MARK OF THE BEAST

BRANDING OPPOSITION AS TERRORISM IN THAILAND

AMSTERDAM & PEROFF LLP

THAILAND 2011 GENERAL ELECTION REPORT SERIES, NO. 4

One year ago, the Royal Thai Government massacred almost ninety people to avoid an early election it feared it might lose. Finally, the early general elections for which dozens of Red Shirts gave their lives are scheduled to take place on July 3, 2011. While it is hoped that the elections will be free of outright fraud and ballot stuffing, the competitiveness and fairness of the process are being undermined in many other ways.

The upcoming elections will take place in a context of intimidation and repression, coupled with the continuing efforts by most of the institutions of the Thai state to secure a victory for the Democrat Party. Aside from competing against a hobbled opposition under rules design to artificially boost its seat share, the Democrat Party will once again avail itself of the assistance of the military, the bureaucracy, the judiciary, and the royalist establishment. These institutions stand ready to commit whatever money, administrative resources, and television airtime might be necessary to haul the otherwise unelectable Mark Abhisit over the hump.

In this series of reports, Amsterdam & Peroff details the attempts by Thailands Establishment to fix the results of the upcoming general elections. This report the fourth in the series focuses on the charges of terrorism filed against leaders of the Red Shirts. The report situates these criminal trials within the context of other measures employed by the Abhisit administration to criminalize dissent and prevent the opposition from forming Thailands next government.

1. INTRODUCTION
Days after deadly clashes with security forces on April 10, 2010 left twenty-six people dead and more than eight hundred injured, the Red Shirts dismantled their main rally site at the Phan Fa Bridge and concentrated their forces in the heart of Bangkoks modern commercial district at the Ratchaprasong intersection. From then on, a large banner hung on the protest stage: Peaceful Protesters, Not Terrorists. While the government had previously never missed an opportunity to warn of the danger presented by the Red Shirts, as justification for repeatedly imposing the Internal Security Act in advance of planned rallies, the designation as terrorists sprung directly from the events of April 10, 2010. The administration of Mark Abhisit Vejjajiva sought to justify the imposition of the Emergency Decree on April 7 and the volume of lethal force unleashed on protesters on April 10 by casting the Red Shirts as a violent threat to the life of the nation. The failure of the governments first crackdown against the Red Shirts, moreover, led it to claim that the fight against domestic terrorism could justify the more incisive, more violent operation to disperse the Red Shirts and manage the difficult aftermath. The labeling of the Red Shirts as terrorists figured prominently in the case made by the government to justify the week-long crackdown launched on May 13, 2010 in the area surrounding Ratchaprasong. On the eve of the crackdown, the government warned that it would shoot armed terrorists, estimating that approximately five hundred armed elements had infiltrated the Red Shirts.1 That number is consistent with the purportedly leaked internal government report that National United Front for Democracy against Dictatorship (UDD) leader Jatuporn Prompan had revealed to the press on April 19, indicating that the military planned to carry out the crackdown over a one-week period, setting the acceptable death toll of the operations at five hundred.2 On the evening of May 13, Major-General Khattiya Sawasdipol (Seh Daeng), a renegade army officer and purported leader of the Red Shirt movements
1. Sansern: 500 Terrorists Infiltrating Reds, Bangkok Post, May 14, 2010. http://www.bangkokpost.com/breakingnews/177896/500-terrorists-blending-withreds-sansern

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more extreme faction, was shot in the head by a sniper while he stood before the cameras and microphones of New York Times reporter Thomas Fuller at the edge of Lumphini Park.3 Despite having explicitly identified Seh Daeng as a terrorist, the government denied any involvement.4 As the crackdown unfolded, the Thai-language daily Matichon reported that officials in the war room set up by the Democrat Party were satisfied with the fact that only thirty-five people had died up to that point much lower than the anticipated two to five hundred casualties.5 Following the rallies dispersal on May 19, 2010, the government has clung to the accusation of terrorism to justify the continued abuse of emergency legislation, the indefinite detention of Red Shirt leaders, and the criminalization of opposition to Abhisits undemocratic rule by presenting it as a threat to national security. According to the government-appointed Truth and Reconciliation Committee, no less than 145 cases of terrorism were filed by the authorities in the wake of the rallies. In late July 2010, the Department of Special Investigations referred to the Office of the Attorney General charges of terrorism against twenty-four Red Shirt leaders as well as former Prime Minister Thaksin Shinawatra. Shortly thereafter, the Attorney General indicted nineteen of them, all of whom were in custody, and delayed its decision on the six who remained at large.6 All face possible death sentences if eventually convicted. This report exposes the speciousness of the charges of terrorism lodged against the leaders of the UDD as well as the systematic denial of their rights to due process, which has turned the proceedings into little more than a show trial. In addition, the report situates these trials in the context of a broader strategy by the Abhisit government and its Establishment backers to rely on the countrys legal and judicial system to mask the suppression of political
3. See Thomas Fuller and Seth Mydans, Thai General Shot; Army Moves to Face Protesters, New York Times, May 13, 2010. http://www.nytimes.com/2010/05/14/world/asia/14thai.html 4. Khattiya Sawatdiphol (Seh Daeng), New York Times, May 17, 2010. http://topics.nytimes.com/top/reference/timestopics/people/k/khattiya_sawatdiphol/index.html , Matichon, May 17, 2010. http://www.matichon.co.th/news_detail.php?newsid=1274104360&catid=01 6. Prosecution Review Completed, 19 Red Shirts to Face Terrorism Trial, The Nation, August 11, 2010. http://www.nationmultimedia.com/home/Prosecution-review-completed-19-redshirts-to-face-30135707.html

