ICC - Request for a Preliminary Examination - July 20th 2012

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Office of the Prosecutor International Criminal Court PO Box 19519 2500 CM The Hague The Netherlands

Re: OTP-‐297/10; National United Front for Democracy against Dictatorship, Application to the Prosecutor of the International Criminal Court to Investigate the Situation of the Kingdom of Thailand with regard to the Commission of Crimes against Humanity, filed January 31, 2011

20th July 2012

Supplemental Application requesting Office of the

Prosecutor to initiate a Preliminary Examination into the crimes against humanity committed in Thailand in 2010

This Supplemental Application is filed by Amsterdam & Partners LLP, the United Front for Democracy Against Dictatorship (“UDD”) and others with the Office of the Prosecutor (“OTP”) of the International Criminal Court (“ICC”) to request that the Prosecutor undertake a Preliminary Examination into crimes against humanity committed in the Kingdom of Thailand under Article 15(1) and 15(2) of the Rome Statute of the International Criminal Court (“Statute”). 1

This submission follows upon and supplements the “Application to Investigate the Situation of the Kingdom of Thailand with Regard to the Commission of Crimes Against Humanity,” previously filed with the ICC Prosecutor on 31 January 2011 and supplemented by the Memorandum on ICC jurisdiction based on the British Nationality of Mark Abhisit Vejjajiva, dated 17 April 2012, as well as by the letter written to the OTP written by Professor Thongchai Winichakul, a leading Thai historian, on 25 May 2012

Opening a Preliminary Examination now is both warranted and urgent. Jurisdiction is satisfied by the British nationality of the chief perpetrator, namely former Thai Prime Minister Mark Abhisit Vejjajiva. The complementarity component of admissibility is satisfied because the Thai judiciary has thwarted

1 Article 15(1) and 15(2) of the Rome Statute of the International Criminal Court . 2 Truth for Reconciliation Commission of Thailand, “Second Interim Report,” December 2011.

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efforts to bring the perpetrators, including Mr. Abhisit, to justice. Finally, the gravity component of admissibility is satisfied by the scale, nature, manner, and impact of the crimes. Systematic and widespread crimes against humanity were carried out by security forces under a plan approved by Mr. Abhisit, resulting in the deliberate and premeditated killing of a total of at least seventy-‐five protesters, five medics, and three journalists, and the wounding of some two thousand more civilians, according to an estimate by the Truth for Reconciliation Commission of Thailand.2 Other estimates place the total of those killed as high as ninety-‐eight.3 Most urgent at present is the fourth component of gravity, namely the “impact” of the crimes. As explained in the recently submitted letter from leading Thai historian Thongchai Winichakul, Thailand has suffered from recurrent episodes of state violence, followed by impunity for the officials responsible for the abuses. This encourages more violence and further disruptions of the democratic order, which in turn lead to more violence. Because none of the perpetrators of the crimes against humanity of 2010 have been brought to justice, benefiting from the complicity of a politicized justice system beholden to the interests of the military-‐dominated establishment, they are at present able and encouraged to undermine and intimidate a government that was democratically elected in 2011, including by threats of a military coup, which would likely require further violent repression of civilian dissent. If the ICC were to open and to announce publicly a Preliminary Examination into crimes against humanity committed in Thailand in 2010, this would serve to deter the perpetrators from committing further crimes, and strengthen the hand of those who seek to bring them to justice. Opening a Preliminary Examination into the crimes committed in Thailand would thus be consistent with the ICC Prosecutor’s policy of considering “the extent to which its preliminary examination activities can serve to stimulate genuine national proceedings against those who appear to bear the greatest responsibility for the most serious crimes.”4 As argued forcefully by Professor Thongchai Winichakul, ICC action at this time, by averting another descent into democratic destabilization by means of military force and legal chicanery, would also contribute to the long-‐term peace and stability of Thailand. It would thus be consistent with the ICC Prosecutor’s policy that “the impact of crimes may be assessed in light of, inter alia, their consequence on the local […] community, including the long term social, [and] economic […] damage.”5 In sum, the opening and public announcement of a Preliminary Examination into the 2010 crimes against humanity in Thailand are urgently needed and would help fulfill the stated policies of the ICC Prosecutor. As further detailed below, the Applicants respectfully request the OTP to open and to announce publicly a Preliminary Examination into the alleged crimes against humanity committed in Thailand in April and May 2010. 2 Truth for Reconciliation Commission of Thailand, “Second Interim Report,” December 2011. 3 Statement of the “Red Shirts,” presented in meeting with OTP, 26 June 2012. 4 Office of the Prosecutor, “Policy Paper on Preliminary Examinations,” 4 October 2010, par. 17; OTP, “Report on Preliminary Examination Activities,” 13 December 2011, par. 15. 5 OTP, “Policy Paper on Preliminary Examinations,” 4 October 2010, par. 70(d).

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Situation in Thailand Beginning on 12 March 2010, the “Red Shirts” of the National United Front for Democracy against Dictatorship (“UDD”) staged massive demonstrations in Bangkok, Thailand, demanding new elections and the resignation of what they perceived to be the unlawfully constituted, military-‐backed government of Prime Minister Abhisit. For the next two months, the Red Shirts demonstrated in the heart of Bangkok. It must be stressed that these were peaceful and organised demonstrations at all times and the government, in developing a counter-‐narrative and utilizing the term ‘terrorism’ has attempted continuously to blur this fact. In response to these organized and peaceful demonstrations, the Royal Thai Army—under the direction and approval of Prime Minister Abhisit and others in the government—killed a total of at least eighty-‐three civilians and wounded two thousand others in separate crackdowns staged on 10 April 2010 and 13-‐19 May 2010. Victims included journalists documenting the events and medical volunteers assisting the injured. We submit that the crimes committed in Thailand meet the legal criteria established by the ICC Statute and clarified by OTP policies to warrant a Preliminary Examination.

A Preliminary Examination conducted under Article 15(1) and 15(2) of the ICC Statute is designed to determine, in accordance with Article 53(1)(a) to (c) of the ICC Statute,6 whether to undertake an investigation, based on the existence of a “reasonable basis to proceed.” Article 53.1 sections (a) to (c), require the Prosecutor to consider whether:

(a) the information available to the Prosecutor provides a reasonable basis to believe that crime within the jurisdiction of the court has been or is being committed;

(b) the case would be admissible under Article 17; and

(c) taking into account the gravity of the crime and interest of the victims there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.

We submit that the specificity and credibility of the information we have provided to date and which we continue to collate satisfy the OTP’s stated criteria for opening a Preliminary Examination, as set forth in the 2010 draft OTP Policy Paper and the 2011 Report on Preliminary Examinations. 7 Indeed, the evidence submitted meets the standard for opening a full investigation: a “reasonable basis to proceed,” which has been interpreted by the ICC to require a “sensible or reasonable justification for a belief that a crime falling within the jurisdiction of the

6 Article 53(1), ICC Statute; Rule 48, ICC, RPE. 7 Office of the Prosecutor, “Policy Paper on Preliminary Examinations,” 4 October 2010, par. 17; OTP, “Report on Preliminary Examination Activities,” 13 December 2011, par. 15.

