of the conflict and its own
end goals. This involves formal and informal efforts to help both the conflict
parties and wider society reframe conflict, reform institutions, and transform
relationships. This series of initiatives addresses many facets of structural and
psycho-cultural dimensions in a comprehensive and complementary manner,
which generates conditions for long-lasting peace.1 Christine Bell has indicated
in her literature that human-rights issues have become extremely pertinent in
many world peace processes, such as in the cases of South Africa, Northern
Ireland, Israel/Palestine, and Bosnia Herzegovina. The existence of so many
world peace processes raises questions about how to address the lasting lega-
cies of conflicts under the terms of the peace agreements. What kind of justice
is attainable? How should the victims of massive violations be treated in the
process? How can justice play a constructive role in forging a lasting peace?2
It is such questions that can sustain justice and thus help in achieving con-
flict resolution.
80 Asian Affairs: An American Review

Why does transitional justice help support peace? To answer this question,
we must understand that TJ promotes peace by addressing local grievances,
such as inequity of wealth distribution and lack of political or cultural repre-
sentation. When counter-insurgency tactics by the state create grievances, TJ is
necessary if peace is to be reestablished and endure. Moreover, TJ has the
potential to help rebuild state legitimacy in the aftermath of conflict. Peace
then requires the establishment of a new relationship between those who gov-
ern and those who are governed, which may help build this legitimacy. Finally,
TJ may be an important confidence-building measure that helps bind conflict
parties together into peace talks. One reason for the failure of many peace
agreements is the persistence of a security dilemma, where parties do not fully
commit to peace because they do not trust each other.3
To explore a better understanding of justice in the peace process, the con-
cept of TJ is thus quite relevant. Transitional justice emerged from the inter-
national human rights movement, which addressed human rights violations
committed by repressive regimes in the course of democratic transition. Many
studies focus on the international courts that have been established to prosecute
war crimes.4 More recently, a relevant part of transitional justice literature has
focused on the dichotomy of peace and justice as well as truth and justice.5
Bargains and amnesties were often seen as the best way to achieve peace as
a condition to overcome the fixation on dichotomies between truth and justice.6
States have promoted truth commissions as alternatives to persecutions for pro-
viding truth and for victims with social healing and reconciliation.7 This has
been especially true after violent conflict between ethnic and religious groups
who are eager to tie the responsibility for past crimes and human rights viola-
tions to their adversaries.
The program Dealing with the Past was developed as a holistic transforma-
tive approach by the Swiss Peace Foundation to emphasize the judicial and
non-judicial elements of a reckoning with past violence through the compli-
cated set of negotiations and dialogs between many different actors. Dealing
with past gross human rights violations and international humanitarian and
international criminal law has been developed and applied as forms of retribu-
tive justice and restorative justice, such as right to know, right to reparation,
right to justice, and guarantee of non-recurrence.8
Alexander Boraine (former member of the South African truth and reconcili-
ation commission [TRC] and founder of the International Center for Transitional
Justice [ICTJ]) strongly advocates a holistic interpretation of TJ. This interpret-
ation is based on five key pillars, including accountability; truth recovery; repar-
ation; and institutional reform and reconciliation, including the gender lens or
gender justice in its agenda, alongside criminal prosecutions, truth commissions,
reparations programs, security system reform, and “memorialization” efforts.9
Chapter 3: Peace Process and Transitional Justice 81

FIGURE 1. A conceptual framework of dealing with the past has four

pillars as an holistic approach.

Together with TJ, the concept of conflict transformation offers a compre-

hensive approach for constructively changing violence-prone conflict areas to
build just peace.10 Conflict transformation is necessary to alter the various
manifestations of conflict by focusing on structural behavioral and attitudinal
aspects. Hugh Miall believes that the meaning of a conflict depends largely on
the context from which it arises and the attitudes the parties have toward
one another.11
There are four main dimensions of TJ. First, truth-seeking processes aim to
establish facts about what happened and what generates a common narrative of
82 Asian Affairs: An American Review

people. Truth and reconciliation commissions have been formed by states to

investigate past crimes and make policy recommendations. The most famous
was the TRC in South Africa’s post-apartheid regime but previously TRCs had
been established in other countries, such as Argentina. Recent post-conflict
TRCs are those in El Salvador and Guatemala, Liberia and Sierra Leone, Sri
Lanka and the Philippines.12
Second, retributive justice has involved prosecuting and punishing
offenders. Sometimes it has involved the establishment of international tribu-
nals. In 2002 the International Criminal Court (ICC) was created to investigate
perpetrators of crimes against humanity and war crimes. Ad hoc, time- and ter-
ritory-bound tribunals were set up for the former Yugoslavia and for Rwanda.
In other cases, hybrid tribunals, combining domestic and international strat-
egies such as in Sierra Leone, East Timor, Bosnia and Herzegovina, Lebanon,
and Cambodia, were put in place. Elsewhere, domestic legal systems have
been used to try past abuses, such as in Argentina, Chile, and Egypt.13
Third, restorative justice deals with obtaining reparations. This has involved
money remedies to victims or their families. Sometimes symbolic responses
such as official apologies accompany reparations. Such programs have been
formally included in eight peace agreements since 1989. Reparations have a
strong basis in international law. By 2001, the International Law Commission
ruled that such commissions are obligated to produce reparations for those
affected. Also, Article 75 of the Rome Statute declared that perpetrators of
crimes against humanity must repair the harm to their victims.14
Finally, institution building aims to promote the procedural justice of human
rights abuses regarding the symptoms of institutional dysfunctionality. Such
procedural justice aims to transform those institutions particularly in the secur-
ity and justice sector.15
Chris Lamont has indicated that mediation efforts in many Asian countries
have received much less attention than those in Latin America, Africa, and
Europe. The full range of processes and mechanisms includes both judicial and
extra-judicial mechanisms, which can be either international or domestic.
These well-known mechanisms include criminal prosecution, truth-seeking
commissions, reparation devices, and guarantees of non-recurrence. It also
takes into account that different actors have different visions of the goals of
the TJ process. If emphasis is placed on truth seeking, we may see transitional
justice mechanisms that include a strong truth commission encouraging perpe-
trators to reveal human rights abuses.16

