Red Shirts Application to the International Criminal Court to Investigate Crimes against Humanity in Thailand

APPLICATION TO INVESTIGATE THE SITUATION OF

THE KINGDOM OF THAILANDWITH REGARD TO THE COMMISSION OF CRIMES AGAINST HUMANITY

A REPORT PRESENTED BY

AMSTERDAM & PEROFF LLPON BEHALF OF

THE NATIONAL UNITED FRONT FOR DEMOCRACY AGAINST DICTATORSHIP

TOTHE OFFICE OF THE PROSECUTOR OF THE INTERNATIONAL CRIMINAL COURT

THE HAGUE, THE NETHERLANDS

31 JANUARY 2011 PHOT

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A REPORT PRESENTED BY

AMSTERDAM & PEROFF LLP

ON BEHALF OFTHE NATIONAL UNITED FRONT FOR DEMOCRACY AGAINST DICTATORSHIP

TOTHE OFFICE OF THE PROSECUTOR OF THE INTERNATIONAL CRIMINAL COURT

THE HAGUE, THE NETHERLANDS

31 JANUARY 2011

APPLICATION TO INVESTIGATE THE SITUATION OF

THE KINGDOM OF THAILANDWITH REGARD TO THE COMMISSION OF CRIMES AGAINST HUMANITY

AmSTErdAm & PErOFF | ON bEHALF OF THE NATIONAL UNITEd FrONT FOr dEmOCrACy AGAINST dICTATOrSHIP I

Beginning in March 2010, the “Red Shirts” of the National United Front for Democracy

against Dictatorship (“UDD”) staged massive demonstrations in Bangkok, Thailand,

to protest the 2006 coup that had removed duly elected Prime Minister Thaksin

Shinawatra and disenfranchised millions of Thai citizens. For the next two months,

the Red Shirts remained holed up behind barricaded encampments built in locations

of strategic and symbolic significance in the heart of Bangkok, demanding new

elections and a dissolution of what they perceived to be the illegal, military-backed

government of Prime Minister Abhisit Vejjajiva.

In response to these demonstrations, the Royal Thai Army — under the direction

and approval of Prime Minister Abhisit and others in the Government — killed more

than eighty civilians and wounded two thousand others in April and May 2010,

including journalists documenting the events and medical volunteers assisting the

injured.

This Application is submitted to the Prosecutor of the International Criminal

Court (ICC) to request the launch of a preliminary investigation into the Situation

of the Kingdom of Thailand. The ICC has jurisdiction to investigate the situation

in Thailand pursuant to a referral by the United Nations Security Council under

Article 13(b) of the Rome Statute. Additionally, the ICC may exercise jurisdiction

ratione personae over Prime Minister Abhisit Vejjajiva, under Article 12.2.b of the

Rome Statute, by virtue of his citizenship in a State Party to the ICC, namely the

United Kingdom.

The Application contains evidence sufficient to demonstrate that a substantial basis

exists to believe that the following international crimes within the ambit of the ICC

were committed in connection with the suppression of the Red Shirt demonstrations:

(1) murder; (2) imprisonment and other severe deprivation of physical liberty; (3)

EXECUTIVE SUMMARY

II APPLICATION TO INVESTIGATE THE SITUATION OF THE kINGdOm OF THAILANd | FILEd wITH THE ICC PrOSECUTOr

other inhumane acts; and (4) persecution. The political and military leadership in

Thailand — including but not limited to Prime Minister Abhisit — is criminally

liable for said offenses.

The evidence presented in this Application includes a compilation of information

provided by a number of active-duty officers of the Royal Thai Army about the

planning and execution of the military response to the Red Shirts. They testify

collectively – under the designation Anonymous Witness No. 22 — that:

• The Thai Establishment, aware that the supporters of former Prime Minister

Thaksin would rise up in protest against the suppression of democratic

principles, adopted a policy to suppress any such protests through military

force, with the ultimate objective of destroying the movement for democracy.

• Part of this policy involved a high-stakes public relations strategy to create the

false impression that the Red Shirts were violent and should be suppressed

at all cost. This strategy included: (1) the destruction and/or manipulation

of evidence that incriminated the Army and the Thai Government; (2) the

planting of “evidence” to incriminate the Red Shirts; (3) the surreptitious

use of weaponry, including snipers and explosive devices, in such a way

as to create the false appearance that the Red Shirts were responsible for

violence; and (4) media propaganda designed to create the false appearance

that the Red Shirts were violent, dangerous and a threat to the Monarchy.

• Contrary to popular belief, the Army’s initial suppression operation on April

10 was not designed to disperse the Red Shirt crowd on Rachadamnoen

Avenue (Phan Fa Bride, Democracy Monument and Khok Wua Intersection),

but was designed to concentrate the demonstrators into a confined area

at the Phan Fa Bridge, create chaos, and assassinate the Red Shirt leaders

on the stage. As part of the operation, the Army deployed a group of more

than 150 professional snipers, drawn from the various branches of the Thai

military, who sporadically fired at demonstrators from rooftops with low-

caliber rounds in an attempt to provoke. This initial plan was unsuccessful

because the Ninth Cavalry Division stalled on Pinklao Bridge and was unable

to compress the crowd from the west.

• The Army regrouped and — with the express approval of Prime Minister

Abhisit — deployed Queen’s Guard troops from the Second Infantry Division,

under the command of General Prayuth Chan-ocha, to carry out a nighttime

suppression operation. Company-sized Army elements took up positions

directly facing the Red Shirt crowd at Democracy Monument and Khok Wua

Intersection, where a standoff ensued for more than an hour. Troops fired

live ammunition above the crowd — including a heavy .50 caliber machine

AmSTErdAm & PErOFF | ON bEHALF OF THE NATIONAL UNITEd FrONT FOr dEmOCrACy AGAINST dICTATOrSHIP III

gun — together with sporadic live fire directly into the crowd, attempting to

provoke the crowd, without success, to create a perceived need for the Army

to defend itself.

• At approximately 19:45 hours, two explosions near Democracy Monument

gave Army troops an excuse to open fire on the crowd without restraint.

Troops at the Khok Wua Intersection also opened fire without restraint,

although there had been no explosions in that area.

• After the military operations on Rachadamnoen Avenue on April 10

failed to end the Red Shirt demonstrations, the Army turned its attention

to suppressing the demonstrations that had now concentrated at the

Ratchaprasong Intersection. The Army’s plan called for establishing a

perimeter around the Ratchaprasong area to seal off ingress and egress,

followed by breaching the Red Shirt barricades and assassinating the leaders.

• During the period between May 13 and May 19, the Army deployed troops

from the Second Cavalry Division and the First Infantry Division to seal off

the Bon Kai area south of Ratchaprasong, and the Din Dang and Rajaprarop

areas north of Ratchaprasong. Although the official orders were to shoot

threatening targets only, the actual orders for the commanding officers,

which were unwritten, were to: (1) shoot all moving targets, regardless of

threat level; (2) prevent any photographic or video evidence; and (3) prevent

the removal of any bodies.

• These orders effectively required the troops to target journalists in the areas

of Bon Kai, Din Daeng and Rajaprarop. They also effectively required troops

to target medical personnel seeking to assist the wounded.

• The Royal Thai Army breached the Red Shirt barricades on May 19 under

orders to: (1) assassinate the Red Shirt leaders; (2) shoot any person suspected

of possessing weapons, without any requirement to determine whether

they were actually armed; (3) treat any person with a slingshot as armed

and dangerous; and (4) shoot any Red Shirt guard, even if unarmed. The

Red Shirt leaders were tipped off about these orders, and they surrendered

before the troops could kill them.

• These orders signified that troops were permitted to kill any person they

wished on May 19, which allowed for the shootings at the Wat Patumwanaram

temple that evening.

• The fires at the CentralWorld complex were set by arsonists hired by the

Army weeks in advance. The purpose of the operation was to cement in

the public mind the concept that the Red Shirt movement was violent and

IV APPLICATION TO INVESTIGATE THE SITUATION OF THE kINGdOm OF THAILANd | FILEd wITH THE ICC PrOSECUTOr

dangerous, and to create the impression that the Army’s actions were

justified. The Red Shirts were not responsible for the fires at the Central

World complex.

• After the demonstrations were over, elements of the Royal Thai Army

gathered a cache of AK-47 rifles and explosives and planted them in the Wat

Patumwanaram temple and in Lumpini Park in order to try to incriminate

the Red Shirts.

This Application includes an expert report by Joe Ray Witty, a Green Beret and

Master Sergeant (Retired) of the United States Army, Special Forces. Master Sergeant

(Ret.) Witty is a military-trained sniper and an explosives specialist, serving two

tours of duty in military combat operations in Afghanistan and Iraq. He is currently

employed by Los Angeles Police Department SWAT (Special Weapons and Tactics)

team, where he is a member of SWAT’s sniper and breaching cadres. He is also

an instructor for the Los Angeles Police Department in crowd control and crowd

management, where his responsibilities include the planning and execution of

law enforcement response to public demonstrations throughout the greater Los

Angeles area.

Master Sergeant (Ret.) Witty reviewed and evaluated the Royal Thai Army’s response

to the Red Shirt demonstrations in Bangkok in April and May 2010. Based on his

study of many hours of video and photographic evidence from the demonstrations,

together with a personal examination of the physical sites of the Royal Thai Army’s

response and numerous witness interviews, he prepared an Expert Report containing

the following conclusions, which are supported in detail in the body of his Expert

Report:

• On April 10, 2010, the Royal Thai Army did not engage in a rational or

reasonable crowd-management operation, which would necessarily have

involved a genuine attempt to disperse the demonstrators without inflicting

injury. Instead, the Royal Thai Army intentionally sealed off exit routes,

herded the crowd into a confined area, and engaged in various illegal acts

designed to provoke the crowd to violence so that the Army would appear

justified in its use of deadly force against demonstrators. These illegal acts

included, but are not necessarily limited to:

1. The use of highly trained military snipers to shoot unarmed

demonstrators with live rounds from elevated, concealed positions,

without provocation or justification;

2. The intentional, indiscriminate discharge of military weapons, including

AmSTErdAm & PErOFF | ON bEHALF OF THE NATIONAL UNITEd FrONT FOr dEmOCrACy AGAINST dICTATOrSHIP V

M-16 rifles and other automatic weapons firing live rounds, directly

into dense crowds of unarmed demonstrators, without provocation or

justification;

3. The intentional detonation of multiple military-grade explosive devices

within the immediate vicinity of Army troops, in a deadly form of

“friendly fire” designed to create the false impression that the Army

was under attack by demonstrators.

• The Royal Thai Army formally adopted rules of engagement that comport with

accepted crowd management standards in order to create the false impression

of reasonable conduct. However, the Thai Royal Army systematically violated

its stated rules of engagement in a manner constituting criminal conduct.

• The Royal Thai Army’s operation on April 10, 2010 was military in nature. Its

objective was to kill innocent civilians, without provocation or justification,

in order to suppress the Red Shirt demonstrations.

• The Royal Thai Army repeatedly targeted unarmed civilians during the

period April 10 through May 19, 2010, using deadly force in a manner that

was wholly inconsistent with reasonable law enforcement standards, but

rather was unprovoked, unjustified, intentional and criminal.

• The Royal Thai Army’s operations during the period May 13-18, 2010 were

military in nature. They did not comport with accepted standards of crowd

management or with the Royal Thai Army’s own stated ROE, and they were

criminal in nature.

• The Royal Thai Army’s operations on May 19, 2010 were military in nature.

They did not comport with accepted standards of crowd management or

with the Thai Royal Army’s own stated ROE, and they were criminal in

nature. They were designed to kill innocent civilians, without provocation

or justification, in order to suppress the Red Shirt demonstrations.

This Application also includes as evidence a compilation of information provided

by a number of law enforcement officials in Thailand with knowledge of the status

and progress of the official investigation by Thailand’s Department of Special

Investigations (“DSI”) into the killings during the Red Shirt demonstrations. They

testify collectively – under the designation Anonymous Witness No. 20 — that

there is absolutely no possibility that the DSI will voluntarily conduct a proper

investigation into the killings of the civilians and soldiers during the Red Shirt

demonstrations, based on the following:

VI APPLICATION TO INVESTIGATE THE SITUATION OF THE kINGdOm OF THAILANd | FILEd wITH THE ICC PrOSECUTOr

• It has been the official policy of the government of Thailand to conceal and/

or eliminate all evidence of criminal conduct by the government or the Army

leaders in connection with the Civilian Killings.

• After the April 10 killings, the Centre for Resolution of the Emergency

Situation (“CRES”) assigned the investigation to the DSI in order to control

the outcome. DSI Director Tharit hengdit was a member of CRES. The

assignment to the DSI was improper because CRES should itself have been a

target of criminal investigation.

• Director Tharit assigned the investigation into all of the April 10 killings to

Investigator Wirawat Dejboonpa, who is loyal to Director Tharit. Investigator

Wirawat intentionally did nothing to investigate the cases. Later, after the

additional killings in May, a total of eighty-nine deaths were assigned to

investigator Wirawat, who has failed to conduct any serious investigation into

the killings, but rather has tried to assign criminal responsibility to the Red

Shirt leaders currently incarcerated, in order to provide ostensible support

for the terrorism charges asserted against them by the Thai government.

• On August 30, 2010, public outcry forced Director Tharit to assign some

of the cases to other DSI investigators, many of whom are conducting

proper investigations. Many of those investigations have concluded, at least

preliminarily, that the killings were caused by certain soldiers of the Royal

Thai Army under orders from the Thai government and the CRES. Some

of the DSI investigators who have reached these conclusions have been

instructed by their superiors to change their conclusions.

• Other DSI investigators are doing nothing substantive to advance their

investigations. They are also hoping for special promotions that DSI Director

Tharit is seeking from the government on their behalf.

• DSI investigators have completed their initial reports regarding at least four

killings in May 2010, which conclude that soldiers of the Royal Thai Army,

under orders from the government, caused the deaths. At this stage, the DSI

would ordinarily consult with the District Attorney’s Office and request the

assignment of a District Attorney to interface with the DSI investigators to

begin assessing whether the killings were carried out with intent, or whether

they were in self-defense. However, DSI Director Tharit has taken no steps

to begin any investigation into the issue of intent. This is contrary to normal

DSI procedures and the requirements of Thai law, and is an attempt to delay

the cases.

• DSI Director Tharit has issued orders that the DSI investigators are prohibited

from summoning any soldier of the Royal Thai Army for interrogation. This

AmSTErdAm & PErOFF | ON bEHALF OF THE NATIONAL UNITEd FrONT FOr dEmOCrACy AGAINST dICTATOrSHIP VII

position is inconsistent with ordinary practices of the DSI, which would have

long ago interrogated anyone the DSI had concluded had been the cause of

a killing.

• After certain DSI reports were leaked to the press, DSI Director Tharit was

summoned to a meeting with Deputy Prime Minister Suthep Thaugsuban, who

allowed Director Tharit to keep his position in exchange for an agreement

to suppress any potential prosecution of Army or government elements by

issuing a finding that there had been no criminal intent.

• Shortly after his meeting with Deputy Prime Minister Suthep, 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.

• Additionally, following his meeting with Deputy Prime Minister Suthep, DSI

Director Tarit informed all of his investigators that if they are unable to

identify with specificity the names of the people who pulled the triggers

that led to killings during the Red Shirt demonstrations, they must conclude

that Red Shirts pulled the trigger.

This Application updates a preliminary report filed by Amsterdam & Peroff LLP with

the ICC Prosecutor on October 25, 2010, which itself presented evidence establishing

a reasonable basis to believe that the Royal Thai Government and the Royal Thai

Army were criminally liable under international law for crimes against humanity

under Article 5 of the Rome Statute (defined in Articles 6, 7, and 8). This Application

addresses the jurisdictional basis to launch an investigation and introduces newly

discovered evidence attesting to the commission of the above-mentioned crimes. It

further elaborates on the issues of individual criminal responsibility and superior

responsibility on the basis of the newly discovered evidence. Finally, while the initial

report merely requested that the ICC Prosecutor take notice of the information, with

a view to a potential future investigation, this Application concludes with specific

prayers for relief addressed to the ICC Prosecutor.

AmSTErdAm & PErOFF | ON bEHALF OF THE NATIONAL UNITEd FrONT FOr dEmOCrACy AGAINST dICTATOrSHIP Ix

1. Introduction 1

2. Road to the 2006 Coup 7

The Rise of Thaksin Shinawatra 7

The 2006 Coup 8

New Constitutional Order 9

Official Policy to Eradicate the Red Shirt Movement 10

3. The Bangkok Massacres 15

3.1 Abhisit’s Assault on Democracy 15

3.2 The Songkran Uprising 17

3.3 The 2010 Massacres 20

3.4 Abuse of Emergency Provisions 59

Internal Security Act 59

State of Emergency 61

3.5 A Strategy of Tension 64

4. Crimes against Humanity 75

4.1 General Requirements 76

Murder 77

Imprisonment and Other Severe Deprivation of Physical Liberty 81

Other Inhumane Acts 82

Persecution 84

4.2 Contextual Elements 92

An Attack “Directed Against a Civilian Population” 92

“State or Organizational Policy” 93

“Widespread or Systematic Nature” of the Attack 95

“A Nexus Between The Individual Acts and The Attack” 97

“Knowledge or Intent” 97

CONTENTS

x APPLICATION TO INVESTIGATE THE SITUATION OF THE kINGdOm OF THAILANd | FILEd wITH THE ICC PrOSECUTOr

4.3 Criminal Responsibility 99

Individual Criminal Responsibility 100

Superior Responsibility 102

Implications for the Thai Situation 104

5. Jurisdiction of the ICC 107

5.1 Referral by the Security Council 107

Rights of the Security Council in Relation to the ICC Statute 108

Requirements 109

Precedents 109

Implications for the Present Case 110

5.2 Personal Jurisdiction 111

Previous Situations 111

Rules on Immunity 112

Implications for the Present Case 113

5.3 Conclusion 113

6. Admissibility 115

6.1 Gravity 115

6.2 Complementarity 116

Unable and Unwilling 117

Ne Bis in Idem 119

6.3 Implications for the Thai Situation 119

A History of Impunity 120

Lack of Judicial Independence 124

The Department of Special Investigations 125

Prosecuting the Red Shirts 132

Obfuscation as “Reconciliation” 135

6.4 Conclusion 139

7. Relief Sought 141

Appendix 143

AmSTErdAm & PErOFF | ON bEHALF OF THE NATIONAL UNITEd FrONT FOr dEmOCrACy AGAINST dICTATOrSHIP 1

On March 12, 2010, more than a hundred thousand “Red Shirts” of the National

United Front for Democracy against Dictatorship (“UDD”) began to descend on

Bangkok from every province around the country, joining tens of thousands of

local residents in some of the most massive anti-government demonstrations ever

organized in the history of Thailand. The Red Shirts billed this “the final battle

against dictatorship,” vowing not to leave the streets of the capital until Prime

Minister Abhisit Vejjajiva would agree to “dissolve the House,” “return power

to the people,” and call new elections. For the next two months, the Red Shirts

remained holed up behind barricaded encampments built in locations of strategic

and symbolic significance in the heart of Bangkok. The massive show of political

force marked the high point in the Thai people’s ongoing attempt to fight back

against the unrelenting assault on their most fundamental right — the right to self-

determination through genuine elections based on the will of the people.

The latest assault on democracy was first launched with the planning and execution

of a military coup d’état in September 2006. In collaboration with members of the

Privy Council, Thai military generals overthrew the popularly elected government

of Prime Minister Thaksin Shinawatra, whose Thai Rak Thai party had won three

consecutive national elections in 2001, 2005 and 2006. The regime put in place

by the coup hijacked the institutions of government, dissolved Thai Rak Thai, and

banned its leaders from political participation for five years. When the successor

to Thai Rak Thai managed to win the next national election in late 2007, an ad hoc

court consisting of judges hand-picked by the coup-makers dissolved that party as

well and banned its leaders from politics for five years. Abhisit Vejjajiva currently

holds the office of Prime Minister only because the parties that won the last four

democratic elections were illegally dissolved.

1. INTRODUCTION

2 APPLICATION TO INVESTIGATE THE SITUATION OF THE kINGdOm OF THAILANd | FILEd wITH THE ICC PrOSECUTOr

The 2006 coup marked the beginning of an attempt to restore the hegemony of

Thailand’s old moneyed elites, military generals, high-ranking civil servants, and

royal advisors — groups this Application collectively refers to as the “Establishment.”

The restoration of Thailand’s ancien régime entailed first and foremost the

annihilation of Thai Rak Thai, an electoral force that had come to present a major,

historical challenge to the Establishment’s power. Subsequently, it took the form

of a concerted policy that called for nothing short of destroying the democratic

movement the Red Shirts now lead.

Indeed, as detailed below, almost immediately after the 2006 coup, key political and

military leaders within the Establishment came to a consensus that the Red Shirts

would inevitably rise up in protest against the military junta and the unelected

government it had imposed on the Thai people. In response, the Establishment

planned and implemented military countermeasures in preparation for the

movement’s violent suppression. Under the direction of General Prayuth Chan-

ocha — who has since been promoted to the rank of Commander-in-Chief — the

Royal Thai Army rehearsed operations modeled around the example of Tiananmen

Square. They assembled a team of specialists in covert operations, including a group

of 150 among the most skilled, best trained snipers and marksmen drawn from all

branches of the military. These men would become the so-called “third hand” and

the mysterious “men in black” whom the Prime Minister would repeatedly blame

for inciting the violence in 2010 — a story concocted by the government to justify

the military’s use of deadly force, and to create the false impression that the Red

Shirts were dangerous and represented a threat to the monarchy.

The Red Shirt rally was sixty-six days old on May 19, 2010, when armored vehicles

rolled over makeshift barricades surrounding Bangkok’s Ratchaprasong intersection

and penetrated the Red Shirts’ encampment. This was the second suppression

operation carried out by the Royal Thai Army. Weeks earlier, on April 10, 2010,

Army troops had botched an attempt to assassinate the Red Shirt leaders on stage

at the Phan Fa Bridge. The nighttime military operation that followed — led by the

Second Infantry Division (Queen’s Guard), under the command of General Prayuth

— killed twenty-seven people, including a handful of troops sacrificed by the

Army leadership as an excuse to open fire on the thousands of unarmed civilians

assembled at Democracy Monument and the nearby Khok Wua intersection.

