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ADDENDUMTO THE
APPLICATION TO INVESTIGATE
THE SITUATION OF THE KINGDOM OF THAILANDWITH REGARD TO THE COMMISSION OF CRIMES AGAINST HUMANITY
A REPORT BY AMSTERDAM & PEROFF ON BEHALF OF
THE NATIONAL UNITED FRONT FOR DEMOCRACY AGAINST DICTATORSHIP (UDD)
INITIALLY SUBMITTED ON JANUARY 31, 2011 TO
THE OFFICE OF THE PROSECUTOR OF THE INTERNATIONAL CRIMINAL COURT
SEPTEMBER 12, 2011
1. IntroductionOn January 31, 2011, Amsterdam & Peroff submitted to the Office of the Prosecutor of
the International Criminal Court a request to open a preliminary investigation in the
situation of the Kingdom of Thailand, relating to the commission of crimes against
humanity before, during, and after the violent crackdowns staged against Red Shirtdemonstrators in April and May 2010. The crackdowns resulted in the death of ninety-
two people, the injury of 2,000 others, and the arrest of at least four hundred
protesters, many of whom were held incommunicado in secret locations for prolonged
periods of time. Based on Article 53(1) of the Rome Statute, the Application sought to
establish a reasonable basis to believe that the Royal Thai Government, at the time
under the leadership of Prime Minister Abhisit Vejjajiva, and the Royal Thai Army, then
under his command, committed crimes against humanity under Articles 5 AND 7 of the
Rome Statute murder, imprisonment and other severe deprivation of physical liberty
as well as political persecution and other inhumane acts in April and May 2010.
According to the findings presented in the Application, these actions trigger criminal
liabilities for government officials such as former Prime Minister Abhisit under
international criminal law.
While acknowledging that the Kingdom of Thailand is not a State Party to the ICC
Statute, the initial application argued that the ICC has jurisdiction ratione personae , based on the fact that former Prime Minister Abhisit who expressly authorized the
killing of civilians pursuant to a policy to destroy the red shirt movement is a
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national of a state party to the ICC, namely the United Kingdom, sufficient to give the
prosecutor a reasonable basis to examine the ICCs jurisdiction under article 12.2.b of
the Rome Statute. In addition, the initial Application substantiated that the situation
could be brought within the jurisdictional ambit of ICC through referral by the United
Nations Security Council under Article 13(b) of the Rome Statute. Finally, the initial
Application argued that the situation meets the requirements of gravity and
complementarity set out by Article 17 of the Rome Statute for the admissibility of a
case to the ICC, and that the political and military leadership of Thailand should be
deemed criminally liable for offences within the jurisdictional ambit of the ICC.
This addendum supplements the Application to Investigate the Situation in the Kingdom
of Thailand initially submitted on January 31, 2011. It updates the evidence contained
in the initial Application based on events that have happened since its submission aswell as information presented in investigative reports issued by international and Thai-
based human rights organizations in the intervening months. The reports include:
1. Human Rights Watch, Descent Into Chaos: Thailands 2010 Red Shirt Protests and
the Government Crackdown , released in May 2011. 1
2. Marginalized Monsoon Group, Preliminary Fact Finding Report on the Political
Violence of May 13-19, 2011 , released in May 2011 (Thai-language). The
investigative team was led by Ramkhamhaeng University professor, Dr. Bandit
Chanrojanakit. 2
3. International Crisis Group, Thailand: The Calm Before Another Storm? , released
in April 2011 as the ICGs Asia Briefing N121. 3
4. Lessons from the Military Operations in the Siege of Ratchaprasong, May 14-19,
2010, which appeared in the Army journal Senathipat (Vol. 59, Issue 3, 2010). 4
5. Lessons in Information Operations: The Re-Establishment of Order in the City
(March-May 2010), which appeared in the Army journal Senathipat (Vol. 60,Issue 1, 2011). 5
1 For the press release, summary, and full report, see: http://www.hrw.org/node/98416 .2 The report can be downloaded from this page, which also includes a brief English-languagedescription of its contents: http://asiapacific.anu.edu.au/newmandala/2011/05/25/shoot-to-kill/ 3 The report can be downloaded from the ICGs website:http://www.crisisgroup.org/en/regions/asia/south-east-asia/thailand/B121-thailand-the-calm-
before-another-storm.aspx 4 The report was commissioned by a Lt. General in the Royal Thai Army to provide a set of guidelines on combating urban unrest. The article (Thai language) can be downloaded at:http://www.cdsd-rta.net/images/stories/valasan/valasan%20y59%20b3%20year2553/lesson7.pdf . A summary inEnglish is provided at: http://robertamsterdam.com/thailand/?p=840 .
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The aforementioned reports include evidence corroborating the assessment of the
Situation of the Kingdom of Thailand contained in Amsterdam & Peroffs Application to
Investigate , pointing to the commission of several crimes against humanity, including
the crimes of murder, imprisonment and other severe deprivation of physical liberty,
persecution, and other inhumane acts. They also include new evidence of enforced
disappearances as a crime against humanity under Article 7.1 (i) of the Rome Statute.
In addition, the reports attest to the widespread or systematic nature of the attack
against the civilian population, as well as to the existence of a state or organizational
policy to commit the crimes devised and approved at the highest levels of the Royal
Thai Government, the Royal Thai Army, and the now defunct Center for the Resolution
of the Emergency Situation (CRES).
Further, each of these reports speaks to the commitment of the Royal ThaiGovernment, through the date of the most recent report (May 2011), to obstruct
attempts to identify, investigate, and prosecute individuals responsible for the
aforementioned crimes. This conduct not only triggers the International Criminal
Courts jurisdiction based on the principle of complementarity, it also constitutes a
serious breach of Thailands duty as a signatory to the Rome Statute, which it signed on
October 2, 2000, to refrain from acts which would defeat the object and purpose of the
treaty. 6 This breach is an additional reason why an ICC prosecution would be in the
interest of justice within the meaning of Article 53.1(c) of the Rome Statute, by
demonstrating that those states which have signed, but not yet ratified, the statute
must not defeat its purpose by obstructing investigations. Where, as here, signatories
obstruct investigations through manipulation, concealment or destruction of evidence,
the effect is to impede the ICCs subsequent exercise of jurisdiction under Article 12.3
of the Rome Statute, by which states can accept ICC jurisdiction over crimes against
humanity perpetrated prior to their becoming a party to the Rome Statute. The ICC
should make clear that such pre-ratification obstruction of the object and purpose of
the Rome Statute by signatories to the treaty will not be tolerated.
5 This report was written by Col. Boonrod Srisombat, an officer in charge of the Army TrainingCommand, serves as a companion piece for the one cited above (while the article cited abovelists the authors pseudonym as Hua Na Kuang, the two biographical notes at the end of thearticle are identical, indicating that Col. Boonrod is the author of both). The article (Thai) can bedownloaded at: http://robertamsterdam.com/thailand/wp-content/uploads/2011/06/AW-SP-69-81.pdf . A summary in English is provided at: http://robertamsterdam.com/thailand/?p=853 .6 Vienna Convention on the Law of Treaties, Art. 18.
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2. Crimes against HumanityThe initial Application sought to establish a reasonable basis to believe that several
crimes against humanity defined in Article 7 of the ICC Statute were committed before,
during, and after the crackdown launched by the formal Thai government and Thai
army on the Red Shirt rallies in April and May 2010. The Application focused on foursuch crimes:
- Article 7(1)(a) Crime Against Humanity of murder;
- Article 7(1)(e) Crime Against Humanity of imprisonment and other
severe deprivation of physical liberty;
- Article 7(1)(k) Crime Against Humanity of other inhumane acts;
- Article 7(1)(h) Crime Against Humanity of persecution.
Recently released investigative reports include substantial new evidence speaking to
the commission of each of these crimes.
2.1 MurderThe initial Application alleged the commission of the crime against humanity of
murder in connection to the killing of approximately eighty civilians (including Red
Shirt protesters, by-standers, local residents, and medical workers) and two foreign
journalists during the military crackdowns of April 10, 2010 and May 13-19, 2010.