Transitional Justice in Conflict Areas

Transitional justice is both broad and inclusive regarding judicial and extra-
judicial processes. However, the processes of TJ might be different in each
Chapter 3: Peace Process and Transitional Justice 83

conflict area. To understand how transitional justice became established in dif-

ferent country cases, this study examines the cases separately, considering the
TJ mechanisms of criminal prosecution, truth seeking, reparations, and guaran-
tees of non-recurrence.

Colombia

Colombia has experienced internal conflict since the middle of 1960. The
two main armed conflict parties are the Revolutionary Armed Forces of
Colombia-People’s Army (FARC-EP) and the National Liberation Army
(ELN) of Colombia’s government. Amnesty International reported in
December 2016 that there had been almost 8,000,000 registered victims since
1985 of all types of crimes.17 Various types of armed forces were responsible
for some of these crimes, the liability for which became an issue following the
2012 formal peace talk between the Government of Colombia and
FARC-EP.18

Truth Seeking

In 2016, once a final peace agreement had been signed, a truth commission
was established to examine the long period of serious mass human rights viola-
tions that had affected people directly and extensively. With this in mind, the
example of the famous Trujillo massacre in western Colombia between 1988
and 1994 exemplified successive human rights violations, including enforced
disappearances, torture, and the murder of approximately 340 people by the
guerrillas of the ELN and state security forces. However, the challenges of the
fact-finding committee with regard to the Trujillo case included the lack of rec-
ognition of formal facts and resources to help the victims. However, in the
future Colombia’s justice system and fact-finding committee may collaborate
to integrate the investigation to be more effective.19

Prosecution

In September 2002, the Colombian government issued a Justice and Peace

Law that granted an amnesty to several leaders of the Autodefensas Unidas de
Colombia (AUC), a right-wing umbrella paramilitary organization and drug-
trafficking group in Colombia, following the announcement that they intended
to negotiate terms for the demobilization of their forces. In January 2003, the
government passed a law to demobilize and reintegrate armed groups into soci-
ety, although this law was not extended to those guilty of the most heinous vio-
lations of human rights, such as acts of terrorism, kidnapping, and genocide. In
2005, a new Justice and Peace Law contained elements of transitional justice
84 Asian Affairs: An American Review

to regulate the procedures for those demobilized members of illegal armed

groups who had been excluded from the existing amnesty. It established judi-
cial benefits based on their contribution to justice and reparations.20 After a
final peace agreement had been reached, in April 2017 the Special Jurisdiction
for Peace (JEP) was established to investigate and try those who committed
human rights violations during the armed conflict, such as military officials
and soldiers, FARC members, police, and some civilians.21
With the JEP system, perpetrators can expect to receive alternative sanc-
tions, such as confinement to a community area where they will have to con-
tribute as a volunteer for a number of years, including to compensate their
victims in ways deemed suitable by the court. If the court finds that a partici-
pant fails to complete the requirements of truth, reparation, and non-repetition,
the court may hand down the maximum punishment of twenty years in
prison.22 Meanwhile, if the court finds that a person continued committing
crimes beyond December 2016, the person’s case will likely be referred to the
criminal courts for ordinary sentencing.23

Reparations

In Colombia there were many kinds of rehabilitation programs for victims,

including that of the World Bank,24 which supported the government to create
a collective reparation program to ensure that affected groups would have
access to comprehensive reparation. Take the example of Guacoche, an Afro-
Colombian community in northeastern Colombia, which includes activities for
the former child soldiers of the FARC guerilla group. Compensation in this
case clearly prioritizes land restitution for the right to economic compensation
to redress the suffering of the victims.25
Memorials and public apologies were also among the social remedies. In
December 2013, president Juan Manuel Santos recognized the rights of
Colombians by offering a formal apology. In addition, during a press confer-
ence announcing the signing of the 2012 agreement between the Colombian
government and leaders of FARC, the latter apologized to victims of the civil
war.26 Further, in Colombia there were many kinds of commemorations For
example, there was the establishment of the Day of Memory and Solidarity
with the victims of the armed conflict, on April 9, 2017.27

Guarantees of Non-recurrence

In the case of Colombia, the guarantee of non-recurrence was conditional

on disarmament, demobilization, and reintegration of former combatants. The
second Santa Fe de Ralito agreement required leaders of armed groups to
Chapter 3: Peace Process and Transitional Justice 85

submit to the government lists of combatants and weapons to be surrendered

by reviewing the criminal warrants and investigations. The combatants would
be granted the benefits of amnesty and social support back in their home com-
munities in accordance with Decree 128.28