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dissent and taint the opposition party Pheu Thai with terrorist leanings or associations in the lead-up to general elections scheduled for July 3, 2011.7 The governments relentless media campaign serves both to deflect attention from the governments failure to hold any state agent accountable for the 2010 Bangkok Massacres as well as to brand the political formation that has won every election since 2001 as an enemy of Thailand. Turning the charge of terrorism on its head, this report argues that the governments actions in April and May 2010 fit the definition of state terrorism far better than the baseless accusations cooked up by the authorities against the Red Shirt leaders and supporters currently facing trial.

2. THE TAINT OF TERRORISM

While it is sometimes contended that there is no agreed universal definition of terrorism,8 international law definitions rest to a considerable extent on Security Council Resolution 1566 (October 8, 2004) as well as the UN General Assembly in Resolution 54/109 (December 9, 1999). The resolutions define terrorism as follows: criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimate a population or compel a government or an international organization to do or to abstain from doing any act. The Special Rapporteur on the protection and promotion of human rights and fundamental freedoms while countering terrorism has emphasized the necessary connection between the criminal act and the underlying ideological aim.9 The Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights commissioned by the International Commission of Jurists with the support of the Special Rapporteur,10 counsels against the excessively broad
7. For the most recent example, see Reds Linked to Terrorism a Fact: Democrat Spokesman, The Nation, May 25, 2011. http://www.nationmultimedia.com/2011/05/25/national/Reds-linked-to-terrorisma-fact-Democrat-spokesman-30156170.html 8. Report of the Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights, Assessing Damage, Urging Action (International Commission of Jurists, 2009), p. 7. 9. Protection of Human Rights and Fundamental Freedoms while Countering Terrorism (16 August 16, 2006). UNGA Doc A/61/267, para. 44. 10. See Report of the Special Rapporteur on the promotion and protection of hu-

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understanding of terrorism that tends to characterize the United States war against terror, for fear that it might create a legal black hole and justify the development of a separate and exceptional legal system. Thailands terrorism statute was introduced by Thaksin Shinawatras government in 2003, at the end of a controversial process that placed activists like Jaran Dittaphichai, now a Red Shirt leader, at odds with the administration.11 Section 135/1 of the Thai Criminal Code defines terrorist acts to include: 1) Acts of physical violence that might result in loss of life and bodily harm, or undue restrictions on anyones personal liberty; 2) Acts that damage public infrastructure, communication, and transportation system; 3) Acts against any private or public property that potentially cause significant economic damage. Nonetheless, consistent with the definition provided in the United Nations resolutions, the commission of these acts may be classified as terrorism only when undertaken with a demonstrable intent to either: 1) Threaten or to compel the Thai government, a foreign government, or an international organization to do or abstain from doing any act; or 2) Cause disorder by creating widespread fear among the public.12 While the Thai legislation includes no direct reference to the ideology that animates a group engaging in terrorist acts, Section 135/1 (3) specifically exempts from the definition of terrorism any act of demonstrating, rallying, protesting, opposing or supporting a movement demanding state assistance or seeking justice, which is an exercise of a persons liberty as prescribed in the Constitution. Framed as the protection of constitutional rights, this exemption confers upon the authorities the discretion to determine which groups seek justice, and are hence entitled to their constitutional rights, and which groups can be denied the exercise of their rights based on the presumed fraudulence of their demands for justice.
man rights and fundamental freedoms while countering terrorism (2009) A/64/211, p. 11. 11. Marwaan Macan-Markar, Bangkoks About-Turn on Terrorism, AsiaTimes, August 13, 2003. http://www.atimes.com/atimes/Southeast_Asia/EH14Ae04.html 12. John Fotiadis and Tongkamol Chantararatn, What Makes a Terrorist Under Thai Law, Bangkok Post, December 7, 2010. http://www.bangkokpost.com/opinion/opinion/185944/what-makes-a-terroristunder-thai-law

