20 years after Tak Bai, impunity trumps justice

On 25 October 2004, during the holy month of Ramadan, more than 2,000 Malay Muslim protesters gathered outside the Tak Bai police station in Thailand’s Narathiwat Province to demand the release of six men whom authorities had detained. The detainees were accused of providing support to insurgent groups active in the region, but many locals believed that their arrest was arbitrary and politically motivated. Tensions in Thailand’s largely Muslim deep south were already high after years of insurgent violence and heavy-handed government responses.

The protest, initially peaceful, quickly escalated when security forces used tear gas, water cannons, and live ammunition against the crowd. Seven demonstrators died during the initial dispersal, with five reportedly shot in the head. Following the crackdown, around 1,370 protesters were arrested and transported to the Ingkhayutthaborihan Military Camp in Pattani, approximately 150km away. It was during this journey that the tragedy unfolded: 78 detainees died from suffocation and crushing as they were bound, stacked in layers, and transported in overcrowded trucks without food, water, or ventilation.

The brutality of what soon became know as the Tak Bai massacre shocked Thailand and drew international condemnation. Foreign human rights organisations and local civil society groups decried the treatment of the detainees, emphasising that their transport in such conditions violated fundamental human rights and international norms. The incident further strained relations between the central government and the predominantly Malay Muslim population in the southern provinces, who have long felt marginalised and discriminated against by the Thai state.

20 years on, the massacre remains one of Thailand’s most tragic and controversial events, particularly for those affected by the ongoing conflict in the country’s southernmost provinces—and the lack of accountability and delayed justice for the victims continues to haunt Thailand’s judicial system and political landscape.

The ticking legal clock

In the aftermath of the massacre, the Thai government quickly formed an independent fact-finding committee to investigate the excessive use of force by security personnel. However, the findings of this committee did not result in meaningful legal action against those responsible. On 29 May 2009, the Songkhla Provincial Court ruled on the case, determining that the deaths of the 78 detainees were due to suffocation while being transported under official custody. The court found that military and police personnel had acted within their duties, despite the evidence of mistreatment.

The 2009 ruling effectively absolved the officers involved of criminal responsibility, focusing on procedural justifications rather than addressing the broader context of human rights violations. Although video footage showed instances of brutality, such as detainees being beaten while restrained, the court concluded that the deaths were the result of unfortunate circumstances rather than intentional acts. This decision, criticised by human rights advocates, reinforced the perception of impunity within Thailand’s legal system. In 2012 the government provided compensation of 7.5 million baht per victim to the families of those who died. Yet this financial settlement did little to address demands for justice.

Despite the failure of the government’s fact-finding committee’s work to prompt a successful criminal prosecution, two separate cases related to the Tak Bai incident remain unresolved as the statute of limitations approaches.

The first arises from a successful application made in April 2024 by victims’ families’ via the Narathiwat Provincial Court, for the initiation of prosecutions against 14 state officials accused of murder, attempted murder, and unlawful detention. The Court accepted this case in August 2024, finding merit in the plaintiffs’ evidence.

However, the trial has faced multiple delays. All defendants were ordered to report to the court for notification that the case would begin on 12 October. Yet none of the would-be defendants appeared in court, including General Pisal Wannatanawongkiri, a former commander of Thai army forces in the deep south and until recently a Pheu Thai MP. Pisal’s whereabouts remain unknown amid speculation that he has left the country, adding to frustrations about the slow pace of justice.

Alongside this, a second criminal case has been initiated by Thailand’s Attorney General, based on the case files received from the Songkhla Provincial Court and the National Police Headquarters in April 2024. The Attorney General’s decision to pursue charges came after years of delays and multiple rejections of prosecution requests by investigators, and targets eight individuals on charges of “intentional murder with foreseeable consequences”. According to Thailand’s Criminal Procedure Code, this case is classified as an “extrajudicial killing”, meaning it related to a death that occurred while the deceased was under the control of an official performing their duties. The Attorney General then issued an order on 12 September 2024 to prosecute eight suspects in the extrajudicial killing case.

This case rests on the argument that the conditions under which the detainees were transported—cramped, bound, and deprived of basic needs—amounted to intentional murder due to the foreseeable consequences of such treatment. The Attorney General viewed that the officials responsible for the transportation of Tak Bai demonstrators should have known that it could lead to deaths, as there were more than 1,000 demonstrators but only 25 trucks used for the transport. Six of the eight suspects are of lower military rank and served as drivers in 2004; several of them are civilians, and one of them is a senior army officer, General Chalermchai Virunhpet, who is also a defendant in the case mentioned above brought by victims’ families.