Mindanao, Southern Philippines

Mindanao is the second largest and southernmost island in the Philippines. It
is also the name of one of the three island groups in the country and has a popu-
lation of 21.58 million people. Article VIII(12) of the 2012 Framework
Agreement on the Bangsamoro (FAB) region contained a commitment to transi-
tional justice, which notes that “the Parties agree to work out a program for tran-
sitional justice to address the legitimate grievances of the Bangsamoro people.”29

Truth Seeking

A Transitional Justice and Reconciliation Commission (TJRC) was estab-

lished as part of the Normalization Annex of the FAB in 2012 to analyze
issues related to the root causes of the current conflict. In 2015, a Listening
Process was conducted that involved approximately 3,000 Moro, indigenous
settler communities in central and western Mindanao, and local officials. In
2016 a TJRC report was handed over to the government and the Moro Islamic
Liberation Front (MILF) Peace Panels, which recommended that stakeholders
create the National Transitional Justice and Reconciliation Commission on the
Bangsamoro (NTJRCB) to promote healing and reconciliation.30

Prosecution

Article VIII(12) of the 2012 FAB region contained a commitment to transi-

tional justice, which noted that “the Parties agree to work out a program for
transitional justice to address the legitimate grievances of the Bangsamoro peo-
ple, correct historical injustices, and address human rights violations.”
However, there was still a failure in processing prosecutions. Perhaps the
deadliest case in the region was the November 23, 2009, Maguindanao mas-
sacre, which the Committee to Protect Journalists called the single deadliest
attack against journalists. As of 2018, no one has yet been convicted of
the massacre.31

Reparations

Building on the provisions in the FAB, the Annex on Normalization, passed

in January 2014, the TJRC was established to be an appropriate mechanism
86 Asian Affairs: An American Review

for transitional justice and reconciliation. The example of a comprehensive

rehabilitation program supported by the European Commission and the United
Nations Development Programme shows the expectation of carrying out a
wide range of assistance to internally displaced persons, or IDPs, in at least fif-
teen provinces of the Philippines. Moreover, the provision of Republic Act
10368 provides for reparation and recognition of victims of human rights viola-
tions during the Marcos regime. In 2018, it appears as though the upwards of
11,103 victims of human rights violations who suffered under Marcos will
have finally received compensation.32

Guarantees of Non-recurrence

Since 1997, there has been a minimum implementation to integrate at least

5,750 Moro National Liberation Front (MNLF; a political Islamic movement)
combatants into the Armed Forces of the Philippines (AFP). As of the end of
1998, approximately 3,802 MNLF ex-combatants were successfully integrated
into the AFP and the Philippine National Police (PNP), representing roughly
half of the quota.33 Also, following the full implementation of the agreement
from 1999 to 2005, 25,000 MNLF ex-combatants were reintegrated to help
their communities on Mindanao.34 Another separatist group, the MILF, has
also been included in the process of disarmament and in 2018 was in negotia-
tions with the Rodrigo Duterte government for an amnesty. However, violence
has continued to persist from other armed groups, such as the radical Abu
Sayyaf and an MNLF splinter group.35

Thailand’s Deep South

Thailand’s Far South is the region of what Thailand today refers to as the
provinces of Pattani, Yala, Narathiwas, and four districts of the Songkla prov-
inces, which used to be part of the Patani Sultanate. The root cause of conflict
has been the competitive power struggle between the Malay Muslim movement
and the Thai state. In 1981, the Southern Border Provinces Administrative
Center (SBPAC) was established to help diminish Deep South societal friction,
with state officials working with local people on justice and development
issues. The violence from the clash between militant insurgents and Thai secur-
ity agencies, deriving from long-time tensions, heightened in late 2001 and fur-
ther escalated beginning in January 2004. From January 2004 to October 2017
there were 19,548 violent incidents, 6,669 deaths, and 13,211 people injured
from violence and counter-violence.36 The region was controlled by the Thai
state and security agencies through their enforcement of special laws such as
the emergency decree and martial law. Since then, state repression of the Deep
Chapter 3: Peace Process and Transitional Justice 87