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Sociologist Jyotrirmaya Tripathy approaches terrorism as a discursive product, one that is produced by language.13 This does not mean that the shrapnel from bombs that cut through flesh and bones are not real, or that the devastating emotional loss of a loved one killed is to be dismissed as linguistic construct. Rather, viewing terrorism as a discursive product calls into question the mechanisms of power by which one entity, the state, has the prerogative to determine the character of other actors: those declaimed as terrorists. Naming someone a terrorist, in particular, carries a prescription: the labeled group or individual is not to be engaged by the state, or by legitimate political/social actors.14 One does not negotiate with terrorists. Terrorist groups must be eliminated. The moniker itself is employed to deny legitimacy to the group, as the terrorist is by definition an outsider, a rogue, an element beyond the pale. As Martha Crenshaw puts it: calling adversaries terrorists is a way of depicting them as fanatic and irrational so as to foreclose the possibility of compromise, draw attention to real or imagined threats to security, and to promote solidarity among the [supposedly] threatened.15 In this way, the danger with anti-terrorism provisions is always two-fold: to provide too expansive a definition of terrorism and to prosecute under terrorism that which is not terrorist activity. The second danger is now manifest in Thailand. The presence of terrorists constitute a security threat; by calling the Red Shirt leaders terrorists, the government has changed the political landscape from one characterized by political opposition to Abhisits government to one characterized by security, recasting all who oppose the government as terrorists and all who stand by Abhisit as threatened by terrorism. Employing the terrorist label replaces political contestation, and the ability to challenge hegemonic discourses, with a process of securitization, which places a premium on protecting the status quo. Violence against the labeled perpetrators of violence, then, becomes no violence at all: the governments violent crackdown against the Red Shirts was without apology or remorse. Instead, the government portrayed itself as the victim of violence, not its perpetrator. By branding opponents as terrorists, Abhisit denies their political character. In turn, even the most inhumane acts of violence are now
13. Jyotirmaya Tripathy, What Is a Terrorist? International Journal of Cultural Studies, Vol. 13(2010): 219-234.

14. Martha Crenshaw, Relating Terrorism to Historical Contexts, in Terrorism in Context (University Park, PA: The Pennsylvania State University Press, 1995), p. 9.
15. Ibid, p. 9.

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said to be justified if committed against opponents marked as terrorists. Deaths or injuries to civilians incurred through the actions of the government are collateral damage, something to be tolerated as the cost of the security of the state. The dehumanization of pro-democracy demonstrators for the purposes of building public support for episodes of state violence is a technique with a long track record in Thailand. The label of violent revolutionaries was employed against the Red Shirt protestors just as it was employed throughout the events of Black May 1992. Then as now, the military government accused the demonstrators of aiming to overthrow Thailands monarchy,16 seeking to cast them as un-Thai and, by reflection, as devilish or inhuman based on the countrys nationalist discourse.17 Then as now, the military government imposed the Emergency Decree and announced that drastic action would be taken against rioters.18 Then as now, the military government claimed that soldiers only shot in self-defense.19 The governments portrayal of the Red Shirts is even more strikingly reminiscent of the manner in which the military justified to the public the murder of several dozen pro-democracy students some of them raped, mutilated, and burned alive at Thammasat University on October 6, 1976. Much like the Red Shirts, the students who had barricaded themselves in Thammasat University campus had been falsely accused of having stockpiled large amounts of weapons in the halls of the university. Much like the Red Shirts, the students had been dehumanized through genocidal language that referred to them as beastly, un-Thai and, as a famous 1970s propaganda song (recently re-discovered by ultra-nationalists) did at the time, the scum of the earth (nak paendin). Much like the Red Shirts, the students had been accused of posing a threat to the institution of the monarchy, of having been infiltrated by foreign agents, and of harboring radical ideas. In 1976, the students were labeled communists; in 2010, the government updated its terminology to the changed geopolitical context and branded the Red Shirts terrorists. These historical parallels point to the fact that the most recent wave of
16. Tan Lian Choo, Clashes Provoked by Group Bent on Revolt: Suchinda, The Straits Times, May 20, 1992. 17. For an explication of this logic, see David Streckfuss, The Truth on Trial in Thailand (London: Routledge, 2010), p. 305. 18. Drastic Action to Quell Protest, Bangkok Post, May 18, 1992. 19. Shootings Were in Self-Defence, Says Spokesman, The Nation, May 20, 1992.

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demonstrations and violence has played out according to the same script followed by the events of 1973, 1976, and 1992. Just as in those instances, the Red Shirts calls for democracy and justice were described by the government as a faade for an ideology threatening the security of the Thai state. Just as in previous instances, the Red Shirts, even when exceptionally engaged in looting. property destruction, and resistance primarily in situations where they themselves were under fire were not the armed terrorists the government made them out to be. Just as in previous instances, false accusations of ideological extremism and violent tendencies were instrumental to the case made by the government and the military to justify the imposition of extraordinarily repressive measures and to shoot scores of unarmed demonstrators with impunity. Now as ever, the Thai Establishment answered calls for democracy with the dehumanization of its opponents, the subversion of the rule of law, and human rights violations on a massive scale. In its latest report on the 2010 government crackdown, Human Rights Watch documents how the Abhisit administration authorized the military to target Red Shirt protestors as terrorists to justify the lethal use of force: On May 14, the CRES [Center for the Resolution of the Emergency Situation] set out new, expanded rules of engagement that liberalized the use of live fire against the protesters. Under the new rules, soldiers were allowed to use live ammunition [] 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.20 According to Human Rights Watch, the governments use of terrorism was dangerously vague, given that [i]n practice, the security forces began deploying snipers to shoot anyone who tried to enter no-go zones between the UDD and security force barricades, or who threw projectiles towards soldiers; on many occasions, security forces appear to have randomly shot into crowds of UDD supporters who posed no threat to them, often with lethal consequences.21 Whereas over ninety people were killed and around two thousand injured in the six weeks leading up to May 19, 2010, an additional casualty of the crackdown was any pretense of democratic rule and respect for the rule of
20. Human Rights Watch, Descent into Chaos: Thailands 2010 Red Shirt Protests and the Government Crackdown (2011), pp. 81-82. 21. Ibid., p. 16.