Aside from illustrating the high death toll, the Application demonstrated that the
killings were committed with the intent to cause the victims serious injury and reckless
disregard for human life.
2.1.1 The Crackdown of May 13-19, 2010
The report published by Human Rights Watch in May 2011 is among the most
comprehensive efforts to describe the Red Shirt protests and the government
crackdowns. Whereas the report does not comment on the lawfulness of the killings of
Red Shirt protesters on April 10, 2010, which are discussed below, its analysis of the
May 13-19 crackdown directly corroborates the assertion made in the initial
Application: the killing of over fifty civilians in the month of May meets the
material/objective element of the crime of murder (a connection between the action of
the security forces and the deaths) as well as the mental/subjective element of the
crime (the intent to kill or cause serious harm to the victim). Upon releasing the
organizations report, Human Rights Watch Asia Director Brad Adams described the
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killings as cold-blooded acts of murder committed by the Thai armed forces. 7 The
report summarizes the incidents as follows:
Human Rights Watch s investigations found that army snipers in buildings
overlooking the protest sites, as well as soldiers on the defensive barricades
on the ground, frequently fired on protesters who were either unarmed or
posed no imminent threat of death or serious injury to the soldiers or
others. Many of those whom soldiers targeted apparently included anyone
who tried to enter the no-go zone between the UDD barricades and army
lines, or who threw rocks, petrol bombs, or burning tires towards the
soldiers from distances too great to be a serious threat to the soldiers
lines.
While Thai authorities have not released comprehensive forensic details of
the wounds sustained by those killed between May 14 and May 18, the
incidents that Human Rights Watch reviewed show unarmed protesters
appeared to have been killed with single shots to the head, indicating
possible use of snipers and high-powered scopes. For example, on the
morning of May 14, photographer Roger Arnold was filming a wounded
protester being treated in Lumphini Park when he found himself under
heavy gunfire. A man running just behind him, part of the group treating the
wounded man, was killed instantly by a shot to the head. Arnold, who
covered the clashes between May 14 and May 18 on a daily basis, said: I
didn t see any armed people getting shot. What you had were snipers with
scopes taking people out with headshots, people who at most had a
slingshot. 8
Human Rights Watch further singles out the assassination of Major-General KhattiyaSawasdipol on May 13, 2010 attributed to an army sniper and described as unlawful
under international human rights law 9 and the killings that took place in the live
fire zones set up in the Ratchaprarop and Bon Kai areas beginning on May 15, 2010,
where civilians, including medic volunteers were killed and injured by army snipers. 10
Human Rights Watch also describes incidents of indiscriminate shootings that took
7 Rights Group Says Thai Troops Murdered Civilians, Straits Times , May 3, 2011.http://www.straitstimes.com/BreakingNews/SEAsia/Story/STIStory 664158.html 8 Human Rights Watch, Descent Into Chaos , pp. 82-83.9 Human Rights Watch, Descent Into Chaos , p. 76.10 Human Rights Watch, Descent Into Chaos , p.
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place when the troops launched their final assault on the Red Shirt barricades on May
19:
As the soldiers slowly advanced on the protester barricades ahead, they
repeatedly fired live ammunition at the mostly unarmed protesters and
many journalists standing behind the barricade. 11
This event would later lead to the killing of Italian photojournalist Fabio Polenghi. Once
the barricades had been breached, a witness interviewed by Human Rights Watch
explains that Lumphini Park was turned into a free-fire zone, as soldiers moved and
took shots along Wireless and Rama IV Road. 12
Human Rights Watch also dedicates considerable space to the shootings that killed sixpeople among emergency workers and protesters who had taken shelter in Wat
Pathumwanaram after the Red Shirts were dispersed on May 19. The report
summarizes the findings as follows:
Several thousand UDD demonstrators sought sanctuary in the compound of
a Buddhist temple, Wat Pathum Wanaram, which had been declared a safe
zone several days earlier in an agreement between the government and UDD
leaders. Fresh violence led to the deaths of six people in or near the
compound. The army, which denied any responsibility for the killings inside
the temple, suggested the six fatalities were due to an internal Red Shirt
dispute. A Human Rights Watch investigation, based on eyewitness accounts
and forensic evidence, found that soldiers fatally shot at least two people
outside the temple entrance as they fled, while soldiers on the elevated train
tracks shot and wounded others (at least one fatally) inside the temple
compound. Narongsak Singmae, a UDD protester who was shot and wounded
inside the temple said:
[O]ur leaders told us that temple was a safe zone. I brought along my
wife and my son.... Around 6 p.m. I heard gunshots coming from in
front of the temple and I saw people running toward me.... Before I
could do anything, I was shot in my left leg and in my chest. The
bullet went through my leg. But luckily, the bullet that hit my chest
11 Human Rights Watch, Descent Into Chaos , p. 86-87.12 Human Rights Watch, Descent Into Chaos , p. 88.
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was stopped by a coin in my bag. Soldiers shot wildly at anyone that
moved. I saw another two men shot by soldiers as they tried to come
out from their hiding places and run for safety.
According to witnesses, medic volunteers who were tending the wounded
inside the temple compound were amongst those killed. These included a
nurse who was shot while tending to a wounded man near the nursing
station at the front of the temple, and 22-year-old man who was fatally shot
in the head and body inside the medical tent after providing first aid to the
nurse. Witnesses told Human Rights Watch that soldiers did not allow
medics and ambulances to rescue wounded protesters, possibly causing
additional deaths:
I believed many people died because medics and ambulances were not
allowed to enter Wat Pathum until almost midnight. I saw a young
man suffer from gunshot wounds for about 45 minutes before he
died. Some of us tried to crawl out from our hiding places to help the
wounded and retrieve dead bodies, but we were shot at by soldiers. 13
Because it takes a largely street-level view of the crackdown, the Human Rights Watch
report does not include an explicit discussion of the state policy under which the
killings took place. At the same time, the report chastises the Center for the Resolution
of the Emergency Situation (CRES) for adopting new rules of engagement that
liberalized the use of live fire against the protesters:
Under the new rules, soldiers were allowed to use live ammunition in three
circumstances: as warning shots to deter demonstrators from moving closer;
for self-defense; and when forces have a clear visual of terrorists. The term
terrorists was left undefined, giving soldiers no guidance as to what
constituted a permissible target and providing a basis for the use of firearms
and lethal force that exceeded what is permitted under international law in
policing situations. 14
At a minimum, the establishment of live fire zones and the regularity with which
unarmed protesters were gunned down by snipers over the course of an entire week
13 Human Rights Watch, Descent Into Chaos , p. 23.14 Human Rights Watch, Descent Into Chaos , p. 80-81.
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suggests that the acts of murder were committed with the intent to cause serious
bodily harm as well as an utter disregard for human life. The governments failure to
either clarify the rules of engagement or halt the operations as evidence of the abuses
mounted can only indicate its satisfaction with the security forces implementation of
the instruction issued by CRES.
The report issued by the Marginalized Monsoon Group speaks much more explicitly to
the existence of a policy to kill civilians and inflict heavy damage on the Red Shirt
movement. The report questions several aspects of the governments policy, including:
- The decision to deploy troops from the Queens Guard/Eastern Tigers of the
Second Infantry Division, particularly given the hatred of the Red Shirt
movement widespread within this branch of Thailands armed forces;- The haste with which the government resorted to military force, revealing that
operations aimed to secure a decisive victory, not to minimize civilian
casualties;
- The absence of precise instructions by which terrorists should be
distinguished from civilians;
- The permission given to troops should fire live ammunition in the air to
intimidate protesters. The report notes that shooting in the air inevitably leads
to shooting into the crowds, as troops grow impatient with the protesters
defiance;
- The closing of areas where the fighting was taking place to emergency crews,
which is alleged to have cost the lives of several injured protesters as well as
medics who defied the prohibition to rescue wounded civilians;
- The rejection of a deal proposed by a delegation of Senators, to which the
leaders of the UDD had agreed on the evening of May 18, 2010. 15
The elements of the policy singled out for criticism by the Marginalized Monsoon
Group are confirmed in the report on the success of the operations that appeared in
the military journal Senathipat .16 The report states that the operation was designed as a
battle plan for full scale urban warfare, not as a crowd control/dispersal operation. 17
The plan called for laying siege to the rally site at Ratchaprasong and admittedly
15 Marginalized Monsoon Group, Preliminary Fact-Finding Report , pp. -8 - -10.16 Hua Na Kuang (pseudonym), Lessons from the Military Operations in the Siege of Ratchaprasong, May 14-19, 2010, Senathipat Vol. 59, No. 3 (2010), 57-68.17 Lessons from the Military Operations in the Siege of Ratchaprasong, p. 62.