South has led to several cases of human rights violations by the secur-
ity forces.
After the exacerbation of violence in 2004 (reflected most notably in the
Krue se mosque and Takbai state massacres), there were efforts at dialog by
various Thai governments, but they often excluded the participation of people
and civil society organizations. At the beginning of the conflict in 2004–2005,
the policies of Thaksin Shinawatra’s government only focused on restructuring
and integrating government bureaucracy in the region and did not push the
other sectors to resolve the southern problem seriously.
In 2005, the National Reconciliation Commission (NRC) was created. This
independent commission sought to resolve Deep South problems by providing
a public space for a dialog and meeting among government officials, religious
leaders, and local leaders to find a solution in the region.37 Although there
were important recommendations from the NRC, some argued that the NRC
report did not focus enough on the core issue of the conflict, which was the
competition of power between the Malay Muslim movement and the Thai state
with regard to political legitimacy over the Deep South of Thailand (or Patani).
The claim of violence in the report was only a work of a small number of
“bad” people.38 Finally, the role of the NRC faded after the military coup in
2006. After the putsch, although the military dominated the counter-insur-
gency, civilian state agencies began to play a greater role in the Deep South
crisis. Amid expanding violence and an unstable political situation, independ-
ent civil society actors, alternative and local media, and academic institutions
attempted to create a public sphere for promoting a culture of peace and ways
to transform the underlying conflict. They were all supported in many types of
work mainly through rehabilitation, human rights, communication, local eco-
nomics, and development. Nevertheless, they remained fragmented and
dependent on financial support.
Under prime minister Yingluck Shinawatra’s administration (2011–2014),
on February 28, 2013, in Kuala Lumpur, Malaysia, there was a signing of a
General Consensus on a Peace Dialog Process between the Government of
Thailand and the secretive Barisan Revolusi Nasional (BRN), the strongest sep-
aratist organization. Although this was a positive sign for peace, nevertheless
the government was criticized for initiating a peace talks policy with an illegal
insurgent group. On October 25, 2014, a new group emerged called the Majlis
Syura Patani (Patani Consultative Council), or MARA Patani,39 an umbrella
organization uniting the disparate Malay-Patani groups rather than BRN alone.
Their aim was to seek a political solution to the conflict through peace talks
with the Thai government, which began in March 2015.
However, after the 2014 coup perpetrated by the National Council for
Peace and Order (NCPO), there appeared to be a change in state policy.
88 Asian Affairs: An American Review

State support for decentralization as a political resolution to the core polit-

ical legitimacy problem began to fade, following confusing signals from the
NCPO as to whether it was still sincerely committed to peace talks.
Alternatively, the fact remained that there was an internal conflict among the
insurgent movement. Indeed, without the explicit endorsement of the BRN,
the most influential group with the largest number of fighters, MARA’s sta-
tus as the representative of the movement’s organizations at the peace talks
remains unclear.
In terms of transitional justice implementation, Patrick Barron of the Asia
Foundation indicated that it remained difficult to bring transitional justice to
the region because the conflict still lacked three necessary components: the
political will for establishing an effective truth-seeking and reconciliation com-
mission for both conflict parties, non-recurrence of violence, and a political
agreement from the conflict parties.40 However, if we consider the measures of
peace and justice in the region, we find that some elements of transitional just-
ice were partially implemented.

Truth Seeking

Since 2004–2016, truth seeking in Thailand’s Deep South has been estab-
lished by the state in terms of a commission to investigate the facts on the
cases that people call into question regarding human rights violations. About
eight cases were investigated from 2004 to 2013 before informal peace talks.
By 2013, a General Consensus on Peace Dialog Process was signed between
the government of Thailand and the BRN. Thereupon, several cases were
investigated by the truth-seeking commission. However, most government
truth-seeking commissions were not able to bring state perpetrators to court.41
Instead, the investigation came to an end by means of compensation payments.
Therefore, victims still could not reach satisfaction in the prosecution process
to bring about justice and the non-recurrence of violence.
There were government truth-seeking committees in ten cases42:

1. The Sulaiman Neasa case on May 29, 2010

2. The Puloahpuyo case on January 29, 2012
3. The Sa-ea Krongpinang case on April 19, 2012
4. The Abdulllatea Tohdea case on November 15, 2012
5. The Ustaz and Teacher case in 2012
6. The tea shop shooting case at Madabuwoh in 2012
7. The Mayudin Samah case on November 4, 2012
8. A case during the Ramadan month (Imam Yakob Raimanee and
Abdullah Putan) in 2013
Chapter 3: Peace Process and Transitional Justice 89

9. The Chemu Maman case on February 3, 2014

10. The Toh Chud case on March 25, 2015

Prosecutions

The justice process for national security cases in Thailand’s southern border
provinces is generally supposed to apply the domestic justice system in all
cases. The abuse of human rights in the southern border provinces is at times
the result of actions of the Patani separatists, but in other cases it is the fault of
state authorities. In the case of abuse by the insurgency, the law that is applied
to the offenders is criminal law. Thus, state officials can bring members of the
insurgency into the criminal justice process. But regarding human rights abuses
committed by state officials—such as the case of Imam Yapha Kaseng in 2008
and the case of Ashare in 2007 (who were both tortured and killed), as well as
the cases of Puloh Puyo and Toh Chud (extrajudicial killings)—the offending
officials could not be brought to justice because the draconian Martial Law Act
of 1914 was in place at the time. Under this act, violence resulting in civilian
casualties conducted by security agencies during military counter-insurgency
operations could not be adjudged by courts as criminal acts by the state.43
Similarly, the Emergency Decree provides for the exclusion of offenses against
state officials who practice under this law, thus making the application of these
special laws part of human rights abuses. In another case, when a military oper-
ation resulted in the death of children, no compensation was ever sent to the
family of the victims.44 Ultimately, for state security violators of human rights
in Thailand’s Deep South, there has been a trend toward legal impunity. An
alternative judicial process is necessary that will lead to the process of bringing
all violators of human rights (both insurgents and security officials) to justice.