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law that Abhisits administration had sought to maintain. Confronted with a massive, well-organized, and largely peaceful challenge to his governments legitimacy, Abhisit demonstrated his inability to govern in accordance with the protections that even the post-coup 2007 Constitution formally affords the people of Thailand. Even before the demonstrations began, the government suspended many constitutional protections by invoking the Internal Security Act in an attempt to restrict the Red Shirts activities. On the eve of the first crackdown, moreover, the government claimed dictatorial powers and declared a state of emergency. The imposition of the Emergency Decree provided the government with a semblance of legal foundation for its crackdown against the Red Shirts. The government proscribed any assembly or gathering of five or more persons as well as any act that could incite unrest. The government further issued regulations that conferred upon the administration extraordinarily expansive powers, as the government would now be empowered to arrest and detain a person suspected in taking part in instigating the emergency situation or a person who advertises or supports the commission of such act and to summon an individual to report to the officers or give evidence pertaining to the emergency situation.22 On May 13, 2010, the State of Emergency was expanded to include fifteen provinces in northern, northeastern and central Thailand. By late May, it was expanded to twenty-four provinces across the country. On July 7, 2010, the government renewed the decree in nineteen provinces for an additional three months. The size of the territory covered by the decree was gradually scaled back until the State of Emergency was formally lifted on December 21, 2010. The Emergency Decree was never invoked for the purposes of confronting an emergency, but rather to authorize the government to stamp out political opposition and to consolidate its hold on political power. The prolonged enforcement of the Emergency Decree constituted a clear violation of the International Covenant on Civil and Political Rights (ICCPR). Article 4 permits the suspension of certain rights guaranteed in the ICCPR, such as the right to demonstrate, only in instances where a public emergency threatens the life of the nation and only to the extent strictly required by the exigencies of the situation; under no circumstances can a State of Emergency be used
22. Announcement pursuant to Section 11 of the Emergency Decree on Public Administration on Emergency Situation B.E. 2548 (2005).

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to undermine the rule of law or democratic institutions. According to the International Commission of Jurists, Human Rights Watch, the International Crisis Group, Amnesty International, and virtually every other human rights organization around the world, the Thai governments recourse to emergency powers failed this crucial test. In a submission to the Human Rights Council, the Asian Legal Resource Centre (ALRC) described the systematic human rights violations that have taken place under the cover of the Emergency Decree.23 The decree, specifically, authorized the authorities to suspect persons without charge for up to thirty days in unofficial places of detention. Just how many Red Shirts have been detained since the crackdown remains shrouded in secrecy, as an investigative article put it back in August 2010, but independent estimates range from 470 upwards.24 A year since the dispersal of the rallies, over a hundred Red Shirt protesters remain in prolonged, arbitrary detention, often in harsh conditions, for violating the Internal Security Act and the Emergency Decree,25 which the Thai authorities wielded in an effort to criminalize legitimate political protest. Multiple reports have emerged attesting to the Royal Thai Governments habitual recourse to the torture of detainees both as a punitive measure and as an instrument to coerce prisoners into furnishing confessions. The group Social Move described the plight of at least four men who claim to have been severely beaten upon their arrest and while in custody; two testified to having been doused in lighter fluid as soldiers of the Royal Thai Army threatened to burn them alive.26 Even the National Human Rights Commission, a governmental body frequently criticized for its pro-Establishment bias, has issued a report denouncing that Red Shirt detainees are being tortured, forced
23. Asian Legal Resource Centre, Thailand: Arbitrary Detention and Harassment under the Emergency Decree, August 31, 2010. http://www.ahrchk.net/statements/mainfile.php/2010statements/2791/ 24. Marwaan Macar-Markan, Jails Fill Up with Political Prisoners, Critics, Inter-Press Service, August 23, 2010. http://ipsnews.net/news.asp?idnews=52571 25. Daniel Schearf, Thai Protesters Mark One Year Anniversary of Government Crackdown, Voice of America, May 19, 2011. http://www.voanews.com/english/news/Thai-Protesters-Mark-One-Year-Anniversary-of-Government-Crackdown-122224679.html 26. For English translations and summaries of the original Thai reports, see Andrew Spooner, Thai Style Human Rights, Siam Voices, October 3, 2010. http://asiancorrespondent.com/41045/thai-style-human-rights/ ) See also Andrew Spooner, Thai Army Brutality An Account, Siam Voices, November 16, 2010 (http://asiancorrespondent.com/42679/thai-army-brutality-anaccount/)