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featured the deployment of snipers shooting from elevated positions. 18 The success of
the operations is attributed to political decisions that boosted public support for the
crackdown (censorship of the opposition, control of broadcast media to disseminate
favorable information, freezing the funds of people associated with the UDD, and
lodging terrorism charges against UDD leaders) as well as strategic/tactical steps that
weakened the protesters resolve (the killing of Maj.-Gen. Khattiya Sawasdipol, the
designation of live fire zones, cutting off water, electricity, phone signal from the
area around the rally site). 19 In addition, the permission to use live fire is said to have
boosted the battle spirit of troops who had suffered a demoralizing defeat on April
10. 20 The report makes it clear that the operations were not only approved at the
highest level former Prime Minister Abhisit Vejjajiva personally gave the order at a
CRES meeting on May 12 but also that the intent of the policy was to crush the
rallies, not to negotiate a dispersal (hence the failure of the negotiations on May 18).21
While the description of the operations pays lip service to the need to safeguard the
lives of innocents, it is evident that full scale urban warfare requires acceptance of
a civilian death toll vastly in excess of crowd control operations conducted in
accordance with the United Nations Basic Principles on the Use of Force and Fire Arms
by Law Enforcement Officials.
Asked by reporters about the Royal Thai Armys position on Senathipat s article, Army
spokesman Sansern Kaewkamnerd dismissed it as the personal opinion of the author.
In other words, while the Thai military boasts internally of the success of the
operation, and uses it for training purposes, it is reluctant to admit to illegal conduct in
public. 22
The Marginalized Monsoon Groups report also includes evidence of a shoot-to-kill
policy. The report notes that half of those killed between May 13-19 suffered injuries to
either the neck or the head, while another quarter took bullets to the chest.23
Seventy-eight percent of the deaths, moreover, can be directly attributed to fatal gunshot
wounds, while another nine percent bled to death. 24 These are the lives that may have
18 Lessons from the Military Operations in the Siege of Ratchaprasong, p. 60.19 Lessons from the Military Operations in the Siege of Ratchaprasong, pp. 58-60.20 Lessons from the Military Operations in the Siege of Ratchaprasong, p. 62.21 Lessons from the Military Operations in the Siege of Ratchaprasong, p. 58.22 Col. Sansern: Senathipat Article is Authors Personal Academic View, Prachatai , June 28,2011.http://www.prachatai3.info/english/node/2624?utm source=feedburner&utm medium=feed&utm_campaign=Feed%3A+prachataienglish+%28Prachatai+in+English%29 23 Marginalized Monsoon Group, Preliminary Fact-Finding Report , p. 268.24 Marginalized Monsoon Group, Preliminary Fact-Finding Report , p. 270.
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been saved, but for the governments decision to close off the sites of the clashes to
emergency crews and the incidents where troops opened fire on medics.
During a no-confidence debate in March 2011, opposition member Police Lt. Col.
Somchai Phetprasoet showed evidence that of the 597,500 bullets issued to the troops
during March and May 2010, only 479,577 bullets had been returned, leaving another
117,923 unaccounted for. 25 The report issued by the Marginalized Monsoon Group,
issued two months later, includes detailed figures of the number of bullets issued and
returned: 26
- 12-gauge #00 buckshots: 350,000 issued, 301,271 returned, 48,729
unaccounted;
- 5.56mm M-193 cartridge for M-16 A-1 rifle: 20,000 issued, 17,260 returned,2,740 unaccounted;
- 5.56mm M-855 green tipped cartridge for M-16 A-2 rifle: 150,000 issued,
105,268 returned, 44,732 unaccounted;
- 5.56mm blank cartridges: 10,000 issued, 3,380 returned, 6,720 unaccounted;
- Armor-piercing rifle bullets: 8,500 released, 5,500 returned, 3,000
unaccounted;
- 7.62mm M-852 Match cartridge for M-60 rifle: 2,000 issued, 860 returned,
1,140 unaccounted;
- Type 88 self-loading rifle bullets: 50,000 issued, 45,158 returned, 4,842
unaccounted;
- 7.62mm SG-3000 sniper bullets: 3,000 issued, 480 returned, 2,520
unaccounted.
While it is impossible to say just how many among the 117,923 bullets that were never
returned were fired, stolen, or sold, these figures are notable for at least two reasons.
First, the sheer quantity of the ammunition issued to the troops is inconsistent with a
crowd control operation to be carried out according to the United Nations guidelines,
which authorize the use of live fire only against individuals posing an imminent danger
to the troops or other civilians. Second, the fact that the overwhelming majority of the
bullets issued (and of those that were never returned) were live rounds, as opposed to
blanks or rubber bullets, reveals the fraudulence of the governments initial rules of
engagement, as none of the seven steps spelled out therein called for the use of live
25 Army under Fire over Bullets, Bangkok Post , March 25, 2011.http://www.bangkokpost.com/news/politics/228486/army-under-fire-over-bullets 26 Marginalized Monsoon Group, Preliminary Fact-Finding Report , p. -8.
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fire. Instructions allowing the soldiers to shoot live ammunition in the air or against
armed terrorists were only given by the government on May 13, seven hours before
the assassination of Maj.-Gen. Khattiya Sawasdipol, and in any case only in response to
terrorists firing their weapons towards the officials. 27 This shows that the
governments rules of engagement were not simply disregarded by troops. The rules
were little more than an exercise in public relations designed to protect the government
from media criticism and pressures from the international community. 28 As a result, the
incompetence of the Thai armed forces cannot explain the deaths of so many
bystanders and unarmed protesters. If anything, incompetence is the reason why the
death toll did not rise even higher.
2.1.2 The Crackdown of April 10, 2010
Whereas the report by the Marginalized Monson Group only deals with the event of May
13-19, 2010, Human Rights Watch does dedicate considerable space to the incidents of
April 10, 2010, which claimed the lives of twenty civilians and foreign journalist
Hiroyuki Muramoto as well as five military officers. However, its report does not
describe in any detail the actions of the Royal Thai Army that led to the civilian deaths,
focusing almost exclusively on the acts of violence attributed a group of men in
black, whom the organization believes to be soldiers sympathetic to the Red Shirt
movement.
Consistent with information contained in Amsterdam & Peroffs initial Application,
Human Rights Watch describes the use of live fire made by the Royal Thai Army against
unarmed protesters during the daytime clashes that preceded the bloodier nighttime
assault on the Red Shirt rally at the Phan Fa Bridge on April 10, 2010. 29 While the
government has always denied that this had been the case, in August 2011 the Thai-
language newspaper Khao Sod published an internal command issued by CRES on April
10, 2010, in which troops were ordered to load their weapons with live ammunition in
preparation for the crackdown, and expressly authorized the use of such weapons not
only in self-defense or to save civilian lives, but to safeguard property as well. Former
Deputy Prime Minister and CRES Director Suthep Thaugsubhan, who signed the
27 Marginalized Monsoon Group, Preliminary Fact-Finding Report , p. -5.28 The report in the military journal Senathipat explicitly cites these Information Operations asone of the reasons for the success of the crackdown. See Lessons from the Military Operationsin the Siege of Ratchaprasong, p. 59.29 Human Rights Watch, Descent Into Chaos , p. 53-55.
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command, at first denied the authenticity of the documents, claiming that they had
been distorted, but was later forced to admit their veracity. 30
The Human Rights Watch report attributes the outbreak of the more severe fighting on
April 10, 2010 to shots fired from the top story of a building on the corner of Khok
Wua junction, but does not speculate as to who was responsible and who was the
target of the shootings. 31 The report is more forceful when it characterizes the men in
black who fought the military in the ensuing battles as deployed among the UDD
protesters and as acting on the Red Shirts behalf. 32 Nonetheless, Human Rights Watch
does not provide evidence of any affiliation between the men in black and the UDD.