Reparations

The state adjudged a multitude of human rights violation cases by utilizing

a policy of “healing” for victims in the Deep South of Thailand.45 As such, the
government has taken steps to heal those human rights abuses committed either
by insurgency movements or government officials. Most remedies are compen-
sation for loss of life or property. Providing scholarships and funds for careers
were also meant to help heal the mental empowerment of the affected people.
Women’s organizations, such as civic women, PAOW, and children’s organi-
zations, such as Nusantara for human rights, and other development founda-
tions have all devised remedies to improve the situation of local people.
Besides monetary healing for victims and societal healing, another kind of rep-
aration is apologizing to families who have suffered from the violence. This
90 Asian Affairs: An American Review

has come in the form of apologies from state leaders in Takbai district and Toh
Chud cases.46 In addition, there were the healing programs initiated by CSOs
through various rehabilitation programs.47

Guarantee of Non-recurrence

Recently, there has been a move to apply alternative justice through the
extension of the 2005 State of Emergency Act and the 2008 Internal Security
Act. These acts have tended to decrease the use of the much more absolute and
draconian 1914 Martial Law Act. The two acts allow detentions for up to thirty
days under the Emergency Decree and six months of milder reeducation
“training” under the Internal Security Act, in comparison with the Martial Law
Act, which allows seven days of detention (repeatable). All of these laws have
been used separately and in conjunction in the Deep South. In 2013, the policy
of the National Security Council was implemented to support a peace dialog
process as a means of seeking a political solution to the conflict through
negotiations.
However, under the NCPO there have been confusing signals as to the
state’s sincerity in pursuing dialog. Alternatively, there is also internal conflict
within the insurgent movement. There have been many governmental efforts to
increase human rights measures in talking about the conflict and thus gain
more confidence from locals, such as applying forensic science in investiga-
tions and issuing the anti-torture and enforced disappearance acts and the pro-
ject of disarmament and demobilization.48
Indeed the effectiveness of these measures, when implemented, has been
mixed. Their impact has often correlated with levels of state security. Yet des-
pite questions of state sincerity, there have been other junta efforts at institu-
tional reform (guarantee of non-recurrence), including the following49:

1. To replace martial law and emergency decrees with the Internal

Security Act
2. To apply alternative justice particularly regarding Article 21 of the
Internal Security Act (e.g., six months of reeducation “training”)
3. To better apply the Southern Border Provinces Administrative
Center (SBPAC) Act
4. To implement support for more peace talks via the National
Security Center
5. To dissolve the Royal Thai Police of the Southern Border Provinces
6. To provide attorneys to defendants in security cases
7. To replace the paramilitary officials sent from other regions of
Thailand to Thailand’s Deep South region with local paramilitaries
Chapter 3: Peace Process and Transitional Justice 91

8. To offer human rights education for security officers

9. To sign the International Convention for the Protection of All
Persons from Enforced Disappearance (CED)
10. To apply the Bring Back Home policy (Pa Kon Klub Ban, or
Disarmament and Reintegration program)

In term of impact, there are weaknesses regarding the institutional reforming

of some important mechanisms that maintain violence and mistrust. For
example, the reduction of martial law and emergency decrees has been min-
imal and the use of the Internal Security Act has not been widened.
Unfortunately, this act has been enforced in areas where there is less unrest,
such as in Songkhla province, rather than in Deep South provinces where more
torture has occurred. Under the Internal Security Act, six months of reeduca-
tion “training” is the program in which the government has made efforts to
improve the implementation of Article 21. However, the law remains
extremely dreaded and unacceptable for most families and the general public.
Where the law was enforced in areas of low unrest, there was a low number of
insurgency-related incidents. Regarding the Thai military’s “Disarmament and
Reintegration” program, or “Bring Back Home” policy, these projects,
designed to win the hearts and minds of Deep South rural peasants, were
opposed and rejected by both Buddhists and Muslims in the southern border
provinces because the two groups remained unconvinced that the projects
could prevent violence and the people were upset that the state was caring for
perpetrators more than citizens.

Summary and Comparison on Transitional Justice in Three

Conflict Areas

The truth-seeking process in Colombia was a formal process, involving

many domestic and international experts together with the registration system
for victims. However, there was a challenge to develop the effective process of
investigations, which brought together several truths and memories to deter-
mine victims and perpetrators. Moreover, truth seeking conducted by NGOs
had difficulties in terms of finding evidence in the case of massacres and
lacked sufficient resources to help victims. In Mindanao, there was the
Transitional Justice and Reconciliation Commission (TJRC), which was tasked
with responding to the grievances of victims, but it resulted in a partial monet-
ary remedy process that is not inclusive. For Thailand’s Deep South, there are
many limitations for grounding transitional justice and many cases of violent
actions by government officials in which offenders have not been brought to
justice because there has tended to be ambiguity about human rights violations
in several cases.
92 Asian Affairs: An American Review