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to confess to crimes and jailed without any chance to defend themselves.27 Although the state of emergency was formally lifted on December 22, 2010, the government continued to rely on the Internal Security Act without interruption between March 11, 2010 and May 24, 2011. Enacted in 2008, the Internal Security Act provides for an all-encompassing definition of the maintenance of internal security, which includes operations to prevent, control, resolve, and restore any situation which is or may be a threat arising from persons or groups of persons creating disorder, destruction, or loss of life, limb, or property of the people or the state.28 Whereas the Act allows these extraordinary, extra-constitutional measures only in order to restore normalcy for the sake of the peace and order of the people, or the security of the nation, upon the juntas completion of the draft legislation in late 2007, Human Rights Watch condemned it as aimed at perpetuating military rule and as leaving Thailand in an environment prone to abuses and the arbitrary use of power.29 The junta-appointed National Legislative Assembly approved the draft legislation on December 20, 2007, immediately before authorizing general elections. In a 2010 report entitled Thailands Internal Security Act: Risking the Rule of Law?, the International Commission of Jurists expressed grave concerns about the governments habitual recourse to the Act as a violation of the rights to freedom of expression and association guaranteed under the ICCPR.30 The Commission found that while the Internal Security Act was an improvement over previous emergency laws or martial law, the Act nevertheless remained too close to those forms of extra-legal rule; consequently, Thailand risked violating its human rights obligations by repeatedly taking advantage its provisions.31 The Commission emphasized that the Internal Security Act threatened to undermine the principle of the separations of powers between
27. See Panel Claims Red Shirt Inmates Tortured, Bangkok Post, December 7, 2010. http://www.bangkokpost.com/news/politics/210009/panel-claims-red-shirt-inmates-tortured 28. Internal Security Act, B.E. 2551 (2008), s. 3. 29. Human Rights Watch, Thailand: Internal Security Act Threatens Democracy and Human Rights, November 5, 2007. http://www.hrw.org/en/news/2007/11/04/thailand-internal-security-act-threatensdemocracy-and-human-rights 30. International Commission of Jurists, Thailands Internal Security Act: Risking the Rule of Law? February 2010. http://icj.org/IMG/REPORT-ISA-THAILAND.pdf 31. Ibid., p.vi.

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the legislative and executive branches of government, particularly given that the Act confers upon the infamous Internal Security Operations Command (ISOC) the ability to determine what activities are to be prohibited, while at the same time giving the ISOC the power to enforce those prohibitions.32

3. PROTESTERS, NOT TERRORISTS

Whereas the government has spent the past year making sure that the investigations into the killings of over eighty Red Shirt protesters lead nowhere, despite overwhelming evidence of the Royal Thai Armys crimes, the Abhisit administration has conversely displayed considerable aggressiveness in its prosecution of the Red Shirts. The prosecution of nineteen Red Shirt leaders on charges of terrorism is based on allegations that the defendants instigated or ordered the commission of several acts of violence. Notwithstanding the fiery rhetoric employed by some of its speakers, little hard evidence connects the UDD and its core leaders to the episodes of violence the Red Shirts are accused of carrying out. First, the government has failed to provide any credible information linking Red Shirt leaders with the dozens of grenade attacks that targeted banks, military installations, public offices, party headquarters, and the private residence of coalition politician Banharn Silpa-archa since the beginning of the rallies. Though some have pointed that other groups besides the Red Shirts had far greater interest in building the climate of fear that the string of attacks generated, the government only accused the Red Shirts. Bomb attacks that immediately preceded the beginning of the rallies were instrumental to the governments case for imposing the Internal Security Act, while those carried out thereafter were crucial to the justification for the Emergency Decree. At one point, the Department of Special Investigations sensationally announced that on March 20, 2010 the Red Shirts had targeted the Temple of the Emerald Buddha one of Thailands most sacred structures in a failed attack with a Rocket-Propelled Grenade (RPG), based on the confession of a man who claimed to have been paid by a politician to carry out the bombing.33 Nothing
32. Ibid., p. vii. For a brief account of ISOCs disturbing human rights record, see Paul Busbarat, Thailand, International Human Rights and ISOC, New Mandala, January 27, 2009. http://asiapacific.anu.edu.au/newmandala/2009/01/27/thailandinternational- human-rights-and-isoc/ 33. Ex-Policeman Held in RPG Case, The Nation, May 1, 2010. http://www.nationmultimedia.com/home/2010/05/01/national/Ex-policeman-held-