Indeed, its report goes on to say that the men were neither connected to the Red Shirt
leadership, 33 nor were they led by Major-General Khattiya Sawasdipol, 34 as claimed by
the former government.
A report issued in April 2011 by the International Crisis Group examines evidence
produced by the governments investigation into the activities and organizational
structure of the Men in Black, casting doubts over whether the few men apprehended
by the state had really participated in the acts they were accused of committing:
The identity of the so-called men in black and their connection with the
Red Shirt leadership remains unclear. The term was first used to describe the
black-clad gunmen who appeared during the clashes on 10 April 2010, in
which five soldiers and 21 civilians were killed. The government blamed
them for the violence. The label was later used loosely to refer to all those
involved in violence during UDD protests in 2010. Their presence raised
questions about the movements commitment to non-violence.
The Department of Special Investigation (DSI), an investigative agency underthe justice ministry, is handling all UDD protest-related cases. It has revealed
some information about certain individuals accused of directly participating
in attacks on government and Yellow Shirt-aligned targets. Surachai
Thaewarat, whom the DSI identifies as one of the key black-clad gunmen,
was arrested on 15 July 2010. Also known as Rang, Surachai is alleged to
30 A Tell-Tale Heart, Thai-ASEAN News Network , August 9, 2011.http://www.tannetwork.tv/tan/ViewData.aspx?DataID=1046658 31 Human Rights Watch, Descent Into Chaos , p. 57.32 Human Rights Watch, Descent Into Chaos , p. 57.33 Human Rights Watch, Descent Into Chaos , p. 44-46.34 Human Rights Watch, Descent Into Chaos , p. 79.
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have admitted that he was an aide to Gen. Khattiya Sawasdipol, aka Seh
Daeng, a renegade officer assassinated on May 13, 2010. The authorities
believe that Seh Daeng was a key commander of an armed group allied with
the Red Shirts. The DSI accused Surachai of being involved in eight attacks
against government targets and anti-Red Shirt protesters in Bangkok
between March and May 2010 and later in illegal arm trades. He has denied
the charges but is said to have confessed to firing an assault rifle at the
Dusit Thani Hotel in a fit of anger after Seh Daeng was shot dead in front of
the building.
Manop Chanchangthong, a 48-year-old scavenger and UDD guard, was caught
on camera carrying an assault rifle while wearing a balaclava during the 10
April incident. The DSI accused him of being one of the men in blackattacking government troops that day. The Red Shirt leaders explained in a
press conference held shortly after the incident that Manop was carrying
assault rifles that protesters had snatched from soldiers and later stored
behind the protest stage. Nevertheless, the DSI arrested Manop in January
2011 and charged him with terrorism for allegedly killing soldiers and
stealing their weapons.
27-year-old Wanlop Phithiphrom is the only suspected man in black who
has confessed to the DSI. Arrested on 22 November 2010, Wanlop reportedly
admitted that he had fired M-79 grenades in various areas in Bangkok during
the protests, including several branches of Bangkok Bank. He is said to have
confessed to firing more than 100 grenades at security forces during the
tense stand-off around the protest site in May 2010; and to have admitted
involvement in four grenade attacks in Chiang Mai, including an incident at
the construction company of the father-in-law of Thaksin-turncoat politician
Newin Chidchob. Wanlop later told a news conference that he acted alone
out of anger after seeing soldiers firing live bullets at Red Shirt protesters
in 2009 and disguised himself as a UDD guard during the 2010
demonstrations. Wanlop said that he learned to use a grenade launcher as a
conscript in the military and the weapons were illegally bought from a
border province. In an interview with Crisis Group, Wanlop said he was
forced to confess. He said he was detained for two days before being taken
to the Bangkok press conference, during which he was not allowed to receivecalls from his relatives.
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The ICG concluded: it is unclear whether the DSI has captured the right culprits. 35 The
fact that so little is known about the Men in Black, over a year since they emerged to
fight a powerful faction within the Royal Thai Army, raises suspicions that this force
enjoys the protection or sanction of the Thai state, or some high authority within its
ranks. At any rate, while the officials who ordered the crackdown continue to defend
the heavy loss of life based on the presence of armed elements among the
demonstrators, as former Prime Minister Abhisit Vejjajiva has done most recently
before a Senate panel, 36 under no circumstances does the use of weapons by a small
group justify the murder of a much larger number of unarmed demonstrators, often
killed by snipers firing from a safe distance. Not a single one of the demonstrators
killed in April and May 2010 has ever been shown to have posed any danger to the
security forces or the civilian population. Most of those killed manifestly did not
present any threat to others.
2.2 Imprisonment/Severe Deprivation of Physical LibertyThe initial Application sought to establish a reasonable basis to believe that the crime
against humanity of imprisonment and other severe deprivation of physical liberty
(Art. 7(1)(e) of the ICC Statute) was committed by Thai authorities in the aftermath of
the May 2010 crackdown on Red Shirt protesters. Hundreds of people were mopped up
in the wake of the rallies, thanks to the sweeping powers the Royal Thai Governmentgranted itself by invoking the emergency decree. It is believed that over a hundred
remain in detention.
The recent report issued by Human Rights Watch contains additional evidence that the
persons detained in the wake of the 2010 Bangkok massacres were unlawfully
deprived of their physical liberty, as the declaration of a state of emergency does not
exempt a government from the obligation to guarantee basic rights contained in the
ICCPR. Human Rights Watch denounces the hundreds of episodes of arbitrary
detention in repurposed military facilities in the provinces of Prachinburi,
Kanchanaburi, Saraburi, Ratchaburi, Chantaburi, and Pathum Thani, describing the
episodes as enforced disappearances that violate international law:
35 International Crisis Group, Thailand: The Calm Before Another Storm?, p. 4.36 Fiery Abhisit Defends Riot Crackdown: Senate Panel Assails Military Response, Bangkok Post ,August 30, 2011.http://www.ww.bangkokpost.com/news/politics/254078/fiery-abhisit-defends-riot-crackdown
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Apart from the cases of key leaders who surrendered to the authorities after
the dispersal of the UDD protests on May 19, the CRES has withheld
information for months about other rank-and-file protesters detained both
with and without charge. The CRES did not provide information to family
members regarding the whereabouts of most detainees during the entire
period of detention in military facilities. This violated section 12 of the
Emergency Decree, which requires that officials file a report on the arrest
and detention of suspects for submission to the court and deposit the report
at their office so that detainees relatives have access to it for the entire
duration of detention.
When authorities deny holding a detained individual or fail to provide
information on a persons fate or whereabouts, the government iscommitting an enforced disappearance in violation of international law. 37
The Human Rights Watchs report also contains several witness testimonies from
detained Red Shirt protesters. The witness statements confirm that the authorities
barred the detainees from contacting their families. The report concludes:
Human Rights Watch s previous research in Thailand has found the risk of
abuse significantly increases when individuals are held in full or virtual
incommunicado detention in unofficial locations, under the control of
military personnel (who lack training and experience in civilian law
enforcement), and without access to legal counsel or other effective judicial
and administrative safeguards against torture and ill-treatment. These
concerns have been greatest in Thailand's southern border provinces, where
an Emergency Decree has been enforced since 2005 to quell separatist
insurgents. Human Rights Watch's extensive investigations in the southuncovered many cases of serious abuses committed by security personnel
against detainees, including custodial deaths, torture, and enforced
disappearances. 38
37 Human Rights Watch, Descent Into Chaos , p.121.38 Human Rights Watch, Descent Into Chaos , pp. 125-126.
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2.3 Other Inhumane ActsThe crime against humanity of other inhumane acts subsumes a broad range of
offenses by which a perpetrator inflicted great suffering, or serious injury to body or
to mental or physical health by means of an inhumane act. The initial Application
provided evidence of the commission of two broad types of inhumane acts.