At least fifty-five more people died in suppression operations around Ratchaprasong

between May 13 and May 19. South of Ratchaprasong, the Second Cavalry Division

— led by Maj. General Surasak Boonsiri under direct command of Army Commander


Anupong Paochinda — set up a live fire zone along Rama IV Road, with unwritten

orders to shoot anything that moved. These troops were also ordered to prevent

photographs of the killings (which led to the targeting of journalists) and to prevent

the removal of any bodies (leading to the targeting of medical personnel). This order

was given in support of an Army “intelligence operation” in which soldiers posing

as ambulance drivers shuttled bodies to two colluding Bangkok hospitals, where

the incriminating evidence was to be destroyed by cremation. The First Infantry

Division, under the command of Maj. General Kampanat Rudjit, was given the same

set of orders for the Din Dang and Rajaprarop areas north of Ratchaprasong. On

May 13, one of the Army’s many covert snipers fired the notorious bullet that killed

Maj. General Khattiya Sawasdipol (known as Seh Daeng) while he was giving a live

interview to the New York Times. Sniper fire would take the lives of dozens more

over the following week.

On May 19, the Second Infantry Battalion of the Thirty-First Infantry Regiment

(King’s Guard), with support from the Third Special Forces Regiment, breached the

Red Shirt barricades with orders to assassinate the Red Shirt leaders. However,

well-placed sources inside the Army command tipped off the leaders in time for

them to surrender to police. At the announcement of their surrender, thousands

of demonstrators moved to the nearby Wat Pathumwanaram Temple, a designated

safe haven for protesters streaming out of Ratchaprasong, where six unarmed

civilians, including three nurses, were killed by snipers standing on elevated mass

transit rails in the evening hours of May 19. The Army leadership later planted a

cache of AK-47 automatic rifles and explosives inside the temple and in Lumpini

Park, displayed by Army spokesman Col. Sansern Keawhamnerd during a press

conference called to announce the “discovery.”

By the time Ratchaprasong was cleared, more than thirty major commercial buildings

stood smoldering. While these arsons are largely assumed to have been the work

of the Red Shirts, well-placed witnesses within the Royal Thai Government and the

Royal Thai Army report that the incidents were arranged by the Army several weeks

in advance, as a way to manufacture further “evidence” of the Red Shirts’ violent

tendencies and give credence to the charges of terrorism subsequently brought

against the Red Shirt leaders.

While hundreds of eyewitness accounts and thousands of video clips document the

use of live fire by the Royal Thai Army against unarmed civilians, journalists, and

emergency medical personnel, the Thai Government has systematically suppressed

the evidence of its crimes. Instead of upholding its duty under international law to


investigate the killings and subject those responsible to prosecution, the Royal Thai

Government has manipulated the investigations, intimidated witnesses who would

provide the truth, and falsely charged the Red Shirt leaders with “terrorism” to

distract from their own criminal conduct. Indeed, the judicial proceedings against

the Red Shirt leaders — which carry potential death sentences — have been fraught

with irregularities, including the improper exclusion of relevant evidence and the

judge’s refusal to allow the Red Shirt leaders to attend their own trials. Instead,

officers of the Royal Thai Army involved in the suppression operations as well as

investigators who manipulated their reports to suit the government’s needs have

either received or are expecting promotions.

Months since the dispersal operations, the Royal Thai Government’s attempt to

destroy the Red Shirt movement remains in full swing. The Abhisit administration

continues to rely on a “strategy of tension,” enlisting agents provocateurs to stage

incidents of violence and sabotage in an effort to taint a peaceful movement and

justify its ongoing suppression. Meanwhile, the crackdown on free expression

continues through strict censorship and the abuse of draconian legal provisions that

criminalize legitimate dissent. Hundreds of protesters remain arbitrarily detained

for violating the Internal Security Act and the Emergency Decree — according to

some reports, many among them have suffered torture at the hands of their jailers.

And a series of local Red Shirt activists have since turned up dead in the provinces

of Chonburi, Korat, Pathum Thani, and Chiang Mai.

In the aftermath of one of the worst episodes of state violence Thailand ever witnessed,

Prime Minister Abhisit publicly committed his administration to “reconciliation,”

promising investigations, renewed dedication to dialogue, and movement toward

an election that would eventually rectify the government’s absence of a legitimate

democratic mandate. In the months since, the Royal Thai Government has done

precisely the opposite, revealing a hegemonic, destructive agenda at odds with

its seemingly constructive rhetoric. The dereliction of its duty to investigate, the

violence, the censorship of all alternative media, and the continuing persecution

of the Red Shirt movement demonstrate that what the Thai Government means by

“reconciliation” is “impunity for state officials” as well as a return to “ideological

conformity” enforced through a mixture of propaganda and repression.

Whereas the amount of deadly force that the Thai Government has unleashed on

Red Shirt demonstrators, at the cost of dozens of civilian lives, should be considered

disproportionate, the systematic deprivation of individual political rights and civil

liberties of those opposed to the government, as well as the arbitrary detention


and harassment of hundreds among them, amounts in this situation to political

persecution. Given the scale and gravity of the abuses, as well as their protracted

nature, it is imperative that those responsible face full accountability. This is

unlikely to happen in Thailand, where the perpetrators of similar massacres in

1973, 1976, and 1992 have never been investigated, much less punished, for the

killings. Indeed, it is now clear that only incisive international involvement can

assure that the government-led investigation into the Bangkok Massacres is not

merely an exercise in obfuscation — one leading to the same kind of whitewash

that has shielded from justice those responsible for every major episode of state

violence in the history of Thailand.

To that end, this Application, filed with the International Criminal Court (“ICC”) in

The Hague, The Netherlands, respectfully requests that the ICC Prosecutor launch a

preliminary investigation into the situation of the Kingdom of Thailand with regard

to the potential crimes against humanity committed within its territory in the time

period since September 2006 up to the 2010 massacres and their aftermath. The

Applicant is minded that Thailand is not a ratifying State Party to the ICC Statute.

However, the Application will substantiate that:

(i) The situation can be brought within the jurisdictional ambit of

ICC through referral by the United Nations Security Council under

Article 13(b) of the Rome Statute;

(ii) At least with regard to Prime Minister Abhisit Vejjajiva — who

expressly authorized the killing of civilians pursuant to a policy

to destroy the Red Shirt movement — the ICC may exercise

jurisdiction ratione personae. There is evidence, in particular, that

Mr. Abhisit 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;

(iii) The situation gives rise to international crimes within the

jurisdictional ambit of the ICC;

(iv) The political and military leadership of Thailand is deemed

criminally liable for these offences.

On 25th October 2010, a preliminary report was filed with the ICC Prosecutor on

behalf of the United Front for Democracy against Dictatorship (UDD). The initial

report presented evidence establishing a reasonable basis to believe that the Royal

Thai Government and the Royal Thai Army committed crimes against humanity


under Article 5 of the Rome Statute (defined in Articles 6, 7, and 8) — imprisonment

and other severe deprivation of physical liberty as well as political persecution and

murder — in April and May 2010, resulting in the death of almost ninety civilians

and the injury of two thousand more. According to the findings in the preliminary

report, these actions trigger criminal liabilities for government officials under

international criminal law.

This updated report addresses the jurisdictional basis to launch an investigation

and introduces newly discovered evidence attesting to the commission of the

above-mentioned crimes. It further elaborates on the issues of individual criminal

responsibility and superior responsibility on the basis of the newly discovered

evidence. Finally, while the initial report merely requested that the ICC Prosecutor

take notice of the information, with a view to a potential future investigation, this

petition concludes with specific prayers for relief addressed to the ICC Prosecutor.


2. ROAD TO THE 2006 COUP While Thailand has long replaced its absolute monarchy with a constitutional

regime, it exhibits few of the characteristics of a true democracy. Since 1932, power

has most often changed hands not through constitutionally mandated procedures,

but rather through military coups. Exception made for three, short-lived interludes

of “real” democracy (1946-47, 1973-76, 1988-91), all of which were brought to a

close by military intervention, since 1932 Thailand has been ruled by regimes that

embodied different mixtures of democracy and authoritarianism. Common to all

these regimes, however, is the dominance exercised by the country’s unelected

“Establishment” — a network of officials in the civilian and military bureaucracy

as well as big business families and a small coterie of royal advisors — over the

country’s elected officials. This arrangement was severely disrupted in May 1992,

when historic, violent clashes between civilians and military forces (“Black May”)

set in motion a five-year process of reform that culminated in the adoption of a new

Constitution on October 11, 1997. The 1997 Constitution created unprecedented

political stability, finally placing Thailand on the path to consolidating a real

democracy.

THE RISE OF THAKSIN SHINAWATRAThaksin Shinawatra entered politics in 1994, serving a brief term as Foreign Minister

and then twice as Deputy Prime Minister under different governments. On July 14,

1998, Thaksin founded the political party Thai Rak Thai, which went on to win

the 2001 general elections in a landslide. After completing a full term in office

as Thailand’s Prime Minister, something unprecedented in the country’s history,

Thaksin further consolidated Thai Rak Thai’s dominance in the 2005 elections.

Running on the strength of its administration’s accomplishments, Thai Rak Thai won


three quarters of the seats in the House of Representatives, resulting in Thaksin’s

reappointment as Prime Minister.

In response to the elected administration’s attempt to assert its control over the policy-

making process and place the military under civilian control, domains traditionally

reserved for unelected institutions, portions of Thailand’s Establishment lent their

support to a campaign of street protests against the government, which called

on the King and the military to intervene to unseat Thai Rak Thai’s government.

Thaksin was accused of disloyalty to the monarchy, a charge habitually made in

Thailand to discredit those who pose a threat to Establishment interests.

Controversy also arose over the Shinawatra family’s sale of Shin Corp, by then one

of Thailand’s largest conglomerates. While Thaksin had divested his interest in

Shin Corp before the 2001 elections, by transferring his shares to his two eldest

children, in early 2006 the family sold its 49.6% stake in the company to Temasek

Holdings, Singapore’s sovereign fund. Critics complained that Thaksin had sold

national assets to a foreign country and alleged that the transaction had exploited

a loophole in the law that saved the family from paying capital gains taxes. The

timing of the sale was fortuitous for the opposition’s purposes, coming in advance

of planned anti-Thaksin demonstrations in Bangkok. On February 4-5, 2006, fifty

thousand protestors, led by activists who would later form the “People’s Alliance

for Democracy” (PAD), demanded Thaksin’s resignation. In response, Thaksin

dissolved the House of Representatives and called an election for April 2, 2006.

Boycotted by the opposition, the elections yielded another comfortable victory

by Thai Rak Thai, but the courts subsequently threw out the results on dubious

constitutional grounds. The Constitutional Court ordered a new round of voting,

which were scheduled for October. As reports of a possible coup began to emerge,

a car packed with seventy kilograms of explosives was discovered near Thaksin’s

residence.

THE 2006 COUPOn September 19, 2006, while Thaksin was attending a meeting of the United

Nations General Assembly in New York, military forces took control of Bangkok. The

junta, led by the Commander in Chief of the Army, General Sonthi Boonyaratglin,

came to be known in English as the Council for Democratic Reform (“CDR”). The

generals justified the illegal seizure of power by citing “disunity” among the Thai

people, “signs of rampant corruption and malfeasance,” and “interference” in the


activities of independent state agencies.1 General Sonthi took complete control of

the government and laid the groundwork for the restoration of the military’s long-

standing political role. He abrogated the 1997 Constitution and abolished the Senate,

the House of Representatives, the Council of Ministers and the Constitutional Court.

He vested the duties of the Prime Minister in the leader of the CDR (i.e. himself) and

announced that the scheduled general elections would be postponed for a year. The

CDR also imposed a strict ban on any political gathering of five or more people.

NEW CONSTITUTIONAL ORDEROn October 1, 2006, the junta, now renamed Council for National Security (“CNS”),

introduced an Interim Constitution, which declared all announcements and orders

issued by the CDR in the aftermath of the coup to be “legitimate and in accordance

with the Constitution.” The Interim Constitution ordered the drafting of a new

Permanent Constitution, a task over which the CNS exercised direct control. To

secure the adoption of the Draft Constitution, the junta mounted a large-scale

public relations campaign and imposed draconian restrictions designed to silence

the public’s opposition to the draft. Following a consultative referendum, the

Constitution was formally promulgated on August 24, 2007. In many ways, the

new charter marked a radical departure from the principles enshrined in the 1997

Constitution.

In the wake of the coup, the generals disbanded the Constitutional Court had replaced

it with a handpicked Constitutional Tribunal. On May 30, 2007, the Constitutional

Tribunal dissolved Thai Rak Thai and banned 111 Thai Rak Thai executives from

politics for five years, based on a retroactive statute the generals had introduced

a few months earlier. In August 2007, however, former Thai Rak Thai members

regrouped in the People Power Party (“PPP”). The PPP subsequently went on to

win the first and, to date, the only post-coup general elections, held in December

2007. The party was able to build a coalition government led by Prime Minister

Samak Sundaravej. Following the electoral success of political forces that remained

loyal to Thaksin, the PAD re-appeared on the streets of Bangkok. Largely peaceful

demonstrations were staged on Ratchadamnern Avenue beginning in late May 2008,

but as time wore on the PAD turned increasingly confrontational and violent. In

late August, armed PAD guards stormed a television station in Bangkok, assaulted

several ministries, and occupied the grounds of the Government House, physically

1. “Announcement on the Appointment of the Leader of the Council for Democratic Reform,” September 20, 2006. http://www.mfa.go.th/internet/document/2826.pdf


preventing the government from working. At the same time, PAD supporters seized

airports in the cities of Phuket, Krabi and Hat Yai and blocked major roads and

highways. PAD renewed its pleas for another military coup.

On September 9, 2008, the Constitutional Court forced Prime Minister Samak to

resign, on the grounds that his role as the host of a television cooking show was

in breach of the Constitution. While Samak was replaced by Somchai Wongsawat, a

fellow leader of the PPP and Thaksin’s brother in law, the PAD refused to disperse.

Violent clashes with the police on October 7 were prelude to the PAD’s occupation

of Bangkok’s Suvarnabhumi International Airport and the old International Airport

at Don Muang beginning on November 25, 2008. As tens of thousands of travelers

were left stranded, the government imposed the Emergency Decree and called on the

country’s armed forces to restore order. The military, however, refused to comply.

Finally, on December 2, the Constitutional Court handed down a decision dissolving

the PPP as well as its coalition partners, disqualifying every member of the parties’

executive committees from politics for a period of five years. Within hours, the

PAD ended its siege of the airports and vacated the Government House. It was only

in the aftermath of the confrontation between the government and the PAD, the

airport occupations, and the Constitutional Court’s verdict that the Democrat Party

was able to form a coalition government and install Abhisit Vejjajiva as its Prime

Minister on December 18, 2008. The new coalition was brought into being thanks

to the defection of one of the PPP’s key factions, led by banned politician Newin

Chidchob, and former PPP coalition partners. The deal was concluded on December

6, at the home of Army Chief Anupong Paochinda, following intense lobbying by

the military and members of the Privy Council.

OFFICIAL POLICY TO ERADICATE THE RED SHIRT MOVEMENTThe Statement of Anonymous Witness No. 22 is an amalgamation of the testimony

provided by a number of high-ranking, active-duty officers in the Royal Thai Army,

who have provided information anonymously because they would be in grave

danger if the Thai military and/or government were to learn their identities. These

witnesses are known to Applicant’s counsel, and would be made available to the ICC

Prosecutor, provided acceptable measures were in place to ensure their safety and

the safety of their families. The statements were merged to render the individuals

who risked their lives and careers to provide testimonies more difficult to identify.

The Statement of Anonymous Witness No. 22 reveals that, just months since the


illegal seizure of power in September 2006, the military junta began developing a

policy designed to suppress at all cost any democratic movement that might emerge

as a result of the coup. While the Red Shirt movement was still in its infancy at the

time, the policy came about because the Royal Thai Government and the Royal

Thai Army fully anticipated that supporters of deposed Prime Minister Thaksin

Shinawatra would rise up to demand that their democratic rights be restored:

Almost immediately after the 2006 coup that deposed former

Prime Minister Thaksin Shinawatra, the highest levels of leadership

in the Royal Thai Army came to conclusion that the pro-democracy

movement in Thailand would almost certainly stage mass protests

in response to the military junta that had taken over control of the

country following the coup. This thinking was consistent with the

views of the military junta itself, the leadership of the Democrat

Party, and the elite ruling class within Thai Government.

Consequently, the leadership of the Royal Thai Army, with the full

knowledge and authorization of the Thai Government, began to

develop a military response plan. The overarching policy behind

the response plan was to react to any political demonstrations by

the Red Shirts with decisive military force in order to suppress

and ultimately destroy the Red Shirt movement in Thailand.

In addition to military force, one of the central strategies of

this suppression policy involved (and continues to involve) the

element of deception. The strategy has been to manufacture

the false public impression that neither the Army nor the Thai

Government are responsible for illegal, wrongful or unreasonable

conduct toward the Red Shirt movement but, rather, that the Red

Shirts are solely responsible for the use of military force against

them. This strategy is coordinated between the Army and the

Thai Government, and has taken a variety of forms including, as

described more fully below: (a) destruction and/or manipulation

of evidence that incriminates the Army and the Thai Government;

(b) planting of evidence designed to incriminate the Red Shirts; (c)

the surreptitious use of weaponry, including snipers and explosive

devices, in such a way as to create the false appearance that the

Red Shirts are responsible for violence; and (d) media propaganda

designed to create the false appearance that the Red Shirts are

violent, dangerous and threat to the monarchy.

The military leadership responsible for this policy included

General Prem Tinsulanonda, General Anupong Paochinda, General


Prawit Wongsuwan, General Prayuth Chan-ocha, General Kittipong

Ketkowit, General Songkitti Jaggabatara, Admiral Kamthon

Phumhiran, Air Chief Marshal Ithiporn Supawong, Police General

Patheep Tanprasert, General Piroon Paewpolsong, General Wit

Thephadsadin Na Ayutthaya, General Teerawat Boonyapradap,

and General Daopong Rattanasuwan.2

The Statement of Anonymous Witness No. 22 describes the preparations and

rehearsals made by the Royal Thai Army in advance of the anticipated mass

demonstrations:

Because of its historic political significance, the area of

Rachadamnoen Avenue was thought to be the likely focus of

any Red Shirt demonstrations. Therefore, as of approximately

February 2007, in furtherance of this Army/Thai Government

policy, the Army’s Eleventh Regiment King Guard — located at

Bangkhen, in the northern part of Bangkok — was designated

as the training grounds for the anticipated suppression of Red

Shirt demonstrations. The facilities of the Eleventh Regiment were

selected because of they were large enough to accommodate a

full-scale mock-up of Rachadamnoen Road, which was mapped

out in detail on the ground, beginning at the area of the Rama V

Monument, south to Phan Fa Bridge and curving west to Pinklao

Bridge on the Chaopraya River.

All of the roads in the vicinity of Rachadamnoen Avenue were

recreated for training of Army troops in anticipation of suppression

operations. Regular training took place at these mock-up facilities

continuously as of February 2007, at the insistence of General

Prayuth, with various component parts of the Armed Forces

rotating into the Eleventh Regiment compound for training.

In addition to the training activities at the Eleventh Regiment

facilities, Armed Forces snipers were trained for operations in the

Rachadamnoen Avenue area. They became intimately familiar with

building locations and elevations, along with strategic locations

for posting snipers. Their marksmanship training incorporated

hypothetical targets based upon these parameters. They

established killing zones, determined trajectories, and assigned

snipers to specific zones.

2. Statement of Anonymous Witness No. 22, at ¶¶ 4-7. Full text reproduced in the Appendix.


Certain Army units were permitted to grow their hair and beard,

and they were ordered to attempt to infiltrate the UDD. Several

soldiers secured positions as drivers, guards and sound engineers

for various Red Shirt leaders, which enabled them to acquire

information about the Red Shirts, as well as to identify Red Shirt

targets for the Army.

The Army leadership began to examine and study the history of

political conflict in other countries, with particular attention paid

to the strategy and tactics of armed forces in other countries who

have put down civilian demonstrations by force.3

3. Statement of Anonymous Witness No. 22, at ¶¶ 8-12.


3. THE BANGKOK MASSACRES On March 12 2010, members of the National United Front for Democracy against

Dictatorship began to descend on Bangkok from every province around the country,

vowing not to leave until Abhisit dissolved the House and called new elections.

Formed in the wake of the coup by supporters of ousted Prime Minister Thaksin

Shinawatra, in the intervening years the Red Shirts built an intricate organization

spanning much of the country’s territory. This democratic movement only went

from strength to strength as the judiciary and the military overturned the results

of the 2007 elections and made Abhisit the Prime Minister in late 2008.

3.1 ABHISIT’S ASSAULT ON DEMOCRACYImmediately upon coming to power, the Abhisit administration has sought to silence

its opposition through repressive legislation such as the country’s draconian lèse

majesté laws and the Computer Crimes Act. In 2009 alone, the courts are reported

to have accepted charges of lèse majesté (a violation of Article 112 of Thailand’s

Criminal Code) for 164 cases. That exceeded the previous record of 126 cases set in

2007, in the wake of the coup, and more than doubled the number of cases (seventy-

seven) taken up by the judiciary during the People Power Party’s administration

in 2008. It should be noted that the highest number of cases prior to the coup

was recorded in 2005, when thirty-three were successfully submitted to the courts.