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Court has or is being committed.”8

Jurisdiction For a crime to fall within the jurisdiction of the court, it must satisfy three conditions:

(i) it must fall within the category of crimes referred to in Article 5 and defined in Articles 6, 7, and 8 of the ICC Statute (jurisdiction ratione materiae);

(ii) it must fulfill the temporal requirements specified under Article 11 of the ICC Statute (jurisdiction ratione temporis); and

(iii) it must meet one of the two alternative requirements embodied in Article 12 of the ICC Statute (jurisdiction ratione loci or ratione personae). This entails either that the crime occurs on the territory of a State Party to the ICC Statute or a State which has lodged a declaration by virtue of Article 12(3) of the ICC Statute, or be committed by a national of any such State.9

Jurisdiction ratione materiae

In this case, jurisdiction ratione materiae is satisfied because, as documented in the initial Application and subsequent submissions, the crimes committed by security forces, including the deliberate killing and wounding of scores of unarmed protesters, were an attack on a civilian population of both a widespread and systematic nature, pursuant to a policy aiming to destroy the Red Shirt movement and to intimidate the general public. The policy was designed and authorized at the highest level of the Thai government; the military operations staged pursuant to the policy in question were personally authorized by former Prime Minister Abhisit Vejjajiva. The crimes thus amount to crimes against humanity directed from the highest levels of the Thai government.

The use of force against civilians was effectuated by military forces of the Royal Thai Army at the direction of former Prime Minister Abhisit and officials in the Center for the Resolution of the Emergency Situation (CRES), established by an order of the Prime Minister pursuant to the declaration of a State of Emergency on 7 April 2010 for the purposes of coordinating the government’s response to the Red Shirt demonstrations.10 CRES included the leaders of all branches of Thailand’s military and law enforcement apparatus, and was led by Mr. Abhisit’s Deputy Prime Minister, Suthep Thaugsuban. Evidence presented in the Application as well as evidence subsequently gathered by the Applicant indicates that former Prime Minister Abhisit was principally

8 Situation in the Republic of Kenya, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, ICC-‐01/09-‐19-‐Corr, 31 March 2010, para 35. 9 Ibid., para. 39. 10 By law, CRES played an advisory role. The 2005 Emergency Decree, whose provisions were invoked in 2010, specifically provides for the establishment of government bodies such as CRES (Section 6); Section 6, however, also provides that the establishment of any such body does not diminish the authority of the Prime Minister.

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responsible for the crimes against humanity, by signing orders and documents, by directing or authorizing subordinates to sign them, by presiding over meetings to plan and then oversee the violent and criminal repression of civilian protesters, and by failing to take reasonable measures to suppress or later to punish the crimes against humanity. Indeed, far from suppressing the crimes, Mr. Abhisit publicly and repeatedly praised the actions of the military, even as civilians had been and continued to be murdered and criminally wounded. Mr. Abhisit’s government in fact approved the promotion of most of the generals involved in the planning and implementation of the crackdown. Many of the written orders transmitted down the chain of command during the crackdowns were signed by the Director of CRES, Suthep Thaugsuban. While Mr. Abhisit recently testified—contrary to the evidence as shown below—that he was not involved in the activities of CRES,11 he is at a minimum responsible for the any orders or directives issued by CRES. According to Section 6 of 2005 Emergency Decree, under whose provisions CRES was established, the “powers and duties” of any such body are limited to “monitoring and inspecting” the emergency situation for the purposes of advising the Prime Minister on appropriate measures. While the Emergency Decree allows the Prime Minister to delegate some powers in an emergency situation, nowhere does it provide that the authority of the Prime Minister as the country’s chief executive is in any way diminished in the context of a declared emergency. CRES, in other words, served at the pleasure of the Prime Minister, and only exercised authority granted to it by the Prime Minister. In fact, the Prime Minister was directly involved in the planning and approval of the operations. In the case of the first crackdown of 10 April 2010, the secret directive issued by CRES to security forces, which was subsequently leaked to the press, specifically mentioned that CRES had been ordered by the Prime Minister to disperse the demonstrations.12 In the case of the second crackdown of 13-‐19 May 2010, Mr. Abhisit personally gave the order at a CRES meeting on 12 May, according to a report on the operations commissioned by the Royal Thai Army and later published in a military journal. 13 Former CRES Spokesperson Col. Sansern Kaewkamnerd also testified to police in November 2011 that the military operations were carried out on the orders of the Prime Minister and the CRES Director.14 CRES met in the same building, the headquarters of the Eleventh Infantry Regiment in Bangkok, where Mr. Abhisit was housed for security reasons throughout the Red Shirt demonstrations. There, Mr. Abhisit was widely reported in the press to have regularly participated in CRES meetings, both before and

11 “Thai Ex-‐PM Grilled over Deadly Army Crackdown,” AFP, 9 December 2011. 12 The document can be viewed/downloaded at: http://thaienews.blogspot.com/2012/01/10-‐smoking-‐guns-‐that-‐tied-‐abhisit.html. 13 “Lessons from the Military Operations in the Siege of Ratchaprasong, May 14-‐19, 2010,” Senathipat, Vol. 59, Issue 3, 2010, p. 58. The report was commissioned by a Lt. General in the Royal Thai Army to provide a set of guidelines on combating urban unrest. A summary in English is provided at: http://robertamsterdam.com/thailand/?p=840. 14 “Col Sansern Testifies to Police on April-‐May Crackdown Last Year,” Prachatai, November 18, 2011.

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during the crackdowns.15 Far from distancing himself from the violent crackdowns, since then Mr. Abhisit has repeatedly defended all actions by the government, CRES, and the Royal Thai Army as justified and necessary to “upholding the law.”16 As a result of former Prime Minister Abhisit's personal, direct, and indirect authorization and oversight of the crimes against humanity, there is reason to believe that he is liable under multiple categories of criminal responsibility set forth in Articles 25 and 28 of the Rome Statute. By giving written and oral orders and authorizations of the violent repression of unarmed civilians, he is responsible as a principal perpetrator under Articles 25(2) and 25(3)(a) and (b). By providing substantial support to the crimes through his orders, authorizations, and public statements, in the knowledge that his actions would contribute to the commission of the crimes, he is responsible as one who aids, abets, or otherwise assists the crimes under Article 25(3)(c). By otherwise intentionally contributing to the crimes, with the aim of furthering the criminal activity or purpose of the group of government and military commanders over which he presided, or with knowledge of the intention of the group to violently and criminally suppress unarmed civilian protesters, he is responsible under Article 25(3)(d). Finally, because former Prime Minister Abhisit knew or had reason to know of the crimes against humanity that were taking place or were about to take place, and failed to take reasonable measures within his effective responsibility and control to prevent or repress the commission of the crimes, he is responsible as a superior under Article 28. Whether, in the circumstances, he effectively acted as a military commander under Article 28(a), or as a civilian superior under Article 28(b), or both, are matters to be clarified by the Preliminary Examination or by a full investigation. Jurisdiction ratione temporis and jurisdiction ratione personae

Jurisdiction ratione temporis and ratione personae are met because, under Article 12(2) of the ICC Statute, the principal person responsible for the crimes against humanity, former Thai Prime Minister Abhisit, is a national of a State Party, namely the United Kingdom, which ratified the Rome Statute in 2001 and has been a State Party to the ICC since the Statute entered into force in 2002. As previously documented in our “Submission RE Mr. Mark Abhisit Vejjajiva’s Nationality,” dated 17 April 2012, Mr. Abhisit is now, and was at the time of the crimes over which he presided, a British national under British domestic law.