In both criminal cases, if the defendants do not appear before the court by Friday 25 October 2024, these cases will be considered closed as a 20-year statute of limitations for criminal prosecution will have passed. Even though with the Attorney General’s late involvement, the slow pace of progress has raised concerns. Thai and international mainstream media have closely followed and reported on the case. Romadon Panjor and Rangsiman Rome, MPs from the opposition Prachachon party, have been pushing the case forward, but to no avail: the Pheu Thai–conservative coalition government remains ambiguous on the case progression. The national police chief has been tasked with locating and presenting the suspects to the court, but efforts have been sluggish. None of the security authorities have given interviews about the case. As the statute of limitations approaches, the potential for accountability hangs in the balance.

Elections, trust, and the peace process

The delayed resolution of the Tak Bai case has potentially significant political consequences for Prachachart and Pheu Thai. Prachachart, which won the majority of votes in Thailand’s three southernmost provinces, is in a precarious position. Tawee Sodsong, the current Minister of Justice and Prachachart MP, has not taken decisive action in resolving the case. If it continues to fail to deliver justice for the victims of Tak Bai, it risks losing the trust of its constituents, many of whom are directly affected by the unresolved case. Such a loss could have severe repercussions in the upcoming general election, potentially shifting political power in the region.

Pheu Thai, which in its previous guise as Thai Rak Thai held power under Thaksin in 2004, now has a second opportunity to address its previous policy failures. Thus far, little progress has been made. Deputy Prime Minister and Defence Minister Phumtham Wechayachai, a Pheu Thai member, has provided ambiguous responses when questioned by reporters about the case. While figures in high-ranking positions during the 2004 incident, including then army chief General Pravit Wongsuwan, then defence minister General Sampan Boonyanan, and Thaksin Shinawatra himself were not listed as defendants or suspects by the court, the Tak Bai massacre has nonetheless had lasting effects on Thaksin and his political party. Since the incident, Thaksin­-aligned parties have never regained their political strength in the deep south.

Beyond electoral politics the Tak Bai case is emblematic of a larger issue—the perceived marginalisation and mistreatment of the Malay Muslim population by the Thai state. The perception that the government is unwilling to hold security forces accountable reinforces a sense of alienation among the Malay Muslim community. This alienation is exacerbated by the Thai state’s broader counterinsurgency strategies, which have often been criticised for their heavy-handedness and disregard for local sensitivities. If the Tak Bai case is allowed to lapse without accountability, it could fuel renewed cycles of violence and undermine ongoing peace negotiations. On September 30, a car bomb exploded near the house of the district chief, injuring two soldiers. Sunai Pasuk, a senior researcher for Human Rights Watch, suggested that this incident might serve as a warning sign from the BRN regarding the nearly expired Tak Bai case.

Institutional failures, institutionalised impunity

The judiciary’s handling of the Tak Bai case raises fundamental questions about the role of Thai courts in addressing state violence. The nearly 20-year delay in prosecuting those responsible highlights broader challenges within Thailand’s legal system, including political interference, a lack of transparency, and a culture of impunity. Although the courts have occasionally accepted cases and allowed them to proceed, procedural delays and the failure to secure the appearance of key defendants have hindered progress. Some might argue that the legal process now belatedly in train was orchestrated to preserve the judiciary’s prestige in the face of public demands, without any sincere intention to resolve the case.

Other significant legal obstacles to bringing elite defendants to court is the constitutional provision that protects members of parliament from arrest during parliamentary sessions, which has been invoked in the case of General Pisal, the fugitive ex-Pheu Thai MP; the complexities of coordinating between the judiciary, the Attorney General’s office, and law enforcement agencies have also contributed to the slow pace of legal proceedings.

These institutional failures must be understood within the broader context of state violence and impunity that has been the subject of scholarly theorising. The 20 year long failure to resolve the case serves as poignant testimony in particular to Tyrell Haberkorn’s argument that arbitrary detention in Thailand has been instrumental for state perpetrators in exploiting Thai laws to facilitate human rights violations and secure impunity. Indeed, in building this theory Haberkorn has examined the recurring arbitrary detentions in the southernmost provinces of Thailand over the years, revealing how state violence aggressors consistently enjoy impunity.

With the statute of limitations for the Tak Bai case set to expire imminently, the window for achieving justice is rapidly closing. The failure to resolve the case not only highlights the weaknesses within Thailand’s judicial system but also underscores the political challenges of addressing state violence in a deeply divided society. This case’s outcome could shape the peace process’s future in Thailand’s southern provinces, determining whether the region can move toward reconciliation or remain in conflict.

The coming days will be crucial in determining whether Pheu Thai, Prachachart, the Attorney General’s office, and other key actors can overcome the barriers to justice. If they succeed, it could mark a turning point in the region’s history, offering a glimmer of hope to the families of the Tak Bai victims. If they fail, the legacy of the massacre will continue to haunt Thailand, a stark reminder of the dangers of impunity and the long shadow it casts over peace.