Owing to both legal restrictions and the unwillingness of major media outlets

to discuss information that might damage the image of the monarchy, the vast

majority of the cases have gone unreported by the local and international press.1

1. Marwaan Macan-Markar, “Thailand: Lese Majeste Cases Rise but Public in the Dark,” Inter Press Service, May 14, 2010.http://ipsnews.net/login.asp?redir=news.asp?idnews=51434


The year 2009 also marked the continued prosecution — and in some cases the

conviction and harsh sentencing — of activists who had been jailed for lèse majesté

the year before. Most disturbing is the case of Darunee Charnchoensilpakul (“Da

Torpedo”), sentenced to eighteen years in prison for three charges of lèse majesté

(one per offending comment) stemming from a speech she gave in July 2008. Her

trial was held in secret, ostensibly for reasons of “national security.” Contrary to

most defendants facing similar accusations and the routine denial of due process,

Da Torpedo refused to plead guilty to the charges. In return, she not only received

an extraordinarily severe sentence. Once convicted, she was placed in solitary

confinement and was forced to wear a nametag that identified the crime for which

she was convicted, exposing her to harassment.

The abuse of the Computer Crimes Act has complemented prosecutions of lèse

majesté. Police Colonel Suchart Wongananchai, Inspector of the Ministry of

Information and Communications Technology, recently admitted to blocking over

fifty thousand websites found by Ministry employees to have violated the Act. Some

estimates put the number of websites blocked by the authorities as high as four

hundred thousand.

The two highest profile prosecutions for violations of the Computer Crimes Act

are those mounted against Suwicha Thakor and Chiranuch Premchaiporn. Suwicha

Thakor was arrested in January 2009 for posting on the Internet a picture deemed

offensive of the King. While he was later sentenced to twenty years based on both

the Computer Crimes Act and Thailand’s lèse majesté statute, the sentence was

commuted to ten years on account of his guilty plea. After spending a year and a

half in prison, Suwicha eventually received a royal pardon on June 28, 2010.

Chiranuch Premchaiporn, the web manager of independent publication Prachatai,

was arrested in March 2009 and charged with ten counts of violating the Computer

Crimes Act. She is being prosecuted owing to her failure to promptly remove

comments on the Prachatai forum that the authorities had deemed injurious to

the monarchy. She currently faces a sentence of fifty years in prison at the end of

a criminal trial set to begin in February 2011. Meanwhile, the Prachatai website has

been blocked repeatedly by the authorities since the beginning of the latest Red

Shirts demonstrations.

Other arrests for supposed violations of the Computer Crimes Act include those

of Nat Sattayapornpisut (for transmitting anti-monarchy videos), Tantawut

Taweewarodomkul (for posting anti-monarchy content), Wipas Raksakulthai (for


posting an offensive comment on Facebook), and four people accused of spreading

“rumors” about the King’s health — at least two of them for merely translating into

Thai a Bloomberg article on the subject.

The systematic abuse of political crimes legislation has earned the Abhisit

administration harsh rebukes from the Committee to Protect Journalists and

Reporters Without Borders. More generally, by the end of 2009 Thailand had slipped

on virtually every available measure of freedom and democracy. In its “Freedom

in the World 2010” survey, for instance, Freedom House stated that Thailand is

not an “electoral democracy,” owing to the constant interference of the military in

the political process as well as the Democrat Party’s insistence on governing the

country in the absence of an electoral mandate. Freedom House further chastised

the Democrat-led administration for its “use of the country’s lèse majesté laws

to stifle freedom of expression,” particularly against “activists, scholars, students,

journalists, foreign authors, and politicians who were critical of the government.”2

In a report released in early 2010, similarly, Human Rights Watch lamented the

“serious backsliding” observed in Thailand’s human rights record over the course

of Abhisit’s first year in office, arguing that the Abhisit administration “continually

undermined respect for human rights and due process of law.”3 In presenting the

organization’s latest report, issued in 2011, Human Rights Watch Asia Director

stated that “human rights in Thailand suffered a sharp and broad reverse in 2010,”

citing “ill-treat[ment] of detainees” and “broad-based censorship.”4

3.2 THE SONGKRAN UPRISING, 2009Of an altogether more serious nature is the campaign of violence to which members

of the UDD have been subjected by the Abhisit administration. On April 11, 2009,

hundreds of Red Shirts assembled outside the venue of an ASEAN Summit in

Pattaya to protest the undemocratic manner in which Abhisit had come into office.

2. Freedom House, “Freedom in the World, 2010 Edition,” http://www.freedomhouse.org

3. Human Rights Watch: “Thailand Serious Backsliding on Human Rights,” January 20, 2010.http://www.hrw.org/en/news/2010/01/20/thailand-serious-backsliding-human-rights

4. Human Rights Watch, “Thailand: Serious Setbacks in Respecting Rights,” January 25, 2011.http://www.hrw.org/en/news/2011/01/25/thailand-serious-setbacks-respecting-rights


The summit was cancelled after Red Shirt protesters entered the premises of the

hotel where the talks were being held. Following the operation in Pattaya, the focus

of the protests shifted to Bangkok, where the Red Shirts staged traffic blockades

and demonstrations around the city. The government declared State of Emergency

in Bangkok and five surrounding provinces in preparation for a more incisive

crackdown. In the early morning of April 13, the military was sent in to disperse

the Red Shirts, now scattered across various locations in Bangkok.

In dispersing the April 2009 demonstrations, the Royal Thai Army did not employ

the crowd control measures prescribed by the United Nations. Instead — using

troops from the prestigious Second Division of the First Army Region, referred

to as the “Queen’s Guard” — they provoked physical confrontation with the Red

Shirts, firing live ammunition at unarmed civilians in pre-dawn darkness, injuring at

least 123 protesters. This excessive and overwhelming use of military force quickly

prompted Red Shirt leaders to surrender and induced the demonstrators to leave

the encircled Government House to avoid a bloody siege.

Although the government claimed at the time that the Army had acted in accordance

with international standards, and that no one had been killed during the crackdown,

witnesses reported that at least six Red Shirts were killed by the Army’s live

fire, but their bodies were loaded onto military trucks and quickly carried away,

preventing them from being identified. Days later, the bodies of two bound and

gagged Red Shirts were fished out of the Chaophraya River, showing evident signs

of torture. While three separate Parliamentary committees investigated these

events and concluded that the Army’s nighttime operations violated proper rules

of peacekeeping engagement, no Army personnel was ever investigated or charged

in connection with the events.

The Statement of Anonymous Witness No. 22 confirms that the events were part

of the official policy to annihilate the Red Shirt movement:

During the first part of 2009, the Army learned through its

intelligence assets that the Red Shirts were planning mass

demonstrations in April 2009, involving thousands of participants.

The first such demonstrations began on approximately March

26, 2009. As anticipated, the demonstrators assembled in the

area around the Government House on Rachadamnoen Road,

demanding the dissolution of the Parliament and fresh elections.

In response to these demonstrations, the Royal Thai Army’s Second

Infantry Division (also known as the Queen’s Guard or the Eastern


Tigers), under the command of General Prayuth Chan-ocha and

Maj. Gen. Walit Rojanapakdi, was charged with responsibility for

suppressing the demonstrations. On April 9, 2009, the Second

Infantry Division left their headquarters in Chonburi Province,

Sakaew Province and Prachinburi Province and arrived for staging

at the Eleventh Regiment compound in Bangkhen.

At approximately midnight on April 12, The Army withdrew troops

of the First and Ninth Infantry Divisions who had been occupying

the Ding Dang area east of the Government House, and replaced

them with troops of the Second Infantry Division under direct

control of Maj. General Walit Rojanapakdi, who was to carry out

the suppression operation.

General Walit was given four basic orders in connection with

the operation: (a) to complete the suppression before daylight

on April 13; (b) to leave no bodies or injured behind; (c) to leave

no traces of blood or other incriminating evidence; and (d) to

prevent any reporters from witnessing the operations. These

orders came from General Prayuth Chan-ocha, with the approval

of Prime Minister Abhisit. It was clear to me from these orders

that the purpose and intent of the military operation was to kill

civilians, and that General Prayuth, his superiors in the Royal

Thai Army, and the decision-makers within the Thai Government,

including Prime Minister Abhisit, were aware that the operation

would involve killing innocent civilians as a part of implementing

their overarching policy to suppress and eliminate the Red Shirt

movement.

Additionally, General Prem Tinsulanonda ordered General Prayuth

to assassinate some of the Red Shirt leaders in retaliation for the

fact that Red Shirt demonstrators had staged protests in front of

General Prem’s home.

General Prayuth assigned Colonel Romklao Thuwatham to lead the

Second Infantry Division’s suppression operation on the ground.

A unit from the Army’s First Infantry Division was assigned the

task of retrieving any bodies and removing them from the area.

They were also assigned the task of taking prisoners. These troops,

with assistance from the Bangkok Metropolitan Administration

used water trucks to hose down the area to remove any traces of

blood. The First Infantry Division removed at least six bodies of

Red Shirt demonstrators.


Following the events of April 2009, officials within the Army and

the Thai Government falsely reported to the media in Thailand that

no Red shirt demonstrators had been killed by the Army. Similar

statements were made by Colonel Romklao and others to official

parliamentary investigative commissions held later in 2009. These

statements, however, were false. The Second Infantry Division

was responsible for killing at least six and wounding more than a

hundred people during the suppression operation in April 2009.

The Royal Thai Army and the Thai Government repeated this

pattern of unprovoked killing and public deception on a much

larger scale in response to the Red Shirt demonstrations in 2010.

Indeed, the fact that the international press had failed to question

the use of military weaponry in 2009 encouraged the Army

Leadership to use them even more liberally in 2010.5

3.3 THE 2010 MASSACRESIn the early part of 2010, in what promised to be the culmination of their campaign

against Abhisit’s military-backed administration, the Red Shirts organized some of

the most massive pro-democracy demonstration in the history of Thailand. Over

the course of two-and-a-half months, Prime Minister Abhisit directed a response

that was consistent with the methodology employed in 2009, but exponentially

more brutal. The operation focused on assassinating the Red Shirt leadership, and

it was marked by the intentional use of military force — both covert and overt —

against an unarmed citizenry. The campaign was supported by a carefully planned

strategy to destroy incriminating physical evidence and frame the Red Shirts.

The Statement of Anonymous Witness No. 22 describes the strategy as follows:

In early 2010, the Army learned from its intelligence assets that

the Red Shirts would hold mass demonstrations in Bangkok, as

of March 12, along Rachadamnoen Avenue and in the area of the

Ratchaprasong intersection. Key leaders in the Thai Government

and the Army immediately began to confer on a regular basis

at the Army’s Eleventh Regiment facilities in Bangkhen to plan

suppression operations. Regular participants from the Thai

Government included Prime Minster Abhisit, Deputy Prime

Minister Suthep Thaugsuban and DSI Director Tharit Pengdit

(collectively referred to as the “Government Leadership”). Regular



participants from the Armed Forces included General Anupong

Paochinda, General Prawit Wongsuwan, General Prayuth Chan-

ocha, General Kittipong Ketkowit, General Songkitti Jaggabatara,

Admiral Kamthon Phumhiran, Air Chief Marshal Ithiporn, Police

General Patheep Tanprasert, General Piroon Paewpolsong, General

Wit Thephadsadin Na Ayutthaya, General Teerawat Boonyapradap,

and General Daopong Rattanasuwan (collectively referred to as

the “Army Leadership”). Just as in 2009, the objective of these

meetings was to develop and implement a plan to suppress the

Red Shirt demonstrations, consistent with the overarching policy

to eliminate the Red Shirt movement in its entirety.

An Army Task Force was established — under the command of

Lt. General Daophong Ratanasuwan, General Anupong Paochinda

and General Prayuth Chan-ocha — to implement the military

aspects of the suppression operations.6

On March 8, 2010, Nattawut Saikua — a well-known Red Shirt leader — issued

a public announcement that the Red Shirts would attend a great demonstration

in Bangkok, beginning on March 14. Although Mr. Nattawut had emphasized the

peaceful nature of the demonstrations, Abhisit immediately invoked the Internal

Security Act:

On about March 8, 2010, Prime Minister Abhisit moved his

personal residence to a building at the Eleventh Regiment facilities

in Bangkhen so that he could be physically removed from the

Red Shirt demonstrations while remaining directly involved,

together with the rest of the Government Leadership and the

Army Leadership, in the management of the response to the

demonstrations. Prime Minister Abhisit was personally present at

every meeting involving the Government Leadership, the Military

Leadership and, later, the Centre for Resolution of the Emergency

Situation (CRES) concerning the Red Shirt demonstrations, and

he expressly approved each and every order given to the Army

through the Army Leadership.

The Army Leadership and the Government Leadership determined

to carry out an initial military suppression operation on April

10 in the area of Rachadamnoen Road. The operation was

patterned largely upon the Chinese Army’s putdown of student

demonstrations in Tiananmen Square in 1989, and there was never



any question that it would involve killing numerous civilians. The

Army estimated that the operation would result in approximately

five hundred civilian deaths, and based on those parameters,

the operation was approved by all members of the Government

Leadership, including Prime Minister Abhisit, and the Army

Leadership.

The specific objectives of the operation were to terrorize the

demonstrators, assassinate the Red Shirt leaders, and suppress the

Red Shirt movement. Contrary to common perception, the strategy

was not to disperse the demonstrators. Rather, the operational

strategy was to concentrate the demonstrators in a confined area,

provoke the crowd to violence in order to create a perceived need

for self-defense, and open fire.

As early as March 12, the Army task force had assembled a group of

professional snipers, drawn from the various branches of the Thai

military (every division in Operation Area). The Royal Thai Army

sent its Third Special Forces Regiment (Red Beret); the Royal Thai

Air Force contributed a unit from its Special Force. The Thai Navy

provided a Seal unit, and the Royal Thai Police sent a unit from

their elite Arintharaj, Border Patrol Airborne and commandos.

Roughly forty-fifty troops were sent from each division. These

snipers were trained to operate in hiding, using special weapons.

Following initial training for the suppression operation, they were

assigned their weapons and instructed to zero their sights to a

range of three hundred meters.7

On March 13, thousands of Red Shirts began to arrive in Bangkok from rural

provinces. They gathered at Phan Fa Bridge and along Rachadamnoen Avenue,

near the Parliament and other government buildings, where past pro-democracy

movements had assembled many times before, setting up tents and preparing

for a long stay. Two weeks into the demonstrations, the Red Shirts also occupied

and barricaded the Ratchaprasong intersection in the heart of Bangkok’s high-end

shopping district.

During this time, the Red Shirts organized massive rallies involving huge convoys

of vehicles and hundreds of thousands of demonstrators — with some estimates

of more than a half-million people gathered along Rachadamnoen Avenue —

demanding that the government agree to hold elections. The demonstrators, while

7. Statement of Anonymous Witness No. 22, at ¶ 27-30.


vocal, were unarmed and peaceful. No significant incidents of violence took place

at any of the sites of the Red Shirt demonstrations during this period.

Nevertheless, on April 7, Abhisit declared State of Emergency for Bangkok as well as

five surrounding provinces in preparation for a violent crackdown. Under the decree,

the government also instituted the Center for the Resolution of the Emergency

Situation (“CRES”), headed by Deputy Prime Minister Suthep Thaugsuban.8 The

CRES headquarters were set up at the Army’s Eleventh Regiment facilities.

Then, on April 8, the Army silenced the public voice of the Red Shirts by taking the

People’s Channel (PTV) television station off the air. In response, thousands of Red

Shirts flocked to the Thaicom satellite station in Pathum Thani in attempt to restore

the channel’s transmission signal. The Army dropped tear gas canisters intended

for the Red Shirts, but the wind blew the gas back into the Army ranks, causing

most of them to drop their weapons and retreat to an open field, whereupon the

Red Shirts gathered up the weapons and provided first aid treatment to the troops.

Negotiations ensued between Army and Red Shirt leaders, which led to a brief

restoration of the People’s Channel broadcast signal, and a return of all weapons

seized by the Red Shirts. However, as soon as the standoff had ended and the Red

Shirts had dispersed, Army troops hidden on the rooftop of the Thaicom station

8. The Prime Minister’s special directive No. 1/2553 Re: The Establishment of the Center for the Resolution of the Emergency Situation, issued on 7 April B.E. 2553 (2010).


building blocked the broadcast signal once again.

On April 10, the government carried the long-awaited, violent crackdown in the

Phan Fa Bridge area, which would eventually result in the death of numerous

unarmed civilians and the injury of hundreds more. That morning, CRES spokesman

Sansern Kaewkamnerd announced that the Army would use internationally

accepted procedures to disperse the crowd, in seven incremental steps. Abhisit also

appeared on television to announce that, unlike the assembly in the Ratchaprasong

area, gatherings in the Phan Fa Bridge area on Rachadamnoen Avenue would be

permitted. Despite these statements, however, the Army commenced the dispersal

operation on Rachadamnoen Avenue.

Once again, The Statement of Anonymous Witness No. 22 provides a behind-the-

scenes look of the April 10 crackdown:

During the morning of April 10, the professional snipers previously

assembled from the various branches of the Thai Armed Forces,

and others, were deployed to strategic locations. In the Phan Fa

Bridge area, they were posted on the Bangkok Bank building and

atop the Pokklao Museum, with line of sight to the stage used by

the Red Shirt leaders to give speeches. In the area of Democracy

Monument, they were posted on the roof of the Satri Witthaya

School on Dinso Road. Near the Khok Wua intersection, they were

deployed on the roofs of the connected buildings in that area.

They also stationed observers atop these buildings assigned the

task, among other things, of identifying potential targets.

At approximately 13:00 hours on April 10, the visible part of the

suppression operation began. At this time, the Red Shirt crowds

filled Outer Rachadamnoen Avenue southward for approximately

two kilometers to Phan Fa Bridge, where the street turns west and

becomes Central Rachadamnoen Avenue, leading to Democracy

Monument, then further west to the Khok Wua intersection with

Tanao Road, stopping just short of where Central Rachadamnoen

Avenue crosses the Chaopraya River at Pinklao Bridge.9

The Statement of Anonymous Witness No. 22 continues:

Troops from the First Infantry Division — under the command

of General Prayuth — were deployed from the First Region Army

Headquarters on Outer Rachadamnoen Avenue at the Makkawan



Bridge. The orders for the First Infantry Division were to drive

the demonstrators south on Outer Rachadamnoen Avenue. Later,

troops from the Ninth Infantry Division would be deployed at the

Pinklao Bridge and drive the demonstrators east along Central

Rachadamnoen Avenue. In this manner, the demonstrators

would be pinched into the middle area around Phan Fa Bridge.

This concentration and density of people would enable armed

soldiers disguised as Red Shirts, who had infiltrated the crowd,

to create chaos and assassinate the Red Shirt leaders on the stage

in a manner that could subsequently be blamed on something

other than the Army. The objective was to complete the entire

suppression operation by 18:00 hours, during daylight hours. By

approximately 14:30 hours, the Army had exhausted its supply of

rubber bullets and had begun to use live ammunition.

Using methods designed to intimidate rather than disperse —

including beating on shields with batons, shooting rubber bullets

directly at demonstrators, and firing live rounds into the air —

the troops of the First Infantry Division succeeded in driving

the demonstrators south to where Outer Rachadamnoen Avenue

intersects Wisut Kasat Road, at an area called Jorporror.10

Joe Ray Witty — a Green Beret and Master Sergeant (Retired) of the United States

Army, Special Forces — is an instructor in crowd control and management as a

member of the Los Angeles Police Department SWAT (Special Weapons and Tactics)

Team. He has traveled to Bangkok and evaluated the Royal Thai Army’s response to

the Red Shirt demonstrations in April and May. Master Sergeant (Ret.) Witty’s expert

report is reproduced in the Appendix.

Master Sergeant Witty’s report is based not only on his expertise in crowd control

and crowd management, but also on his qualifications as a military scout sniper

and his training as an explosives specialist, together with his two tours of duty in

military combat operations in Afghanistan and Iraq. Prior to writing his report,

Master Sergeant (Ret.) Witty reviewed extensive video and photographic evidence,

interviewed witnesses, personally examined the demonstration sites and military

positions, and reviewed numerous witness statements describing the events.

Master Sergeant (Ret.) Witty explains why the First Infantry Division’s methods

during the daylight hours of April 10 did not comport with accepted standards for

crowd management, or with the Royal Thai Army’s own stated Rules of Engagement:



On April 10, 2010, several platoons of Royal Thai Army soldiers

were equipped with riot protective gear designed for crowd

management situations. This equipment included: Kevlar ballistic

helmets with clear acrylic, non-ballistic face shields; padded chest,

shoulder, upper arm, forearm, elbow, hand and shin protectors

covered with hard non-ballistic plastic; limited blood borne

pathogen protection; abrasion protection; batons; and acrylic

riot shields. This is standard crowd management protective gear

used by many law enforcement organizations to protect officers

from various forms of assault and/or projectiles during crowd

management operations. Some Royal Thai Army soldiers were

also equipped with gas masks, indicating anticipated tear gas

deployment. Documenting video can be viewed at http://www.

thaiaccountability.org/media/witty-video-1.

The Royal Thai Army’s stated Rules Of Engagement (ROE)

involved the following seven steps, which should always be taken

incrementally, only as necessary, and with clearly announced

advance warning prior to escalation between steps: (1) show of

force by lining up the security officers holding riot shields and

batons; (2) informing and warning the protesters that the officers

are about to use force; (3) use of shields; (4) use of water cannon

or high-powered amplifiers; (5) use of throw-type tear gas; (6) use

of batons; and (7) use of rubber bullets.11

Many elements of the Royal Thai Army were equipped with

both M-16 rifles and crowd management protective gear. This

combination serves no valid crowd management purpose. In my

opinion, troops were equipped in this manner to intimidate and/

or because their command planned to re-task them in a combat

capacity. Documenting video can be viewed at http://www.


Numerous soldiers carried pump action or single shot shotguns.

Based on witness statements, video evidence and physical evidence,

the soldiers fired less-than-lethal munitions (i.e., rubber bullets)

using these weapons. However, video evidence demonstrates

that in some cases the soldiers fired less-than-lethal munitions

directly at demonstrators who presented no threat, without any

11. Ministry of Foreign Affairs, “Backgrounder: Current Political Situation in Thai-land,” June 15, 2010, note 2.http://www.thaiembassy.sg/announcements/backgrounder-current-political-situation-in-thailand


announced warning, in a manner likely to cause serious bodily

injury. Such use of less-than-lethal munitions does not comport

with accepted crowd management protocols or with the Royal Thai

Army’s own stated ROE, and suggests criminal intent to inflict

bodily injury. Documenting video can be viewed at http://www.


