Somchai Neelaphaijit honoured with 2nd Asian Human Rights Defender Award of the Asian Human Rights Commission

To date, the body of Khun Somchai has never been found. However, while five law enforcers were prosecuted for offences relating to his forced disappearance, recently only one was found by a Thai court to be guilty of a minor offence relating to coercion. One ministry is continuing its investigations, and the latest twist is that some clues may have been found in a province outside Bangkok, at the bottom of a river.

Since the existing national-level remedies are inadequate, it is natural for those who seek justice to resort to international law and help to clarify the case. The pain and suffering of the family members of abducted persons are interminable, since they are uncertain about the fate of their loved ones. In the Somchai case, his family and particularly his wife, Khun Angkhana, need sustained support in their search for justice; they are incredibly brave people who deserve global admiration.

The Somchai case has already been referred to the United Nations Working Group on Enforced or Involuntary Disappearances, which has a global mandate to investigate such cases and influence the state authorities to offer effective remedies. Although the Working Group is not a court of law, it can make recommendations for effective action and accountability.

International action against abductions (“enforced, involuntary or forced disappearances”) is guided by the 1992 UN Declaration on the Protection of all Persons from Enforced Disappearances, which calls upon all states to criminalize these practices. States are obliged to provide a prompt and effective remedy to determine the whereabouts of persons allegedly abducted by the authorities, and a person deprived of liberty is to be detained only in an officially-recognized place of detention. The acts constituting such disappearances are considered to be a continuing offence where the perpetrators conceal the whereabouts of the disappeared persons and the facts remain unclarified.

When applied to the Somchai case, the principles inherent in the UN declaration indicate that although a court has already rendered judgement on the issue in Thailand, it is unfinished business in the eyes of international law, since there is a continuing offence until his whereabouts are known. The option of an appeal to a higher court and need for an independent inquiry have been underlined by various persons. Most importantly, there is the need for political will “to come clean” on what happened, since it is suspected that various powerful forces remain at work, higher in the political echelons than the middle-ranking law enforcer who has been found guilty by a court at first instance. There is also a need to permit the use of DNA evidence in relation to the concerned parties.

The international community has now gone further by adopting an international treaty on forced disappearances which will enable more monitoring on the issue globally. The International Convention on the Protection of All Persons from Forced Disappearance was finalized in 2005, and it brings greater clarity to the situation which some powerful forces prefer to obfuscate.

First, the notion of “forced disappearance” is identified as concerning the deprivation of a person’s liberty by state agents or equivalent, “followed by the absence of information, or refusal to acknowledge the deprivation of liberty or information, or concealment of the fate or whereabouts of the disappeared person”.

Secondly, the new treaty stipulates that the perpetrator is to be punished for the crime; the offence covers conspiracy and attempts to abduct a person.

Thirdly, the systematic or massive practice of forced disappearances is now considered to be an international crime. This implies that it falls under the jurisdiction of the International Criminal Court. Even a country such as Thailand may be affected by the court’s jurisdiction, although not yet a party to its statute. Where its nationals travel to a country which is a party, the latter country may cross-refer cases to the court.

Fourthly, the treaty provides for “universal jurisdiction” to criminalize an act of forced disappearance and bring the perpetrator to justice. This implies that a crime anywhere is a crime everywhere. In real terms, countries will be able to prosecute another country’s nationals if they have committed such crime–even when the crime did not take place on their territory.

Fifthly, orders from a higher-ranking officer to commit a crime do not exonerate a lower-ranking officer who follows them. Both are guilty, although there may be circumstances for reducing punishment of the latter.

Sixthly, the convention supports the right of a person to complain to a competent and independent state authority and to have that complaint immediately, thoroughly and impartially investigated by that authority.

Seventhly, there is no date for the expiry of a possible claim against the perpetrator, no statutory limitation period for those who wish to prosecute the perpetrator.

Eighthly, those affected and their families are entitled to seek reparation and compensation from the perpetrators.

Finally, the convention will set up an independent international monitoring committee, and state parties will be obliged to report to it periodically. The committee will be able to receive complaints from those affected. It will be empowered to undertake missions to the country under scrutiny.

Will Thailand become a party to this convention?

At a time when the international community is highlighting the need for transparency and accountability of the state and its agents, a key challenge for Thailand is to expose the crimes and malpractices committed by state officials and thwart the longstanding immunity enjoyed by powers-that-be where they err. It is at a critical juncture where resort to international law and its processes may help to overcome the whims of abusive, powerful interests that seek to cloak themselves behind a veil of impunity.