The first kind of inhumane act encompasses various acts of violence by which severe
physical harm was inflicted by the authorities on almost two thousand protesters and
by-standers during the crackdowns on the Red Shirt rallies. As in the initial Application,
the evidence presented with regard to the commission of the crime of murder is
relevant to the claim that the injury of approximately two thousand people during the
crackdowns of April and May 2010 amounts to a crime against humanity of the kind
subsumed in the ICC Statute under the rubric of other inhumane acts. If acts of
murder are defined as killings committed with the intent to cause the victims
serious injury with reckless disregard for human life, acts that resulted in bodily harm
committed as part of the same attack and with the same intent or knowledge qualify as
other inhumane acts.
The report issued by the Marginalized Monsoon Group cites 863 injuries on April 10,
2010, comprised of 607 civilians, 237 soldiers, and 19 policemen. 39 Conversely, at least
525 civilians (more than ninety percent of the total) were injured between May 13-19,
2010. 40 While no information is available as to the cause of the injuries suffered by 191
of the people wounded between May 13-19, at least 264 people reportedly suffered
gunshot wounds after they were hit by live ammunition: 13 percent in the head/neck
areas, 22 percent in the arm/shoulder, 27 percent in the torso, and 28 percent in the
legs. The fact that only ten people were injured by rubber bullets shows, once again,
that the troops use of live fire dwarfed the use of rubber bullets called for by the
published rules of engagement.41
In addition to the injuries suffered by Red Shirt demonstrators, medical workers,
journalists, and onlookers during the Royal Thai Armys brutal crackdown, the initial
Application alleged that other inhumane acts were also perpetrated against some of
the people detained by the government while in state custody. The Application
reported evidence uncovered by Human Rights Watch and Thai-based NGOs as well as
39 Marginalized Monsoon Group, Preliminary Fact-Finding Report , p. -1.40 Marginalized Monsoon Group, Preliminary Fact-Finding Report , p. 150.41 Marginalized Monsoon Group, Preliminary Fact-Finding Report , p. 152.
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statements made by officials serving on Thailands Truth and Reconciliation
Commission and the National Human Rights Commission. The most recent report by
Human Rights Watch supplements these allegations by documenting several additional
acts of torture and mistreatment of detainees, including some who later turned out
never to have participated in the rallies. Among them is an eighteen-year-old autistic
boy who was arrested on his way to buy a pack of cigarettes and then severely beaten
by soldiers. 42
2.4 PersecutionThe ICC Statutes Elements of Crimes describes the crime against humanity of
persecution as the intentional and severe deprivation of the fundamental rights of one
or more persons based on their political affiliation. The initial Application focused on
three different aspects of the campaign of political persecution mounted against
Thailands democratic movement since the military coup of September 19, 2006.
First, the dissolution of four major political parties in 2007 and 2008 was described as
a violation of at least two basic rights guaranteed in the International Covenant on Civil
and Political Rights (ICCPR): 1) The right of millions of Thai voters to take part in the
conduct of public affairs, directly or through freely chosen representatives (Article 25);
and 2) The right to freedom of association with others (Article 22). In addition, thedisqualification from elected office of 215 party executives who were never accused of
any wrongdoing, many among them former members of parliament, deprived them of
the basic right to vote and stand for election for a period of five years based exclusively
on their association with parties that had been dissolved.
An investigation concluded by the Inter-Parliamentary Union (IPU) after the submission
of the initial Application reached similar conclusions with regard to the party
dissolution cases and the disqualification of party executives from participating in
elections, as voters and as candidates. On April 20, 2011, the IPUs Governing Council
unanimously approved a resolution urging the Thai government to reform
constitutional provisions like Article 237, which it believes seriously compromise the
political process by restricting rights guaranteed in Article 22 and Article 25 of the
ICCPR. 43 In July 2011, the IPUs Committee on the Human Rights of Parliamentarians
reiterated its request that the provisions in question be reformed, as the risk exists
42 Human Rights Watch, Descent Into Chaos , p. 128.43 Inter-Parliamentary Union, Resolution Approved Unanimously by the IPU Governing Councilat Its 188 th Session (Panama City, 20 April, 2011). http://www.ipu.org/hr-e/188/th03.htm .
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that a sizeable portion of the countrys political class might once more be arbitrarily
excluded from the political process, and referred the case back for continuing
examination by the IPUs Governing Council at its next session in October 2011.
Recently released diplomatic cables originating from the United States Embassy in
Bangkok and obtained by the website Wikileaks reveal that establishment players knew
in advance of the ruling on December 2, 2008 that the Constitutional Court would
order the dissolution of the People Power Party and two of its coalition partners, paving
the way for Abhisit Vejjajiva to become Prime Minister. In mid-October 2008, former
Prime Minister Anand Panyarachun told US Charge dAffaires James F. Entwhistle that
there would not be a coup in the traditional sense of the word, 44 while others hinted
at significant developments that would render a military coup unnecessary. 45 These
revelations confirm that the party dissolutions formed part of a coordinated plan toremove an elected government, and to restrict the basic rights of politicians and their
voters based exclusively on their loyalty to political organizations the Thai
establishment found unpalatable.
Second, the Application detailed the unprecedented campaign of censorship of
opposition media, as well as the arrest and prosecution of opposition activists,
supporters, and politicians based on crimes of conscience, which represent illegal
restrictions on freedom of expression as well as the right to seek, receive, and impart
information and ideas of all kinds under the ICCPR.
Recent reports issued by Freedom House and by Human Rights Watch document the
acts of persecution that the Royal Thai Government has committed against the
opposition. Human Rights Watchs Descent into Chaos dedicates an entire chapter to
the Rolling Censorship of the UDD. The report documents several restrictions to
fundamental rights of Thai citizens imposed by the government based on political
identity/affiliation:
- The decision to ban the Peoples Channel television station after the imposition
of the Emergency Decree;
- The censoring of over two hundred thousand websites, among them those
blocked thanks to the Emergency Decree for carrying content the government
44 08BANGKOK3119: http://www.zenjournalist.com/2011/06/08bangkok3119/ .45 08BANGKOK3143: http://www.zenjournalist.com/2011/06/08bangkok3143/ .
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considered critical of the monarchy, the Privy Council, the government, and the
military; 46
- The use of the Department of Special Investigation (DSI) to place cyber
dissidents and critics under surveillance, especially those who frequented
banned websites. Some have been detained and interrogated in an attempt to
glean information about anti-monarchy and anti-government activities; 47
- Arrests and prosecutions for lese majeste and computer crimes, including the
conviction of web designer Thanthawuth Thaweewarodom to thirteen years in
prison, the arrest of Wipas Raksakulthai (whom Amnesty International recently
classified a prisoner of conscience 48 ) for postings featured on his Facebook
page, and other cases relating to military officers suspected of being UDDsympathizers;
- The raiding of community radio stations, forty-seven of which were shut down
by the authorities in thirteen provinces in Central and Northeast Thailand, with
the pretext that the stations either incited unrest or distorted information;
- The censorship of five magazines published by opposition activists. The editor
of two of the banned magazines, Somyot Pruksakasemsuk, was arrested in
April and is currently held without bail, facing charges of lese majeste.
More recent events exemplify the degree to which the opposition has been persecuted.