Because he was born in the UK, Mr. Abhisit is deemed a British national under UK domestic law. The British Nationality Act, 1948, in force and effect when he was born in 1964, provided in Section 4 that “every person born within the United

15 For instance, see “PM Arrives at 11th Infantry Regiment for Meeting with CRES,” National News Bureau of Thailand Public Relations Department, May 13, 2010. 16 “Thai PM Defends Crackdown on Riots,” ABC Australia, June 15, 2011.

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Kingdom and Colonies after the commencement of this Act shall be a citizen of the United Kingdom and Colonies by birth.”17

Mr. Abhisit has maintained his British citizenship, including at the time of his alleged commission of crimes against humanity in 2010. A newspaper report dated 25 February 2011 quotes him as stating in the Thai Parliament, “You ask have I ever formally renounced my British citizenship, I admit I have not renounced my British citizenship.”18 Mr. Abhisit thus falls within the terms of Article 12(2)(b) as a “national” of the UK. Moreover, his British nationality derives from birth rather than from naturalization, and he was born while his parents were living in the UK rather than briefly visiting. There can be no claim that he or his parents procured his nationality by fraud or with intent to abuse the law. In addition, he actively claimed his British nationality when he enrolled at Oxford University in 1983 and was registered to vote in the United Kingdom for several years thereafter.19 As summarized in our 17 April 2012 submission on nationality jurisdiction:

The facts of Mr. Abhisit’s birth in the United Kingdom; his uninterrupted British nationality ever since; his longstanding ties to the UK; his actively claiming his British citizenship when he enrolled as a student at Oxford; the ordinary meaning of the word “national” in Article 12.2 (b) of the Rome Statute; the object and purpose of the Statute; the publicly stated interpretation by the ICC Prosecutor; the domestic law of the UK on nationality; and the respect to which that UK nationality law is entitled under the Hague Convention, all lead to the same conclusion: Mr. Abhisit is a UK “national” for purposes of ICC jurisdiction under Article 12(2)(b).20

“Crimes” v. “Situations” Previous submissions filed by the Applicants with the ICC had requested that the OTP open a preliminary investigation into the “Situation in the Kingdom of Thailand.” However, while the Applicant has established that the ICC can exercise its jurisdiction ratione personae over Mr. Abhisit, the other chief perpetrators of crimes committed in Thailand, which is not a State Party of the Rome Statute, cannot be subject to prosecution by the ICC except in the event of referral by the UN Security Council, or a formal declaration lodged by the government of Thailand under Article 12(3) accepting the jurisdiction of the ICC with respect to the crime in question.

17 Subsections 4 (a) and (b) of the 1948 Act laid down exceptions to this general rule of UK citizenship, for persons born in the UK to fathers who were diplomats or enemy aliens. When Mr. Abhisit was born in the UK, his father was a medical student, not a diplomat, and Thailand was not at war with the UK. Although the 1948 Act has since been replaced by the 1981 Nationality Act, the 1981 Act by terms does not apply retroactively to persons like Mr. Abhisit who were born before the new law entered into force in 1983 (Part I of the 1981 Act, “British Citizenship,” applies to “Acquisition after commencement,” i.e., to acquisition of citizenship after the “commencement” of the 1981 Act in force). 18 “Thailand’s Prime Minister Confesses He Is Also British,” Thailand Business News, 25 February 2011. 19 MAV birth certificate & MAV Voter registration. 20 17 April 2012 submission, p. 8.

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Unfortunately, both options are at present highly problematic: a referral by the UN Security Council is unlikely for obvious geo-‐political reasons, while the government of Thailand would likely face a military coup if it were to file a declaration to the ICC under Article 12(3). This in turn raises the question of how the OTP can investigate the Thai “situation” when the ICC only has jurisdiction over Mr. Abhisit. The answer is that in instances where the OTP is asked to act on its own initiative, and not on the basis of a referral by a State or by the Security Council, its mandate is to investigate “crimes,” not “situations.” The fundamental distinction between “situations” and “crimes” is demonstrated in the text of the Rome Statute, confirmed by OTP precedent, and supported by OTP policy reflecting the purpose of the Rome Statute.

(1) The Rome Statute: “Situations:” When States or the Security Council refer a matter to the ICC, the ICC jurisdiction is over the “situation,” as spelled out in the Rome Statute’s Article 13(a) (“situation” referred by State Party)21 and Article 13(b) (“situation” referred by Security Council).22 There were good reasons to require referrals only of “situations,” and not of particular “crimes.” The drafters did not wish to permit States to selectively and discriminatorily refer to the ICC only crimes committed by their adversaries, while leaving the ICC powerless to investigate crimes committed by State agents in the same situation. This was avoided by requiring States to refer an entire “situation,” thus leaving it to the impartial ICC to determine which crimes, by which parties, to investigate. Similarly, in the case of Security Council referrals, the drafters did not wish to permit the Council to assume what is properly a prosecutorial and a judicial function, namely to determine which crimes merit investigation and possible prosecution. This goal, too, was accomplished by requiring the Security Council to refer only a “situation,” not a particular crime. “Crimes:” None of the foregoing concerns apply to the case of Thailand. In this instance, no referral to the ICC was made by a State or the Security Council; rather, the Applicant has requested the OTP to exercise its authority under Article 13(c) to launch an investigation on its own initiative. Unlike Article 13(a) (State referrals) and 13(b) (Security Council referrals), Article 13(c) speaks not about a “situation,” but about a “crime.” Insofar as it is pertinent to our case, Article 13(c) states as follows:

“The Court may exercise its jurisdiction with respect to a crime referred to in Article 5 … if:” […]

21 Article 13 (a) states as follows: “The Court may exercise its jurisdiction with respect to a crime referred to in Article 5 in accordance with the provisions of this Statute if:”

“(a) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by a State Party in accordance with article 14;”

22 Article 13 (b) states as follows: “The Court may exercise its jurisdiction with respect to a crime referred to in Article 5 in accordance with the provisions of this Statute if:”

“(b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations;”

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“(c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with Article 15.” (emphasis added)

Rationale for Distinction: There is good reason to authorize the OTP, when acting under Article 13(c), to initiate an investigation of a “crime,” without having to investigate an entire “situation.” The OTP is assumed to be impartial,23 and hence is required not to discriminate in favor of one side or the other in selecting crimes to investigate. Likewise, when the OTP acts on its own initiative under Article 13(c), it is required to act independently,24 without allowing political pressures to bias the choice of crimes to investigate. In short, the reasons that required States and the Security Council to refer entire “situations”—fear of discrimination or of undue interference by political bodies—do not apply when, as in this case, the OTP is asked to initiate an investigation proprio motu. Other Articles: None of the articles in the Rome Statute that are relevant to the case at hand mentions a “situation,” much less requires the investigation of an entire situation. Instead, like Article 13(c), other relevant articles refer to ICC jurisdiction over a “crime” or “crimes.” Article 15 “Crimes”: The Applicant has requested the OTP to open a Preliminary Examination under Article 15(1) and 15(2), with a view toward determining whether to open a full investigation. Article 15(1) states, “The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court.” (Emphasis added.) The Article 15 authorization is to investigate “crimes,” not situations. Article 12 “crimes”: The “preconditions” of ICC nationality jurisdiction contained in Article 12 likewise address crimes, not situations. Article 12(1) states, “A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in Article 5.” (Emphasis added.) Again there is no reference to “situations;” instead the jurisdiction is over “crimes.” In the part pertinent to the case at hand—nationality jurisdiction—Article 12(2)(b) specifies that “the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute:”

“(b) The State of which the person accused of the crime is a national.” (Emphasis added.)