Further, my examination of 12-gauge shotgun shell casing recovered

from the scene of the Red Shirt demonstrations reveals that at

least some soldiers loaded and fired live buckshot rounds. As

detailed below, it is my opinion that the circumstances presented

during the Red Shirt demonstrations at no time warranted the use

of live ammunition by the Royal Thai Army.

The vast majority of soldiers deployed in combat gear were

equipped with either Tarov-21 or M-16 automatic assault rifles.

This suggests that their command expected to task them in a

combat capacity rather than a strictly crowd management capacity.

Documenting video can be viewed at www.thaiaccountability.org/

media/witty-video-1.

The Royal Thai Army used automatic weapons during the daytime

hours of April 10. I was able to discern from media clips the clear

sound of at least one weapon fired on full automatic, in a three

round burst. Several soldiers fired their weapons at an upward

angle above the crowd. There is no question that these soldiers

used live ammunition, based on several factors. First, none of

the assault rifles fired into the air was fitted with a “Blank Firing

Adaptor” (BFA), which prevents gases from escaping and allows

the rifle to retain enough energy from the discharged blank to

force the bolt to retract, ejecting the spent blank shell and loading

a new blank round. Without a BFA, the operator of an assault

rifle firing blanks must manually operate the weapon’s charging

handle to chamber another blank round. However, none of the

soldiers I observed was forced to recharge his weapon manually,

despite firing repeated shots. Further, BFAs are always painted

a bright color for safety reasons, to ensure that live ammunition

is not introduced into a training environment, yet no such BFA

was visible on any of the weapons fired by the Royal Thai Army.


media/witty-video-1.

Second, I examined numerous spent brass casings recovered from


the demonstration areas, all of which were from expended live

ammunition. None of these casings had the distinctive crimping

around the crown of the cartridge, found on all blank rounds.

Shooting live rounds into the air is inherently dangerous. Every

live round fired on an upward trajectory propels a bullet that

eventually comes back down. According to US Army manual FM

3-22.9 (M16/A2 Rifle), the maximum range of the M16A2 rifle

is 3600 meters. A live round fired randomly into the air poses

risk to any person within that range. Indeed, a report published

in December 1994 in Journal of Trauma states that doctors at

the King/Drew Medical Center, at the time a major Los Angeles

Trauma Center, treated 118 people between 1985 and 1992 for

injuries caused by falling bullets discharged during New Years and

Independence Day celebrations, with thirty-eight of those victims

perishing.12

Live rounds fired into the air by Royal Thai Army soldiers posed a

grave risk to all civilians in the area. The use of live ammunition by

the Royal Thai Army under non-threatening circumstances, even

when directed over the heads of demonstrators, clearly violated

accepted crowd management protocols and, in my opinion,

constituted — at minimum — criminal negligence.

Based on my review of extensive video evidence, it is clear to

me that the Thai government acted inappropriately in deploying

the Royal Thai Army in a crowd management capacity. Many of

the soldiers were obviously untrained in crowd management

tactics and protocols, and were ill-equipped to enter any crowd

management environment. This lack of proper training was

exacerbated by the fact that many soldiers were issued crowd

management protective gear together with assault rifles, which

sent a contradictory and confusing message to these troops. In

my opinion, the very deployment of military troops to perform a

function that should always be limited to trained law enforcement

personnel demonstrated a callous disregard for public safety.

The standard for crowd management in a similar situation is to

establish a plan and brief all key leaders. Leaders should in turn

brief and supervise at all levels of command to ensure that the

12. Gary J. Ordog, Peter Dornhoffer, Greg Ackroyd, Jonathan Wasserberger, Micheal Bishop, William Shoemaker, and Subramanium Balasubramanium, “Spent Bullets and Their Injuries: the Result of Firing Weapons Into the Sky,” The Journal of Trauma Injury, Infection, and Critical Care, December 1994.


ROE are understood and followed. Decisions should be made to

encourage the direction of the crowd, for a natural dispersal.

Blocking positions should identified and occupied. At least one

major avenue should always remain open to permit natural egress

of the crowd. Supervisors should use public address systems to

broadcast dispersal orders and communicate exit routes. Crowds

should be given reasonable time to comply. Squads should form

in a line, walking slowly toward the crowd, while supervisors

instruct the crowd. Water cannons might be used to encourage

dispersal, and less-than-lethal munitions might be used against

specific unruly elements. Persons involved in criminal acts should

be arrested, using only such force as is reasonably necessary.

Perpetrators who escape into the crowd should be located and

prosecuted subsequently, based on video evidence from cameras

deployed by law enforcement.

It is obvious that these measures were not employed on April 10.

There is no question that the Royal Thai Army failed to comply

with accepted standards of crowd management and with their

own stated ROE.

I have read the Statement of Anonymous Witness No. 22, at ¶35,

which states that the methods employed by the First Infantry

Division were “designed to intimidate rather than disperse.” Based

on the evidence I have examined, I agree fully with that statement.13

According to the Statement of Anonymous Witness No. 22:

At approximately 16:00 hours, the First Infantry was ordered to

hold its ground at Jorporror because the Ninth Infantry Division

had encountered problems and was unable to advance beyond

the Pinklao Bridge. These circumstances arose because Red Shirt

demonstrators had rushed to meet the Ninth Infantry Division

at the Pinklao Bridge, and the soldiers leading the advance in

armored personnel carriers (APCs) had been unwilling to drive

over the civilians with their vehicles. When support trucks failed

to advance, demonstrators removed their wheels, completely

blocking Pinklao Bridge and stalling the advance of the Ninth

Infantry Division.

At approximately 16:00 hours, as it became apparent that the

Army would be unable to complete its operation before sundown,

13. Expert Report of Joe Ray Witty, at ¶¶ 23-37.


a meeting of the Army Task Force ensued at the temporary

command center inside the First Region Army Headquarters during

this period. There, General Prayuth argued that the operation

should be completed immediately, regardless of daylight. He was

opposed by the other generals on the Army Task Force but, on

direct instructions from Prime Minister Abhisit, Prayuth prevailed

and he was left in charge of the operation. There were no written

orders for this nighttime operation. 14

Prime Minister Abhisit authorized General Prayuth to proceed, despite having

earlier announced to the public that the dispersal would be carried out strictly

during daylight hours. The Statement of Anonymous Witness No. 22 continues:

At approximately 17:00 hours, the professional snipers posted on

the buildings in the area of the Khok Wua intersection began to

fire live .22 caliber rounds at the demonstrators assembled in that

area in an unsuccessful attempt to provoke them into attacking

the troops.

Prayuth added to the troops that had taken up positions at the

top of Dinso Road and Tanao Road by deploying his own loyal

troops on the front lines. He deployed troops from the Second

Infantry Division at both locations, with the troops on Dinso Road

supported by six APCs, led by Colonel Romklao. These troops

advanced down Dinso Road and Tanao Road until their front lines

were directly in front of the demonstrators. At 18:00 hours, the

professional snipers posted atop the Satri Witthaya School began

to fire live .22 caliber rounds into the legs of some of the protesters

in the Democracy Monument area in an attempt to provoke them

to make some form of threatening move against the Army troops

on the ground. Additionally, soldiers began shooting rubber

bullets directly into the crowd, and firing live ammunition over

their heads. Soldiers of the Second Division fired live .50 caliber

rounds into the Democracy Monument structure from a machine

gun fixed atop one of the APCs. Some of the soldiers began to fire

live rounds directly into the crowd. One of these live rounds hit

Japanese journalist Hiroyuki Muramoto, killing him.

All of this activity was designed to provoke the crowd to violence

so that the troops would have an excuse to open fire. The

crowd, however, did not take any threatening action, and only lit



firecrackers and threw plastic water bottles at the Army troops.

This continued for more than an hour.15

Master Sergeant (Ret.) Witty makes the following observations and conclusions

about the deployment and conduct of the Second Infantry Division of the Royal

Thai Army on the evening of April 10:

Based on witness statements, interviews and video evidence,

the Royal Thai Army’s Second Infantry Division (Queen’s Guard)

deployed company-sized elements in the late afternoon of April 10

from the rear gate of the First Army Region Headquarters, located

on Outer Ratchadamneon Avenue near the Makhawan Bridge.

Units moved by military vehicle south and occupied Tanao Road.

They established and fortified a Command Post (CP) on Tanao

Road north of the Khok Wua intersection west of the Democracy

Monument, occupying the Sib Sarm Hang Roundabout. Troops

moved on foot to occupy and heavily fortify a blocking position

on the north side of the Khok Wua intersection where Tanao Road

meets Ratchadamnoen Klang Avenue.

On Dinso Road, elements of the Second Infantry Division occupied

a blocking position on the southern end of the road, where it meets

Ratchadamnoen Klang Avenue at Democracy Monument Square.

These troops were supported by three armored personnel carriers

(APCs) with heavy machine guns mounted and manned on each

vehicle. The machine guns were locked and loaded with belts of

live .50 caliber ammunition.

The Second Infantry Division established its positions with the

military precision of units deployed under the threat of combat in

a combat theater. On Dinso Road, they deployed a platoon-sized

15.. Statement of Anonymous Witness No. 22, at ¶¶ 38-41.


element in front of the APCs, equipped with crowd management

protective gear and, in some cases, assault rifles, in violation of

crowd management protocols. I estimate that this element was

comprised of more than eighty soldiers. Immediately behind,

a company-sized element of approximately a hundred troops

was deployed in combat gear, suggesting that the true intent of

the Second Infantry Division was not to manage and disperse a

demonstration that had been declared unlawful, but to treat the

unarmed crowd as a hostile combat force. I observed tear gas

canisters thrown into the protest crowd.

I have examined photographic evidence of shooters firing rifles

THE ARMY’S OPERATIONS ON APRIL 10, 2010 13:00| Crackdown begins 16:00| Army advance stalls

17:00| Sporadic military sniper fire

18:00| Queen’s Guard Deploys

19:15| M-67 grenades explode 19:30| Unrestrained army fire


from the third floor balcony on the white office building located

on the corner of Tanao Road and Rachadamnoen Avenue (The

Government Lottery Office). In my opinion, this photograph depicts

an urban sniper hide, established by trained military snipers. I have

read testimony that the Thai military leaders deployed trained

snipers in the area of the Khok Wua intersection, which shot into


the crowd beginning at approximately 17:00 hours on April 10,

with the intent to provoked the crowd to violence. (See Statement

of Anonymous Witness No. 22, at ¶¶ 32 and 38.) In my opinion,

the photographic evidence I examined supports that testimony.

As darkness fell, the soldiers of the Second Infantry Division

exercised little if any restraint in the discharge of their M-16 assault

weapons. While some soldiers on Dinso Road fired their weapons

at an upward angle, over the heads of the crowd assembled at

Democracy Monument, several fired at a level angle, directly into

the crowd. None of these weapons was fitted with a BFA, indicating

that the soldiers were firing live ammunition. Documenting video

can be viewed at: www.thaiaccountability.org/media/witty-video-2

and www.thaiaccountability.org/media/witty-video-3.

I also observed a heavy machine gun (.50 caliber) mounted on one

of the APCs firing in full automatic mode with its barrel level to

the horizon, with no BFA attached, indicating that the weapon was

firing live rounds. I also observed several soldiers seated calmly

atop APCs during the same timeframe, indicating that they felt

no genuine threat from the crowd. This type of heavy .50 caliber

machine gun is often employed in the combat theater to disable

military vehicles by firing large caliber bullets into engine blocks,

and it is sometimes deployed in an anti-aircraft role. It possesses

devastating destructive capability, and its use in the context of

crowd management — particularly, like here, in the absence of

any genuine threat to troops — is shocking and unconscionable.

Documenting video can be viewed at: www.thaiaccountability.

org/media/witty-video-2 and www.thaiaccountability.org/media/

witty-video-3.

Based on witness statements and photographic evidence, this

heavy machine gun was being fired primarily into the Democracy

Monument structure itself. The number of demonstrators in the

Democracy Monument Square clearly numbered in the thousands,

many of whom were directly in front of the soldiers, standing

on parts of the monument at the same elevation as the top of

the APCs. There is no question that the gunner on the APC was

creating grave risk of injury from possible direct hits, falling and/

or ricocheting bullets, and from concrete particles thrown off

at high velocity by .50 caliber bullets impacting the monument

structure.


Based on witness statements, interviews and video evidence, it is

my opinion that the behavior of the crowd on April 10 at no time

presented any genuine threat of significant injury to the troops.

The use of live fire over the heads of the protesters did not comport

with accepted crowd management standards, violated the Army’s

own ROE, and constituted — at minimum — criminal negligence.

Live fire directly into the crowd was beyond question criminal.

A few minutes prior of 19:15 hours, the troops on Dinso Road

significantly increased the rate at which they were discharging

their weapons. I observed the silhouette of a soldier repeatedly

gesturing upward with his arm, apparently ordering the troops to

increase their rate of fire, which in fact occurred in conjunction

with the gesture. In response to this increase, some protesters

threw water bottles, bricks, sticks and fireworks at the troops,

which may have caused some minor injury, but in my opinion

would almost certainly have been largely deflected by the riot

shields, particularly considering that the Royal Thai Army’s use

of tear gas had created substantial separation between the troops

and the demonstrators. The separation between the troops and

the crowd is also confirmed by the wide arc of the flying water

bottles. The separation between the troops and the crowd is also

confirmed by the wide arc of the flying water bottles. Documenting

video can be viewed at: www.thaiaccountability.org/media/witty-

video-2 and www.thaiaccountability.org/media/witty-video-3.

I also observed a soldier standing atop an APC, holding a semi-

automatic pistol in his hand, which indicates to me that he was an

officer and held a leadership position. In response to the plastic

water bottles thrown by the demonstrators, he fired his pistol

repeatedly into the air. There is no doubt that he was firing live

rounds because a blank fired from a semi-automatic pistol does not

generate sufficient back pressure to cause the weapon to complete

its reloading cycle. The fact that this officer was discharging live

rounds from a hand gun, in plain view of the troops and in the

absence of any legitimate threat, further confirms that the troops

were being ordered to fire their weapons, and it also suggests that

the Army’s intent was to provoke the crowd. Documenting video

can be viewed at www.thaiaccountability.org/media/witty-video-4.

Based on witness statements regarding concurrent military

sniper fire in the area of Democracy Monument (see Statement

of Anonymous Witness No. 22), it is plausible that the troops on


Dinso Road were ordered to increase their rate of fire to cover the

sounds of sniper fire into the crowd. Additionally, given that the

rate of fire increased shortly before 19:15 hours, it is also plausible

that the increase was timed to coincide with the two explosions

that would come at approximately 19:15 hours, in response to

which the troops on Dinso Road opened fire without restraint into

the crowd, killing many and injury hundreds.

Indeed, during this same timeframe, the streetlights in the

Democracy Monument Square were fired upon and shattered,

greatly reducing the ambient light in the area. Not only was this

action unwise in that it hampered the soldiers’ ability to react

appropriately to the actions of the crowd, its timing moments

before the explosions suggests to me that it was part of a larger

plan to cause confusion and/or conceal.19

I have read the Statement of Anonymous Witness No. 22 at ¶

41, which states that “this activity was designed to provoke the

crowd to violence so that the troops would have an excuse to open

fire.” In my opinion, the events are entirely consistent with that

statement.16

According to the Statement of Anonymous Witness No. 22, professional military

snipers had been shooting at civilians in the area of the Khok Wua intersection

since approximately 17:00 hours, and in the Democracy Monument area since 18:00

hours, without accomplishing their objective of provoking a violent reaction from

the demonstrators. Most of the soldiers on the ground at Tanao Road and Dinso

Road were firing their weapons over the heads of the crowd, although some had

already begun to shoot directly at the demonstrators. A few minutes before 19.45,

the troops of the Second Infantry Division at the Khok Wua intersection on Tanao

Road began to shoot into the crowd without restraint.17

At approximately 19:15, two explosions detonated within the ranks of the Second

Infantry Division on Dinso Road, killing at least six soldiers and wounding several

more. Immediately after the first of these explosions (the blasts came thirty-four

seconds apart), the troops on Dinso Road also commenced firing without restraint

into the crowd, injuring hundreds and killing numerous other demonstrators. The

Statement of Anonymous Witness No. 22 explains:

At approximately 19:15, two separate grenades exploded behind

16. Expert Statement of Joe Ray Witty, at ¶¶ 38-50.

17. See Statement of Anonymous Witness No. 22, at ¶ 44.


the front lines of the Second Infantry Division on Dinso Road,

killing several soldiers, including Colonel Romklao. I do not know

who threw these grenades, although I suspect that they came from

someone in the First Infantry Division (the King’s Guard), which

has been involved for some time in a bitter rivalry with the Second

Infantry Division (the Queen’s Guard) over which division would

be considered the preferred path for advancement to the position

of Army Commander, which has historically belonged to the King’

Guard but has in recent years moved to the Queens’ Guard. Neither

would it surprise me if I were to learn that elements under General

Prayuth’s command had thrown the grenades to provide an excuse

for the troops to open fire on the crowds.

Regardless of who threw these grenades, the Second Infantry

Division took advantage and, in fact, opened fire on the crowd.

Hundreds of civilians were wounded and many were killed. A

gunner atop one of the Second Infantry Division’s APC, armed

with a .50 caliber machine gun, was ordered to open fire on the

civilians, but fortunately he refused.

Earlier, the troops from the Second Infantry Division deployed

on Tanao Road at the Khok Wua intersection had also opened

fire, shooting thousands of rounds of live ammunition into the

unarmed civilian crowd, although there had been no explosion on

Tanao Road.18

While the source of the explosions has never been definitively ascertained, Master

Sergeant (Ret.) Witty’s opinion is that it was almost certainly caused by a military

M-67 grenade of the type often used by the Royal Thai Army, and that it could not

possibly have been thrown from the Red Shirt crowd:

I have closely examined video of the explosions that killed several

Royal Thai Army soldiers on Dinso Road at approximately 19:15

hours on April 10. I was able to pause one such video clip at

the precise moment of the first explosion, and it is clear to me

that it was caused by military-grade explosives, almost certainly

a grenade. The shrapnel pattern generated by this device was

highly symmetrical, indicating that the explosive material burned

at a consistent rate. By contrast, the explosive pattern from an

improvised device is almost always erratic because the seal is never

perfect, owing to the fact that improvised devices are not created



in an industry-grade manufacturing environment. Consequently,

humidity will access the explosive material in an improvised device

wherever there is even a minor breach in the seal, compromising

the explosive material and reducing its burn rate in that area,

leading to erratic shrapnel patterns. The first explosion on Dinso

Road, however, was much too symmetrical to have been caused by

an improvised device, leading me to conclude that it was almost

certainly caused by a military-grade device.

Additionally, what appear to be sparks emanating from the

explosion are fragments of molten metal of the type military

grenades are designed to project. This was a high-order detonation,

and the pattern of falling soldiers coincides with the effects of a

grenade. In my opinion, the explosion was wholly consistent with

the M-67 hand grenades widely used by the Royal Thai Army.


media/witty-video-5a.

Thirty-four seconds after the first explosion, a second explosion

can be heard on Dinso Road. Although this explosion is not visible

on the video I examined, I was unable to discern any significant

difference in tone or timbre between the sounds made by the

two explosions. Because varying types of explosive devices differ

significantly in the sound they produce, it is reasonable to conclude

that the second explosion was also caused by a military grenade.

Following these explosions, the Army troops immediately react by

firing directly into the crowd of demonstrators. The troops retreat

north up Dinso Road, away from Democracy Monument, but as they

do so, they continue to fire into the crowd. My understanding is that

dozens of civilians were killed and thousands injured as a result.


media/witty-video-5b.

The video evidence and my personal examination of the site lead

me to conclude that the first grenade could not possibly have come

from the Red Shirt crowd. First, had the grenade come from the

crowd, it would necessarily have been thrown a distance of at least

seventy yards. The average soldier is able to throw a fourteen-

ounce hand grenade less than half that distance, only about thirty

yards.

Second, taking into consideration the trajectory of the water bottles

being thrown from the crowd in the direction of the soldiers, it is


inconceivable to me that an incoming fourteen-ounce grenade on

the same or similar flight trajectory would not have been noticed

in advance by the troops, given their numerical concentration in

the area of the explosion. All soldiers — including those in the

Royal Thai Army, with whom I have trained — are trained to react

to any hazardous object thrown into their vicinity. In the case of

an incoming grenade, or any object that even remotely resembles

a grenade, all soldiers are specifically trained to yell a “grenade”

warning and immediately seek cover or go prone. However, it is

clear from the video evidence that the troops did not react in any

way to the grenade in advance of the explosion. Documenting

video can be viewed at www.thaiaccountability.org/media/witty-

video-5c.

Third, proper law enforcement practice under the circumstances

would have called for extensive deployment of video cameras in

the area, monitoring the crowd for unruly elements for real-time

interdiction and, if appropriate, subsequent prosecution. It is

my understanding that the Thai government has been unable to

produce any video of anyone from the Red Shirt crowd throwing

a hand grenade into the ranks of the First Infantry Division on

Dinso Road.

It is clear to me, therefore, that the grenade was either dropped

or rolled along the ground by someone within the ranks of

the troops in the immediate vicinity of the explosion. An M-67

grenade has a timed fuse of five seconds, ample time for someone

to surreptitiously drop a grenade in the area of the explosion and

walk behind the adjacent APC, visible in the video evidence, in

time to avoid injury. In my opinion, this is the only plausible

deduction, based on the evidence I have examined.19

Although the Thai government has attributed the grenade explosions to “men in

black” implicitly affiliated with the Red Shirts, the Thai military has a long history

of employing agents provocateurs to justify its use of deadly force against unarmed

civilians. Master Sergeant (Ret.) Witty’s opinion is that the grenade was most likely

detonated by a soldier within the ranks of the Royal Thai Army:

I have heard that the Thai government claims that certain “men in

black” or other unknown elements affiliated in some way with the

Red Shirts carried out the grenade attacks on Dinso Road on April



10. In my opinion, this is an unreasonable deduction. The Second

Infantry Division was deployed on Dinso Road with military

precision, indicating that they were following military strategies

and protocols designed to secure their perimeter and prevent

access by undesirable elements. In my opinion, these protocols

would have prevented any “man in black” or, indeed, anyone not

affiliated with the Royal Thai Army from gaining access to the

area near the explosion.