Eighteen Red Shirt leaders many of them candidates for the opposition party Pheu
Thai were charged with sedition and lese majeste in connection to a speech given by
incumbent member of parliament Jatuporn Prompan during the commemoration of last
years April 10 massacre. Jatuporns speech, which prompted the Army Commander inChief to dispatch representatives to file a complaint with police, is alleged to have
violated Article 112 of the Thai Criminal Code not for criticizing the royal family, but
for denouncing the Royal Thai Armys strategy of justifying the murder of protesters
based on the need to protect the monarchy. While Jatuporn was subsequently jailed
46 Human Rights Watch, Descent Into Chaos , p. 137.47 Human Rights Watch, Descent Into Chaos , pp. 138-139.48
Pravit Rojanaphruk, Amnesty International Names Thailands First Prisoner of Conscience,The Nation, May 10, 2011.http://www.nationmultimedia.com/2011/05/14/national/Amnesty-International-names-Thailands-first-prison-30155366.html
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when the courts revoked his bail, 49 the others were charged on the basis of body
language exhibited during the speech smiling, clapping, and cheering were cited as
their offenses. A few days after targeting the Red Shirt leaders, the Internal Security
Operations Command (ISOC) ordered police to raid thirteen community radio stations
that had played Jatuporns now infamous speech. The stations were shut down and
their equipment seized. Meanwhile, well-known historian and Thammasat University
professor Somsak Jeamteerasakul was summoned by police to acknowledge charges
filed, in an unprecedented move, by the Royal Thai Army. 50
Weeks after the release of a damning report on internet freedom, which noted the
intensification in the restrictions to freedom of expression coinciding with the rise of
the Red Shirt movement, 51 Freedom House downgraded Thailands overall status to
Not Free in its annual Freedom of the Press survey. This had never happened sinceFreedom House started assessing press freedom in 1980. As a result of the campaign of
persecution against the Red Shirt movement and its sympathizers, press freedom in
Thailand has been rolled back over thirty years. Human Rights Watch director Brad
Adams aptly described the Abhisit administration as the most prolific censor in recent
Thai history. 52 Later, the Asian Human Rights Commission issued a strongly worded
comment on the ongoing criminalization of free speech. After reviewing the facts of
the most recent cases, the AHRC concluded:
Together, what the cases show is that in the lead up to the election next
month, not only is speech being increasingly criminalized in Thailand, but so
too is the simple circulation of different types of thought; indeed, any types
of thought not explicitly or tacitly officially endorsed. Although the precise
relationship between the upsurge in targeting of free speech and the
upcoming elections is unclear, what is clear is that the continued
criminalization of free speech in Thailand makes the prospect of a fair
49 Daniel Schearf, Thai Court Revokes Bail for Opposition Leaders, Voice of America, May 12,2011.http://www.voanews.com/english/news/asia/southeast/Thai-Court-Revokes-Bail-for-Opposition-Leaders-for-Inciting-Unrest-121700004.html 50 Richard Lloyd Perry, Thai Historian Facing Jail for Royal Slight, The Times, May 13, 2011.http://www.theaustralian.com.au/news/world/thai-historian-facing-jail-for-royal-slight/story-e6frg6so-1226054938349 51 Freedom House, Freedom on the Net 2010: Thailand , April 2011.http://www.freedomhouse.org/images/File/FotN/Thailand2011.pdf 52
Human Rights Watch, Thailand: Authorities Silence Red Shirt Community Radios, April 27,2011.http://www.hrw.org/en/news/2011/04/27/thailand-authorities-silence-red-shirt-community-radios
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election unlikely, and bodes ill for the longer term progress of the country
back towards a meaningful commitment to human rights. 53
The third form of political prosecution described in the initial Application centers on
the governments strategy of tension, which involved the staging of incidents, like bombings and arson attacks, that would support the governments media campaign
against the Red Shirts and bolster the publics support for the crackdown. The same
incidents were instrumental to the victimization of nineteen Red Shirt leaders who were
arrested following the dispersal of the rallies on May 19, 2010. Their legal persecution
features the deprivation of their rights to due process, reflected in a series of court
decisions that curtailed their ability to mount a genuine defense, and the
manufacturing of evidence to frame them on charges of terrorism.
Col. Boonrod Srisombats article on Information Operations, which appeared in the
military journal Senathipat in early 2011, provides a comprehensive and detailed
account of the campaign of psychological warfare employed by CRES before and during
the crackdown. 54 The article, which is meant to extract from the success the operations
lessons that could be replicated in similar situations, includes startling claims
supporting the contention that the government is responsible for a strategy of
tension through which it justified its recourse to violence against protesters and its
subsequent legal persecution of Red Shirt leaders.
Col. Boonrod argues that the Information Operation was aimed at boosting the
governments legitimacy, preserve the appearance of following the rule of law, and
build public support for decisive military action. 55 The success of the operations is
attributed to various factors, including:
- The communications skills of CRES spokesman Sansern Kaewkamnerd and theeffectiveness with which spokespeople like Panitan Wattanayagorn communicated
the governments position to the international media, in fluent English, shielding
it from international criticism;
53 Asian Human Rights Commission, THAILAND: Criminalization of Free Speech ahead of Election, June 3, 2011.http://www.humanrights.asia/news/ahrc-news/AHRC-STM-074-2011 54 Lessons in Information Operations: The Re-Establishment of Order in the City (March-May2010), Senathipat Vol. 60, No. 1 (2011), 69-81.55 Lessons in Information Operations, p. 74.
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- The control of coverage offered by government-operated television station NBT,
under the leadership of Prime Ministers Office Minister Sathit Wongnongtoey. 56
Several elements of Information Operation are highlighted as especially instrumental to
the crackdowns ultimate success:
- The emergence of groups supportive of the government in social media like
Twitter and Facebook, whose value is equated to having thousands of supporters
on the streets. While these groups are described as spontaneous, the article
notes that they served the Information Operation as well as anything the
government had conceived; 57
- The skillful use of images from Red Shirt demonstrations at the ElectionCommission and the Parliament in early April, which justified the imposition of
the Emergency Decree; 58
- The shutting down of the Red Shirts television station PTV, which amounted to
shutting the eyes of the movement and conferred upon the government
complete control over broadcast media. This was complemented by the blocking
of over 40,000 websites; 59
- The turning point is described as the governments portrayal of the men in
black who fought the troops on April 10 as affiliated with the Red Shirts. 60 This
allowed the government to claim that terrorist elements had infiltrated the Red
Shirt crowds and were responsible for killing state officials as well as the
protesters themselves; 61
- Allegations of a conspiracy to overthrow the monarchy, the dissemination of themindmap linking the players supposedly involved, and the attempt to lead the
public to draw a connection between the charges of terrorism and
republicanism leveled against the Red Shirt leaders; 62
56 Lessons in Information Operations, p. 71.57 Lessons in Information Operations, p. 73.58 Lessons in Information Operations, p. 73.59 Lessons in Information Operations, p. 74.60 Lessons in Information Operations, p. 72.61 Lessons in Information Operations, p. 75.62 Lessons in Information Operations, p. 75.
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- The dissemination of professionally edited video clips showing acts of sabotage
and rioting by the Red Shirts, as well as injured soldiers; 63
- The insistence by all government representatives that the troops had not killed a
single protester, and that care was taken to separate innocents from terrorists. 64
Admittedly, this required the suppression of evidence showing troops firing on
unarmed protesters; when such images did emerge, the government would explain
that the troops did not fire without restraint, but rather did so according to
detailed rules of engagement; 65
- Images of the fires that followed the dispersal of the rallies, 66 as well as the
display of weapons found by the authorities in and around protest sites cleared
by the army.67
Aside from anti-monarchy conspiracy, which is discussed openly as an instrument of
psychological warfare, it is noteworthy that some of the incidents described in the
article as helpful to the government are known not to have been committed by the Red
Shirts. For instance, the article cites the shooting of an army officer by a sniper on
April 28, 2010, even though it was known immediately after the shooting that the
officer had actually been killed by friendly fire. Some of the images used by the
government against the Red Shirts, moreover, actually portrayed security forces injured
in the South while combating the insurgency, but were used in montages on the Red
Shirt demonstrations to build up public resentment. 68 This shows that it did not matter
whether the Red Shirts were or were not responsible for the acts they were accused of
committing. What mattered was the perception that the public would acquire as a
result of the Information Operation. 69
In other passages, the article uses language that points to the potential fraudulence of some of the allegations. For instance, the author commends the authorities careful
dissemination of the evidence, which was conducted in a manner that minimized the
risk of sounding like pure propaganda and hence prevented public opinion from
63 Lessons in Information Operations, p. 75.64 Lessons in Information Operations, p. 76.65 Lessons in Information Operations, p. 77.66 Lessons in Information Operations, p. 72.67 Lessons in Information Operations, p. 76.68 Lessons in Information Operations, p. 73.69 Lessons in Information Operations, p. 73.
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turning against the government. 70 Later, the article praises the use of evidence
supporting arguments that a majority of the people were willing to accept as true in a
crisis situation. 71 In other words, the government privileged verisimilitude over the
veracity of the allegations against the Red Shirts.