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has been heard since about the plot the government alleged. Second, while the Men in Black who appear to have killed military officers during the clashes on April 10, 2010 were never conclusively identified, the commandos are thought to have been highly trained military officers whether retired or active duty.34 Again, though the government has claimed that these men worked for the Red Shirts, presumably at the orders of the slain Maj.-Gen. Khattiya Sawasdipol (Seh Daeng), it has offered no evidence to support that claim. In the pro-Establishment publication The Nation, conservative columnist Avudh Panananda speculated that the killing of Col. Romklao Thuwatham was likely to have been related to the dominance achieved by the Queens Guard and the Eastern Tigers clique within the countrys armed forces.35 More recently, though the report issued by Human Rights Watch speaks of the Men in Black as pro-UDD, the same report notes that these men were neither connected to the Red Shirt leadership,36 nor were they led by Major-General Khattiya Sawasdipol (Seh Daeng); despite this, the government continues to allege otherwise.37 A 2010 report by the International Crisis Group examining the results of the governments investigation into the activities and organizational structure of the Men in Black similarly casts doubt over the governments theory.38 Over a year since they appeared out of thin air, the fact that so little is known about the Men in Black raises suspicions that this force enjoys the protection or sanction of the Thai state or some authority within its ranks. Third, the government was quick to point the finger against the UDD in the
in-RPG-case-30128366.html 34. Avudh Panananda, Anti-Riot Squad Cut Up by Soldiers in Black, The Nation, April 13, 2010. http://www.nationmultimedia.com/home/2010/04/13/politics/Anti-riot-squad-cutup-by-soldiers-in-black-30127131.html 35. Avudh Panananda, Is Prayuth the Best Choice amid Signs of Army Rivalry? The Nation, June 8, 2010. http://www.nationmultimedia.com/home/2010/06/08/politics/Is-Prayuth-the-bestchoice-amid-signs-of-Army-riva-30131079.html See also International Crisis Group, Bridging Thailands Deep Divide, Asia Report N192, July 5, 2010, p. 10. http://www.crisisgroup.org/~/media/Files/asia/south-east-asia/thailand/192_ Bridging%20Thailands%20Deep%20Divide.ashx 36. Human Rights Watch, Descent into Chaos: Thailands 2010 Red Shirt Protests and the Government Crackdown (2011), p. 44-46. 37. Ibid. p. 79. 38. International Crisis Group, Thailand: The Calm before Another Storm? ICG Asia Briefing No. 121, April 11, 2011, pp. 3-4. http://www.crisisgroup.org/~/media/Files/asia/south-east-asia/thailand/B121-%20 Thailand-%20The%20Calm%20Before%20Another%20Storm.ashx

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immediate wake of an M-79 grenade attack on the Sala Daeng SkyTrain station that took place during a stand-off between Red Shirts and pro-government Multicolor Shirts on April 22, resulting in one death. The suspects it had initially detained, however, were quickly released. Contradicting CRES conclusion that the grenades were lobbed from the Red Shirt encampment near the Rama VI monument, eye-witnesses among pro-government counter-protesters claim the grenades were fired from nearby Chulalongkorn Hospital.39 Finally, the government maintains that the thirty-nine arson attacks that took place in Bangkok on May 19 were systematically planned and organized.40 However, it has provided no credible evidence of a conspiracy. Most of the Red Shirt leaders were already in custody by the time the arson attacks occurred and had publicly instructed their followers to disperse. Moreover, important questions remain about the timing of the incident at the CentralWorld shopping mall and the effects that the militarys actions had on the speed with which firefighters arrived on the scene and extinguished the fire. Indeed, testimony included in the Application filed by Amsterdam & Peroff to the Prosecutor of the International Criminal Court points to the fires being deliberately set by elements connected to the Royal Thai Army for the purpose of discrediting the Red Shirts. While the Red Shirts were accused by the government of committing various acts of violence, direct evidence pointing to the Red Shirts responsibility for these acts remains thin. What is more, there exists no evidence pointing to the Red Shirt leaders role in planning the attacks, or even knowledge of the attacks. Moreover, authoritative observers have publicly cast doubt on whether even the worst offenses could be reasonably described as terrorism. In a report on the 2010 massacres, the International Crisis Group not only urged the government to drop the terrorism charges, but also specifically observed: It is difficult to make a case that Thaksins role in the recent violence in Thailand fits with definitions of terrorism widely used internationally.41 39. 79751- ., ASTV-Manager, April 23, 2010. http://www.manager.co.th/Crime/ViewNews.aspx?NewsID=9530000055677
40. Jocelyn Gecker, Thai Troops Open Fire on Red Shirt Protesters in Bangkok, Associated Press, May 20, 2010. http://www.adelaidenow.com.au/thai-troops-open-fire-on-red-shirt-protesters-inbangkok/story-e6frea6u-1225868598260 41. International Crisis Group, Bridging Thailands Deep Divide, Asia Report N192, July 5, 2010, p. 18.

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Similarly, United Nations Special Rapporteur on Human Rights and CounterTerrorism, Martin Scheinin, expressed serious reservations about whether any of these offenses might qualify as terrorism, owing to the fact that the Red Shirts have never been accused of serious violence against members of the general population or segments of it.42 As per the banner that hung on stage at Ratchaprasong, the Red Shirts were throughout protesters, not terrorists.

