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ADDENDUM

TO THE

APPLICATION TO INVESTIGATE THE SITUATION OF THE KINGDOM OF THAILAND
WITH 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. Introduction
On 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 Shirt demonstrators in April and May 2010. The crackdowns resulted in the death of ninetytwo 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

national of a state party to the ICC, namely the United Kingdom, sufficient to give the prosecutor a reasonable basis to examine the ICC’s 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 as well as information presented in investigative reports issued by international and Thaibased human rights organizations in the intervening months. The reports include: 1. Human Rights Watch, Descent Into Chaos: Thailand’s 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 ICG’s Asia Briefing N°121.3 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

For the press release, summary, and full report, see: http://www.hrw.org/node/98416. The report can be downloaded from this page, which also includes a brief English-language description of its contents: http://asiapacific.anu.edu.au/newmandala/2011/05/25/shoot-tokill/ 3 The report can be downloaded from the ICG’s website: http://www.crisisgroup.org/en/regions/asia/south-east-asia/thailand/B121-thailand-the-calmbefore-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.cdsdrta.net/images/stories/valasan/valasan%20y59%20b3%20year2553/lesson7.pdf. A summary in English 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 & Peroff’s 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 Thai Government, 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 Court’s jurisdiction based on the principle of complementarity, it also constitutes a serious breach of Thailand’s 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 ICC’s 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 Training Command, serves as a companion piece for the one cited above (while the article cited above lists the author’s pseudonym as Hua Na Kuang, the two biographical notes at the end of the article are identical, indicating that Col. Boonrod is the author of both). The article (Thai) can be downloaded at: http://robertamsterdam.com/thailand/wp-content/uploads/2011/06/AW-SP-6981.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 Humanity
The 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 four such 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 Murder
The 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 organization’s 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 Khattiya Sawasdipol 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

“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 six people 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 12

Human Rights Watch, Descent Into Chaos, p. 86-87. 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 14

Human Rights Watch, Descent Into Chaos, p. 23. 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 government’s 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 government’s policy, including: The decision to deploy troops from the Queen’s Guard/Eastern Tigers of the Second Infantry Division, particularly given the hatred of the Red Shirt movement widespread within this branch of Thailand’s 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

Marginalized Monsoon Group, Preliminary Fact-Finding Report, pp. ช-8 - ช-10. 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 Army’s 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 Group’s 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 Seventyeight 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

“Lessons from the Military Operations in the Siege of Ratchaprasong,” p. 60. “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 Author’s Personal Academic View,” Prachatai, June 28, 2011. http://www.prachatai3.info/english/node/2624?utm source=feedburner&utm medium=feed&ut m_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 government’s 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 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 government’s initial rules of engagement, as none of the seven steps spelled out therein called for the use of live
“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. ช-8.
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rifle

bullets:

8,500

released,

5,500

returned,

3,000

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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 government’s 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 & Peroff’s 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 Thailanguage 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

Marginalized Monsoon Group, Preliminary Fact-Finding Report, p. ช-5. The report in the military journal Senathipat explicitly cites these “Information Operations” as one of the reasons for the success of the crackdown. See “Lessons from the Military Operations in 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 Shirt’s 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 government’s 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 movement’s commitment to non-violence. The Department of Special Investigation (DSI), an investigative agency under the 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
“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 black” attacking 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 receive calls 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 Liberty
The 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 Government granted 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:

International Crisis Group, Thailand: The Calm Before Another Storm?, p. 4. “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 person’s fate or whereabouts, the government is committing an enforced disappearance in violation of international law.37 The Human Rights Watch’s 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 south uncovered many cases of serious abuses committed by security personnel against detainees,
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including

custodial

deaths,

torture,

and

enforced

disappearances.

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Human Rights Watch, Descent Into Chaos, p.121. Human Rights Watch, Descent Into Chaos, pp. 125-126.

15

2.3 Other Inhumane Acts
The 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 Army’s 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 40 41

Marginalized Monsoon Group, Preliminary Fact-Finding Report, p. ช-1. Marginalized Monsoon Group, Preliminary Fact-Finding Report, p. 150. Marginalized Monsoon Group, Preliminary Fact-Finding Report, p. 152.