Presentation speech by John Clancey

Forced disappearance is a heinous crime, which is condemned by all civilized persons and societies. The International Convention on the Protection of All Persons from Forced Disappearance was finalised in 2005 and is due to come into effect. It defines forced disappearance as “the arrest, detention, abduction or any other form of deprivation of liberty committed by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.”

We know that a senior police officer has been found guilty of abducting Somchai, but so far he is the only member of the abduction team to have been convicted. Yet there is still concealment of the fate or whereabouts of Somchai. His wife, Angkhana Neelaphaijit, has said, “We want him back, even his ashes or any of his remains, so we can perform religious rites for him.”

Those persons who carried out this heinous crime and those who are involved in the subsequent cover up have placed themselves outside the boundaries of civilized society. The actions and silence of those persons have caused pain and sorrow for Somchai’s wife, children, other relatives and friends. The forced disappearance of a person is in effect an assault on the psyche of their relatives and puts them into a world of uncertainty.

However, those persons who have carried out this horrendous crime have done much more: by not allowing families and friends to proceed with a proper funeral they have insulted religion–all religions, including Buddhism and Islam and Christianity. And in so doing, they have dishonoured a core principle of all cultures, including Thai culture.

The crimes and continuing silence of these persons offends the norms of all civilized persons and societies. The culture of silence among some members of the police and military that serves to protect the identities of those involved in gross human rights abuses is not in any way honourable. It must be seen for what it really is: a cancer that eats away at their own humanity and at the basic human values of Thai society.

The persons involved in the forced disappearance of Somchai have also undermined the rule of law in Thailand. A civilized society marked by the rule of law recognizes the role and responsibility of lawyers to represent and defend all persons, no matter what their political or social background or beliefs. Lawyers are an integral part of the judicial system. By abducting Somchai, those responsible have sought to threaten and intimidate members of the legal profession and to undermine the entire judicial system. All those who today protect the abductors continue to weaken the judicial system and rule of law in Thai society.

No one should be forcibly disappeared. Yet, Somchai was special.

He was a good husband and father. He was also a world-class human rights lawyer, who regularly took legal action to defend basic human freedoms. He was an asset to Thai society, who insisted that all persons in authority respect the rule of law and follow the procedures established to ensure the rule of law is maintained. Somchai frequently represented clients who were accused of threatening state security and in the process he had to confront powerful state agents, which he did without fear. He was motivated by justice and insisted that the rules of fair play be followed. At the time he was abducted, he was representing a group of torture victims who were being held under extended detention without any charges being laid against them. Somchai had openly accused some police officers of committing torture.

We admire the strength of character of Somchai. In the face of strong opposition, harassment and threats to his life, he continued his fight for justice, both in principle and for each of his clients

We have the greatest respect for the professional legal commitment that has been demonstrated in his service to clients in need, especially those who were abused and tortured. We note that in his lifetime Somchai was honoured by the Lawyers Council of Thailand for his devotion and professionalism.

We praise his commitment to justice and his commitment to using the judicial system to seek justice for others and his work to strengthen the rule of law in Thailand.

At the same time, we also honour his wife, Angkhana Neelaphajit. As we noted when announcing the award for Somchai, she

Has been unrelenting in her efforts to obtain justice, unsparing in her criticism of government authorities and has taken the lead role as an articulate and courageous spokesperson for the families of disappeared persons in Thailand. She has clearly indicated that she will continue her struggle for her husband no matter what. By giving this award to Somchai, the AHRC Board of Directors is also recognizing and applauding the tremendous contribution that Angkhana Neelaphaijit has made in confronting the impunity enjoyed by state officers in Thailand.

Angkhana recently said, “It will build up the good image of the government and the justice system in Thailand if we don’t let impunity remain rampant.”

In her introduction to the Thai-language edition of Memories of a Father, a book in which Professor T V Eachara Varier describes the abduction of his son by the Inidan police and his subsequent relentless struggle to obtain answers and justice, Angkhana wrote:

On the surface Thailand appears to have beauty, peace and material development, but deep down violence and misuse of authority are still taking place. Suppression and torture are so common that people are used to them. The violence and discrimination of state authority against the powerless has caused pain to innocent people. No one knows how grief and misery from loss and injustice cause more pain than that from a death. This is a wound that is deep in the heart, which cannot be seen or touched but reflects well those injustices in society¡K Encouragement and hope for justice are getting less. I am asked to receive compensation instead of justice. I am forced to be convinced that there is no justice in this world¡K I believe that beyond human laws there are universal laws and what goes around will come around. Finally, I strongly believe that there is justice in the hands of God.”