4. ABUSE AND DENIAL OF DUE PROCESS

The abuse of terrorism provisions is compounded by the prosecutions systematic denial of the Red Shirt leaders rights to due process and to a full and fair defense. The International Covenant on Civil and Political Rights guarantees to each and every accused person a fair defense, including the right to choose ones counsel, to prepare a defense with adequate time and facilities, and to receive full access to the evidence. The accused have a right to examine the evidence independently, through their own experts and lawyers, under the same conditions as the government, and to assemble the evidence affirmatively in their own defense.43 No doubt fearing that a genuine legal process would absolve the accused, the Thai Establishment is committed to holding no more than a show trial. The proceedings are assigned to Judge Sujitra Potaya, who has participated in all of the criminal cases against former Prime Minister Thaksin Shinawatra. Despite the seriousness of the capital charges against the Red Shirt leaders, Judge Sujitra has repeatedly barred the defendants from attending their own trial hearings. At the Preliminary Hearing on September 27, 2010, the defendants were denied access to the courtroom. Further, in the written Order memorializing the Preliminary Hearing, Judge Sujitra stated: Due to the fact that a lot of people who do not involve in the case are in the court room, the seats are not sufficient. The next hearing will determine the number of witnesses, the number of hearings so the Defendants are not required to appear before court, but the Defendants lawyers shall appear before court.44

42. Achara Ashayagachat, Thailands Terrorism Law Goes Too Far, Bangkok Post, February 19, 2011. http://www.bangkokpost.com/news/local/222370/thailand-terrorism-law-goes-toofar 43. ICCPR, Art. 14. 44. Order dated September 27, 2010, at p. 11.

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On the day the next hearing was convened, the defendants were transferred from their jail cells to the basement of the courthouse, but Judge Sujitra refused to allow them to be brought into the courtroom. Formal requests to move the proceedings to a larger courtroom have been denied. Thus, the defendants are being deprived of the fundamental right to assist their lawyers in the preparation of their own defense, based on the rationale that the courtroom to which the case is assigned is simply too small. Although families of the defendants and the victims are also being kept out of the proceedings, select members of the Thai media are permitted to observe and report. Judge Sujitra, moreover, has barred the defendants from calling key witnesses needed for their defense. Specifically, the defendants included on their proposed witness list the Directors of at least thirteen hospitals in Bangkok where victims were treated during the Red Shirt demonstrations. These witnesses were named because, as the official custodians of the records of their respective hospitals, the Directors are the only persons who are able to identify the names of the various doctors who treated the victims. Without the testimony of the Directors, the defense will be unable to identify and call the treating physicians to testify about the nature of the injuries suffered by the victims. Judge Sujitra, however, barred the defendants from calling the Directors, stating that: [T]he court is of the view that they are not the physicians who had directly provided treatment to the patients so the court does not permit to refer them as witnesses, and will not call them to testify as requested.45 Further, Judge Sujitra drafted her Order in such as way as to suggest that the Defendants counsel had agreed voluntarily to withdraw the Directors as witnesses, which, pursuant to the Thai rules of criminal procedure, renders the decision non-appealable. As a result, the defense lawyers took the extraordinary step of refusing to countersign Judge Sujitras Order. The government also ignored repeated requests to review the evidence upon which the terrorism cases are built and has steadfastly refused to grant the UDD leaders currently on trial access to all forensic, documentary and audio/ video evidence pertaining to their prosecution. In addition, the evidence that has been given to the public about the premeditated nature of these acts of terrorism and their connection with the UDD leaders would be insufficient, in
45. Order dated September 27, 2010, at p. 10.

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any genuine court of law, to warrant arrest and indictment for terrorism: thus far, all the government has been able to offer are two speeches given back in January 2010 by UDD leaders Nattawut Saikua and Arisman Pongruangrong, in which the speakers warned of retaliation in the event of a military coup (in Nattawuts case) or use of deadly force against the Red Shirts (in Arismans case). With regard to Thaksin Shinawatra, prominent government officials accused the former Prime Minister of providing financial support for the attacks, alleging that at least a few were committed at his behest for the purpose of sabotaging any agreement on the so-called roadmap for reconciliation, but have failed to support these inflammatory statements with any actual facts. The Royal Thai Government has been quick to label its opponents terrorists, but it has not substantiated these claims. In turn, the administration has systematically undermined and obstructed all attempts to determine the truth of the events of April and May 2010. Human Rights Watchs study concluded that the parliamentary inquiry commissions, the National Human Rights Commission, and the Independent Fact-Finding Commission for Reconciliation were all unable to obtain complete information about security forces deployment plans and operations, autopsy reports, witness testimony, photos, or video footage from the CRES due to the absence of military cooperation.46 No charges have ever been leveled against military officers, while the findings of internal reports that pointed to the security forces commission of deliberate acts of murder were suppressed.47 As a result, Human Rights Watch has concluded that the Abhisit government is sending Thais the message that the scales of justice are imbalanced, if not entirely broken.48

5. RESISTING STATE TERRORISM

Despite an exceedingly broad terrorism statute and the subservience of the courts to the interests of the Establishment, convicting the UDDs leaders of terrorism charges so groundless and so nakedly political will likely prove no easy feat. While the Thai judiciary rarely shies away from legal contortions, it
46. Human Rights Watch, Descent into Chaos: Thailands 2010 Red Shirt Protests and the Government Crackdown (2011), p. 23. 47. For instance, see DSI Changes Ruling on Cameramans Death, Bangkok Post, February 27, 2011. http://www.bangkokpost.com/news/politics/223658/dsi-changes-ruling-on-cameraman-death 48. Human Rights Watch, Descent into Chaos: Thailands 2010 Red Shirt Protests and the Government Crackdown (2011), p. 7.