I have read the Statement of Anonymous Witness No. 22, which

suggests that the grenade attack on Dinso Road may be been

carried out by soldiers of the rival First Infantry Division (King’s

Guard) or, alternatively, by elements working under the direction

of General Prayuth Chan-ocha, Commander of the Second Infantry

Division. In my opinion, either deduction is plausible, based on

the evidence I have examined.

I have read the Statement of Anonymous Witness No. 22, which

states that the Army’s strategy on April 10 “was not to disperse

the demonstrators. Rather, the operational strategy was to

concentrate the demonstrators in a confined area, provoke the

crowd to violence in order to create a perceived need for self-

defense, and open fire.” (Statement of Anonymous Witness No.

22, at ¶ 29.) In my opinion, based on all of the evidence I have

examined, the events prior to the grenade explosions on April 10

were entirely consistent with that statement.

Further, this statement provides a rational motivation, in my

opinion, for the grenade attacks themselves. This is particularly

true given the troop reaction following the explosions, which was

to open fire on the crowd.20

In response to the grenade explosions, the Second Infantry Division withdrew north

up Dinso Road to a position approximately two hundred meters north of Central

Rachadamnoen Avenue.

From this new position, the troops continued to fire live ammunition south toward

Central Rachadamnoen Avenue into the crowds of unarmed civilians, although

there was no threat to the troops. In Master Sergeant (Ret.) Witty’s opinion, the

conduct of the Royal Thai Army was clearly criminal in nature:

In my opinion, even if the grenades on April 10 had been thrown



from the Red Shirt crowd — which, as explained above, is not

a reasonable deduction — the Army’s reaction following the

explosions was criminal in nature. The proper reaction to the

grenade explosions would have been for the troops to hold fire,

retreat, and deploy snipers with spotters to identify elements

in the crowd who might be prepared to throw another grenade.

Lethal sniper fire would be appropriate under such a scenario only

if an individual were spotted preparing to throw another grenade.

Instead, as indicated above, the troops immediately began to fire

without restraint into the crowd, and they continued to fire into

the crowd as they retreated north up Dinso Road. In my opinion,

this is clearly criminal behavior.

Further, long after the troops retreated and reestablished

blocking positions approximately 150 meters north of Democracy

Monument Square on Dinso Road, the Army continued to shoot at

unarmed civilians without provocation. This is abundantly clear

from video evidence I examined. One notable example shows a

young Thai man carrying a pole, to which a Red Shirt banner was

attached, walking slowly across Dinso Road, from west to east,

at least 150 yards from where the Second Infantry Division had

taken up a position upon retreat after the grenade explosions.

He was not approaching the troops, nor was he exhibiting any

kind of threatening behavior, and he does not appear to be armed.

Notwithstanding, he was struck in the head by a bullet, and, as

he collapsed to the ground, his entire brain mass spilled from his

cranium onto Dinso Road. This event was captured on videotape,

and the victim’s wound was subsequently photographed at close

range, shown below. The video evidence can be viewed at www.


In my opinion, this young man’s head injury was not caused by a

5.56 mm bullet from an ordinary M-16 rifle. This kind of gaping

wound was unquestionably created by a .50 caliber round or, at

the very least, a 7.62 mm round. In my opinion, this man was

shot by a military sniper equipped with either a Remington M-24

sniper rifle firing a 7.62 mm round, or a .50 caliber Barrett sniper

rifle, both of which are available in the Thai military arsenal. Given

the non-threatening behavior of the victim immediately prior

to his death, it is my opinion that shooting him in this manner

constituted criminal conduct.

Another example of the unprovoked shooting that continued well


after the Army troops had retreated on Dinso Road can be seen in

a video clip that shows a wounded soldier lying on the curb a few

yards north of where Dinso Road meets Democracy Monument

Square. It is not clear from the video evidence how his injury

was caused, but it is plausible that it resulted from one of the

grenade explosions or perhaps from the indiscriminate rifle fire

of the troops as they retreated north on Dinso road. The wounded

soldier calls out in Thai, and I understand from an interpreter that

he was requesting assistance. There is audible gunfire nearby. Two

shots ring out immediately, and the medic is wounded in the foot.


media/witty-video-7.21

Some 255 witnesses have provided their names with affidavits regarding the events

of April 10, 2010. The vast majority attest to the fact that the crowd was peaceful,

and that the Army shot indiscriminately into the crowd.

Various other witnesses have testified in detail about the treatment of the Red Shirt

demonstrators on April 10. Although several of their statements are included in

this Application as anonymous witnesses, their identity and details are known to

the Applicant and could be made available to the ICC Prosecutor if the necessary

procedural safeguards are provided to ensure the protection and safety of their

lives and their families.

Anonymous Witness No. 14 arrived at Tanao Rd. at approximately 18:30. There

were at least a thousand Red Shirts gathered in that area. A wall of soldiers carrying

shields had set up across Tanao Rd., to the north of the Red Shirts. They started to

advance south along Tanao Rd., pushing the Red Shirts back. Without any warning,

the troops began to shoot straight into the Red Shirt crowd, using live ammunition.

21. Expert Report of Joe Ray Witty, at ¶¶ 63-66. The Statement of Anonymous Witness No. 15 is reproduced in the Appendix.


Also, there were many bullet holes in the walls all around, at eye level or below. The

witness heard a gunshot and the sound of a bullet whizzing by; the bullet hit a man

in the face. Later, the witness noticed that the place where the man had fallen had

been roped off by Red Shirt guards, blood on the ground and a piece of paper that

stated his name, age and that he had been killed. He saw two other pools of blood

nearby, with similar identifying pieces of paper, indicating that two other people

had been killed in the area.22

Anonymous Witness No. 2 confirmed that tear gas was dropped from helicopters

somewhere between 19:00 and 20:00 hours. Without any warning, the troops began

to open fire on the crowd of demonstrators. He saw at least five people injured by

gunfire.23

Anonymous Witness No. 5 is a journalist who testified to being near the Democracy

Monument on April 10 at approximately 19:00 hours. The witness saw soldiers

shooting their M16 magazines into the air. He picked up the casings and took

pictures. As the convoy of soldiers drove away, an explosion went off near him. The

witness stated that a Red Shirt with a stick came running in the street shouting:

“You killed my friend, you killed my friend.” At this point, the convoy’s last truck

was at a distance of about 150 meters from the man. Without warning, about five

shots were fired at him from the direction of the convoy. The man was hit, fell to

the ground and was later taken away by a civilian assistance foundation.24

Bordin Vajropala states that, at approximately 19:00 hours, there were more than

a thousand Red Shirts around the Democracy Monument. Without warning, the

Army soldiers began firing their weapons into the air. As the troops retreated up to

Dinso Rd., they began to shoot live fire directly at the Red Shirts. None of the Red

Shirts had any weapons. The witness saw a man who was shot in the head. He saw

the brains fall out of the man’s skull and took a photograph. Shortly thereafter, he

came across a wounded soldier on Dinso Rd. He videotaped a Red Shirt who tried

to help that soldier, while troops continued to fire at him and the man who was

helping. They kept shooting. The Red Shirt who was helping was hit in the foot;

Bordin was hit by a bullet in the stomach.25

Anonymous Witness No. 15, a certified volunteer medic present at Democracy

Monument during these shootings, testified that he was called to assist a soldier

22. The Statement of Anonymous Witness No. 15 is reproduced in the Appendix.



25. The Statement of Mr. Bordin Vajropala is reproduced in the Appendix.


who had been wounded on Dinso Road. When the medic arrived at the soldier’s

side, approximately sixty meters north of Democracy Monument, he found a Red

Shirt tending to his wounds. However, troops from the Second Cavalry Division

continued to shoot at them from their position about 140 meters north on Dinso

Road — ignoring the red cross displayed prominently on the medic’s supply kit —

wounding the medic in the foot.26

Master Sergeant (Ret.) Witty summarized his conclusions and opinions regarding

the events of April 10, 2010 as follows:

1. It is my opinion that the Royal Thai Army did not engage in a

rational or reasonable crowd-management operation, which

would necessarily have involved a genuine attempt to disperse

the demonstrators without inflicting injury. Instead, the Royal

Thai Army intentionally sealed off exit routes, herded the crowd

into a confined area, and engaged in various illegal acts designed

to provoke the crowd to violence so that the Army would appear

justified in its use of deadly force against demonstrators. These

illegal acts included, but are not necessarily limited to:

(a) The use of highly trained military snipers to shoot unarmed

demonstrators with live rounds from elevated, concealed

positions, without provocation or justification;

(b) The intentional, indiscriminate discharge of military

weapons, including M-16 rifles and other automatic weapons

firing live rounds, directly into dense crowds of unarmed

demonstrators, without provocation or justification; and

(c) The intentional detonation of multiple military-grade

explosive devices within the immediate vicinity of Army

troops, in a deadly form of “friendly fire” designed to create

the false impression that the Army was under attack by

demonstrators.

2. The Royal Thai Army formally adopted rules of engagement that

comport with accepted crowd management standards in order to

create the false impression of reasonable conduct. However, the

Thai Royal Army systematically violated accepted standards of

crowd management and its own stated rules of engagement in a

manner constituting criminal conduct.

3. The Royal Thai Army’s operations on April 10, 2010 were military



in nature. Their objective was to kill innocent civilians, without

provocation or justification, in order to suppress the Red Shirt

demonstrations.

Sometime after 20:15 on April 10, government authorities contacted the Red Shirt

leaders by mobile phone. To avoid further bloodshed, the Red Shirt leaders quickly

agreed to encourage the crowd to retreat from the sites of the clashes. By then,

however, the Army had killed twenty-one civilians and wounded more than six

hundred.

The failed dispersal operation gave way to a tense standoff. The government re-

grouped, looking for alternative means to resolve the crisis. The Red Shirts hunkered

down, concentrating their forces at Ratchaprasong. The Statement of Anonymous

Witness No. 22 comments as follows with regard to the failure of the April 10

operation:

As a consequence of how the suppression operation developed,

the Army was not able to assassinate the Red Shirt leaders on the

stage at Phan Fa Bridge because the troops could not compress

the demonstrators into the area with sufficient density to create

the required chaos. Further, the Army Leadership and the

Government Leadership fully expected that assassinating the Red

Shirt leaders at Phan Fa Bridge would lead to a collapse of the

Red Shirt demonstrations at Ratchaprasong. Instead, most of the

demonstrators who had assembled along Rachadamnoen Avenue

moved to the Ratchaprasong area, adding to its strength.

During the weeks immediately following April 10, the Government

Leadership and Army Leadership turned their attention to

suppressing the Red Shirt demonstrations at Ratchaprasong. Their

plan called for establishing a perimeter around the Ratchaprasong

area and sealing off all ingress and egress. The Army would then

breach the Red Shirt barricades and assassinate the leaders27

On May 3, the Prime Minister unilaterally announced a plan for reconciliation that

among other things included the possibility of an early, November election —

provided that the Red Shirts agreed to voluntarily disperse. But Abhisit’s offer to

dissolve the House of Representatives did not come with genuine guarantees. The

government did nothing to suggest that the censorship it had imposed during the

demonstrations would be relaxed in advance of the election, nor did it commit to



a proper independent investigation into the violence that had taken place on April

10. The Red Shirts embraced the Prime Minister’s call for reconciliation but refused

to disperse absent these basic guarantees.

On May 13, one day after the government withdrew its offer to hold early elections,

Major-General Khattiya Sawasdipol, a renegade Army officer better known as Seh

Daeng — the purported leader of the movement’s extreme faction — was shot in the

head by a sniper while he stood before cameras and microphones, right before the

eyes of a Western reporter, at the southwestern edge of Lumphini Park. According

to the Statement of Anonymous Witness No. 22, the soldier who pulled the trigger

was one of the professional snipers assembled by the Thai government pursuant to

its policy to destroy the Red Shirt movement:

During the period between May 13 and May 19, the First Infantry

Division and the Second Cavalry Division used the King Power

Duty Free Shop in the Ratchaprarop area as a command post. The

same professional snipers used on April 10 were also deployed

in strategic areas, and they were responsible for the death of Maj.

General Khataya Sawasdipol (known as Seh Daeng), who was fatally

shot in the head on May 13 while giving an interview to the press.28

The shot that took Seh Daeng’s life (he died a few days later) was only a precursor

to the thousands of live rounds that the military would fire on unarmed protesters,

innocent by-standers, emergency medical workers, and journalists over the ensuing

28. Statement of Anonymous Witness No. 22, at ¶ 53.


week. While the Red Shirts repeatedly called for international assistance to establish

a dialogue that might lead to a political solution to the crisis, the government

had opted to crush them militarily, dispatching armored personnel carriers and

thousands of soldiers to the streets of Bangkok.

Officially, the Abhisit government amended the Rules of Engagement to permit

the Army to “retaliate” against the Red Shirts, which it now branded as “terrorist”

following the events on April 10:

Following the incidents on 10 April 2010, during which use of

weapons by armed elements among the protesters cost the lives

of not just unarmed demonstrators but also a number of security

officers, this rule has been revised for the operations to cordon

off the Ratchaprasong Area in May to permit use of live bullets in

one additional case, namely: to retaliate against clearly identified

elements armed with weapons. Also, with a view to preventing

casualties due to close confrontation as happened on 10 April,

shotguns may be used against armed groups and terrorist elements

approaching security units to prevent them from causing harm to

others, and in this case, security forces would only aim below the

knee level. The use of tear-gas launcher is also permitted in order

to maintain distance between the officers and armed protesters.

As a principle, security units would not use lethal weapons against

unarmed demonstrators and in no circumstances would they be

used against women and children.29

Master Sergeant (Ret.) Witty’s opinion is that these amended Rules of Engagement

provide some insight into the intent of the Abhisit government:

In my opinion, these amended ROE are inappropriate because

they establish an official policy to use deadly force “to retaliate.”

Retaliation has no place in reasonable and accepted standards

of crowd management. In my opinion, the phrase “to retaliate”

suggests an intent by the Thai government to engage in further

criminal conduct through the use of unprovoked deadly force

against the Red Shirt demonstrators.30

29. Ministry of Foreign Affairs, “Backgrounder: Current Political Situation in Thailand,” June 15, 2010, note 3.http://www.thaiembassy.sg/announcements/backgrounder-current-political-situation-in-thailand30. Expert Statement of Joe Ray Witty, at ¶ 73.


Indeed, although these amended Rules of Engagement purported to require at least

some level of threat directed against the Army before lethal force was employed,

the Statement of Anonymous Witness No. 22 confirms what has been widely

documented by others, which is that unwritten orders were given for the Army to

shoot at anything that moved in the live fire zones:

In early May, the Second Cavalry Division, under the command

of Maj. General Surasak Boonsiri, was ordered to secure Rama IV

Road, from its intersection with Payathai Road (in the Samyan area)

to its intersection with Wireless Road (Bonkai area). Maj. General

Surasak’s immediate superior was Army Commander Anupong

Paochinda.

Officially, Maj. General Surasak’s orders were to shoot threatening

targets only. However, his actual orders, which were unwritten,

LIVE FIRE ZONES


was to shoot any moving target in the Bonkai area, regardless of

whether it represented a threat. […]

Also in early May, the First Infantry Division, under the command

of Maj. Gen Kampanat Rujdit, was ordered to secure the Din Dang

and Rajaprarop areas north of Ratchaprasong. The First Infantry

Division was given the same basic orders in the north as the Second

Cavalry Division had been given in the south.31

In the days that followed Seh Daeng’s assassination — the government denies any

involvement in the incident, even though it had earlier promised it would shoot

“terrorists” and had previously identified Seh Daeng as a “terrorist” — the massacre

unfolded to the north and south of the Ratchaprasong encampment, in the Din

Daeng and Lumphini area, as the army moved in to seal off the site of the Red Shirt

protests.

Some locations like Ratchaprarop Road to the north and Rama IV Road to the south

were declared by the military to be “live fire zones.” There, the military was given

the authority to shoot the mostly unarmed demonstrators on sight, as documented

in a wealth of detailed eyewitness accounts like the one written by photojournalist

Nick Nostitz.32 A number of passers-by were injured or killed by military fire, among

them a ten-year old boy shot in the stomach near the Makkasan Airport Link station

and later pronounced dead at the hospital.

Master Sergeant (Ret.) Witty’s opinion is that the orders given to the troops enforcing

the live fire zones can easily be deduced from the video evidence. His opinion of

“live fire zones” is predictable:

It is my understanding that, beginning in early May 2010, the

Second Cavalry Division was assigned to secure Rama IV Road in

the Bonkai area south of Ratchaprasong, while the First Infantry

Division was assigned to secure the Ding Dang and Rajaprarop

areas north of Ratchaprasong. It is my further understanding that

the commanding officers of these divisions were given unwritten

orders for their troops to shoot any moving target in their

31. Statement of Anonymous Witness No. 22, at ¶¶ 47-48, 52.

32. Nick Nostitz, “Nick Nostitz in the Killing Zone,” New Mandala, May 16, 2010.http://asiapacific.anu.edu.au/newmandala/2010/05/16/nick-nostitz-in-the-killing-zone/ For an update on the fate of some of the Red Shirt protesters who were at the scene described in the report, see “Daughter of a Slain Red Shirt Hears Story of Father from Nick Nostitz,” Prachatai, June 21, 2010.http://www.prachatai.com/english/node/1899


respective designated areas, regardless of whether such targets

represented a threat. (See Statement of Anonymous Witness No.

22, at ¶¶ 48 and 52.) Such orders would unquestionably violate any

reasonable standard of crowd management, and would constitute

criminal conduct.33

[B]ased on witness statements, interviews and video evidence,

it is my conclusion that the Royal Thai Army indeed set up live

fire zones in the Bonkai, Din Daeng and Rajaprarop areas near

Ratchaprasong. Although there is ample video evidence of

unarmed civilians being fired upon, injured and killed by bullets

coming from the direction of Army blocking positions in these

areas during the period between May 13-19, one video clip in

particular, taken from directly behind Army soldiers deployed in

elevated positions, clearly demonstrates that the soldiers were

acting under orders to shoot any moving target, without regard

to whether they represented a threat. This documenting video

evidence can be viewed at: www.thaiaccountability.org/media/

witty-video-8.

In my opinion, the persons shown running across the alley

represented no threat whatsoever to the troops, which are clearly

deployed in an elevated position, armed with weapons that are

not fitted with BFAs. The troops immediately opened fire upon

seeing the civilians, in a clear attempt to use deadly force without

provocation or justification. In my opinion, this is criminal conduct,

as is any order to engage in such conduct.34

Once again, a number of witness statements testified to the behavior of the Royal

Thai Army during the May 13-19 crackdown. Of the 180 witnesses who have provided

their names and affidavits to the Applicant’s counsel regarding the events during,

133 testified to having witnessing somebody either injured or killed by shooting

soldiers. In the majority of those cases, the soldiers were shooting from elevated

positions.

On May 14, 2010 Krittapoj Buadee, a Red Shirt, went to Lumphini Park to investigate

a report that soldiers were assembling there and planning an attack on the Red

Shirts. He was unarmed. Mr. Krittapoj saw numerous soldiers outside the park fence,

aiming their rifles into the park, and soldiers inside the park, carrying shotguns. As

33. Expert Report of Joe Ray Witty, at ¶74



soon as he saw the soldiers, he stopped. At that point Mr. Krittapoj heard a single

shot that hit him in the foot and then saw another soldier, holding an M-16 rifle

with a scope, shooting at him. He was hit in the right lower leg. The witness drove

off, but the soldiers continued to shoot after him, thirty or forty times. Right calf

and ankle were completely shattered.35

Nattapon Tongkoun described a similar scene, which he witnessed on May 14 at

Lumphini Park. As he entered the park, he noticed fifty or sixty soldiers lined up

outside the fence surrounding the park, aiming their rifles through the fence. One

of the soldiers opened fire with a shotgun, hitting him in the left shoulder. Mr.

Nattapon ran towards a tree, while the shooting continued. The soldiers fired at

him at least a hundred times. He was hit again, with a rifle bullet. Mr. Nattapon

jumped into a pond to hide and swam underwater. Upon re-emerging, he saw three

soldiers standing in the pond, looking for him, shooting into the water, trying to hit

him. He jumped out of the pond, ran away, and got hit a third time, in his left thigh,

by a rifle bullet. After being treated in a hospital, he was placed in a jail cell and

chained to his bed, under arrest for violating the emergency decree. He was chained

to the bed twenty-four hours a day, and released to a regular room after a month.36

Meanwhile, to the north of Ratchaprasong, at the corner of Ratchatewi Rd. near the

Din Daeng triangle, Anonymous Witness No. 8 testified to have seen soldiers shoot

with live ammunition, without any warning, towards a crowd which he was part.

People started running to flee the gunfire. He got shot himself in his right upper

arm.37

Mr. Kangsadal is a member of Red Ayutthaya. On May 14, he was in the Ratchaprarop

Rd. area, where he witnessed soldiers getting ready to crack down on protesters.

The soldiers blocked the area and tried to put up a fence. They seemed very well

prepared, as if they had been practicing this before. They started to fire into the

crowd. Mr. Kangsadal ran around the corner near the Century Hotel, but got shot

himself during the escape.38

Anonymous Witness 12 is a volunteer police officer in Bangkok. On May 14, in the

Ratchaprarop area in front of the Indra Hotel, he and his wife were forced to stop

because soldiers were preventing people from crossing the road. This was at 18:30.