Again, the jurisdiction is over the “crime,” not the situation.

(2) OTP Precedent:

The ordinary meaning of the text of the Rome Statute, which authorizes the OTP acting on its own initiative under Article 15 to examine “crimes” rather than “situations,” is confirmed by ICC precedent in a case strikingly similar to 23 Article 42(7) of the Rome Statute. 24 Articles 42(1) and 42(5) of the Rome Statute.

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Thailand’s. In 2006, the ICC Prosecutor publicly explained the completion of his Preliminary Examination of alleged ICC crimes in Iraq.25 Like Thailand, Iraq was not a State Party to the ICC. Hence territorial jurisdiction was not available. However, as in Thailand, British nationals allegedly committed ICC crimes in Iraq. Thus, as in the Thai case, nationality-‐based jurisdiction under Article 12(2)(b) was available for crimes committed by British nationals in Iraq. Also, as in Thailand, there had been no referral by a State or by the Security Council; accordingly, the Prosecutor conducted his Preliminary Examination under Article 15 of the Rome Statute.

In those circumstances, which were similar to the Thai case with regard to jurisdiction and admissibility, the ICC Prosecutor made no reference to a “situation.” Instead he expressly examined “crimes.” As he explained:

In accordance with Article 15 of the Rome Statute, my duty is to analyse information received on potential crimes, in order to determine whether there is a reasonable basis to proceed with an investigation.

The ICC Prosecutor further elaborated on the factors he must consider. First was whether there was a “reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed.” If so, he must then consider admissibility, including gravity and complementarity, and, if those factors are positive, he must also consider the interests of justice. None of these factors included any reference to the “situation.” On the contrary, his examination was predicated on whether an ICC “crime” had been committed. The Prosecutor proceeded to find a “reasonable basis to believe that crimes within the jurisdiction of the Court had been committed.” However, because the number of victims of ICC crimes allegedly committed by British nationals in Iraq was relatively small—“an estimated four to twelve victims of wilful killing and a limited number of victims of inhuman treatment, totalling in all less than twenty persons” —the case was deemed to have failed to meet the gravity standard for admissibility, and the Prosecutor declined to open a full investigation. Thus, in the closest ICC precedent to the Thai case, the Prosecutor made no effort to examine a “situation,” but instead examined the commission of “crimes.” His methodology confirms the foregoing analysis of the text of the relevant provisions in the Rome Statute in cases where, as here, the OTP acts on its own initiative rather than on a referral by a State or the Security Council.

(3) OTP Policy: A focus on “crimes” rather than an entire “situation” in instances where the OTP acts on its own initiative is further supported by the policy of the ICC Prosecutor to

25 OTP Response to communications received concerning Iraq, 9 February 2006. Accessible at: http://www.icc-‐cpi.int/NR/rdonlyres/04D143C8-‐19FB-‐466C-‐AB77-‐4CDB2FDEBEF7/143682/OTP_letter_to_senders_re_Iraq_9_February_2006.pdf.

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prosecute those persons who are most responsible for committing the most serious crimes.26 This policy, in turn, is consistent with the declared purpose of the Rome Statute: to end impunity for the persons responsible for the most serious international crimes.27 This policy argues for the OTP to investigate the alleged crimes against humanity committed by former Prime Minister Abhisit in Thailand. If the OTP were required to refrain from investigating or prosecuting him, merely because it does not have jurisdiction to investigate all others implicated in the “situation,” then one of the persons most responsible for crimes against humanity (Mr. Abhisit) would enjoy impunity—even though the ICC has nationality jurisdiction under Article 12(2) to investigate him for the “crimes” for which he is responsible. That result would prevent the ICC from acting to end impunity for a principal, merely because it lacks jurisdiction also to end impunity for all others. Such an all-‐or-‐nothing result would defeat the purpose of the ICC as set forth in the Rome Statute to end impunity to the extent the ICC has jurisdiction. Admissibility For purposes of Preliminary Examinations, admissibility has two prongs: complementarity and gravity.28

(1) Complementarity Article 17 of the Rome Statute provides that a case is admissible where the State is unwilling or unable to genuinely carry out an investigation.29 Unwillingness is reflected in a purpose to shield the perpetrator from criminal proceedings. It is evidenced either by an unjustified delay in the proceedings, 30 or by evidence that the proceedings are not independent or impartial, provided in both cases that the proceedings are being conducted in a manner inconsistent with the intent to bring the person concerned to justice.31 We submit that our request is, as stipulated by Article 53(1)(b), admissible under Article 17 of the ICC Statute. Previous filings submitted to the ICC Prosecutor have described, on the basis of both publicly available information and witness testimony, how the government of former Prime Minister Abhisit and the Royal Thai Army systematically sought to cover up the crimes alleged in our Application. 26 “… [A]s a general rule, the Office of the Prosecutor should focus its investigative and prosecutorial efforts and resources on those who bear the greatest responsibility, such as the leaders of the State or organisation allegedly responsible for those crimes.” Paper on Some Policy Issues before the Office of the Prosecutor, Sept. 2003, p. 7, accessible at http://www.icc-‐cpi.int/NR/rdonlyres/1FA7C4C6-‐DE5F-‐42B7-‐8B25-‐60AA962ED8B6/143594/030905_Policy_Paper.pdf 27 Rome Statute, Preamble. 28 OTP Policy Paper, par. 51. There is no evidence of any “interests of justice” that would counsel against opening a Preliminary Examination of the crimes against humanity in Thailand. 29 Article 17(1)(a) of the Rome Statute 30 Article 17(2)(b) of the Rome Statute 31 Article 17(2)(c) of the Rome Statute

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Initial investigations launched in 2010 were assigned to the Department of Special Investigation (DSI). The DSI was neither independent nor impartial, in that it answered to the Center for the Resolution of Emergency Situation (“CRES”). As a member of CRES, DSI Director Tarit Pengdit was directly involved in the planning of the operations that resulted in the commission of crimes against humanity. The assignment of investigative duties to DSI was therefore prima facie evidence of an investigation inconsistent with the intent to bring the main perpetrators to justice, and conducted solely for the purposes of shielding the persons concerned from criminal responsibility.