Regarding prosecutions, there is no consensus between governments and

existing armed groups about the method for measuring justice. Colombia has
had a distinguished prosecution process with special jurisdiction to investigate
and judge perpetrators as those who committed violence during the conflict,
except for war crimes, crimes against humanity, and genocide. In addition, dis-
armament and amnesty strategies have tended to keep FARC and other rebel
groups under public scrutiny. For Mindanao, with the challenges of the peace
process no special jurisdiction system brought perpetrators to the courts. Only
normal jurisdiction and alternative justice processes were used and these pro-
ceeded slowly. Meanwhile, in the southern Thai region, the implementation of
an alternative justice system has exacerbated disputes between victims and
perpetrators.
In terms of reparation, Colombia has progressively assisted victims from a
rehabilitation project involving both physical and mental problems, including
child soldiers. In the Philippines, before the establishment of TJRC, a healing
program was conducted by NGOs. After the establishment of the TJRC under
the 2012 Framework Agreement on the Bangsamoro, a listening project came
to be applied slowly to some of the victims. It was said that this listening pro-
cess was the main part of the transitional justice of the Mindanao peace pro-
cess. In southern Thailand, government monetary healing programs served as a
form of alternative justice, but lacked the effectiveness and equality of the judi-
cial process (retributive justice) for victims and families involving both
Melayu Muslims and Buddhists.
Regarding the guarantee of non-recurrence, Colombia has a disarmament
program for FARC members preparing to politically participate in the peace
process. However, a number of people have not agreed to this process. In terms
of the Mindanao conflict, reintegration mechanisms and institutions have been
established for the social rehabilitation of combatants. The program aims to
offer access to social and economic opportunities of ex-combatants and to col-
lect, register, and destroy small arms.50 The program has focused on not only
armed groups but also the civilian population. With respect to the guarantee of
non-recurrence for Thailand’s Deep South region, existing programs have not
assured safety for victims and their families during the ongoing conflict. The
region still lacks holistic reintegration programs, such as social support, eco-
nomic support, and adequate alternative justice processes.

Conclusion and Recommendations for Thailand’s Deep South

From the examination of the comparative peace processes in the three con-
flict zones of Colombia, Mindanao, and southern Thailand, this study con-
cludes that addressing transitional justice in violent conflicts is not possible
without recognition among all stakeholders that they must support positive
Chapter 3: Peace Process and Transitional Justice 93

conditions to transform conflict into peace. Peace processes should not just
generally be understood in a broad sense as the political resolution of the linear
transition from points A to B. Rather, sustainable peace processes involve
establishing a fundamental dialog about what kinds of society people from dif-
ferent communities are willing to work toward. Ultimately, transitional justice
through transformative mechanisms can be the framework to help us deal with
past violence based on restorative approaches.
As explained in this study, transitional justice processes in Colombia ini-
tially began to be established in 2005, before the formal peace agreement
between the FARC-EP guerrillas and the Colombian government in 2016. The
comprehensive peace accord represents Colombia’s most holistic, wide-ranging
effort to address the root causes of conflict and fulfill victims’ rights.51 Truth
seeking, prosecution, and reparations are core transitional justice mechanisms.
The victims have played an important role in Colombian politics at various
points throughout the decades of conflict. Meanwhile, in the Philippines truth
seeking and reparations are the most progressive mechanisms. The Transitional
Justice and Reconciliation Commission (TJRC) was established as part of the
Normalization Annex of the FAB in 2012 to focus on peace processes. For
Thailand’s Deep South, the parties in the ongoing conflict appear to lack the
political will to implement a transitional justice mechanism in the peace pro-
cess. Moreover, there is still reluctance among both the state and insurgents
alike in terms of holistic understanding and integration regarding transi-
tional justice.
The current prime minister’s Order 230 and the National Security Council’s
policy of maintaining peace talks and engaging with civil society to find a pol-
itical solution have been only partially successful. The initiative of promoting
a peace zone and policy recommendations for conflict parties from the
Woman’s Agenda for Peace has been a better example to promote safe space
for all civilians who have been affected by chronic violence. However, to
explain more about the current debacle in southern Thailand regarding transi-
tional justice, there has been an inordinate focus on rehabilitation and healing
for the victims affected by secret militant groups. Many truth-seeking commis-
sions have been tasked to investigate human rights violations of government
officials. These proceedings have tended to result in short-term remedies rather
than prosecutions. Indeed, no government officials have been prosecuted for
human rights abuses, which has ultimately encouraged a culture of impunity.
There is thus no strategy for establishing non-recurrence processes.
None of the conditions for TJ mechanisms is currently in place in southern
Thailand. Transitional justice only works when it is backed by strong polit-
ical will. But in southern Thailand, it is extremely difficult for states, particu-
larly security forces, to admit culpability. Lack of political will has been
94 Asian Affairs: An American Review

