Why Hakeem al-Araibi matters

Hakeem al-Araibi is taken back to a detention cell after a court appearance during his Bangkok ordeal. (Photo by Pornprom Satrabhaya)

Only recently, Thailand became the focus of global attention when a decision was taken to release Hakeem al-Araibi from administrative detention and allow his return to Australia. The case galvanised the world and challenged Thailand's relationship with Australia, Bahrain, Fifa, and international law. It captured front-page headlines, innervated human rights advocates, and ignited a ground-up movement across the world of international football.

Now, as the dust settles, it is time to take stock of the significance of the Araibi case, not only for the individual advocates and campaigners, but also for the greater protection of refugees in Thailand and across the region. Araibi's case is a canary-in-the-coalmine indicator of the effectiveness of our common commitment to ensure people are protected from persecution. It illuminates gaps and risks in our systems and challenges the "universality" of universal human rights.

While his case resolved without significant violation of international law -- a very real threat -- it did not do so due to respect for refugee rights or binding international legal commitments. Nor did it do so as a result of the Thai judicial system "being left to do it's work", as the Interior Ministry underscored as essential. It did so because the grounds for continuing to hold Araibi, tenuous in the first place, evaporated. It did so because the situation became internationally untenable and because the world was watching.

Only a few months ago, Araibi was a relatively unknown footballer with Pascoe Vale FC, a semi-professional Premier League team in Melbourne. He is also a recognised refugee. This means that he has fulfilled the rigorous international legal standards for determining that he, for his alleged role in the 2011 Arab Spring uprising, would face grave risk if returned to Bahrain. The refugee recognition process is far from straightforward and requires extensive examination of the particulars of a claimant's case, analysis of circumstances in the country of origin, and scrutiny of the "credibility" of the asylum seeker. Very few applicants are able to satisfy the criteria.

Araibi is effectively Australian, but not fully. As a refugee he is essentially stateless. Australia offers him protection and residence in the country, but not the rights that come with citizenship. Simultaneously, he cannot be expected to maintain his links to the Bahraini state. He has no actionable citizenship. His only rights come from international refugee law, and refugee law is some of the most contested, complicated, and high-stakes international law in existence. It is also law that Thailand has not agreed to respect.

When Araibi arrived in Bangkok last November with his wife, he was immediately arrested and detained under the auspices of a Bahraini-issued Interpol "Red Notice", a document demanding his forcible return to Bahrain. Despite the notice being invalid -- refugees cannot be subject to extradition requests by a persecutory authority -- Thailand continued to detain him pending a formal extradition request from Bahrain. Legal justification for holding Araibi had evaporated, but his detention continued outside normal procedure. Thailand has no extradition agreement with Bahrain, and violated its own law by continuing to hold him.

The case was a stark contrast to that of Rahaf al-Qunun, a Saudi teenager who was recognised as a refugee within days of arrival in Thailand and resettled to Canada. Thai Immigration Bureau Commissioner Surachate Hakparn celebrated her case as a demonstration of Thai commitments to human rights processes. Meanwhile, Araibi remained detained as Thailand facilitated Bahrain's slow-moving extradition process.

Thailand, like many countries in the region, is not a signatory to international law protecting the rights of refugees, a fact often cited to explain ad hoc and inconsistent responses to refugees in the country. It does not legally recognise refugees, despite housing nearly 100,000 in camps along the Myanmar border. It is, however, beholden to the Convention Against Torture, which underscores the inviolable right to nonrefoulement: protection from return to an authority for which there are reasonable grounds to believe a person may be subject to torture or other inhumane and degrading treatment. This obligation is applicable to Hakeem.

The Bahraini human rights record is dismal. The US Department of State reports potential abuses including unlawful killings by security forces, torture of detainees and prisoners, harsh and potentially life-threatening conditions in detention, and the arbitrary arrest and detention of political dissidents. The record speaks for itself.

After Ms Qunun's case, the media became receptive to high-profile refugee cases in Thailand. Araibi's situation started gaining international traction. With this came the attention of the international football community. Fans in Australia and elsewhere began to unfurl "Free Hakeem" banners at matches, and Australian teams reconsidered invitations to play in Thailand. Protests began to happen at foreign consulates. Fifa announced its intention to act in line with standards of human rights, threatening sanctions and Thailand's bid to host the World Cup. Social media hashtags caught on. Legal challenges moved forward. Thai football leagues issued statements in support and divers from Thailand's famous "cave boys" rescue operation condemned efforts to extradite the footballer. Thailand felt the heat.

On Feb 11, Araibi was released, without notice, and allowed to return to Australia.

Araibi should never have been arrested in the first place. There is no circumstance under which a refugee should be subjected to return proceedings. This is the foundation of international human rights mechanisms around the principle of human protection. The Hakeem case highlights a number of failures in that international system. The concept of human rights, when applied across borders, consistently faces a bedrock question: are human rights universal? Does a person deserve the same protection no matter what jurisdiction that person finds themselves in? Do states have the right to determine the treatment of people within their boundaries? These questions probe the limits of our nation state system and challenge fundamental concepts of belonging, common humanity, and our commitment to a communal understanding of appropriate human treatment.

The risk of return for Araibi was a very real risk, and the outcome could easily have been different. His case was left to the determination of a legal system that does not recognise international rights to protection, and notable recent examples demonstrate a willingness to contravene fundamental protection principles in order to return people to potentially horrific ends. The system lacks accountability and consequence, undermining lessons hard learned through the brutality of World War II and principles established through the horrors of human history.

Thailand is not alone.

Any number of states across the region and across the world fail to uphold basic international standards of human rights protection, especially when it comes to non-citizens. State motivations, be they political, economic, or otherwise, are determined by arguments based on state sovereignty and national political interest, continually disregarding the "universality" of human rights in favour of political expediency, nationalism, and geopolitical advantage. For refugees without influential external advocates, cases like Araibi's are very often unwinnable, and can become a death sentence for the refugee.

In Araibi's case, international football, and subsequent world attention, was the lynchpin. This is not the case for the vast majority of the world's refugees, and the absence of international accountability allows too often for impunity.

In Thailand, nothing has changed: national law remains absent refugee protections and systems that failed Hakeem remain in place. If a lesson has been learned, it is to ensure global scrutiny remains at a minimum. But the opportunities for the country are astounding.

Thailand has the opportunity to capitalise on this moment and to step more prominently into its role as a regional leader, demonstrating its fundamental commitment to universal standards of human treatment, and aligning itself with the 145 countries around the world that have risen to the challenge and obliged themselves to protect refugees under international law. The benefits to Thailand and the region would be immeasurable.

When I asked Australian football legend Craig Foster why he involved himself in the case of an unknown Bahraini playing for an uncelebrated team, he responded without hesitation: "He's one of us".

Indeed, he is.