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Addendum on former Prime Minister Abhisit Vejjajiva’s criminal responsibility under the Rome Statute of the ICC

Addendum on former Prime Minister Abhisit Vejjajiva’s criminal responsibility under the Rome Statute of the ICC

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Published by Robert Amsterdam
National United Front for Democracy against Dictatorship, Application to the Prosecutor of the International Criminal Court to Investigate the Situation of the Kingdom of Thailand with regard to the Commission of Crimes against Humanity, filed January 31, 2011. Addendum on former Prime Minister Abhisit Vejjajiva’s criminal responsibility under the Rome Statute of the ICC.
National United Front for Democracy against Dictatorship, Application to the Prosecutor of the International Criminal Court to Investigate the Situation of the Kingdom of Thailand with regard to the Commission of Crimes against Humanity, filed January 31, 2011. Addendum on former Prime Minister Abhisit Vejjajiva’s criminal responsibility under the Rome Statute of the ICC.

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Published by: Robert Amsterdam on Dec 13, 2012
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31 October 2012Honorable Fatou BensoudaProsecutorInternational Criminal CourtPO Box 195192500 CMThe HagueThe NetherlandsRe: OTP-297/10; National United Front for Democracy againstDictatorship,
Application to the Prosecutor of the International Criminal Court to Investigate the Situation of the Kingdom of Thailand with regard to the Commission of Crimes against Humanity 
, filed January 31, 2011. Addendum on former PrimeMinister Abhisit Vejjajiva’s criminal responsibility under theRome Statute of the ICC.Dear Madam Prosecutor:This letter supplements the
Application to Investigate the Situation of the Kingdom of Thailand with Regard to the Commission of Crimes Against Humanity 
, filed with theOffice of the Prosecutor (“OTP”) of the International Criminal Court (“ICC”) on 31January 2011 by Amsterdam & Partners LLP on behalf of the National United Front forDemocracy Against Dictatorship (UDD).
In previous communications with the OTP, the Applicant provided evidence that crimesagainst humanity were committed in Thailand in April and May 2010, substantiatingthat the crimes in question meet the legal criteria established by the ICC Statute andclarified by OTP policies to warrant the opening of a Preliminary Examination. Whileprevious submissions addressed the admissibility of the crimes and the ICC’s jurisdiction
ratione personae
over former Prime Minister Abhisit Vejjajiva, this letterprovides a more comprehensive treatment of Mr. Abhisit’s criminal responsibility forthe crimes against humanity of murder, other inhumane acts, and imprisonment andother severe deprivation of physical liberty under Articles 25 and 28 of the RomeStatute.As set out in this letter, recently released independent investigative reports, leakedgovernment documents, and news reports describing the contents of testimonies given by officials involved in the crackdowns to Thai law enforcement authorities provideevidence substantiating the following:
 
Former Prime Minister Abhisit was directly involved in the planning and approval of the military operations against the Red Shirt protesters. The former spokesperson of the Center for the Resolution of the Emergency Situation (CRES) testified thateverything CRES did was based on instructions received from the government, whichset the policy that CRES was tasked to implement. Because Mr. Abhisit hadknowledge of the orders that had been transmitted down the chain of commandwhen he authorized military operations against Red Shirt protesters, he isresponsible for crimes committed by the security forces pursuant to such orders.
 
The secret government document setting out the rules of engagement under whichthe military crackdowns of 10 April 2010 took place explicitly mentions that theorders contained therein were issued at the request of the Prime Minister. The rulesof engagement authorized security forces to use deadly force against civilians,
 
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whether armed or unarmed, “to protect property” in addition to the lives of theofficials or members of the general public.
 
After the first failed crackdown, modified rules of engagement were approved byCRES on 18 April 2010, which expanded the powers of officials to use lethal force inorder to protect “other people, official property, and private citizens under theirguard.” The modified rules of engagement authorized security forces to use liveammunition against: 1) Anyone seen carrying weapons who disregarded a notrespassing order, posed any danger to others, or prepared to use the weaponsagainst officials or the general public; 2) Unarmed civilians moving in a large crowdwho contravened a no trespassing order and were perceived to pose an unspecified“danger;” 3) Anyone who resisted arrest or refused to submit to a search. Themodified rules of engagement also approved the deployment of snipers who couldtarget armed persons mixed with crowds of “innocent people” and allowed theprovision of medical assistance to those injured, “according to human rightsprinciples,” only “after officials have managed to bring the situation under control.”Because the modified rules of engagement were approved almost one month inadvance of the crackdown of 13-19 May 2010, former Prime Minister Abhisit wasaware of the plan he was authorizing when he ordered the commencement of military operations on 12 May 2010.
 