apparent in Thailand’s approach to TJ in both the past and present. In early

2004, prime minister Thaksin Shinawatra created a high-level National
Reconciliation Commission (NRC), which was tasked with investigating the
causes of the violence. Yet it made little impact on national policy given that
the state refused to implement the NRC’s reform recommendations, prefer-
ring to use hardline tactics. Indeed, no systematic reparations system was
established and no senior security personnel were brought to trial. From 2004
to 2012, twelve further case-specific fact-finding committees were estab-
lished. But none of these had any impact on the Thai government’s strategy
for the southern conflict.52
Some TRC mechanisms were put in place but failed to limit the production
of new grievances during the counter-insurgency. Such grievances inevitably
heighten perceptions of victimhood among many in the local population. With
this condition, some efforts at institutional reform are rarely successful when
conflict is raging. Moreover, it is hard to see how TJ initiatives will change the
views of many in the local population toward the state or build trust among
insurgent leaders regarding government intentions. The state policy of provid-
ing reparations of 7.5 million baht per victim was merely an attempt to co-opt
dissidents. The renewed security approach of the government since the May
2014 coup has been effective in limiting the number of incidents of violence.
But it provides little room for any benefits from TJ approaches.53
Regarding elite deals, international experience shows that even if initial
grievances are addressed, violence will not decrease unless those who control
the means of violence on both sides step onto the peace train. Transformative
justice approaches only work well if they are implemented in concert with
other strategies that forge an elite deal or political settlement. At present, it
appears that any such elite agreement between government/military leaders and
insurgents is far off. Perhaps neither side is willing to compromise or ensure
that prosecutions are initiated to work toward TJ. Indeed, fruitful negotiations
may run counter to the ultimate goals of TJ. In particular, a major obstacle has
been the refusal of the Thai state to provide amnesty to insurgent leaders. Such
legal reassurances may be needed if senior insurgents are to participate in
open talks.54
This study offers five ultimate recommendations regarding transitional just-
ice in Thailand’s Deep South. First, research must be undertaken to understand
how Thailand’s legal framework would allow for the future implementation of
TJ activities in the Deep South context. Second, there should be national and
international experts to help plan a roadmap on transitional justice in the Deep
South. Third, the leaders of all stakeholder groups need to have a strong will-
ingness to endorse transitional justice processes and be a part of peace talks.
Fourth, the implementation of transitional justice should be very inclusive to
Chapter 3: Peace Process and Transitional Justice 95

both individual and collective cases without discrimination. Fifth, all stake-
holders must promote, communicate, and engage in the forging of a lasting
peace via transitional justice.

NOTES

1. Conciliation Resources, “Peace Process,” https://www.c-r.org/resources/peace-processes

(accessed November 13, 2018).
2. Christine Bell, Peace Agreements and Human Rights (New York: Oxford University
Press, 2000), 10–15.
3. Patrick Barron, “Can Transitional Justice Bring Peace to Thailand’s Deep South?” The
Asia Foundation, February 25, 2015, https://asiafoundation.org/2015/02/25/can-transitional-justice-
bring-peace-to-thailands-deep-south/.
4. Martina Fisher, Transitional Justice and Reconciliation: Theory and Practice (Berghof
Foundation Operations GmbH, 2012), 407.
5. Oskar N.T. Thoms, James Ron, and Roland Paris, The Effects of Transitional Justice
Mechanisms: A Summary of Empirical Research Findings and Implications for Analysts and
Practitioners (University of Ottawa Center for International Policy Studies, 2008).
6. Priscilla B. Hayner, Negotiating Justice: Guidance for Mediators (Geneva: Center for
Humanitarian Dialogue, 2010).
7. Priscilla B. Hayner, Unspeakable Truths: Confronting State Terror and Atrocity (New
York: Routledge, 2001), 8.
8. Briony Jones, Elisabeth Baumgartner, and Sidonia Gabriel, A Transformative Approach to
Dealing with the Past (Basel: Swisspeace, 2015).
9. Alexander Boraine, “Transitional Justice: A Holistic Interpretation,” Journal of
International Affairs 60, no. 1 (2006): 19–25.
10. Berghof Foundation, Berghof Glossary on Conflict Transformation: 20 Notions for
Theory and Practice (Berlin: Berghof Foundation Operations GmbH, 2012).
11. Hugh Miall, “Conflict Transformation: A Multi-Dimensional Task,” in Transforming
Ethnopolitical Conflict: The Berghodf Handbook, ed. Martin Fischer, Norbert Ropers, and Alex
Austin (Wiesbaden: VS Verlag, 2004), 75–77.
12. Barron, “Can Transitional Justice Bring Peace to Thailand’s Deep South?”
13. Ibid.
14. Ibid.
15. Ibid.
16. Chistopher K. Lamont, “Dealing with the Past to Repair the Present: Why Transitional
Justice Matters in Asia,” Asia Peacebuilding Initiative, January 1, 2014, http://peacebuilding.asia/
dealing-with-the-past-to-repair-the-present-why-transitional-justice-matters-in-asia/.
17. Amnesty International, “Colombia 2016/2017,” https://www.amnesty.org/en/countries/
americas/colombia/report-colombia/ (accessed October 21, 2017).
18. (1) Integrated rural reform, (2) guarantees for political opposition and civic participation,
(3) the end of the conflict (laying down arms and reintegration into civilian life), (4) illegal
drugs, and (5) victims’ rights. See International Crisis Group, “Colombia: Peace at Last?” https://
d2071andvip0wj.cloudfront.net/045-colombia-peace-at-last.pdf (accessed April 12, 2017).
19. Ylva L. Hartmann and Aniina Karlsdottir, The Truth from Below: Alternative Truth
Seeking Experiences from Sweden, Colombia and Burma (Stockholm: The Swedish Foundation
for Human Rights, 2017).
20. The Center for Justice and Accountability, “Colombia’s Justice and Peace Law,” https://
cja.org/where-we-work/colombia/related-resources/colombia-the-justice-and-peace-law/ (accessed
July 6, 2018).
21. Atticus Ballesteros, “Everything You Need to Know about Colombia’s Transitional
Justice System,” https://colombiareports.com/everything-need-know-colombias-transitional-justice-
system/ (accessed July 6, 2018).
22. Ibid.
96 Asian Affairs: An American Review

