icc: addendum to the petition submitted on behalf of the red shirt movement of thailand regarding...

8/2/2019 ICC: Addendum to the Petition Submitted on behalf of the Red Shirt Movement of Thailand regarding the Bangkok

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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.

icc: addendum to the petition submitted on behalf of the red shirt movement of thailand regarding...

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