16

statements made by officials serving on Thailand’s 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 Persecution
The ICC Statute’s 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 Thailand’s 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, the disqualification 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 IPU’s 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 IPU’s Committee on the Human Rights of Parliamentarians reiterated its request that the provisions in question be reformed, as “the risk exists
Human Rights Watch, Descent Into Chaos, p. 128. Inter-Parliamentary Union, “Resolution Approved Unanimously by the IPU Governing Council at Its 188th Session (Panama City, 20 April, 2011).” http://www.ipu.org/hr-e/188/th03.htm.
42 43

17

that a sizeable portion of the country’s political class might once more be arbitrarily excluded from the political process,” and referred the case back for continuing examination by the IPU’s 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 d’Affaires 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 to remove 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 Watch’s 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 People’s 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 45

08BANGKOK3119: http://www.zenjournalist.com/2011/06/08bangkok3119/. 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 UDD sympathizers; - 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 year’s April 10 massacre. Jatuporn’s speech, which prompted the Army Commander in Chief 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 Army’s strategy of justifying the murder of protesters based on the need to protect the monarchy. While Jatuporn was subsequently jailed

Human Rights Watch, Descent Into Chaos, p. 137. Human Rights Watch, Descent Into Chaos, pp. 138-139. 48 Pravit Rojanaphruk, “Amnesty International Names Thailand’s First ‘Prisoner of Conscience’,” The Nation, May 10, 2011. http://www.nationmultimedia.com/2011/05/14/national/Amnesty-International-namesThailands-first-prison-30155366.html
46 47

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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 Jatuporn’s 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 Thailand’s overall status to “Not Free” in its annual “Freedom of the Press” survey. This had never happened since Freedom 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

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-OppositionLeaders-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/storye6frg6so-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-communityradios
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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 government’s “strategy of tension,” which involved the staging of incidents, like bombings and arson attacks, that would support the government’s media campaign against the Red Shirts and bolster the public’s 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 Srisombat’s 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 government’s 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 the effectiveness with which spokespeople like Panitan Wattanayagorn communicated the government’s position to the international media, in fluent English, shielding it from international criticism;

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-May 2010),” Senathipat Vol. 60, No. 1 (2011), 69-81. 55 “Lessons in Information Operations,” p. 74.
53

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- The control of coverage offered by government-operated television station NBT, under the leadership of Prime Minister’s Office Minister Sathit Wongnongtoey. 56 Several elements of Information Operation are highlighted as especially instrumental to the crackdown’s 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 Election Commission 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 government’s 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 the “mindmap” linking the players supposedly involved, and the attempt to lead the public to draw a connection between the charges
62

of

“terrorism”

and

“republicanism” leveled against the Red Shirt leaders;

56 57 58 59 60 61 62

“Lessons “Lessons “Lessons “Lessons “Lessons “Lessons “Lessons

in in in in in in in

Information Information Information Information Information Information Information

Operations,” Operations,” Operations,” Operations,” Operations,” Operations,” Operations,”

p. p. p. p. p. p. p.

71. 73. 73. 74. 72. 75. 75.

22

- 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 64 65 66 67 68 69

“Lessons “Lessons “Lessons “Lessons “Lessons “Lessons “Lessons

in in in in in in in

Information Information Information Information Information Information Information

Operations,” Operations,” Operations,” Operations,” Operations,” Operations,” Operations,”

p. p. p. p. p. p. p.

75. 76. 77. 72. 76. 73. 73.

23

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 & Peroff’s 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 government’s 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 government’s 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 Disappearances
The 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 enforced disappearances 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 71

“Lessons in Information Operations,” p. 72. “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 person’s fate or whereabouts, the government is committing an enforced disappearance in violation of international law.72

3. The Cover-Up
Amsterdam & Peroff’s “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 investigate or 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 Commission’s 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 TRCT’s 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.

26

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 government’s 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 NHRC’s 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 NHRC’s unusual decision to focus almost entirely on presumed violations committed by protesters, given that it is the state’s responsibility to protect human rights. Following the leak of information, the NHRC abruptly cancelled its press conference and postponed the report’s 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 & Peroff’s initial Application included reference to leaked autopsy reports
“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 the Thai-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. Jatuporn’s 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 Muramoto’s 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 Muramoto’s body and
Amsterdam & Peroff, “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, p. 132.
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classified the injuries as compatible with bullets fired by an AK-47.77 DSI DirectorGeneral Tharit Pengdit then suggested that the investigation could be performed more effectively by Muramoto’s 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 government’s 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 Hiro’s 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

“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 Cameraman’s Death on 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 Muramoto’s killing. See Andrew 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 government’s 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 is critical 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. Conclusion
The 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 Vejjajiva’s status as a national of a State Party to the ICC.83

“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&ut m 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— having never renounced the British citizenship he acquired at birth. See “Thai PM Admits British Nationality,” 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 Thailand’s “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 Thailand’s highest civilian and military authorities, the same officials were later responsible for suppressing evidence of 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 Thai’s 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 party’s 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 government’s ability to oversee a complete investigation. In other words, while the elections may have produced a government that is “willing” to investigate, Thailand’s “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.

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