Subsequently, filings previously submitted to the OTP described evidence of the manner in which the Abhisit government and the Royal Thai Army obstructed the proceedings of various investigative bodies and pressured the DSI to withdraw or change the findings contained in internal reports leaked in late 2010, which cited security forces as responsible for some of the killings. Coupled with Thailand’s lack of judicial independence and the institutionalization of a regime of impunity for state officials responsible for human rights violations, our filings concluded that Thailand was unwilling “genuinely to carry out the investigation or prosecution.” In the Addendum submitted to the Prosecutor on 12 September 2011, roughly six weeks after the new government of Prime Minister Yingluck Shinawatra came into office, we submitted that while the elections of 3 July 2011 “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.”32 Events occurred in the intervening time only confirm that, despite the good intentions of the new civilian government, the judiciary and the military in Thailand are steadfastly opposed to a full investigation into the crimes against humanity alleged in the Application, and that they have been able effectively to prevent any such investigation by domestic authorities. Some two years after the commission of the crimes, no one has been criminally convicted for the killings of unarmed civilians in March and May of 2010. The Department of Special Investigation (DSI), which was given the responsibility to investigate the killings, has to date ruled that state officials acting in the course of their duties caused twenty-‐five of the eighty-‐nine deaths it has investigated.33 The twenty-‐five cases were thereby referred to the Metropolitan Police. Since then court hearings have been held to ascertain responsibility for only seven of the deaths—the six people killed in Wat Pathumwanaran on 19 May 2010 and a man killed in or near a “live fire zone” on Rachaprarop Road on 15 May 2010.34 Despite the overwhelming amount of evidence attesting to the unjustified nature of the killings, the material responsibility of the military, and the direct relationship between the killings and the policy that was formulated by CRES and approved by former Prime Minister Abhisit, these seven cases are unlikely to

32 Amsterdam & Peroff LLP, “Addendum to the Application to Investigate,” 12 September 2011. 33 “DSI Links 25 Riot Deaths to Military,” Bangkok Post, 18 May 2011. 34 “Military Bullets Killed Civilians,” Bangkok Post, 19 June 2012.

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result in prosecutions and convictions, judging from Thailand’s history and present circumstances. The Royal Thai Army has continued to assert that none of the protesters were killed at the hands of its officers. Given that the political role and the power of the military are at present undiminished, the military retains the means to prevent its members from being held to account for the deaths. Certainly, under the present circumstances there is no chance that those who authorized the killings—most prominently former Prime Minister Abhisit—will be held to account, particularly given that a military coup is constantly being threatened. Insiders have cited as the primary motive for staging a coup the determination of the generals involved in the crackdown, many of whom received promotions in its aftermath, to avoid accountability.35 In addition, Thailand’s judiciary, which has consistently absolved the military of any responsibility for serious human rights violations, most recently including the 2004 massacre of seventy-‐eight people in Tak Bai,36 is hardly an impartial arbiter in these cases. Previous filings to the ICC have presented evidence for the fact that Thailand’s national justice system has essentially collapsed, at least as it pertains to its functioning as an instrument of justice, as opposed to one of politics. This is the opinion, among others, of the Truth for Reconciliation Commission of Thailand, which concluded: “one reason for political conflict in Thailand for the past five years has been the justice process, which has not been independent and was vulnerable to political intervention.”37 In recent years, Thailand’s military-‐dominated establishment has increasingly relied on the judiciary to subvert the electoral process. The Constitutional Court’s dubious annulment of the 2 April 2006 election set the stage for the military coup of 19 September 2006. Under military rule, the courts played a crucial role in supporting the junta, which designated a handpicked “Constitutional Tribunal” to eliminate its rivals, resulting in the dissolution of Thaksin Shinawatra’s Thai Rak Thai party and the disqualification of its 111 executives from elected office. Thanks to the new rules inserted in the 2007 Constitution, written under military rule, the Constitutional Court intervened repeatedly in the political process after the return to civilian rule in 2008. After precipitating the resignation of a Foreign Minister in July, and removing the sitting Prime Minister in September, in December the Constitutional Court staged what was described as a “judicial coup.” Relieving the military of an increasingly onerous traditional responsibility, the Court dissolved three more governing parties, effectively overturning the results of the elections held on 23 December 2007. The Court disqualified enough of the ruling coalition’s parliamentarians to permit the formation of a new government, led by Mr. Abhisit Vejjajiva. The extreme politicization of the Thai judiciary, and its disregard for the laws it is supposed to uphold, are further evidenced in a series of decisions by which the courts have recently disqualified sitting members of parliament from office on

35 “Red Shirt Power Makes Generals Wary of Mounting a Coup,” Bangkok Post, 14 June 2012. 36 “Appeals Court Rejects Petition by Victim’s Kin,” Bangkok Post 9 June 2012. 37 “TRCT Calls for Reform of Justice System,” The Nation, 22 June 2012.

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dubious grounds, have unlawfully ordered parliament to cease consideration of constitutional amendments, and have accepted baseless complaints that could have led to the dissolution of the governing party Pheu Thai.38 These more recent decisions are detailed in the section below on “Impact of the Crimes.” As much or even more than a “military coup,” it is the prospect of another “judicial coup” that appears most likely in the months to come.39 A branch of government that has so openly taken sides and has worked systematically to undermine the rule of law cannot be expected to deliver justice. Even in the unlikely event that the ongoing investigations were to result in genuine prosecutions, the investigations are not sufficiently comprehensive to render the crimes against humanity committed in Thailand inadmissible under Article 17. First, while concluding that twenty-‐five deaths were caused by the authorities, the DSI claimed that an additional twelve deaths were caused by protesters, while “it could not determine” responsibility for the remaining cases. Each of these claims is implausible given the evidence in the public domain, as reported in previous submissions to the ICC, which clearly attests to the responsibility of the military for the vast majority of the killings. Since our last submission, Thailand’s most respected military affairs journalist, Wassana Nanuam, published a book where she reported, citing high-‐placed military sources, that the infamous “men in black” alleged to have killed soldiers in clashes on 10 April 2010 were themselves soldiers belonging to a rival faction within the Royal Thai Army, not supporters of the Red Shirts.40 This comports with the conclusions of expert witness Joe Ray Witty, a former U.S. Army Sergeant and crowd control expert with the Los Angeles Police Department SWAT, whose report was included in the initial Application. Aside from contradicting the DSI’s claim that the deaths by security forces are attributable to Red Shirt protesters, the revelations undermine claims made by former Prime Minister Abhisit, who attributed any and all deaths among protesters to the presence of “men in black” in their ranks.41 The DSI’s conclusion that state officials are only responsible for twenty-‐five deaths reflects the agency’s susceptibility to political pressure, its ties to officials and government bodies who planned and authorized the crackdowns in 2010, and its role in the Abhist government’s campaign of persecution against the Red Shirt movement. Second, these proceedings pertain only to a small subset of the crimes alleged in the Application. Aside from the majority of the killings, no effort has been made to investigate the injury of some two thousand protesters, the hundreds of illegal detentions, the torture of detainees, and the crime of political persecution, each of which was described at some length in the initial Application as flowing from the

38 See Amsterdam & Partners LLP, “Judicial Coup, Redux,” 5 June 2012 [http://t.co/CY3BUYQT]. 39 Pavin Chachavalpongpun, “Saving the Thai Status Quo,” Japan Times, 15 June 2012. 40 “Factions and Short Fuses,” Bangkok Post, 21 May 2012. 41 “Fiery Abhisit Defends Riot Crackdown,” Pattaya Today, August 30, 2011.

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same official policy designed at the highest level of the government and personally approved by former Prime Minister Abhisit to destroy the Red Shirt movement. Third, there is no chance that the courts will ever examine the issue of “superior responsibility,” and would therefore consider prosecuting former Prime Minister Abhisit or other senior state officials for their role in planning and authorizing the operations. Even in the unlikely event that prosecutions might result from the small number of cases belatedly referred to the courts, the persons accused will be only those who physically carried out the killings, not former Prime Minister Abhisit and others who formulated the policy from which the killings resulted. A primary purpose of the ongoing proceedings is to shield the principals, including former Prime Minister Abhisit, from criminal responsibility.