In total, thirty people had gathered in that location; none carried weapons. Across

35. The Statement of Krittipoj Buadee is reproduced in the Appendix.

36. The Statement of Nattapon Tongkoun is reproduced in the Appendix.


38. The Statement of Mr. Kangsadal is reproduced in the Appendix.


the street there was a pedestrian bridge crossing Ratchaprarop Rd., guarded by eight

soldiers. The soldiers were shooting at anything that moved, in any direction. He

saw them shoot at least fifty times. Soldiers also shot towards the hotel, preventing

the group from leaving. At approximately 19:00 hours, a woman tried to cross

Ratchaprarop Rd., but before she could get onto the road she was shot by one of

the soldiers, falling to the ground. At approximately 20:00 hrs, the witness saw two

motorcycles, each with a single driver. The soldiers on the pedestrian bridge shot

at these motorcycles and both riders fell. Minutes later, there was an explosion in

front of the Indra Hotel. Prior to the explosion, the witness saw a red laser pointed

in their area, moving around apparently at random. Then it stopped, but a green

laser appeared next to it. Immediately thereafter, the blast occurred. Moments later

he saw the red and green laser lights again and there was a second explosion, three

meters away from him. Three people were injured, including him. He suffered a

shrapnel wound in his back.39

Between May 15 and May 18, Mr. Pratak Nutsathit joined the protest at Din Daeng.

In this area, he witnessed soldiers shooting a woman in the head on May 18. She

was a trash collector carrying a white bag. The shooting was probably a mistake, as

she was not protesting. The soldiers were very young and shot at everyone in that

area, including motorcycle drivers and local people.40

It is clear that the Royal Thai Army and the Abhisit government were aware that

setting up and enforcing these live fire zones constituted criminal conduct, because

they instituted a concurrent campaign to hide the evidence of their wrongdoing:

Additionally, Maj. General Surasak was ordered to prevent anyone

from taking photographs of the Army killing unarmed civilians,

which effectively required the Second Cavalry Division to target

any member of the media that entered the area. This order was

prompted by the fact that there was abundant incriminating video

and photographic evidence of the Army’s suppression operation

on April 10, and the Army Leadership considered the April 10

operation a failure in part because of the public outcry that

followed.

Maj. General Surasak was also ordered to prevent anybody from

removing the bodies of civilians killed in the Bonkai area by his

troops. This order effectively required soldiers of the Second

Cavalry Division to shoot at anyone trying to remove a body,


40. The Statement of Pratak Nutsathit is reproduced in the Appendix.


including medical personnel. […]

The First Infantry Division was given the same basic orders in the

north as the Second Cavalry Division had been given in the south:

(a) shoot all moving targets, regardless of threat level; (b) prevent

any photographic or video evidence; and (c) prevent the removal

of any bodies. […]

The orders to the First Infantry Division and the Second Cavalry

Division to shoot anyone attempting to remove a body from their

respective areas of assignment was given in order to assist the

implementation of an Army “intelligence” operation to destroy

the evidence of any Army killings.

Specifically, the Army Leadership implemented a policy of

evidence destruction, in collusion with the certain state hospitals

in Bangkok. Discreet units of the First Infantry Division and the

Second Cavalry Division posed as ambulance drivers, and they

would appear at shooting scenes in order to retrieve the bodies,

ostensibly to take them to the hospital for proper treatment. In

reality, however, these ambulances took numerous bodies to the

Din Daeng’s Veteran’s Hospital and Chulalongkorn University

TARGETING EMERGENCY WORKERS

Paramedic Boonthink Pansila, age 25, shot dead on May 15, 2010.


Hospital for concealment and subsequent cremation. The objective

was to destroy any evidence of criminal conduct by the Army.41

Consistent with their orders to prevent the removal of bodies, the Army closed

off the live fire zones to emergency medical staff42 and repeatedly opened fire on

medics as they attempted to assist injured demonstrators,43 complicating rescue

operations for the scores of wounded protesters.

Journalists also appear to have been intentionally targeted. France 24 reporter

Nelson Rand was shot three times on May 14, on the southeastern edge of Lumphini


42. “Medics Banned from Entering ‘Red Zones’,” The Nation, May 16, 2010.http://www.nationmultimedia.com/home/2010/05/16/national/Medics-banned-from-entering-red-zones-30129456.html

43. Bill Schiller, “Why Did So Many Civilians Die in Bangkok Violence?,” The Star, May 23, 2010.http://www.thestar.com/news/world/article/813547--why-did-so-many-civilians-die-in-bangkok-violence

THE KILLING OF FABIO POLENGHI

Top-left: Man clothed in army-issue takes Mr. Polenghi’s camera, May 19, 2010Other: Maps with sniper positions found in Mr. Polenghi’s personal effects


Park, while Italian photographer Fabio Polenghi died from a bullet wound to the

chest on May 19, after he documented the location of Army snipers. Mr. Polenghi’s

camera was removed from his body by someone who appears to be wearing Army-

issue. However, Mr. Polenghi managed to conceal in his backpack three crude maps

he had drawn of sniper positions. The maps would later be found by Mr. Polenghi’s

sister as she went through his personal effects.

Master Sergeant (Ret.) Witty’s comments regarding this conduct is as follows:

I also understand that the Second Cavalry and the First Infantry

Divisions were given orders to prevent any photographic evidence

of Army troops killing civilians, and that these orders resulted

in the intentional targeting of journalists. I also understand that

these same Divisions were ordered to prevent the bodies of any

persons killed by Army troops from being removed, which resulted

in the intentional targeting of medical personnel. (See Statement

of Anonymous Witness No, 22, at ¶¶ 48-50 and 52.) Such orders,

to the extent that they call for troops to use deadly force against

a person merely because they are taking photographs or assisting

the wounded — rather than presenting an immediate threat of

severe bodily injury — would violate accepted standards of crowd

management, and would constitute criminal conduct, as would

the carrying out of such orders.

Further, such orders would seem to represent a concerted and

organized effort to suppress evidence. As an active law enforcement

officer, it is clear to me that the intentional suppression, destruction

and/or fabrication of evidence would constitute criminal conduct,

as would any orders to engage in such conduct.44

Days of fierce battles fatally weakened the Red Shirt defenses, manned for the

most part by civilians burning tires in a vain attempt to stave off the advance of

the Army. Even a last-ditch diplomatic effort, which was still on the table as of May

18, was snubbed by the Abhisit government. Finally, on May 19 the Army broke

through the Red Shirts barricades. The Statement of Anonymous Witness No. 22

explains the nature of the May 19 operation at Ratchaprasong:

On May 19, the Army breached the Red Shirt barricades around

Ratchaprasong. The troops involved where from the On May

19, the troops involved were the Second Infantry Battalion of

the Thirty-First Infantry Regiment (King’s Guard), led by Lt. Col.



Puengpak Yodarwut, deployed on the ground and on the BTS

rails. These were joined on the BTS rails by troops from the Third

Special Forces Regiment.

Their orders were to shoot any person suspected of having weapons,

and they were not required to determine whether anyone actually

had weapons. Their pre-deployment orders expressly stated that

any individual carrying a slingshot was to be considered armed

and dangerous. The troops were also ordered to shoot any Red

Shirt guard on sight, whether armed or not. Thus, the troops were,

in effect, permitted to shoot anyone they wished. It was this set of

orders that led to the shootings at the Watpatumwanaram Temple

in the late afternoon of May 19.

The troops deployed on the BTS railing had specific orders to

identify and shoot the Red Shirt leaders. However, the Red Shirt

leaders were tipped off about these orders, and they quickly

surrendered to the Police before the soldiers were able to kill

them.45

Master Sergeant (Ret.) Witty’s observations regarding the orders given to the troops

who breached the Red Shirt barricades on May 19 are as follows:

I understand that troops from the Second Infantry Battalion of

the Thirty-First Infantry Regiment, with support from the Third

Special Forces Regiment, breached the Red Shirt barricades around

Ratchaprasong on May 19, 2010. I also understand that their

orders were to shoot any person suspected of having weapons,

although they were not required to make a determination about

whether such persons were actually armed. Further, their orders

expressly stated that any individual carrying a slingshot was to be

considered armed and dangerous. (See Statement of Anonymous

Witness No. 22, at ¶¶ 56-57.)

In my opinion, such orders do not comport with accepted standards

of crowd control or law enforcement. No law enforcement officer

should use deadly force except where there is an imminent threat

of severe injury to the officer or to other persons. Absent such a

threat, actual possession of a deadly weapon does not constitute

a justification to employ deadly force. Further, mere suspicion

that someone might possess a deadly weapon is never a sufficient

justification to use deadly force. In my opinion, these orders



effectively gave the Army troops carte blanche to employ deadly

force without provocation or justification.46

While May 19, 2010 already marks one of the darkest days in the history of

Thailand — the culmination of the country’s worst-ever massacre of pro-democracy

demonstrators — the death toll would likely have been far greater were it not for

the UDD leaders’ eleventh-hour surrender.

The surrender of Red Shirt leaders, however, failed to halt the carnage. Hours after

the Red Shirts were dispersed, six more people died in an assault staged on Wat

Pathumwanaram, the spot designated as a safe haven for Red Shirt demonstrators

who wished to escape the violence. A foreign journalist injured at the scene describes

military snipers firing from elevated train rails into groups of unarmed civilians

claiming sanctuary in the Buddhist temple. Three nurses were among the civilians

shot to death.47


47. Andrew Buncombe, “Eyewitness: Under Fire in Thailand,” The Independent, May 20, 2010.http://www.independent.co.uk/news/world/asia/eyewitness-under-fire-in-thailand-1977647.html See also: Bangkok Pundit (pseud.), “What Happened at Wat Pathum Wanaram?,” Bangkok Pundit, May 31, 2010.http://asiancorrespondent.com/bangkok-pundit-blog/what-happened-at-wat-pathum-wanaram

Left: A soldier aims his weapon into Wat Pathumwanaram on May 19, 2010.Right: Nurse Kate lies dead inside the temple complex on May 19, 2010

THE KILLINGS AT WAT PATHUMWANARAM


Some eighty-eight witnesses have provided their names and affidavits to the

Applicant’s counsel regarding the events at the Wat Pathumwanaram temple on

May 19. Of those, seventy-four attest to having witnessed somebody either killed

or injured by soldiers shooting from the elevated mass transit BTS railway into the

temple.

Anonymous Witness No. 4 was present in the temple after the Red Shirt leaders

surrendered. At approximately 19:00 on May 19, 2010, with approximately two

thousand people located inside the temple area, he realized that shots were coming

directly into the temple area. He took cover inside a concrete security guard

enclosure, inside the temple area. He could see through the window in the guard

station that there were at least three soldiers positioned above him, half-way across

the street, on the walkway connected to the BTS Siam station. He could see them

shooting into the temple area, and could hear that they were firing two kinds of

shots, some repeating, like machine guns, and others were single shots. One of the

witness’ acquaintances was a volunteer nurse, whom he knew as Ked, although later

he learned that her full name was Kamonked Aukhak. When the shooting started

into the temple, she was located at the nurse’s tent inside the temple area, slightly

behind the witness’ position. As the soldiers were firing from above, the witness

saw the nurse shot, and she fell backwards.48

Anonymous Witness 6 and Anonymous Witness 9 were present at the

demonstration near the Ratchaprasong intersection on May 19. At approximately

13:00 hours, the Red Shirt leaders surrendered and advised everyone to go to the

Pathumwanaran temple complex for safe refuge. In the temple, the witnesses report

everyone was peaceful. Between 16:00 and 17:00, witnesses reported seeing five

soldiers on the lower train track of the BTS platform in front of the entrance. Inside

the temple, the first aid tent was clearly marked with a red cross. At about 18:30 the

soldiers started to shoot into the temple area, without warning. At that time, the

first aid tent and medical volunteers also came under fire. Three nurses were shot,

Kamibked Akhard, Mongkol Kemthong, and Akkharadej Khankaew, who slowly

died in pain (see also statement by Dr. Nattathida Meewungpla). The soldiers shot

at everything that moved, preventing anyone to reach the first aid tent to help. At

19:00 hours, a group of soldiers came shouting obscenities at the people assembled

inside the temple. When some tried to drag the bodies of the nurses to safer area

into the temple ground, the soldiers targeted them again. The shooting stopped at

approximately 20:00 hours. The next morning, six dead bodies were lined up in the



rear garden of the temple area. Several other witnesses that provided statements

corroborate this account.49

Officially, an additional sixty civilians died during the weeklong crackdown that

resulted in the Red Shirts’ dispersal on May 19. Despite repeated accusations of

“terrorism” leveled at the UDD, no security forces died during the operations, while

none of the people gunned down by the authorities proved to have been carrying

weapons.

3. 4 ABUSE OF EMERGENCY PROVISIONSWhereas ninety people have been killed and around two thousand injured in the

six weeks leading up to May 19, an additional casualty of the crackdown was the

pretense of “democratic rule” and of “the respect for the rule of law” that Abhisit’s

administration had sought to protect throughout its tenure in office. Confronted

with a massive, well-organized, and largely peaceful challenge to its legitimacy,

Abhisit demonstrated his inability to govern in accordance with the protections that

even the post-coup 2007 Constitution formally affords the people of Thailand. Even

before the demonstrations began, the government suspended many constitutional

protections by invoking the Internal Security Act in an attempt to restrict the Red

Shirts’ activities. On the eve of the first crackdown, moreover, the government

claimed dictatorial powers and declared the State of Emergency.

INTERNAL SECURITY ACTEnacted in 2008, the Internal Security Act provides for an all-encompassing definition

of “the maintenance of internal security,” which includes “operations to prevent,

control, resolve, and restore any situation which is or may be a threat arising from

persons or groups of persons creating disorder, destruction, or loss of life, limb, or

property of the people or the state.”50 Whereas the Act allows these extraordinary,

extra-constitutional measures only “in order to restore normalcy for the sake of

the peace and order of the people, or the security of the nation,” upon the junta’s

completion of the draft legislation in late 2007 Human Rights Watch condemned it

as “aimed at perpetuating military rule” and as leaving Thailand “in an environment

prone to abuses and the arbitrary use of power.”51 The junta-appointed National

49. The Statements of Anonymous Witnesses No. 6 and No. 9 appear in the Appendix.

50. Internal Security Act, B.E. 2551 (2008), s. 3.

51. Human Rights Watch, “Thailand: Internal Security Act Threatens Democracy


Legislative Assembly approved the draft legislation on December 20, 2007— only

three days before the last legislative elections.

The Act situates the power of the state in the office of the Prime Minister. Under

the Act, “In the event of an occurrence which affects internal security but which

does not yet require the declaration of a state of emergency [...] the Cabinet shall

pass a resolution to have the Internal Security Operations Command (“ISOC”) take

responsibility for prevention, suppression, and eradication or mitigation of this

occurrence which affects internal security, within an assigned area and time-period.”

ISOC, the branch of the military tasked with defending the country’s security from

internal threats,52 operates under the direct command of the Prime Minister, who is

defined by the Act the “Director of Internal Security.”53

Once the resolution is issued, the state’s administrators are no longer the National

Assembly, the Cabinet, the Courts, but rather the Prime Minister as Director, the

Commander-in-Chief of the Army as Deputy Director, and the Chief of Staff of the

Army as the Secretary.54 The only mediating influence is the Cabinet, although that

influence is weak as it is limited to approving the Prime Minister to exercise the

power to “issue regulations as follows:”

(1) To have relevant state officials implement any action, or suspend

any action;

(2) To prohibit entry or exit at a locality, building, or designated

area during its operating hours, except with the permission of a

competent official or being an exempted person;

(3) To prohibit exit from dwelling places within a designated time;

(4) To prohibit the carrying of weapons outside dwelling places;

(5) To prohibit the use of routes or vehicles or to prescribe conditions

on the use of routes or vehicles;

(6) To order persons to perform or suspend any action in connection

with electronic equipment in order to guard against danger to life,

and Human Rights,” November 5, 2007.http://www.hrw.org/en/news/2007/11/04/thailand-internal-security-act-threatens-democracy-and-human-rights

52. For a brief account of ISOC’s disturbing human rights record, see Paul Busbarat, “Thailand, International Human Rights and ISOC,” New Mandala, January 27, 2009.http://asiapacific.anu.edu.au/newmandala/2009/01/27/thailand-international-human-rights-and-isoc/

53. Internal Security Act, B.E. 2551 (2008), ss. 4-5.

54. Internal Security Act, B.E. 2551 (2008), ss. 5.


limb, or property of the people.55

Item (2) to (6) are provided only for greater certainty, as the scope of the powers

of the Prime Minister is captured by item (1): the power “to have relevant state

officials implement any action, or suspend any action.” This power is exercised by

Prime Ministerial “regulation,” not by Act of the legislature. There is no democratic

oversight; there is no parliamentary review. Only the Prime Minister, his Cabinet,

and the Army are made responsible to rule.

Even prior to its latest imposition of the Internal Security Act, the International

Commission of Jurists expressed grave concern about the Abhisit administration’s

repeated recourse to the Act as “a violation of the rights to freedom of expression

and association guaranteed under the ICCPR.”56 At the time of writing, the Internal

Security Act remains in force in Bangkok and surrounding provinces.

STATE OF EMERGENCYUndeterred by the imposition of the Internal Security Act and the corresponding

restriction of their movements, thousands of Red Shirts from all walks of life

descended on Bangkok to protest the current government and call for elections.

In response to the mounting opposition, Prime Minister Abhisit and his family

retreated from their Bangkok residence to a military barrack, providing yet another

indication of Abhisit’s dependence on the generals’ support. On April 7, following

weeks of speculation, the government doubled down on the imposition of the

Internal Security Act and declared the State of Emergency for Bangkok and part or

all of five surrounding provinces.

Pursuant to Section 9 of the Emergency Decree on Public Administration in

Emergency Situation B.E. 2548 (2005), the government proscribed any “assembly or

gathering to conspire of five persons or more” as well as “any act to incite unrest”

taking the form of:

(1) Obstructing the traffic in such a way that prevents normal

commuting;

(2) Blocking the entry or exit of buildings or compounds in such a

way that obstructs the carrying out of work, business or daily life

55. Internal Security Act, B.E. 2551 (2008), s. 18.

56. International Commission of Jurists, “Thailand’s Internal Security Act: Risking the Rule of Law?” February 2010 (http://icj.org/IMG/REPORT-ISA-THAILAND.pdf)


of the general public;

(3) Attacking or using force in such a way that causes disruption,

harm, fear and anxiety over the safety of life, body and property

among the public;

(4) Disobeying directives of the competent officials pertaining to

the demonstrations aiming at maintaining peace and preventing

disruption to the daily life of the public.

The penalty for violators was decreed to consist of “imprisonment for a term not

exceeding two years or a fine of no more than forty-thousand baht.”57 Furthermore,

the government prohibited “the release of news, distribution or dissemination of

newspapers, publications or any means of communications containing content

which may cause fear amongst the public or is intended to distort information

leading to misunderstanding of the emergency situation to the extent of affecting

the security of the state or public order or the good morals of the people throughout

the Kingdom.”58

Pursuant to Section 11 of the Emergency Decree, the government further issued

regulations that conferred upon the administration extraordinarily expansive

powers. Among other things, the government would now be empowered to “arrest

and detain a person suspected in taking part in instigating the emergency situation

or a person who advertises or supports the commission of such act,” “summon an

individual to report to the officers or to give statements or hand in documents or

evidence pertaining to the emergency situation,” and “prohibit or order any action

in so far as necessary to ensure national security or public safety.”59

The imposition of the Emergency Decree provided the government with the legal

foundation upon which it based the crackdown of the Red Shirts on April 10 and May

13-19. Pursuant to Section 9 of the Emergency Decree on Public Administration in

Emergency Situation, the government proscribed any assembly or gathering of five

or more persons as well as any act that could incite unrest. Pursuant to Section 11,

the government further issued regulations that conferred upon the administration

extraordinarily expansive powers, as the government would now be empowered to

57. “Announcement of the Centre for the Resolution of the Emergency Situation Re: Prohibition of Assembly or Gathering to Conspire, April 8 B.E. 2553 (2010).”

58. “Regulation pursuant to Section 9 of the Emergency Decree on Public Administration on Emergency Situation, B.E. 2548 (2005).”

59. “Announcement pursuant to Section 9 of the Emergency Decree on Public Administration on Emergency, Situation B.E. 2548 (2005).”


“arrest and detain a person suspected in taking part in instigating the emergency

situation or a person who advertises or supports the commission of such act,”

“summon an individual to report to the officers or give evidence pertaining to the

emergency situation.”60

On May 13, 2010, it the State of Emergency was expanded to include fifteen provinces

in northern, northeastern and central Thailand. By late May, it was expanded to

twenty-four provinces across the country. On July 7, 2010, the government renewed

the decree in nineteen provinces for an additional three months. The size of

the territory covered by the decree was gradually scaled back until the State of

Emergency was lifted on December 21, 2010.

Aside from the UDD’s core leaders, who remain in custody and face a possible

death sentence stemming from the trumped up charges of terrorism, as of June 10

the government had arrested 417 people associated with the Red Shirts, mostly for

violations of the Emergency Decree. Several were tried and convicted within hours

of their arrest. On June 26, activist Sombat Boonngarmanong was apprehended for

violating the Emergency Decree while attempting to tie a red ribbon at Ratchaprasong

in remembrance of those killed by the state a month earlier.

The government’s harshness in the application of the Emergency Decree to the Red

Shirts stands in sharp contrast to the more lenient posture adopted with regard

to similar violations of the Emergency Decree that PAD/Multicolor protesters and

their organizers have engaged in at the same time. Nobody was arrested among

the thousands of pro-government activists who staged rallies at Royal Plaza and

Silom Road — in contravention of emergency rules banning political gatherings —

while the Red Shirts were demonstrating at Ratchaprasong. On April 22, groups of

“Multicolor” shirts pursued by the police after repeatedly attacking the Red Shirt

encampment were given safe haven behind army lines. Video evidence shows a

military officer pointing a gun at the head of a policeman who was in the midst of

arresting a pro-government militant.

It is now clear that the Emergency Decree was never invoked for the purposes

of confronting an emergency, but rather to give the government the dictatorial

powers it needed to stamp out its opposition and attempt to consolidate its hold

on political power. As such, the prolonged enforcement of the Emergency Decree

itself constitutes a violation of the International Covenant on Civil and Political

Rights (ICCPR). Article 4 permits the suspension of certain ICCPR rights, such as

60. “Announcement pursuant to Section 11 of the Emergency Decree on Public Administration on Emergency Situation B.E. 2548 (2005).”


the right to demonstrate, only in instances where a public emergency “threatens

the life of the nation” and only “to the extent strictly required by the exigencies of

the situation” — in any event, under no circumstances can a State of Emergency be

used to “undermine the rule of law or democratic institutions.” According to the

International Commission of Jurists, Human Rights Watch, the International Crisis

Group, Amnesty International, and virtually every other human rights organization

around the world, the Thai government’s recourse to emergency powers failed this

crucial test.