23. Ibid.
24. World Bank,“Collective Reparation in Colombia: When Everyone Suffers from the
Ravages of War,” http://www.worldbank.org/en/news/feature/2016/07/26/collective-reparation-
colombia (accessed May 5, 2017).
25. Evan Fagan and Evan Owens, “The Farc and Child Soldiers: A Question of
Reintegration,” Insight Crimes, May 25, 2016, http://www.insightcrime.org/news-analysis/the-farc-
and-child-soldiers-a-question-of-reintegration-so-near-yet-so-far.
26. Nikki Drake, “‘Peace Community’ Tries Nonviolent Resistance in Colombia,” NACLA,
June 19, 2015, https://nacla.org/news/2015/06/19/%E2%80%9Cpeace-community%E2%80%9D-
tries-nonviolent-resistance-colombia.
27. World Bank, “Collective Reparation in Colombia.”
28. The Center for Justice and Accountability, “Colombia: The Justice and Peace Law,”
http://cja.org/where-we-work/colombia/related-resources/colombia-the-justice-and-peace-law/
(accessed May 13, 2017).
29. Lamont, “Dealing with the Past to Repair the Present.”
30. Marita Concepcion Castro Guevara, “Report of the Transitional Justice and Reconciliation
Commission” (Makati City: Transitional Justice and Reconciliation Commission, 2016).
31. Ibid.
32. Jodesz Gavilan, “11,103 Victims of Human Rights Violations under Martial Law to Get
Compensation,” Rappler, May 10, 2018, https://www.rappler.com/nation/202033-human-rights-
victims-claims-board-final-list-eligible-claimants-released.
33. Macapado A. Muslim, “Sustaining the Constituency for Moro Autonomy,” Conciliation
Resource, 1999, http://www.c-r.org/accord-article/sustaining-constituency-moro-autonomy-1999.
34. Agencia Catalana de Cooperacio al Desenvolupament (Philippines, Bellaterra: Mindanao-
MILF Agencia Catalana de Cooperacio al Desenvolupament, 2005).
35. Jonathan Head, “What Is behind the Fighting in the Philippines’ Zaboanga?” September
13, 2013, https://www.bbc.com/news/world-asia-24079198 (accessed November 16, 2018).
36. Deep South Incident Database, “Summary of Incidents in Southern Thailand: January
2004–October 2016,” Deep South Watch, 2017.
37. Srisompob Jitpiromsri, “Phoenix under the Sun Light: Civil Society Movement in
Southern Thai Provinces,” Deep South Watch, March 30, 2008, http://www.deepsouthwatch.org/
node/229.
38. Duncan McCargo, “Thailand’s National Reconciliation Commission: A Fawed Response
to the Southern Conflict,” Global Change, Peace, and Security 22, no. 1 (2010): 83–84.
39. MARA Patani comprised six organizations: Barisan Revolusi Nasional (BRN 2); Barisan
Islam Pembebasan Patani (BIPP); Pertubuhan Persatuan Pembebasan (PULO-P4); Pertubuhan
Pembebasan Bersatu (PULO-dspp); Pertubuhan Pembebasan Bersatu (PULO-mkp); and Gerakan
Mujahidin Islam Patani (GMIP).
40. Patrick Barron, “How Transitional Justice Works in Thailand’s Deep South.”
41. Roongrawee Chaluemsripinyorat, ”The Truth Has Not Been Reached to Justice in
Thailand’s Deep South,” Prachathai, October 10, 2016, https://prachatai.com/journal/2016/
10/68274.
42. Romadon Panjor, “Transitional Justice Initiative in Deep South Thailand,” oral
presentation at Violence on Civilians and Transitional Justice, Sriwangsa Room, Faculty of
Political Sciences, Prince of Songkla University, February 20, 2017.
43. “Court Did Not Accept the Complaint on Interrogation the Death on Takbai Case,”
Prachathai, August 1, 2013, https://prachatai.com/journal/2013/08/47956.
44. Duayjai Group, the police interview on Srisakorn Case, 2014, Pattani, Thailand.
45. Aimpong Bunyapong, “Commission Pays for Monetary Remedy on Kruese-Takbai-
Sabayoi Cases, Somchai also Has This Rights.” TCIJ, June 10, 2012, http://www.tcijthai.com/
news/2012/06/archived/712.
46. Thai PBS, “The Wound at Tok Shud Tungyangdang, the Apology from Thai Government
and the Tears of Victim,” September 13, 2016, http://news.thaipbs.or.th/content/255731.
47. Muhammad Deuramea,“‘Iskanda Thamrongsup’ Opens the Peace Lesson through PPF
Program,” DSJ, February 17, 2017, http://www.deepsouthwatch.org/dsj/th/11077.
Chapter 3: Peace Process and Transitional Justice 97

48. Thaieforum, “The Draft of Anti Torture and Enforced Disappearance Act,” Isara News
Agency, May 24, 2016, https://www.isranews.org/thaireform/thaireform-data/47181.html.
49. Panjor, “Transitional Justice Initiative in Deep South Thailand.”
50. Albert Carames Boada, “Past, Present and Future in Mindanao Analysis of the MNLF
and MILF Peace and Reintegration Processes” (Barcelona: Escola de Cultura de Pau, 2009).
51. International Center for Transitional Justice, “Colombia,” https://www.ictj.org/our-work/
regions-and-countries/colombia (accessed November 13, 2018).
52. Barron, “Can Transitional Justice Bring Peace to Thailand’s Deep South?”
53. Ibid.
54. Ibid.