Based on the events of the past two years, it can be concluded that Thailand remains unwilling genuinely to carry out a complete investigation of the kind that would render the crimes committed in Thailand inadmissible before the ICC under Article 17(1) of the Rome Statute. It is also evident, under Article 17(2)(b) and 17(2)(c), that there has been an unjustified delay in the proceedings,42 that investigations have not been conducted independently or impartially,43 and that each of the domestic efforts currently underway is inconsistent with an intent to bring those who ordered and committed the crimes to justice. Under Article 17(3) of the Rome Statute, finally, the politicization of the national judicial system and the role of the military impede the ability of the new government to ensure that genuine investigations and prosecutions are conducted.

The weakness of domestic efforts, alongside the authorities’ characteristic unwillingness to hold state officials such as former Prime Minister Abhisit accountable for serious crimes and human rights violations, is a factor sufficient to make this case admissible under Article 17 of the ICC Statute, based on the principle of complementarity.44 This was the case at the time of our initial Application, and it remains the case today.

(2) Gravity

Our previous submissions to the ICC document the massacres that took place in 2010 and evidence the use of military force that resulted in the murder of at least eighty-‐three civilians and the injury of two thousand more.

As stipulated in Regulation 29(2) of the Regulations of the OTP, the non-‐exhaustive factors that guide the Prosecutor’s assessment of gravity include scale, nature, manner of commission, and impact of the crimes.45 The draft OTP policy on opening Preliminary Examinations includes the same four components of

42 Article 17(2)(b) of the Rome Statute. 43 Article 17(2)(c) of the Rome Statute. 44 Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, ICC-‐01/04-‐01/07-‐1497, 25 September 2009, para. 78. 45 See, in concurrence with the Prosecution’s submissions, Prosecutor v. Abu Garda, Decision on the Confirmation of Charges, ICC-‐02/05-‐02/09-‐243-‐Red, 8 February 2010, paras. 31; Situation in the Republic of Kenya, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, ICC-‐01/09-‐19-‐Corr, 31 March 2010, para 188

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gravity.46

As the OTP has noted,

The Appeals Chamber has dismissed the setting of an overly restrictive legal bar to the interpretation of gravity that would hamper the deterrent role of the Court. It has also observed that the role of persons or groups may vary considerably depending on the circumstances of the case and therefore should not be exclusively assessed or predetermined on excessively formalistic grounds.47

Our previous Applications have alleged the commission of the following crimes against humanity:

1. Murder;48 2. Imprisonment and other severe deprivation of physical liberty;49 3. Other inhumane acts, covering acts of torture in detention and severe

physical injury inflicted on two thousand civilians;50 4. Political persecution.51

As detailed below, the scale, nature, manner, and impact of these crimes merit the opening of a Preliminary Examination by the ICC Prosecutor.

(2.1) Scale of the Crimes

As shown in previous filings, the alleged crimes took place on a large scale, as reflected in the number of people killed during the 2010 crackdowns (at least, and possibly more than, seventy-‐five protesters, five medics, and three journalists), the number of people wounded by the security forces (approximately two thousand), the number of people subjected to imprisonment and other severe deprivation of physical liberty (approximately five hundred),52 and the extensive campaign of political persecution launched against the Red Shirt movement, which featured the institution of a comprehensive censorship regime, a pervasive public relations campaign designed to discredit it, the abuse of emergency legislation, the prosecution of hundreds of people on crimes of conscience, and the enlistment of the judicial branch in the intimidation and punishment of dissidents, the dissolution of governing parties, and the disqualification from office of elected representatives.

The scale of the killings and woundings committed by the Thai security forces in 2010 is comparable to, or graver than, that of crimes and situations into which the

46 OTP “Policy Paper on Preliminary Examinations,” 4 October 2010, par. 70. 47 Ibid., par. 69. The accompanying footnote 41 cites “Situation in the Democratic Republic of the Congo, Judgment on the Prosecutor’s appeal against the decision of the Pre-‐Trial Chamber I entitled “Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58”, ICC-‐01/04-‐169, under seal 13 July 2006; reclassified public 23 September 2008, paras. 69-‐79. “ 48 Article 7(1)(a) 49 Article 7(1)(e) 50 Article 7(1)(k) 51 Article 7(1)(h) 52 Marwaan Macar-‐Markan, “Jails Fill Up with Political Prisoners, Critics,” Inter-‐ Press Service, August 23, 2010. http://ipsnews.net/news.asp?idnews=5257

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OTP has opened Preliminary Examinations.

We draw reference to the Preliminary Examination currently underway into the case of Honduras53 as referred to in the Prosecutor’s “Report on Preliminary Examination Activities,” dated 13 December 2011. In Honduras a Preliminary Examination was launched and announced after the democratically elected government was removed from power by military force, a State of Emergency was declared when thousands of opposition marched in demonstration, twenty civilians were killed, further decrees allowing armed forces to arrest persons without restriction were issued along with decrees restricting freedom of movement and assembly, journalists were targeted, and investigations by a National Truth and Reconciliation Committee exposed the fact that the authorities had designed and implemented a policy to attack civilians. These facts are highly comparable to those of Thailand. In October 2009, moreover, the ICC Prosecutor announced the launch of a Preliminary Examination in the case of Guinea.54 Hours after the death of President Lansana Conté on 23 December 2008, a military junta seized power in a coup. Months later, opposition protesters staged demonstrations at a national stadium, only to be violently suppressed by security forces. What became known as the “28 September massacre” took the lives of some one hundred and fifty people. The legal assessment of the situation characterized the 2009 events as a widespread and systematic attack against the civilian population. Analogous to the events in Thailand, the Guinean case also saw extra-‐judicial killings by state security forces, forced disappearances, arbitrary detention, torture, and government officials attacking civilians based on their affiliation and/or support for opposition candidates. Based on the number of people killed and wounded, the scale of the crimes committed in Thailand also exceeds that of the possible crimes committed in an episode of inter-‐state conflict into which the ICC Prosecutor has opened a Preliminary Examinations: the shelling of the South Korean Yeonpyeong Island in November 2010 and the sinking of the South Korean warship Cheonan earlier in the same year.

(2.2) Nature of the Crimes

Previous applications have provided evidence attesting to the systematic nature of the crimes against humanity committed in Thailand in 2010. With regard to the crimes of murder and other inhumane acts, the attacks that resulted in the killing of eighty-‐three civilians and the wounding of two thousand more people took place over an extended period of time (an entire week, in the case of the government crackdown of 13-‐19 May 2010). During that time, similar incidents took place in different parts of the city of Bangkok, which had been assigned to different military units. The evidence presented in the initial Application showed that the security forces were following precise rules of engagement based on a common policy

53 Office of The Prosecutor’s report on Preliminary Examination Activities, dated 13 December 2011 (p.10) 54 Ibid (p.21)

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authorized by former Prime Minister Abhisit; the attack, which had been thoroughly planned, involved substantial public resources of the government.