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remains to be seen whether, at the conclusion of the trial, the Establishment will judge it politically tenable to execute nineteen among the countrys most prominent opposition figures. While definitions of terrorism are often contested, no reasonable argument can be made to support the notion that the UDD is a terrorist group, or that its leaders are responsible for acts of terrorism. The Red Shirt movement, for one, exhibits none of the organizational traits of a terrorist organization the movement is open, participatory, and relatively transparent in both its objectives and decision-making. Furthermore, unlike terrorist organizations, the Red Shirts do not seek to overthrow Thailands democratic regime. Their demands emphasize the full realization of democracy, the legal amendment of a constitution that was written by a military junta, the removal of the Establishments extra-legal authority, the relegation of military generals to their rightful military barracks, and the respect for the outcomes of freely conducted elections. Most important of all, as the UN Special Rapporteur has reminded the Thai press, terrorism is first and foremost about violence against civilians. The key determinant of terrorist activities is the intentional targeting of civilians, often to inflict the greatest possible damage or create the greatest spectacle. Their criminal indictments notwithstanding, no Red Shirt leaders have ever been accused of committing acts of violence against the civilian population. The reason is quite simple: terrorism is a weapon of the weak. And while the Thai government has tried its best to describe the UDD as beyond the pale or outside the mainstream, the fact remains that the Red Shirts are the largest social movement ever created in Thailand, to say nothing of the fact that the broader political force from which the UDD has sprung has won every election held in Thailand over the last decade. The evidence collected thus far by various agencies and organizations that have investigated the events surrounding the 2010 Bangkok Massacres does not support the governments claim that the Red Shirts are terrorists or that their leaders commissioned acts of terrorism. What the evidence shows is that individuals whose links with the Red Shirt movement have never been established engaged in some criminal acts, including incidents of property destruction, looting, arson, assault, and the homicide of a half-dozen security forces during violent clashes. Each of these possible crimes should be properly investigated. Whoever they are, the victims are entitled to justice and compensation. And those responsible deserve to be prosecuted fairly and AMSTERDAM & PEROFF | 2011 GENERAL ELECTION REPORT SERIES, NO. 4 17

punished in a measure proportionate to their offenses. But it is much too convenient for the government to continue to use these incidents as an excuse to kill, imprison, and slander Red Shirts who have no known links to the crimes in questions, while stonewalling attempts to establish who really committed these acts and why. In fact, important questions remain about many of the episodes of violence and property destruction, some of which may well have been committed at the authorities behest as part of a strategy of tension that has a long history in Thailand and elsewhere.49 Whether or not any of the acts of violence and property crime alleged by the government can be pinned on the Red Shirts, one truth remains: the only acts of terrorism that took place during the 2010 Bangkok Massacres were acts of establishment terrorism or state terrorism, whose main forms are known to be arbitrary detention, unfair trial, torture, and political murder or extrajudicial execution.50 Only the Royal Thai Army and its civilian puppets have targeted civilians who dared demand political change, with a clear intent to kill,51 for the purpose of terrorizing the general public into accepting their undemocratic rule. Only the Royal Thai Army and its civilian puppets have kidnapped and tortured ordinary citizens. Only the Royal Thai Army and its civilian puppets have overthrown legitimate governments, abolished democratic constitutions, repeatedly undone the results of competitive electoral processes, and continuously subverted the rule of law. That each of these measures were undertaken by law, were given the force of law, or were backed by guarantees of immunity from the law does not reflect or signify the lawfulness of the actions in question. The legalization of state terrorism is only possible because forces reminiscent of a criminal syndicate Thailands Establishment have captured the state and remade it in their own image. Resistance against these forces is not a matter of treason or terrorism. It is a question of dignity and patriotism.

49. See Amsterdam & Peroff LLP, Application to Investigate the Situation of the Kingdom of Thailand with Regard to the Commission of Crimes against Humanity, Submitted to the Office of the Prosecutor of the International Criminal Court on January 31, 2011, pp. 64-73. http://robertamsterdam.com/thailand/?p=527 50. See Gus Martin, Understanding Terrorism: Challenges, Perspectives, and Issues (Thousand Oaks: Sage, 2006), p. 83. 51. For a compelling demonstration, see Andrew Walker, Shoot to Kill, New Mandala, May 25, 2011. http://asiapacific.anu.edu.au/newmandala/2011/05/25/shoot-to-kill/

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