On March 12, 2013, the ninth anniversary of the enforced disappearance of Somchai Neelaphaijit passed. The Asian Human Rights Commission chooses to note this anniversary with continued sorrow for the enforced disappearance of Somchai Neelaphaijit and deep concern for the persistent failure to secure justice in this case. This is nine years in which the perpetrators of his abduction, assault, and murder have walked free. This is nine years in which his family has courageously struggled to hold the specific perpetrators of his enforced disappearance to account while also fighting for them to secure accountability in other enforced disappearance cases in and beyond Thailand. This is nine years in which different parts of the Thai state apparatus have displayed a consistent lack of will to protect human rights and instead a willingness to violate them at the expense of individuals and the rule of law writ large.
Somchai Neelaphaijit was a noted lawyer and human rights defender. At the time of his enforced disappearance, Somchai was working on behalf of five men who had alleged that they were tortured by state security officials while they were in state custody in Narathiwat, one of the three southern-most Thai provinces, which has been under martial law since January 2004 and under emergency regulations since July 2005. On 11 March 2004, the day before his enforced disappearance, Somchai submitted a complaint to the court which detailed the forms of torture experienced by the five men. He argued that this was both a violation of their rights and the Criminal Code, which prohibits torture. He also spoke out publicly and passionately on the case, accusing the police of gross wrongdoing. On 12 March 2004, one day after he submitted the complaint, five policeman pulled Somchai from his car on a main road in Bangkok. He was never seen again.
The very form of the crime of enforced disappearance often makes redress particularly difficult. In the case of the disappearance of Somchai Neelaphaijit, after a labyrinthine legal case and courageous struggle by Angkhana Neelaphaijit, his children, and many human rights activists, the five police officers who pulled him from his nine years ago are still living outside prison, with no charges outstanding against them. At every stage of the investigation, there was obfuscation by police officers, a lack of will by many inside the state (including at the highest level of the then-prime minister, Thaksin Shinawatra) to cooperate, and mishandling of evidence. Under Thai evidentiary rules, without a body – which could never be located – a murder charge cannot be levied, so the involved police officers were charged and prosecuted for theft (of his vehicle) and coercion. Only one police officer out of five was found guilty, and in 2011, additional evidentiary problems led to his acquittal on appeal. Yet what was even more striking about the appeal decision was the stringent dispossession of the rights of victims and families to seek accountability. In the case against the perpetrators, Angkhana Neelaphaijit and her children were joint plaintiffs with the public prosecutor. Under the Criminal Procedure Code, families can act on behalf of injured or dead person. The Appeal Court ruled that in this case, there was not sufficient proof that Somchai Neelaphaijit was dead, and therefore his family could not act on his behalf. In other words, the lack of the category of enforced disappearance within Thai law has made it incredibly difficult to hold the perpetrators accountable for their crimes. At present, the case is being examined by the Supreme Court. Please see the AHRC’s campaign page for the Somchai case here.
As one attempt to redress the injustice of enforced disappearance, after a long struggle spanning 25 years, the United Nations General Assembly adopted the International Convention for the Protection of All Persons from Enforced Disappearance on 20 December 20, 2006. The convention was opened it for signature on February 6, 2007, and entered into force on December 23, 2010. The convention specifies the crime of disappearance and also makes recommendations for how states should approach the investigation, prosecution, and redress of the crime, as well as recommends how to protect the rights of victims and families of the disappeared. Thailand became the most recent state to sign the convention on January 9, 2012, but has not yet ratified it.
The AHRC concludes by sharing part of an open letter to current Thai prime minister, Yingluck Shinawatra, released last week by Angkhana Neelaphaijit, Somchai’s widow and the chairperson of the Justice for Peace Foundation (AHRC-FOL-005-2013). In the letter, Angkhana thanked the Yingluck government for their decision to provide financial compensation to the Neelaphaijit family and other victims of disappearance throughout Thailand and to sign the International Convention for the Protection of All Persons from Enforced Disappearance. Yet she simultaneously stressed the ongoing need for accountability:
“I would like to express my sincere appreciation that your government has decided to provide remedies to people whose human rights have been affected by governmental officers including the enforced disappearance cases in the Southern Border Provinces. Remedies are an indispensible right of the victims. But apart from upholding the right to access truth, it is equally important to uphold justice and ensure that there shall be no recurrence of human rights violation. And monetary remedies alone are not enough to erase the trauma and wound in the hearts of the survivors. I fervently believe that only through access to truth and justice that dignity of the survivors shall be restored and it would lead to lasting forgiveness and reconciliation.”
The AHRC joins with Angkhana Neelaphaijit and the Justice for Peace Foundation in continuing to call for justice in the case of the enforced disappearance of Somchai Neelaphaijit. Without truth and accountability, justice is impossible. Without justice, signing the convention and providing financial compensation to the families of the disappeared are hollow gestures.