The systematic nature of the attack was later confirmed in a report commissioned by the Royal Thai Army to provide a set of guidelines on combating urban unrest, published in the Thai military journal Senathipat. Its contents were summarized in the Addendum submitted to the ICC Prosecutor on 12 September 2011. In that report, Col. Boonrod Srisombat wrote that the crackdown of 13-‐19 May 2010 was designed as a “battle plan for full scale urban warfare,” not as a crowd control/dispersal operation.

In the aftermath of the 2010 crackdown, hundreds of people were mopped up by the authorities and held for weeks and months, often incommunicado, in a number of repurposed military facilities across Thailand. These incidents of “enforced disappearance,” as Human Rights Watch characterized them,55 could not be described as episodic in nature, given the number of victims involved, the type and number of facilities in which they were held, and the length of their illegal detention. This speaks to the fact that the crime of “imprisonment and other severe deprivation of physical liberty” was also systematic in nature, and committed pursuant to a government policy.

(2.3) Manner of Commission

It has already been substantiated that the security forces who materially perpetrated the crimes against humanity of murder and other inhumane acts over the course of the 2010 crackdowns, as well as former Prime Minister Abhisit and other government officials involved in the planning and approval of the operations, committed the acts with the intent to cause death or serious injury, and with an utter disregard for human life and dignity.

Most of the extra-‐judicial killings were carried out not in the “heat of the battle” but rather by snipers targeting unarmed civilians at a distance. It is indisputable that professional snipers shooting from elevated positions were deployed to strategic locations, 56 and fired their weapons directly into dense crowds of unarmed demonstrators without provocation or justification. Video evidence, moreover, demonstrates that soldiers fired live ammunition, without announcing any warning, directly at demonstrators who presented no threat, causing them serious bodily harm. The declaration of “live fire zones,” where soldiers had license to shoot at everything that moved, could also not have been undertaken in the interest of minimizing civilian casualties. Consistent with orders issued by CRES to prevent the removal of bodies from the scene of the crackdown, the Royal Thai Army closed off the live fire zones to emergency medical staff57 and repeatedly opened fire on medics as they attempted

55 Human Rights Watch, Descent Into Chaos: Thailand’s 2010 Red Shirt Protests and the Government Crackdown, May 2011, p. 121. 56 Application to investigate the situation of the Kingdom of Thailand with regard to commission of crimes against humanity (p.24, p33 and statement of Anonymous Witness No. 22). 57 “Medics Banned from Entering ‘Red Zones’,” The Nation, May 16, 2010.

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to assist injured demonstrators,58 complicating rescue operations for the scores of wounded protesters. Aside from the five medics who were killed in the rescue operations, an independent report by the Thai organization “Marginalized Monsoon Group” estimated that five of the protesters killed between 13-‐19 May 2010 had bled to death. 59 These lives might have 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.

Journalists also appear to have been intentionally targeted, under orders issued by CRES to limit photographic evidence depicting the killing of civilians. Three journalists were killed during the government crackdowns, among them foreign reporters Hiro Muramoto and Fabio Polenghi, while several others were wounded.

(2.4) Impact of the Crimes

The impact of the crimes against humanity committed in 2010 has been extremely grave, not just in terms of the death, physical injury, and economic damage inflicted by the state on the individuals victimized by the crackdowns, but also in terms of the devastating effects that the campaign of persecution undertaken by the government of former Prime Minister Abhisit against the Red Shirt movement has had for the country’s democracy and stability. The purpose of the campaign was not just the dispersal of a demonstration, but the destruction of a popular movement, to be achieved by eliminating its leaders, terrorizing its members, and dehumanizing its supporters. While former Prime Minister Abhisit and his military backers have to date failed in this effort, and were soundly defeated in last year’s elections, the actions pursuant to that policy have done great damage to the country, nudging it closer towards a military or judicial coup, further widespread violence, or even civil war.

Massacres of Thai civilians have been committed regularly, over decades, and always for the same purpose: to deny the Thai people their basic right to self-‐determination. As horrific and traumatic as the events of 2010 were, their impact might pale in comparison with the consequences of allowing those responsible to enjoy continued impunity for their crimes. The most recent wave of demonstrations and state violence played out according to the same script followed by events that took place in Thailand in 1973, 1976, and 1992. Just as in previous instances, the Red Shirts’ calls for “democracy” were described by the government as the façade for a hidden agenda threatening the security of the Thai state. Just as in previous instances, dubious accusations of ideological extremism and violent tendencies were instrumental to the case made by the military to justify the imposition of repressive measures and shoot scores of unarmed demonstrators. Just as in previous instances, finally, the Thai establishment answered the calls for democracy with the dehumanization of their opponents, the subversion of the rule of law, and human rights violations on a massive scale. 58 Bill Schiller, “Why Did So Many Civilians Die in Bangkok Violence?,” The Star, May 23, 2010. 59 Marginalized Monsoon Group, Preliminary Fact Finding Report on the Political Violence of May 13-‐19, 2011, May 2011 (Thai-‐language), p. 270.

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Another element that all previous massacres have in common is that none of the perpetrators have ever been brought to justice or faced any form of accountability for the killings. None of those involved in the 1973 massacre were prosecuted, while both the 1976 and 1992 incidents were whitewashed by royal decrees granting amnesty to everyone involved. The only one among these prior episodes of state violence to ever be seriously investigated is “Black May” 1992. Even in that case, however, the report issued in 2000 answered few questions—sixty percent of the report, including all information pertaining to military officers, units, orders, and actions, was redacted on the grounds that the privacy of those responsible would have otherwise been violated. The cover-‐up of the events surrounding previous massacres in 1973, 1976, and 1992, in turn, has not only deprived the Thai people of their right to justice and their right to know the truth, but has virtually guaranteed that the same heinous crimes would be committed again and again. Impunity has given forces that refuse to acknowledge the legitimacy of the democratic process the power to threaten elected governments, stage military coups, and, whenever faced with opposition in the streets, murder scores of demonstrators. There are now signs that Thailand may be going through the same cycle once more. Emboldened by the impunity that members of the Thai establishment continue to enjoy for their crimes in 2010, new efforts have been launched in recent weeks to delegitimize the democratic process and lay the groundwork for the removal of a duly elected and legally constituted government, whether by military force (as in 2006) or by judicial intervention (as in 2008). Since the 2011 elections, Thailand’s politicized judiciary has been active on many fronts in an attempt to undermine the new government and damage the Red Shirt movement. In the past weeks, the Constitutional Court disqualified from office a duly elected member of parliament and leader of the UDD, Jatuporn Prompan. Mr. Jatuporn was banned owing to his failure to vote in the 2011 elections; at the time, Mr. Jatuporn was held in Bangkok Remand Prison after the revocation of his bail on specious terrorism charges, which was conveniently timed to coincide with the election campaign.60 Later the Office of the Constitutional Court filed a brief with the Criminal Court requesting that Mr. Jatuporn’s bail be revoked once again, owing to his criticism of the Court’s bias. Another member of parliament and UDD leader, Karun Hosakul, is awaiting a decision by the Supreme Court, which will rule on whether to uphold the Election Commission’s recommendation that he also be disqualified from office, based on “insulting remarks” allegedly made by Mr. Karun against a rival candidate in the 2011 election.