Aside from witness testimony speaking directly to the existence of a strategy of
tension, and the lack of progress in the government investigations, Amsterdam &
Peroffs initial Application argued that the Red Shirts had nothing to gain by
committing the acts of violence and property destructions of which they have been
accused. If nothing else, this new information confirms that the governments
crackdown could not have succeeded, but for dehumanization of the Red Shirts and the
excuse to murder dozens of people that these incidents of violence provided. Aside
from justifying the killings, incidents that resulted from the governments campaign of psychological warfare continue to serve as the basis for the persecution of nineteen
Red Shirt leaders who are still awaiting trial on charges of terrorism. The trial was
recently postponed to June 2012.
2.5 Enforced DisappearancesThe recent report issued by Human Rights Watch contains new evidence that the
persons detained in the wake of the crackdown in 2010 were victims of enforceddisappearances within the meaning of Article 7.1(i) of the Rome Statute. Human Rights
Watch describes the hundreds of episodes of arbitrary detention in repurposed military
facilities in the provinces of Prachinburi, Kanchanaburi, Saraburi, Ratchaburi,
Chantaburi, and Pathum Thani, as enforced disappearances that violate international
law:
Apart from the cases of key leaders who surrendered to the authorities after
the dispersal of the UDD protests on May 19, the CRES has withheld
information for months about other rank-and-file protesters detained both
with and without charge. The CRES did not provide information to family
members regarding the whereabouts of most detainees during the entire
period of detention in military facilities. This violated Section 12 of the
emergency decree, which requires that officials file a report on the arrest
and detention of suspects for submission to the court and deposit the report
70 Lessons in Information Operations, p. 72.71 Lessons in Information Operations, p. 73.
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at their office so that detainees relatives have access to it for the entire
duration of detention.
When authorities deny holding a detained individual or fail to provide
information on a persons fate or whereabouts, the government is
committing an enforced disappearance in violation of international law. 72
3. The Cover-UpAmsterdam & Peroffs Application to Investigate described in some detail the attempt
made since the Red Shirt rallies were dispersed to obstruct investigations into the
killings and guarantee that the officials responsible are never held to account. The
initial Application focused on the politicization of both investigative and judiciary
institutions, as well as the role of the Royal Thai Army and the Royal Thai Government,
in an attempt to show that Thailand is both unable and unwilling to conduct the
fair and complete investigation required by international law. In turn, the obstruction
of domestic avenues to accountability justifies the intervention of the ICC based on the
principle of complementarity spelled out in the Rome Statute.
Since the submission of the initial Application, no attempt has been made to investigateor punish anyone responsible for the deaths. While officials in the former
administration have continued to argue, against all evidence, that the army is not
responsible for any of the killings, it is notable that none of the presumed men in
black arrested since the crackdown has been charged for causing any deaths among
either security officers or protesters. Over a year since the violent repression of the Red
Shirt movement, through the date of the most recent reports included in this
supplement, it is clear that the Thai state remained unable and unwilling to locate and
punish anyone, including those belonging to groups the authorities accuse of carrying
out the acts of violence.
Every independent agency or organization in Thailand that has attempted to conduct
an investigation into the violence has received little cooperation from the former
civilian government and military authorities. The new government appears determined
to assist, yet problems remain. In May 2011, Human Rights Watch described the
situation this way:
72 Human Rights Watch, Descent Into Chaos , p. 121.
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However, without the necessary military cooperation, the Parliamentary
inquiry commissions, the National Human Rights Commission, and the
Independent Fact-Finding Commission for Reconciliation have all been
unable to obtain complete information about security forces deployment
plans and operations, autopsy reports, witness testimony, photos, or video
footage from the CRES. 73
The authorities refused to assist the government-appointed Truth and Reconciliation
Commission, led by Khanit na Nakorn. While the Commissions first Interim Report
provided little information about the circumstances surrounding the killings, it minced
no words in describing the obstacles that prevented the Commission from producing
meaningful findings:
4. Problems Encountered
4.1 TRCT has no power to subpoena witnesses or evidence
The Commission must rely on the willingness of individuals and agencies to
provide evidence and testimony. It has no authority to subpoena individuals
or agencies when they are reluctant to cooperate. Lack of cooperation from
government agencies and private enterprises in providing information was
an obstacle to TRCT procedures. Not being able to obtain enough of the
important facts made it difficult to investigate some issues. In some cases,
government agencies claimed that information was confidential and were
therefore not able to disclose it. This meant that the Commission lacked
important data which was necessary in order to determine the truth with any
reasonable degree of certainty. Questions were then raised by the public
whether the agencies involved; by not giving the Commission permission to
disclose the information, or not wanting the Commission to disclose it, or
being reluctant to provide information to the Commission; were, in fact, just
trying to cover up important facts. It appears that the agencies involved
thought it better not to disclose the information to the public despite the
risk of censure regarding their lack of transparency or the obstacle it would
create to TRCTs ability to bring about reconciliation.
4.2 Lack of protection for individuals and agencies that provide information
73 Human Rights Watch, Descent Into Chaos , p. 23.
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Another obstacle was that some individuals and agencies were reluctant to
speak to the Truth-Seeking Sub-Commission. They were afraid of retaliation
from groups that might be adversely affected by their statements.
4.3 Limitations derived from the status and background of TRCT
Due to the ongoing conflict, in the beginning, there were concerns about the
impartiality of TRCT as it had been established by the government which has
been seen as a party to the conflict. However, the situation gradually
improved and TRCT has now gained more acceptance because in the course
of carrying out its duties the TRCT has evidently proved itself as an
independent and impartial entity. Moreover, the government has clearly
supported the independence of TRCT and non-interference policy. 74
The other organization tasked with investigating the incidents, the National Human
Rights Commission (NHRC), was forced to delay the release of an eighty-page report
summarizing the results of its investigation owing to internal controversy that arose
during the final discussion of the draft. Consistent with the former governments line,
the state agency was due to report on July 8, 2011 that the state bears no responsibility
for any of the violence in April and May 2010, focusing only on how the actions of
protesters violated human rights. The report was harshly criticized by Thammasat
University law professor Kittisak Prokati, who serves on the NHRCs Subcommittee on
Civil and Political Rights. His dissenting letter, which was leaked to the press, labeled
the report unacceptable based on poor organization, the inadequacy of witness
testimony, and the NHRCs unusual decision to focus almost entirely on presumed
violations committed by protesters, given that it is the states responsibility to protect
human rights. Following the leak of information, the NHRC abruptly cancelled its press
conference and postponed the reports release indefinitely. 75
As the various state agencies that have looked into the situation have been either
unable or unwilling to conduct a full investigation, the former government actively
suppressed evidence of crimes committed by the state in April and May 2010.
Amsterdam & Peroffs initial Application included reference to leaked autopsy reports
74 First Interim Report by the Truth and Reconciliation Commission of Thailand (17 July 2010 16 January 2011), April 2011. An English translation of the report, together with a link to theThai-language original document, is available at: http://robertamsterdam.com/thailand/?p=664 .75 See Pravit Rojanaphruk, NHRC Report Criticized and Delayed, Prachatai, July 12, 2011.http://prachatai.com/english/node/2651 See also Achara Ashayagachat, NHRC Split on Protest Violence Report, Bangkok Post, July 8,2011.http://www.bangkokpost.com/news/local/246094/nhrc-cancels-press-conference
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conducted by the Department of Special Investigations into the killings of Hiro
Muramoto and others, including the six victims at Wat Pathumwanaram. In each case,
the reports had concluded that security officers were responsible for the killings. In the
context of that discussion, the initial Application included testimony for Anonymous
Witness No. 20, who predicted the following:
In November 2010, official DSI reports regarding some of the killings in May
2010 were leaked to the press, and Red Shirt leader Jatuporn Prompan made
public comment about their conclusion that certain soldiers had caused the
deaths. Shortly after this occurred, it was reported in the Thai media that
Army Commander General Prayuth Chan- ocha had called for the removal of
DSI Director Tharit. Accordingly, Deputy Prime Minister Suthep Thaugsuban
summoned DSI Director Tharit to meet with him.