So, we honour both Somchai and Angkhana.

But we do more than honour them and admire the strength of character and commitment to justice by both Somchai and Angkhana.

We don’t stop at honouring Somchai’s contributions to the legal profession and to working to enforce and uphold the rule of law in Thailand.

We go beyond praising Somchai’s service to those in need, especially minority groups and those who had been tortured and unjustly detained.

The Asian Human Rights Commission pledges to remain in unity with his wife who demands answers and insists on justice being done. We stand in solidarity with those who demand justice for Somchai and his clients. We commit ourselves to working with those who want to uphold the rule of law and to demand that the judicial system ensures that justice is done and that the rights of all litigants and the lives of all judges and all lawyers will be respected and protected.

The Asian Human Rights Commission commits itself to working with groups in Thailand who are urging Thailand to ratify the international Convention against Torture and to introduce this convention into domestic law. We will also continue to work with and support groups in Thailand who are trying to stop the widespread use of torture, disappearances and extrajudicial killings by police officers and members of the security forces. And we will work with all groups who are promoting and trying to uphold the rule of law in Thailand and with all groups who condemn violence and are working for a peaceful settlement of disputes.

We will work with all those persons who are helping to develop a culture that will not tolerate any further disappearances, and that demands the end of impunity and that all who commit this heinous crime of forced disappearance be severely punished.

We urge the Government of Thailand to be among the first countries to become a signatory to the International Convention on the Protection of All Persons from Forced Disappearance. We also urge the Government of Thailand to pass legislation to make both torture and forced disappearance crimes in Thailand.

When we are working, until that day when we have a chance to formally say goodbye to him, we consider that Somchai is working with us.

We also hope that our work will bear fruit and that we will be able to convince Angkhana that while justice is in the hands of God we can make justice a reality in this world.

Somchai, for all you have done we honour you. Angkhana, for all you have done we say thank you: for all you will do in the future, we offer you our support.

Acceptance speech by Angkhana Neelaphaijit

Somchai always fought according to the law, and never used illegal or corrupt methods to close a case. We saw [today] a video… on human rights defenders. One thing that came out was that few human rights defenders have comfortable lives. Many of them have faced different destinies: some have been hunted and could not even find a place to sleep; some have lost their loved ones, and many have had to sacrifice their lives. However, I believe that those who come to this field are ready to pave the way for those who come after us. I do not believe that we can get anything easily, without loss.

At the moment Somchai’s case has been transferred to the Department of Special Investigation, the director of which is a former supervisor of those five defendants. How can we have an impartial, transparent and accountable agency so that a small, ordinary person like me can access justice by means of the law? Even though the DSI has taken the case for several months, it has never used forensic science in order to get evidence.

It is hard for ordinary people to access justice, especially when the conflicting party consists of the state authorities, with power, weapons and the country’s leader on side. I do not want to use strong words, but would like to inform Mr Thaksin that you said you were emotional when seeing the tears of parents whose children have given up drugs. Unfortunately, Mr Thaksin has had no chance to see the tears of the lost families whose members are abducted, killed and tortured. The tears of more than 2000 families who lost members by the unlawful “war on drugs” operation are not seen by him.

Finally, I would like to thank you all for the many things given by allies and friends. I could not have moved this far if there were no one to assist me, as well as the devotion from you. The success of a person consists of the many hands behind them.

I thank the Asian Human Rights Commission for backing my battle at all times. Thank you to the Faculty of Political Science at Chulalongkorn University, for giving me enthusiasm and society a shelter when there is a conflict with the state. Thank you Mr Stephen Toope, Ms Hina Jilani, representatives of the United Nations; Ms Suciwati, a new friend who is a good ally at both regional and international levels. Thanks also to Amnesty International, the Thai Working Group for Human Rights Defenders, FIDH, OMCT and ICJ.

And I must not forget to thank an eyewitness [to Somchai’s abduction], an anonymous lady who walked to the court alone without any protection. She identified the culprit three times during the investigation.

The one other thing I would like to say here is that we appreciate Somchai for his devotion to suffering people, but those who have been tested with real suffering are all of his five children. Therefore, I would like to take this opportunity to thank them on behalf of Somchai for living with sacrifice, tolerance and non-violence throughout the battles we have fought.

I have learnt a precious lesson and am able to conclude that no matter how others treat us, beyond hatred and cruelty there is friendship, kindness, care and learning to be tolerant, to fight for justice. Beyond injustice and unlawful ways, there is a natural order, and what goes around will finally come around. Thank you.