The ongoing campaign by Thailand’s judicial branch, representing the ongoing nature of the crime of political persecution alleged in the initial Application, is not limited to targeting elected officials supporting the elected government. While the number of people arrested for crimes of conscience, above all violation to the lese majeste law, has dropped off sharply since the 2011 election, the politicized courts have continued to wield legislation limiting free expression to victimize activists 60 See Amsterdam & Partners LLP, “Judicial Coup, Redux,” 5 June 2012 [http://t.co/CY3BUYQT].

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and ordinary citizens deemed sympathetic to the Red Shirt movement. Parliament has been unable to seriously consider amendments to the laws, as the military made it clear that any such attempt would trigger another coup.61

In May 2012, Mr. Amphol Tangnoppakul, a sixty-‐one-‐year-‐old cancer-‐stricken man, died in custody while serving a twenty-‐year prison sentence on four counts of lese majeste. The charge was initiated by Mr. Abhisit’s personal secretary in 2010, a year in which 478 cases of lese majeste reached the courts.62 Leading up to his death, Mr. Amphol was subjected to a horrifying array of violations to his basic human rights: two months in detention without charge, repeated rejections of bail requests while awaiting trial, denial of proper medical treatment, and finally a grotesque prison sentence handed down at the conclusion of a process that required the defendant to prove his innocence. As recently as February 2012, the Appeals Court reasoned that Mr. Amphol’s health condition was not serious enough to warrant bail. Most worrisome for Thailand’s democratic stability and the risk of further crimes against humanity, however, are the measures that the Constitutional Court has taken since 1 June 2012. On that day, the Court took the extraordinary step of issuing an injunction, quickly shown to have violated the law and exceeded the bounds of its constitutional authority, ordering the National Assembly to cease all deliberations on a proposed amendment to the 2007 Constitution, pending a review of the amendment’s constitutionality. Ominously, the question the Constitutional Court accepted to review, under Section 68 of the Constitution, was whether the proposed constitutional amendments constituted an attempt “to overthrow the democratic regime of government with the King as Head of State.” Any such finding could have empowered the Constitutional Court to order the dissolution of the governing Pheu Thai Party and strip away the political rights of each member of its executive committee, much as the Court had done with the winners of each of the previous four elections, Thai Rak Thai (dissolved in 2007) and the People Power Party (dissolved in 2008).

The Constitutional Court’s injunction was issued on the same day when a few hundred activists from the neo-‐fascist People’s Alliance for Democracy (PAD), in cooperation with members of Abhisit’s Democrat Party, blockaded all roads to Thailand’s parliament, preventing the House of Representatives from meeting. The previous two sittings of the House had been disrupted by the PAD’s threat to storm the halls of parliament, and by the intemperate outbursts of Democrat Party members of parliament, some of whom physically assaulted the House Speaker and other representatives. It is widely understood that the PAD and the Democrat Party were attempting to spark a confrontation, of the kind that would give the military the pretext to stage another coup, as demanded by the PAD’s leaders.63 In a ruling issued on 13 July 2012, the Constitutional Court eventually dismissed the complaint alleging that the constitutional amendment under consideration in the National Assembly constituted an attempt to “overthrow the democratic

61 “Army Chief Safe: 'He's Done No Wrong',” The Nation 22 January 2012. 62 “Discussing Lèse Majesté Law,” Prachatai, June 28, 2010. 63 Pavin Chachavalpongpun, “Saving the Thai Status Quo,” Japan Times, 15 June 2012.

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regime of government with the King as Head of State.” As a result, it declined to dissolve Pheu Thai. However, several aspect of the verdict demonstrate the Court’s utter disregard for the law, and more generally the extent to which the rule of law has been dismantled in Thailand. On the one hand, the Constitutional Court declared “constitutional” something that the Constitution prohibits, ruling that it had jurisdiction to examine complaints alleging violations to Section 68 of the Constitution without a prior investigation by the Attorney General, which the Constitution explicitly requires. On the other hand, the Constitutional Court declared “unconstitutional” something that the Constitution actually allows. In this respect, the Court argued that the National Assembly does not have the power to amend the Constitution, in accordance with the procedure mandated by the Constitution, in a manner that would allow a Constitution Drafting Assembly to write a new charter. In fact, the Constitution contains no such prohibition. The Court also stated that writing a new charter requires a referendum, despite the fact that the Constitution never cites a referendum in its discussion of the constitutional amendment process. The Constitutional Court’s verdict has two implications. First, the Court essentially arrogated the authority to interfere in the legislative process and overturn measures approved by a majority of parliamentarians, even if such measures are in accordance with the Constitution. This sets a precedent that will likely serve to justify future interference by Court to block the implementation of the government’s agenda. Second, the Court demonstrated that a duly elected government in Thailand can only remain in office if it refrains from actually making use of its powers under the Constitution. When a government takes any action inconsistent with the preferences of the Thai establishment, as it did in this case, the Constitutional Court reserves the right to conjure up additional constitutional requirements mandating that the government stop what it is doing. Should the government, in turn, choose to defy the Court’s unlawful order, the Court implied it could cite this act of defiance to remove the government from office. Recent events show that Thailand continues to be held hostage by groups that have never accepted the right of the people to govern the country through their elected representatives, and refuse to play by the most basic rules of the democratic process. Given the opportunity, Thailand’s military, bureaucratic, and judicial establishment, with the support of the PAD and Abhisit Vejjajiva’s Democrat Party, will not hesitate to topple the elected government of Yingluck Shinawatra. While some members of the Thai establishment fear the backlash that this action will likely engender,64 the impunity they have enjoyed thus far gives them the option to yet again crush any demonstrations that might be staged as a reaction through the deployment of overwhelming military force. It is only by ending impunity that Thailand’s cycle of coups and state violence can finally be broken. 64 “Red Shirt Power Makes Generals Wary of Mounting a Coup,” Bangkok Post, 14 June 2012.

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Conclusion As the OTP stated in a recent report, the main “object and purpose” of the ICC Statute is “the prevention of serious crimes of concern to the international community through the ending of impunity.” 65 These words underscore the necessity and the urgency of opening a Preliminary Examination into the crimes against humanity committed in Thailand. It is not only within the jurisdiction of the ICC Prosecutor to investigate and, if the facts warrant, prosecute Mark Abhisit Vejjajiva, the man who personally authorized the operations that killed at least seventy-‐five peaceful protesters, five medics, and three journalists in 2010. By taking the historic step of opening and announcing a Preliminary Examination, even if only against the person most responsible, former Prime Minister Abhisit, the Prosecutor can make a decisive impact in the prevention of further civilian massacres, finally impressing upon local authorities that they can no longer take for granted the impunity they have historically enjoyed in Thailand. The Applicants submit that the information presented with regard to jurisdiction and admissibility based on the requirements of complementarity and gravity warrants the urgent opening of a Preliminary Examination, and moreover establishes the existence of a “reasonable basis” to open a full investigation. The Applicant therefore respectfully requests the OTP urgently to open, and to announce publicly, a Preliminary Examination into the crimes against humanity committed in Thailand in 2010. Respectfully,

Robert R. Amsterdam AMSTERDAM & PARTNERS LLP Katy Epstein AMSTERDAM & PARTNERS LLP

Douglass Cassel AMSTERDAM & PARTNERS LLP Counsel for Robert Amsterdam [email protected]

65 OTP, “First Report of the Prosecutor of the ICC to the UNSC Pursuant to UNSCR 1970 (2011),” p. 2.

Documents

ICC - Request for a Preliminary Examination - July 20th 2012