In a submission to the Human Rights Council, the Asian Legal Resource Centre

(“ALRC”) described the systematic human rights violations that have taken place

under the cover of the Emergency Decree.61 The ALRC called upon the Human Rights

Council to condemn the application of the Emergency Decree as a breach of the State

party’s obligations under the International Covenant on Civil and Political Rights,

and as a cause for further violations under international law. In its report, the ALRC

draws the attention to the one case of arbitrary detention and one of harassment

of a minor, who was forced to undergo psychiatric evaluation and treatment for

protesting against the government in the northern province of Chiang Rai.

3.5 A STRATEGY OF TENSIONThe announcement that the Red Shirts were planning large demonstrations

beginning in mid-March 2010 quickly ushered in what historian Chris Baker called

Thailand’s season of “fear and folly” — a campaign of bombings and sabotage as

enigmatic as it was frightening.62 The campaign began on January 15, 2010 with a

suspicious grenade attack targeting the offices of army commander in chief Anupong

Paochinda. It continued with a pair of mysterious bombings in mid-February as well

as a series of coordinated attacks on four branches of Bangkok Bank on February

27, just a day after the Supreme Court seized the assets of former Prime Minister

Thaksin Shinawatra. The campaign would last for the entire duration of the Red

Shirt rallies and several months thereafter. All told, it would come to encompass a

61. Asian Legal Resource Centre, “Thailand: Arbitrary Detention and Harassment under the Emergency Decree,” August 31, 2010.http://www.ahrchk.net/statements/mainfile.php/2010statements/2791/

62. Chris Baker, “From Smoke and Mirrors to Fear and Folly,” The Nation, February 21, 2010.http://www.nationmultimedia.com/home/2010/02/22/opinion/From-smoke-and-mirrors-to-fear-and-folly-30123119.html


string of grenade attacks on some seventy locations in Bangkok and other provinces,

the actions of the so-called “men-in-black” on April 10, resulting in the death of a

handful of soldiers, and the arson of more than three dozen buildings on May 19.

The government of Prime Minister Abhisit Vejjajiva has given the Thai people an

easy outlet for their angers and their fears over the attacks: the Red Shirts. Indeed,

the violence figured prominently in the government’s depiction of the Red Shirts

as “terrorists” —a charge that was subsequently used to justify the suspension of

civil liberties, the brutal crackdowns of April/May, and the imprisonment of two-

dozen Red Shirt leaders. Because the Emergency Decree on Public Administration

in Emergency Situation, B.E. 2548 (2005) is meant to apply to instances “where an

emergency situation involves terrorism, use of force, harm to life, body or property,

or there are reasonable grounds to believe that there exists a severe act which


affects the security of state, the safety of life or property of the state or person,”

justifying the extraordinary use of dictatorial powers has required the government to

mount a relentless media campaign aimed at defining the Red Shirts as a subversive

movement threatening the integrity and the security of the Thai state.

Whereas the Abhisit government is especially quick to label its opponents “terrorists,”

it has done a poor job of substantiating these claims. Considering, moreover, the

degree to which the charge of “terrorism” was instrumental to the government’s ability

to censor all alternative sources of information, suspend constitutional rights, and

crack down on the Red Shirts without triggering an angry backlash by the citizens

of Bangkok, there is strong circumstantial evidence that Thailand’s armed forces

staged many of these attacks for the purpose of cooking up a damaging public case

against the Red Shirts. In other words, the episodes of violence are consistent with

a “strategy of tension” designed to justify the government’s continued recourse to

draconian restrictions on the rights of the opposition.63

It would not be the first time that a government with this track record of violence,

abuse of power, and misinformation could have staged a few incidents to justify

(or divert attention from) its track record of violence, abuse of power, and

misinformation. Moreover, it would not be the first time this happens in Thailand.

“Third hands” are known to have been at play during both the 1973 and 1992

protests, when organized agents provocateurs sparked riots that provided the

authorities with the pretext to crack down. More recently, it is well known that pro-

government “Blue Shirts” attempted to precipitate a confrontation by ambushing

Red Shirts who were demonstrating in Pattaya in April 2009.

According to The Statement of Anonymous Witness No. 22, the same strategy was

at play in 2010, beginning weeks prior to April 10, 2010:

Part of the [Thai government’s] plan involved conditioning the

public to accept the notion that the Red Shirts were violent and

dangerous. Consequently, beginning in early February 2010,

provocateur groups working in coordination with the Army Task

Force and the Abhisit administration set out to terrorize the

public and lay the blame on the Red Shirts. They carried out their

63. “Strategy of tension” is an expression originally coined to describe a campaign of terrorism that extreme right wing groups carried out in Italy beginning with the bombings at Piazza Fontana in the late 1960s. The purpose of the campaign, which was blamed on left wing extra-parliamentary groups, was to prompt the Italian state to impose the State of Emergency and manipulate public opinion to support the state’s recourse to authoritarian measures.


work principally in Bangkok, and their primary method was to

plant and detonate a variety of explosive devices. Although this

activity abated after the Red Shirt demonstrations were finally

put down on May 19, they were allowed to continue at a reduced

rate thereafter in order to provide ostensible justification for the

Thai Government to maintain in effect the Emergency Decree in

Bangkok.

Another example of this high-stakes form of negative public

relations strategy involved the evacuation of Chulalongkorn

Hospital in Bangkok on April 30, 2010. It was widely reported

that the evacuation was prompted by an invasion of Red Shirt

demonstrators searching for snipers. In fact, the incident was

planned in advance by the Government Leadership and the Army

Leadership, in collusion with certain members of the Thai media

and certain members of the board of Chulalongkorn Hospital. After

members of the press challenged Red Shirt leaders to back up their

claims that Army snipers had fired shots from atop the hospital,

hospital management immediately ordered the evacuation. There

was never any genuine belief that the Red Shirt leaders presented a

threat, and the orders to evacuate were given in order to heighten

tensions and reinforce the false impression that the Red Shirts

were violent and a threat to the Monarchy.

The Government Leadership’s postponement of the beginning of

the school year in May 2010 was also part of this anti-Red Shirt

public relations strategy. The decision was not based on any

actual or perceived threat from the Red Shirts, but was designed

to create the illusion that they were dangerous.64

The timing of the attacks that have occurred throughout 2010 is revealing.

Victimless explosions at four Bangkok Bank branches on the night of February 27

led to vague but stern warnings issued by the government that more “sabotage”

was planned in the lead-up to March 14, thereby justifying the imposition of the

Internal Security Act.65 The surge in attacks observed during the last week of March

was highly instrumental to the imposition of the Emergency Decree on April 8, in

anticipation of the April 10 crackdown. Then, the explosions that rocked Bangkok

in late April set the stage for the assassination of Seh Daeng and the bloodshed that


65. “Sabotage Threat: PM,” The Nation, March 7, 2010.http://www.nationmultimedia.com/home/2010/03/07/politics/Sabotage-threat-PM-30124083.html

accompanied the weeklong push to disperse the Red Shirt rallies, while the fires

on May 19 gave the government enough cover to sweep the dead bodies of ninety

Red Shirts under the rug. More than a month later, the bomb at the Bhum Jai Thai

headquarters muted the intensifying calls to lift the Emergency Decree, leading to

the three-month extension handed down on July 6. Then, on July 25, just hours

after Abhisit announced to the press that the government would urgently consider

lifting the emergency decree,66 a bomb went off at Big C Rajadamri department

store, killing one man and putting any plans to restore the people’s constitutional

rights on hold for some more time to come. The last spike in the violence took

place in the lead-up to the last extension of the Emergency Decree on October 6, but

virtually ceased immediately thereupon.

The incidents have invariably occurred at convenient times for the government’s

purposes. It is also interesting that “terrorists” have always found a way to confirm

what the government wanted the public to believe. At first, it was that the Red Shirt

rallies could not be properly contained without the Internal Security Act. Then it

was to show that the Internal Security Act was itself not enough. Then it was that the

Red Shirts needed to be put down whatever the cost. And then it was to point out

that those who ended up dead essentially got what they deserved. Considering that

the Red Shirts were desperate to earn the support of Bangkok residents, more than

any others these “terrorists” helped the government show that the UDD deserved

none of that public support. Were it not for the “terrorists,” it is quite likely that

Mr. Abhisit’s administration would no longer be in office. Indeed, “terrorists” have

rescued Abhisit enough times to make one wonder whether that was in fact their

objective.

One salient example of this “terrorist” activity came in the wake of the Red Shirt

leaders’ surrender to police authorities in the afternoon of May 19. As reporters

described the official end of the Red Shirt demonstrations, scenes were broadcast

around the world of billowing black clouds of smoke rising from buildings in the

CentralWorld complex at Ratchaprasong. The blame for the arson seemed to fall

naturally to the Red Shirts, but the The Statement of Anonymous Witness No. 22

provides an insider’s account of what really happened during the afternoon of May

19, 2010:

After the Second Infantry Battalion breached the Red Shirt

barricades, they secured the entire Ratchaprasong area. By 17:00

66. “PM Vows to Mull Lifting Decree Urgently,” Bangkok Post, July 25, 2010.http://www.bangkokpost.com/breakingnews/187820/pm-vows-to-mull-lifting-decree-urgently


hours, the Army had fully secured all of the CentralWorld buildings.

All civilians were removed from the buildings, including numerous

security guards who worked at CentralWorld. After the civilians

were removed, soldiers of the Second Infantry Battalion were

posted outside CentralWorld to prevent anyone from approaching

or entering. The purpose of this exercise was to permit a team

of arsonists contracted by the Army to plant incendiary devices

inside CentralWorld. These devices were intentionally ignited at

approximately 17:45 hours, destroying the Zen store building. The

operation was planned by the Army Leadership, with the consent

and approval of the Government Leadership, several weeks in

advance of May 19. The purpose of the operation was to cement

in the public mind the concept that the Red Shirt movement was

violent and dangerous, which the Government Leadership and the

Army Leadership believed would create the impression that the

Army’s actions in suppressing the Red Shirts were justified. In

fact, the Red Shirts had nothing to do with the fires that destroyed

part of the CentralWorld complex.67

This account is consistent with what a resident of Ratchaprasong witnessed from a

high-rise apartment building overlooking Central World:

I am a resident of Bangkok, Thailand. I live in the area of the

Ratchaprasong Intersection. I was an eyewitness to the Red Shirt

demonstrations in my neighborhood every day from April 3 through

May 19, 2010. I am not a member of the Red Shirt movement, nor

am I a native Thai. My background is central European. I have lived

in Thailand since 2000.

I have military training. I also have firearms and personal protection

training, and I am familiar with the sound of automatic weapons

fire and grenade fire. I am a biochemical engineer by training,

and I have experience with biochemical weaponry, including

enforcement of the limitations on biological weapons imposed by

the Geneva Convention biological weapons protocols.

I witnessed the development of the fire at CentralWorld on May

19, 2010 from my bedroom window, from where I had a direct

view of the center.

On May 19, 2010, after the Red Shirt protesters gave up, I witnessed

smoke from minor debris fires outside the CentralWorld building,

67. Statement of Anonymous Witness No. 22, at ¶ 59.


including some minor tire fires. I witnessed smoke, which was

clearly mixed with steam. These fires were on the outside of

the CentralWorld building. Although there may have been some

minor fires on the ground floor of the CentralWorld building

until approximately 16:30 on May 19, I understand that there

was flooding on Rama I Rd. in front of ZEN from the building’s

sprinklers. I conclude from this that the minor fires set outside

the CentralWorld building and any minor fires on the first floor

were promptly extinguished by the sprinkler systems.

At this time, I witnessed no Army troops outside of the Centralworld

building.

There were at least four fire trucks stationed in the immediate

vicinity of CentralWorld, within one or two blocks. These trucks

had been in that location since early May, and they were present

throughout the demonstration period. None of these fire trucks

made any effort to answer the tire fires or minor fires on ground

floor level of the CentralWorld building on May 19, 2010, although

the Red Shirts had surrendered hours earlier.

Beginning at approximately 17:00 on May 19, 2010, I witnessed

numerous Army troops in front of the CentralWorld building on

Rajdamri Rd. Their demeanor was casual. They were on foot, not

supported by vehicles, nor were they taking cover from any threat.

They were carrying a full range of weaponry, including the Israeli

Tavor 21, several Remington 12 gauge shotguns, together with

Barretta 9mm handguns. At this time, the status of the minor fire

was relatively light. I did not observe any open flames, and the

smoke was light in density and color, still apparently mixed with

steam, indicating the presence of water.

At approximately 17:30 on May 19, 2010, I noticed a dramatic

increase in the amount of smoke coming from the CentralWorld

building. It became more dense, and much darker.

The most dramatic moment came at approximately 17:40, at

which time I heard several massive explosions. I was able to

determine, based on the muffled sound of the explosions, that

they came from the inside of the CentralWorld building. At that

time, approximately 17:42, the smoke intensified dramatically,

indicating a massive amount of fuel. I captured this moment in

the following photograph time-stamped 17:42:01 [BELOW, LEFT]:


This was the first time that open fire was visible on ground floor

of the southeast front of the CentralWorld building. Within forty-

six seconds, the smoke thinned somewhat, as the initial fuel from

the explosions was exhausted, and I noticed for the first time

that open flames were also projecting from the mezzanine level

on the eighth floor of the ZEN store, on the southeast corner of

the CentralWorld building. I documented this in the following

photograph time-stamped 17:43:36 [ABOVE, RIGHT].

I was also able witness that open flames had engulfed the entire

first and second floors of the southeast front of the CentralWorld

building. The flames had broken through the windows, which are

safety glass, indicating that the breakage was caused by powerful

explosion from the inside of the building. I documented this in the

following photograph time-stamped 17:46:49:


In the following photographs time-stamped 19:01:27 and 19:02:54,

I documented the fact that the fire on the mezzanine level of the

ZEN store was drawing the flames on the first two ground floors

upward in a chimney effect, as there are several meters of open

area between the exterior shell of the building and the actual

floor/roofing structure of the building. It was clear to me from

these facts that this fire was deliberately set from the inside by

someone with knowledge of incendiary devices and fire dynamics,

intending to inflict maximum damage to the building structure:

By approximately 21:00, the entire ZEN store was engulfed in

flames, which I documented in the following photograph time-

stamped 20:57:28 [BELOW, LEFT].

At approximately 21:40, the ZEN store collapsed, which I

documented in the following photograph time-stamped 21:40:44

[BELOW, RIGHT]:

The collapse of the ZEN building occurred almost exactly four

hours after the initial explosions that caused that fire. At no time

between 17:40 and 21:40 on May 19, 2010, did I witness any of the


fire vehicles stationed in the immediate area respond to the fire.

On May 20, 2010, I walked to the area where the fire had occurred

and witnessed at that time several fire trucks present, spraying

water on the smoldering building. I noticed that the flames had

burned only the ZEN building, while the neighboring building was

spared. The firefighters seemed intent on preventing any damage

to the neighboring building, which is also part of CentralWorld.68

68. Statement of Anonymous Witness No. 1, reproduced in the Appendix.


4. CRIMES AGAINST HUMANITY The “reasonable basis to believe” that a crime within the jurisdiction of the court

has been or is being committed is one of the most important standards considered

by the Prosecutor when deciding whether to undertake a preliminary investigation.

There are two requirements that need to be fulfilled in this regard. First, the

Prosecutor will decide whether there is a reasonable basis to believe that a crime

has been committed; second, it must be determined whether the crime in question

falls within the jurisdiction of the court.

In the Kenyan situation, the Pre-Trial Chamber recognized that the “reasonable

basis to believe” test as set out in Article 53(1) of the Statute is subsumed under the

“reasonable basis to proceed” standard referred to in the opening clause of Article

53(1) of the Statute.”1 Jurisprudence shows that the standard should be construed

and applied against the underlying purpose of the procedure in Article 15(4) of the

Statute, which is to prevent the court from proceeding with unwarranted, frivolous,

or politically motivated investigations that could have a negative effect on its

credibility.2 The Appeals Chamber previously ruled that this standard be read in

the context of Article 58 of the Statute; in other words, it is sufficient at this stage

to show that a reasonable conclusion that a crime has been committed may be

supported on the basis of the evidence and information available.3

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

1. Prosecutor v. Kenya, ICC-01/09-19, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, March 31, 2010.

2. Kenyan Decision on Article 15, para. 32.

3. Appeals Chamber, Judgment on the Appeal of the Prosecutor against the “Decision on the Prosecution’s Application for a Warrant of Arrest against Omar, Hassan Ahmad Al Bashir,” February 3, 2010, para. 33.


(i) The crime must fall within the category of crimes referred to

in Article 5 and defined in Articles 6, 7, and 8 of the Statute

(jurisdiction ratione materiae);

(ii) The crime must fulfill the temporal requirements specified in

Article 11 of the Statute (jurisdiction ratione temporis)

(iii) The crime must meet one of the two alternative requirements

contained in Article 12 of the Statute (jurisdiction rationae loci or

ratione personae).4 The latter entails either that the crimes have

occurred within the territory of a State Party to the Statute or a

state that has lodged a declaration on the basis of Article 12(3) of

the Statute, or to have been committed by a national of such state.5

In the Thai situation, the evidence points to the fact that there is, indeed, a

reasonable basis to believe that a crime within the jurisdiction of the court has been

committed. In this instance the issue of ratione temporis is uncontroversial. Article

11 of the ICC Statute provides that the Court has jurisdiction only with respect to

crimes committed after its entry into force, which of course includes the events

that happened in April and May 2010 as well as any crimes committed since the

2006 coup. While the issues of ratione loci and ratione personae are addressed later

in this Application, the remainder of this section discusses the jurisdiction ratione

materiae with specific reference to its application to the Thai situation.

4.1 GENERAL REQUIREMENTS Crimes Against Humanity are defined in Article 7(1) of the ICC Statute. Four

potential Crimes Against Humanity stand out from the events described in

this Application:

- 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.”

4. Pre Trial Chamber I, Decision on the Prosecutor’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, ICC-02/05/01/09-3, para. 36.



This Application describes the repression of Red Shirt demonstrators carried out by

the military — civilians belonging to the group of Red Shirt protesters were shot by

men in military uniforms, leading to more than eighty dead civilians and at least two

thousand injured. Furthermore, it described the imposition of new rules, regulations

and decrees allowing for the arrest and incarceration of civilians attempting to

disseminate alternative political viewpoints, protesting, or participating in a small

gatherings and demonstrations. These rules specifically target the broad “Red Shirt

movement,” as the administration has made no attempt to enforce the rules on pro-

government groups.

MURDERAccording to the Elements of Crimes, in order to establish that the crime of murder

has been committed, the Trial Chamber must be satisfied that that a “perpetrator

killed one or more persons.”6 In the Case of JP Pierre Bemba Gomba, the Trial

Chamber recalled that for a crime to be committed, two essential and distinct

elements must be established: the actus reus element (material or objective element)

and the mens rea element (mental or subjective element).7

As recognized by the Court’s jurisprudence, for the act of murder

to be committed the victim has to be dead and the death must

result from the act of murder.8 The act itself may be committed

through action or omission.9 The Chamber stresses that the death

of the victim can be inferred from factual circumstances,10 and

that the Prosecutor must prove the causal link between the act of

murder and the victim’s death.11

6. See Elements of Crimes, Article 7(1)(a)(1). the term ‘killed’ is interchangeable with the expression “caused death.”

7. JP Bemba Gomba Decision, para.134.

8. Pre-Trial Chamber I, Katanga decision, ICC-01/04-01/07-717, para. 421; see also ICTR, The Prosecutor v. Akayesu, Case No. ICTR-96-4-T, “Judgment”, September 2 1998, para. 589; ICTR, The Prosecutor v Rutaganda, Case No. ICTR-96-3-T, “Judgment,” December 6, 1999, para. 80; ICTY, Prosecutor v. Blaskic, Case No. IT-35-14, “Judgment,” March 3, 2000, paras 216-217; ICTY, Prosecutor v Delalic, et al, Case No. IT-96-21, “Judgment,” November 16, 1998, para. 424.

9. See also for the same finding in Pre-Trial Chamber I, Katanga decision, 1CC-01/04-01/07-717, para. 287.

10. See also ICTY, Prosecutor v Knojelac, Case No. IT-97-25, “Judgment,” March 15, 2002, paras 326-327.

11. P. Currat, Les crimes contre l’humanité dans le Statut de la Cour pénale internationale, (Bruylant, 2006), p. 146; ICTY, Prosecutor v Krnojelac, Case No. IT-97-25, “Judgment,” March 15, 2002, para. 329.


In this respect, it is not necessary for the Prosecutor to demonstrate, for each

individual killing, the identity of the victim and the direct perpetrator. Nor is it

necessary that the precise number of victims be known.12 This allows the Chamber

to consider evidence referring to “many” killings or “hundreds” of killings without

identifying a specific number.13

As to the element of mens rea, the “existence of intent and

knowledge can be inferred from relevant facts and circumstances.”

Taking into account that no mental element is specified in Article

7(l)(a) of the Statute, the Chamber applies Article 30 of the Statute.14

The Prosecutor must demonstrate the nexus existing between the

acts of murder and the attack.15

As detailed in this application, the dispersal of the Red Shirt rallies resulted in the

death of more than eighty civilians. On April 10, 2010, units had carried out a failed

attempt to disperse a Red Shirt gathering at the Phan Fa Bridge, resulting in the

death of twenty-seven people. In addition, at least fifty-five more people died in the

dispersal of the Ratchaprasong rally between May 13 and May 19. It is submitted

that the loss of more than eighty civilians at the hands of the Thai Army during

April-May 2010 was a result of the act of murder, an act where the intention of the

alleged perpetrators was “to cause the victim serious injury with reckless disregard

for human life.”