Immediately after that meeting, Prime Minister Abhisit held a press
conference reaffirming his support for DSI Director Tharit. Director Tharit
was kept in his position so that he could make a final decision not to
prosecute Army leaders or members of the CRES.
On his part, DSI Director Tharit told the press that Mr. Jatuporns statements
about the leaked DSI reports did not coincide with the findings of the DSI
investigators. These statements by Director Tharit were untrue.
Shortly after his meeting with Deputy Prime Minister Suthep, DSI Director
Tharit issued an internal DSI edict expressing his sole authority over the
determination of whether there had been criminal intent in any of the
killings. Without a finding of criminal intent, there can be no criminal
liability under Thai law against Army leaders, CRES members or the Thai
government. intent, there can be no criminal liability under Thai law against
Army leaders, CRES members or the Thai government. 76
The assessment of Anonymous Witness No. 20 has since proven correct. In Hiro
Muramotos case, the DSI reversed itself and claimed that the troops were not
responsible for the death. The conclusion was based on the judgment of Pol Lt Gen
Amporn Charuchinda, who examined photographs of Hiro Muramotos body and
76 Amsterdam & Peroff, Application to Investigate the Situation of the Kingdom of Thailandwith Regard to the Commission of Crimes against Humanity, Submitted to the Office of theProsecutor of the International Criminal Court on January 31, 2011, p. 132.
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classified the injuries as compatible with bullets fired by an AK-47. 77 DSI Director-
General Tharit Pengdit then suggested that the investigation could be performed more
effectively by Muramotos employer, Reuters. 78 Reuters, in fact, had previously
commissioned an internal investigation that confirmed Muramoto was killed by the
troops, but failed to disclose findings that contradicted the governments narrative.
Following his resignations from the company, former Reuters Senior Editor Andrew
Marshall cited portions of the report commissioned by Reuters:
Hiro Muramoto (Hiro) was shot, almost certainly by a 5.56mm high velocity
round, on 10 April in Dinso Road, West Bangkok at 21:01/2 Bangkok time.
XXXXXXX was not able to sight an official autopsy report or any forensics
carried out on his body. However, an interview with the surgeon in charge of triage at the BMA (Klang) Hospital on 10 April stated Hiro ultimately died
from a tension pneumothorax precipitated by massive internal bleeding. The
surgeon speculated that such bleeding would cause death within two
minutes of initiation. The ambulance crew that transported Hiro to hospital
stated they could find no vital signs and the doctor who examined him at the
Klang Hospital declared him dead before arrival.
The entry wound that caused Hiros death was centred below the clavicle and
pectoral, centred on the heart. The surgeon interviewed by XXXXXXX
confirmed the wound to be consisted with that caused by a bullet. Hiro also
exhibited an exit wound on the left tricep. Such a non-linear exit wound is
consistent with the impact of a high-velocity 5.56mm standard Nato issue
round (and inconsistent with, for example, the impact of a .38 pistol shot, a
rubber bullet, or a round fired by an AK47 assault rifle). 79
Meanwhile, no progress was made with regard to the killings at Wat Pathumwanaram.
Before a campaign rally held at the Ratchaprasong intersection of June 23, 2011
outgoing Prime Minister Abhisit Vejjajiva invited relatives of the six victims to listen to
77 DSI 'Botched Probe into Protest Deaths', Bangkok Post, March 3, 2011.http://www.bangkokpost.com/news/local/224481/dsi-botched-probe-into-protest-deaths 78 Reporters Without Borders, Attempt to Transfer Burden of Investigating Cameramans Deathon to Reuters, April 15, 2011.http://en.rsf.org/spip.php?page=article&id article=39873 79 Marshall also provides a detailed overview of the cover-up of Hiro Muramotos killing. SeeAndrew M. Marshall, In Memory of Hiro Muramoto, June 26, 2011.http://www.zenjournalist.com/2011/06/in-memory-of-hiro-muramoto/
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his version of the truth to earn a better understanding of the situation. 80 While he
revealed no new information about the killings, Deputy Prime Minister Suthep
Thaugsuban went on to blame the victims for their own deaths, repeating the
discredited claim that gun powder residue was found on the hands of four of the
victims. 81
Human Rights Watch commented as follows on the governments failure to hold
anyone accountable for the violence:
While several protest leaders and many UDD rank-and-file have been charged
with serious criminal offenses and are awaiting prosecution, government
forces implicated in abuses continue to enjoy impunity, sending Thais the
message that the scales of justice are imbalanced, if not entirely broken. It iscritical for the government to ensure impartial and transparent government
investigations that lead to criminal prosecutions against those on all sides
responsible for abuses, including those who ordered the unlawful use of
force or incited violence. 82
4. ConclusionThe initial Application filed on January 31, 2011 requested that the ICC Prosecutor
start a preliminary investigation into the situation in the Kingdom of Thailand in
relation to the events of April and May 2010, as well as the campaign of persecution
staged since the 2006 coup. The initial Application argued that the ICC may exercise its
jurisdiction through referral by the United Nations Security Council under Article 13(b)
of the Rome Statute and jurisdiction ratione personae under Article 12.2.b of the Rome
Statute based on former Prime Minister Abhisit Vejjajivas status as a national of a
State Party to the ICC. 83
80 Rally 'Not Just to Woo Voters', The Nation, June 22, 2011.http://www.nationmultimedia.com/home/Rally-not-just-to-woo-voters-30158399.html 81 Suntrareeya Hatha, An Outstanding Performance, Prachatai, June 28, 2011.http://www.prachatai3.info/english/node/2622?utm_source=feedburner&utm_medium=feed&utm campaign=Feed%3A+prachataienglish+%28Prachatai+in+English%29&utm content=Twitter 82 Human Rights Watch, Descent Into Chaos , p. 7.83 After weeks of denials, Mr. Abhisit admitted to being a citizen of the United Kingdom havingnever renounced the British citizenship he acquired at birth. See Thai PM Admits BritishNationality, The Guardian, February 24, 2011.http://www.guardian.co.uk/world/2011/feb/24/thai-pm-admits-british-nationality
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The evidence presented in this Addendum, collected from the reports released by
international human rights organizations, independent Thai-based NGOs, and Royal
Thai Army trainers, further substantiates and expands the claims made in the initial
Application to Investigate . Whereas the standard for launching an investigation for
crimes against humanity is a reasonable basis to believe that any such crimes have
been committed, the information collected over the past year established a strong
evidentiary basis attesting to the commission of the crimes of murder, persecution,
imprisonment and other severe deprivation of physical liberty, other inhumane acts,
and enforced disappearances against members of Thailands Red Shirt movement.
Moreover, the evidence points to the widespread and systematic nature of the
offenses and to the existence of a state policy to commit the crimes. While the policy
was shown to have been formulated and approved by Thailands highest civilian and
military authorities, the same officials were later responsible for suppressing evidenceof the crimes and for obstructing genuine investigations into the offenses. As a result,
the Thai situation qualifies for ICC jurisdiction based on the principle of
complementarity.
It is too early to tell whether recent developments in Thailand might change the status
of the domestic inquiries into the international crimes alleged in the initial Application.
On July 3, 2011, the opposition party Pheu Thai won legislative elections and formed a
government supported by a wide majority in parliament. Several leaders of the Red
Shirts were elected to parliament on Pheu Thais party list. However, the Pheu Thai
government faces a number of threats from forces in the Thai establishment, including
the possibility of a military coup and judicial action that might lead to the partys
dissolution. Legal efforts to overturn the elections through party dissolution or judicial
impeachment of the new Prime Minister have already been launched. Even if Pheu Thai
is allowed to remain in government for the duration of its term, the absence of civilian
control over the military and the alignment of the judiciary with establishment
positions are expected to hinder the governments ability to oversee a complete
investigation. In other words, while the elections may have produced a government that
is willing to investigate, Thailands ability to prosecute those responsible may not
necessarily improve as a result, in the absence of major transformations in the role of
the military and the judiciary. In all probability, it will take several months before the
significance of the elections to the progress of the domestic investigations becomes
clear. In the interim, the Applicant respectfully calls on the Office of the ICC Prosecutor
to take notice of the additional evidence presented in this Addendum.