The high casualty toll among unarmed civilians resulted directly from the policyauthorized by the Prime Minister, as opposed to actions taken by security forces ontheir own initiative. Particularly under the modified rules of engagement, securityforces were authorized to shoot civilians for merely throwing stones, handlingslingshots, destroying property, or otherwise resisting the Army’s operations. As adirect result, by the Royal Thai Army’s own admission, troops fired nearly twohundred thousand rounds of live ammunition in the April and May crackdowns,including five hundred sniper rounds. While none of those killed or injured wereever shown to have posed any danger to the lives of the officials or the generalpublic, the rules of engagement approved by the government nonetheless madethem a legitimate target for the use of deadly force. Also responsible for the heavyloss of life during the second crackdown were the declaration of live fire zones(explicitly permitted under CRES’ secret orders), the enforcement of rules that onlyallowed the injured to receive medical treatment after the situation had already been brought under control, and the government’s failure to specify clear criteria todistinguish between legitimate and illegitimate targets of lethal force.
 
Once confronted with reports of indiscriminate killings perpetrated by the armedforces, former Prime Minister Abhisit failed to exercise his authority as a superior toeither suspend the operations or reshape them in a way consistent with internationalstandards. As the second crackdown was unfolding, on 15 May 2010, Mr. Abhisitinformed the public that any losses resulting from the military operations in facthad to be accepted in the interest of justice. On that basis, he refused to halt theoperations. On 18 May 2010, moreover, Mr. Abhisit rejected a ceasefire proposed bya group of Senators who sought to broker an agreement with the Red Shirt leaders.As a result, twelve more people were killed on 19 May 2010, including the sixgunned down by security forces at Wat Pathumwanaram, the temple designated bythe government as a safe zone.
 
Finally, former Prime Minister Abhisit is responsible for the crime against humanityof imprisonment and other severe deprivation of physical liberty, through hisknowledge and approval of the CRES policy that authorized the illegal detention andenforced disappearance of hundreds of protesters after the rallies were dispersed.
 
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Abhisit Vejjajiva’s Role in the Commission of Crimes against Humanity 
Beginning on 12 March 2010, the “Red Shirts” of the National United Front forDemocracy against Dictatorship (“UDD”) staged massive demonstrations in Bangkok,Thailand. In response to the demonstrations, the Royal Thai Army—under the directionand approval of Prime Minister Abhisit and others in the government—killed a total of at least eighty-three civilians and wounded two thousand others in separatecrackdowns staged on 10 April 2010 and 13-19 May 2010. Victims included journalistsdocumenting the events and medical volunteers assisting the injured.The initial Application sought to establish a “reasonable basis to believe” that severalcrimes 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 Thaiarmy on the Red Shirt rallies in April and May 2010. The present letter focuses on thecrimes against humanity of murder and other inhumane acts—acts of violence bywhich officers of the Royal Thai Army killed at least eighty-three civilians and woundedsome two thousand others as part of a “widespread and systematic” attack on a civilianpopulation carried out under a state policy approved at the highest levels of Thailand’sgovernment—as well as the crime against humanity of arbitrary imprisonment andother severe deprivation of physical liberty.The use of force against civilians was effectuated by military forces of the Royal ThaiArmy at the direction of former Prime Minister Abhisit and officials in the Center forthe Resolution of the Emergency Situation (CRES),established by an order of the PrimeMinister pursuant to the declaration of a State of Emergency on 7 April 2010 for thepurposes of coordinating the government’s response to the Red Shirt demonstrations.CRES included the leaders of all branches of Thailand’s military and law enforcementapparatus, and was led by Mr. Abhisit’s Deputy Prime Minister, Suthep Thaugsuban.Many of the written orders transmitted down the chain of command during thecrackdowns were signed by Mr. Suthep in his capacity as CRES Director.As the Prime Minister, Mr. Abhisit is both legally and morally responsible for anyorders or directives issued by CRES. According to Section 6 of 2005 Emergency Decree,under whose provisions CRES was established, the “powers and duties” of CRES werelimited to “monitoring and inspecting” the emergency situation for the purposes of advising the Prime Minister on appropriate measures. While the Emergency Decreeallows the Prime Minister to delegate some powers in an emergency situation, nowheredoes it provide that the authority of the Prime Minister as the country’s chief executiveis in any way diminished in the context of a declared emergency.CRES, therefore, only served at the pleasure of the Prime Minister, and only exercisedauthority granted to it by the Prime Minister. In addition, CRES met in the same building, the headquarters of the Eleventh Infantry Regiment in Bangkok, where Mr.Abhisit was housed for security reasons throughout the Red Shirt demonstrations.There, Mr. Abhisit was widely reported in the press to have regularly participated inCRES meetings, both before and during the crackdowns. Evidence also shows that theformer Prime Minister was directly involved in the planning and approval of themilitary operations against the Red Shirt protesters. In November 2011, former CRESSpokesperson Col. Sansern testified to police that the military only drew its authorityto act from CRES, based on directives issued by the Prime Minister and the DeputyPrime Minister, who served as CRES Director.
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“Col Sansern Testifies to Police on April-May Crackdown Last Year,” Prachatai,November 18, 2011.http://prachatai.com/english/node/2897 

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