When set against other recent conflicts, the casualty figures for the 2010 Bangkok

Massacre are on a par with episodes of full-scale warfare. While the ninety-one

deaths is an extraordinarily high number for what was, essentially, a civil policing

12. For a similar approach, see ICTY, Prosecutor v. Stokte, Case No. IT-97-24-T, “Judgment,” July 31, 2003, para. 201.

13. This approach was also taken in ICTR, The Prosecutor v. Akayesu, Case No. ICTR-96-40-T, “Judgment,” September 2, 1998, para. 282: Pursuant to a question from the Chamber as to the killing of teachers, witness K stated she was unsure how many were killed, but that she knew the names of some of them; ICTR, The Prosecutor v Kamuhanda, Case No. ICTR-95-54A-T, “Judgment,” January 22, 2004, para. 345: “Prosecution Witness GEA testified that he could not say how many people had died at that location, because ‘that day there were very many.’;” ICTR, The Prosecutor v Ntakirutimana, Case No. ICTR-96-10 & TCTR-96-17-T, “Judgment and Sentence,” February 21, 2003, para. 631: the witness specified that “many people were killed as a result of this attack.”

14. ICC, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor v. Germain Katanga and Mattieu Ngudjolo Chui, ICC-01/04-01/07 Decision on the Confirmation of the Charges, September 30, 2008, (Pre-Trial Chamber I, Katanga decision, ICC-01/04-01/07-717), para. 423.

15. Elements of Crimes, Article 7(l)(a) of the Statute, para. 2.


operation, the estimated two thousand injuries are an equally damning statement

of the Royal Thai Government’s brutal use of force.

When one compares the casualties suffered by United States and Coalition forces

during the first year of the Iraq War (from March 2003), the full scope Mr. Abhisit’s

declaration of war against its own citizens is fully revealed. In the 347 days from the

start of the invasion of Iraq on March 20, 2003 to February 29, 2004, 655 Coalition

troops died, averaging 1.89 deaths a day.16 Over the forty-one days from the April

10, 2010 attack staged by the Royal Thai Army in the vicinity of the Phan Fa Bridge

until Thai troops reasserted control over the Ratchaprasong protest area on May

19, Thai citizens died at a rate of 2.22 a day, a death rate almost 17.5% higher than

that suffered by the invading Coalition army, comprising of several nations, during

the full-scale Iraq War.

The comparative wounded figures are even more staggering if we take the estimate

of approximately two thousand injured between April 10, 2010 and May 19, 2010.

Using the same first 347 days of the Iraq War, 2756 US military personnel were

wounded or injured in total, at a rate of roughly 7.95 a day. The wounded and

injured rate for the forty-one days of violence witnessed during the 2010 Bangkok

Massacre is 48.8 a day — over six hundred percent higher. In fact, during the US

military’s worst year for injuries in the entire Iraq War (the twelve months from

April 2004), when 8624 personnel were wounded, the daily rate of 23.63 is still less

than half that of the 2010 Bangkok Massacres.

Given these figures, little doubt remains that the Thai regime turned central Bangkok

into a charnel house in April and May 2010, unleashing levels of violence typically

seen in major episodes of large-scale modern warfare. Based on both the aggregate

casualty toll and first-hand testimonies describing how the crackdown unfolded in

various parts of the city, it is clear that the killings were committed with the intent

“to cause the victims serious injury with reckless disregard for human life.” In

fact, witness testimonies support the notion that the crackdown was planned and

implemented for the specific purpose of inflicting maximum damage on the Red

Shirt movement, through both the murder of its leaders and the decimation of its

supporters in the streets of Bangkok.

In crushing the Red Shirts, the Abhisit administration and Royal Thai Army ignored

crowd control principles altogether. Contrary to the standards set in the “United

Nations Basic Principles on the Use of Force and Fire Arms by Law Enforcement

16. Figures about Iraq war casualties are from the website “Iraq Coalition Casualty Count,” http://icasualties.org/Iraq/USCasualtiesByState.aspx.


Officials,” the dispersal operations made little use of “non-lethal incapacitating

weapons.” No care whatsoever appears to have been taken to “minimize the risk

of endangering uninvolved persons” and to “preserve human life.” The shoot-to-

kill policy for demonstrators burning tires and setting off firecrackers does not

appear to constitute a response undertaken “in proportion to the seriousness of the

offense.” Attacks on medical workers were not ordered in the interest of ensuring

that “assistance and medical aid are rendered to any injured or affected persons

at the earliest possible moment.” Even if the Red Shirts demonstrations could be

regarded as “violent” and “unlawful” — if only because the State of Emergency

declared them to be illegal — expert testimony and the wealth of eyewitness accounts

that emerged from the government’s live fire zones strongly suggests that the use

of force was not limited to the “minimum extent necessary.” Indeed, the testimony

suggests that many of the victims were murdered solely as part of a campaign to

suppress evidence that might incriminate the Army and the Thai Government.

Major international human rights organizations concur with the assessment of the

crackdown offered in this Application. On May 15, 2010, Human Rights Watch called

on the government to revoke the “live fire zones” and slammed the administration

for failing to abide by the “United Nations Basic Principles on the Use of Force

and Fire Arms by Law Enforcement Officials.”17 A few days thereafter, Amnesty

International, an organization whose Thailand chapter has long been criticized for

its cozy relationship with the country’s ultra-conservative Establishment, called on

the government to “halt the reckless use of lethal force.”18 Some time after the

rallies were dispersed, organizations like Reporters Without Borders (RSF) 19 and the

International Crisis Group (ICG)20 issued detailed reports that sharply condemned

the indiscriminate killings committed by the Thai armed forces. Reporters Without

Borders denounced the government for giving the Royal Thai Army a “license to kill”

Red Shirt demonstrators, and accused the Royal Thai Army of “taking advantage of

17. Human Rights Watch, “Thailand: Revoke ‘Live Fire Zones’ in Bangkok,” May 15, 2010.http://www.hrw.org/en/news/2010/05/15/thailand-revoke-live-fire-zones-bangkok

18. Amnesty International, “Thai Military Must Halt Reckless Use of Lethal Force,” May 18, 2010.http://www.amnestyusa.org/document.php?id=ENGNAU2010051816851&lang=e

19. Reporters Without Borders, “Thailand: Licence to Kill,” July 2010.http://en.rsf.org/IMG/pdf/REPORT_RSF_THAILAND_Eng.pdf

20. International Crisis Group, “Bridging Thailand’s Deep Divide,” ICG Asia Report 192, July 5, 2010, p. 18.http://www.crisisgroup.org/~/media/Files/asia/south-east-asia/thailand/192_Bridging%20Thailands%20Deep%20Divide.ashx


the state of emergency to run roughshod over international law and Thai legislation

protecting civilians.”

IMPRISONMENT AND OTHER SEVERE DEPRIVATION OF PHYSICAL LIBERTYAccording to the Elements of Crimes, in order to establish that the crime of

imprisonment or severe deprivation of physical liberty has been committed, the

Trial Chamber must be satisfied that the perpetrator unlawfully deprived one or

more persons of physical liberty.

Months since the dispersal of the rallies, hundreds of protesters remain in prolonged,

arbitrary detention, often in harsh conditions, for violating the Internal Security Act

and the Emergency Decree, which the Thai authorities wield in an effort to criminalize

legitimate political protest. Just how many Red Shirts have been detained since the

crackdown remains “shrouded in secrecy,” as an investigative article put it back in

August 2010, but independent estimates range from 470 upwards.21 Furthermore,

there are indications that opponents of the government have been subjected to

forced disappearance after the end of the demonstrations. As of its latest report, of

the eighty-eight people the “Mirror Foundation” had initially listed as missing, fifty-

one turned out to have been detained, while twenty-seven remain unaccounted for.

Human Rights Watch further reported the following:

Since at least May 12, the CRES has ordered use of additional military

camps in Saraburi (Adisorn Camp), Ratchaburi (Panurangsi Camp)

and Chantaburi (Panasbodisriuthai Camp), as well as Border Patrol

Police facilities in Prachinburi (Naresuarn Camp) and Pathumthani

(1st Region Border Patrol Police Command) to detain people

accused of violating the Emergency Decree. It remains unclear

what has happened to them or where they are now.22

It is therefore submitted that an indefinite number of people are being subjected to

prolonged arbitrary detention and severe deprivation of physical liberty.

Additionally, nineteen Red Shirt leaders who have been formally charged with

terrorism in connection with the demonstrations have been denied bail. These

21. Marwaan Macar-Markan, “Jails Fill Up with Political Prisoners, Critics,” Inter-Press Service, August 23, 2010.http://ipsnews.net/news.asp?idnews=52571

22. Human Rights Watch, “Thailand: Repeal the Emergency Decree,” November 24, 2010.http://www.hrw.org/en/news/2010/11/24/thailand-repeal-emergency-decree


defendants are being held criminally responsible for all of the deaths that occurred

during April and May, making them the scapegoats for the murderous acts of the

Abhisit government. Incarcerating and prosecuting these political demonstrators

for crimes actually committed by the government is clearly unlawful. Indeed, in

light of the fact that the Abhisit government attempted twice to assassinate the Red

Shirt leaders during the course of the demonstrations, these criminal charges —

which carry potential capital sentences — seem to represent the “legal” culmination

of those plans.

OTHER INHUMANE ACTSAccording to the Elements of Crimes, in order to establish that other inhumane

acts have been committed, it must be satisfied that a “perpetrator inflicted great

suffering, or serious injury to body or to mental or physical health by means of an

inhumane act.”23 It is not clear what exactly falls under the scope of an “inhumane

act” according to the ICC.

The ICC Pre-Trial Chamber noted that the Statute has given to “other inhumane

acts” a different scope than its antecedents like the Nuremberg Charter and the

ICTR and ICTY Statutes. The latter conceived “other inhumane acts” as a “catch-all

provision,”24 leaving a broad margin for the jurisprudence to determine its limits.

In contrast, the Rome Statute contains certain limitations, as regards to the action

constituting an inhumane act and the consequence required as a result of that

action.25 According to Article 7(l)(k)(2) of the Elements of Crimes, “other inhumane

acts” must be of a similar character to any other act referred to in Article 7(1) of

the Statute. Footnote 30 of the Elements of Crimes states that “character” shall be

understood as referring to the nature and gravity of the act.26

Although this similarity is required, Article 7(l)(k) of the Statute defines the conduct

as “other” inhumane acts, which indicates that none of the acts constituting

crimes against humanity according to Article 7(1)(a) to (j) can be simultaneously

considered as other inhumane act under Article 7(l)(k) of the Statute.27 For example,

23. See Elements of Crimes, Article 7(1)(k)(1).

24. Boot, M. revised by C.K. Hall, C. K., “Article 7 - Crimes against Humanity”, in O. Triffener (ed.), Commentary on the Rome Statute of the International Criminal Court, 2nd Edition (München: C.H. Beck, 2008), p.230.

25. Pre-Trial Chamber I, Katanga decision, ICC-01/04-01/07-717, para. 450.




to establish bodily injury as a crime against humanity, the ICTY Appeals Chamber

in The Prosecutor v. Kordic and Cerkez found that the following conditions should

be met:

(a) The victim must have suffered serious bodily or mental harm; the

degree of severity must be assessed on a case-by-case basis with

due regard for the individual circumstances;

(b) The suffering must be the result of an act or omission of the

accused or his subordinate; and

(c) When the offence was committed, the accused or his subordinate

must have been motivated by the intent to inflict serious bodily or

mental harm upon the victim.28

With respect to the subjective element, the Chamber notes that in addition to

the requirement that the objective elements were committed with intent and

knowledge pursuant to Article 30 of the Statute, Article 7(l)(k)(3) of the Elements of

Crimes establishes that the “perpetrator must also [have been] aware of the factual

circumstances that established the character of the act.” This offense encompasses,

first and foremost, cases of dolus directus in the first and second degree.29

The evidence presented above with regard to the crime of murder further

substantiates 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, in particular, 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.”

In addition to the injuries suffered by Red Shirt demonstrators, emergency

medical personnel, journalists, and onlookers during the Royal Thai Army’s brutal

crackdown, “other inhumane acts” were also perpetrated against at least some of

the people detained by the government while in state custody. Since the end of

the demonstrations, multiple reports have emerged attesting to the Royal Thai

Government’s habitual recourse to the torture of detainees — both as a punitive

measure and as an instrument to coerce prisoners into furnishing confessions. The

28. ICTY The Prosecutor y Kordic and Cerkez, Case No. IT-95-14/2-A, Appeals Judgment, December 17, 2004, para. 117.



group “Social Move” described the plight of at least four men who claim to have

been severely beaten upon their arrest and while in custody; two testified to having

been doused in lighter fluid as soldiers of the Royal Thai Army threatened to burn

them alive.30 Even the National Human Rights Commission, a governmental body

frequently criticized for its pro-Establishment bias, has issued a report denouncing

that “Red Shirt detainees are being tortured, forced to confess to crimes and jailed

without any chance to defend themselves.”31

The manner in which the Abhisit government is prosecuting the Red Shirt leaders

on capital charges of terrorism should also be viewed as an inhumane act. As set out

above, these defendants are being held responsible for the murders committed by the

Abhisit government. Further, as detailed below, the court is systematically denying

them due process guarantees by excluding key witnesses and by denying them the

right to attend their own proceedings. The Red Shirt leaders are being subject to

nothing less than a “show trial” in the old Soviet style, under the supervision of

the same judge who participated in the post-coup criminal proceedings against

former Prime Minister Thaksin. These show trials should be treated as separate and

independent crimes against humanity.

PERSECUTIONAccording to the Elements of Crimes, in order to establish that the crime of

persecution has been committed, the Trial Chamber must be satisfied that in the

act of persecution, the perpetrator severely deprived, contrary to international law,

one or more persons of their fundamental rights.32 In the ICTY case Prosecutor v.

Kupreskic, the Trial Chamber held that the Crime Against Humanity of Persecution

“derives its unique character from the requirement of its specific discriminatory

intent.”33 Moreover, the Trial Chamber held that persecution is “an act or omission

that discriminates in fact that and that denies or infringes on a fundamental right

30. For English translations and summaries of the original Thai reports, see Andrew Spooner, “Thai Style Human Rights,” Siam Voices, October 3, 2010.http://asiancorrespondent.com/41045/thai-style-human-rights/ ) See also Andrew Spooner, “Thai Army Brutality— An Account,” Siam Voices, November 16, 2010 (http://asiancorrespondent.com/42679/thai-army-brutality-an-account/)

31. See “Panel Claims Red Shirt Inmates Tortured,” Bangkok Post, December 7, 2010.http://www.bangkokpost.com/news/politics/210009/panel-claims-red-shirt-inmates-tortured

32. See Elements of Crimes, Article 7 (1) (h) (1).

33. ICTY, Krnojelac, Case No. IT-95-16-T, Judgment, March 15, 2002, para.436.


laid down in international customary law or treaty law.”34

By the time the Red Shirts began setting up their encampments in Bangkok on

March 13, 2010, the campaign of political persecution against the opponents of the

current regime had been underway for years.

As noted, the campaign started with the 2006 coup, when Thai generals seized the

state and overthrew the country’s Constitution for the sole purpose of obliterating

the country’s ruling political party, dissolving the party through retroactive

legislation, denying Thai Rak Thai politicians their individual right to seek and

hold elected office, subjecting its leaders to selective criminal prosecutions, taking

control of the courts, seizing Thaksin Shinawatra’s assets, and changing the rules

of the game in an effort to hamper to reconstitution of the former ruling party.

Throughout the time the generals were in power (September 2006-December 2007),

they dedicated themselves to rooting out Thaksin’s supporters by having recourse

to almost every available form of political persecution — the subversion of the

rule of law, the deprivation of freedom, the denial of citizens’ basic right to free

speech and assembly, the revocation of a citizen’s right to stand for election, the

suppression of freedom of association, legal harassment, the seizure of property,

and the introduction of laws ad personam. Based on the generals’ statements at the

time, which referred openly to the need to eradicate Thaksin’s “regime,” there can

be no question that the attempt to stamp out Thai Rak Thai was a campaign that

aimed explicitly to discriminate on account of political affiliation.

Having taken the reins of power by force, the military junta immediately set out to

dismantle Thai Rak Thai’s organization and to diminish its popular appeal. In January

2007, the junta allocated a secret twelve million baht budget to a public relations

campaign to discredit Thaksin’s administration and its policies.35 Reportedly, the

junta-approved, taxpayer-funded campaign — coordinated by the media company

owned by the cousin of CNS deputy secretary-general Saprang Kalayanamitr —

availed itself of the services of prominent Democratic Party officials, including

Korn Chatikavanij and Korbsak Sabavasu.36

While the Constitutional Court was disbanded immediately after the 2006 coup,

34. ICTY, Krnojelac, Case No. IT-95-16-T, Judgment, March 15, 2002, para.436.

35. “CNS’s Anti-Thaksin Campaign,” Bangkok Post, April 8, 2007. http://pages.citebite.com/i1t5f0u5a3yao

36. “Saprang’s Cousin Given PR Work ‘Because of Experience’,” The Nation, Apr. 11, 2007.http://www.nationmultimedia.com/2007/04/11/politics/politics_30031650.php


the Interim Constitution imposed shortly thereafter established a nine-member

Constitutional Tribunal, comprised entirely of members of the judiciary, appointed

by the junta.37 On May 30, 2007, the handpicked Constitutional Tribunal dissolved

Thai Rak Thai. The decision was ostensibly based upon a finding that Thai Rak Thai

had bribed smaller opposition parties to participate in the April 2006 elections.

The Democrat Party — the main parliamentary opposition to Thai Rak Thai —

was accused of similar offenses, but was absolved by the Tribunal. In addition

to dissolving the former governing party, the Tribunal’s ruling banned 111 Thai

Rak Thai executives from politics for five years, in accordance with the retroactive

policy imposed by the CDR pursuant to its Announcement No. 27. This insured that

once the party was disbanded, its leaders could not be re-elected under a different

label, notwithstanding the fact that the alleged misconduct occurred months before

Announcement No. 27 was issued. Most Thai Rak Thai leaders were denied an

opportunity to speak for themselves in court.38

The Asian Human Rights Commission described the Constitutional Tribunal’s

decision as follows:

Thus, we have the spectacle of a group of judges appointed by an

unelected and antidemocratic military regime making a decision

on the actions of an elected political party that is alleged to have

undermined democratic process.39

For the new regime, elections could only take place after Thai Rak Thai was disbanded,

its leaders disqualified, its image tarnished, and its electoral organization scattered

to pieces.

Undaunted by the dissolution of Thai Rak Thai, its former members regrouped in

August 2007 under the banner of the People Power Party (“PPP”), to be led by long-

time Bangkok politician Samak Sundaravej. Shortly after the PPP was established, the

CNS issued an order to suppress its activities, which led the PPP to file a complaint

against the CNS before the Election Commission. The Election Commission, however,

dismissed the complaint on the grounds that the CNS had granted itself immunity

37. “Nine Constitution Tribunal Members,” The Nation, October 7, 2006.http://nationmultimedia.com/breakingnews/read.php?newsid=30015571; See also “Thailand’s Struggle for Constitutional Survival,” Article 2 of the International Covenant on Civil and Political Rights (Special Edition), 6(2007), p. 4.

38. Vorajet Pakirat et al., “Decision of the Constitutional Tribunal to Dissolve Thai Rak Thai — A Legal Analysis,” Faculty of Law, Thammasat University.

39. Asian Human Rights Commission, “THAILAND: The Judiciary is the Real Loser,” May 31, 2007.http://www.ahrchk.net/statements/mainfile.php/2007statements/1041/


when it replaced the 1997 Constitution with a new one.40

On December 23, 2007, Thailand held the first and to date the only post-coup general

elections. Despite overwhelming opposition and suppressive tactics employed by

the CNS, the PPP achieved a plurality of seats in the House of Representatives,

winning 233 out of 480 seats. Although the Election Commission disqualified a

significant number of elected members, primarily those who ran under the PPP’s

banner,41 the party was able to build a coalition government and seat Prime Minister

Samak Sundaravej on January 29, 2008.

The campaign of persecution continued during administrations of Samak Sundaravej

and his successor Somchai Wongsawat (January 2008-December 2008), albeit in a

different form. The 2007 Constitution enshrined into law the right of the Courts

to intervene in the country’s politics for the purposes of subverting the results of

competitive elections, altering the composition of the House of Representatives,

ordering the disbandment of lawfully registered political parties, and stripping the

executives of such parties (even those who were not found guilty of any offenses)

of their right to hold public office.

On September 9, 2008, in response to charges brought forth by rival politicians and

the Election Commission, the Constitutional Court forced Prime Minister Samak

to resign, owing to the fact that Samak had hosted a cooking class on television

and had therefore violated the prohibition against elected officials receiving

compensation from other sources. Samak argued that he was not actually employed

by the television station and that, although the programs had aired during his

tenure as Prime Minister, they had been recorded before he became premier. Those

arguments, however, did not prevail before the Constitutional Court, which voted

unanimously to remove him. On September 18, 2008, Samak was replaced by PPP

leader Somchai Wongsawat, Thaksin’s brother-in-law.

On December 2, 2008, as the occupations of Suvarnabhumi and Don Muang airports

by the People’s Alliance for Democracy entered the second week, the Constitutional

Court handed down its decision dissolving the People Power Party as well as

coalition partners Chart Thai and Matchima Thippathai — disqualifying every

member of the three parties’ executive committees from politics for five years.

40. “Junta ‘Never Harmed PPP’,” Bangkok Post, December 13, 2007. http://thailandpost.blogspot.com/2007/12/junta-never-harmed-ppp.html

41. “Thai Election Agency Disqualifies More Winning Candidates,” People’s Daily, January 7, 2008.http://english.people.com.cn/90001/90777/90851/6333842.html


Among the politicians banned as a result was Prime Minister Somchai Wongsawat,

who was automatically stripped of his office. It was only in the aftermath of the

Constitutional Court’s verdict that the Democrat Party was able to form a coalition

government and install Abhisit Vejjajiva as its Prime Minister on December 18,

2008.

It should be noted that the provisions on party dissolution, upon which the

Constitutional Court based its decision, were written into the 2007 Constitution at

the junta’s insistence. Outwardly aimed at strengthening the judiciary in its fight

against corruption, the statute offered the military-appointed Constitutional Court

vast powers to overturn the choices of the electorate. Much like the Interim Charter

promulgated in the wake of the coup, Section 237 of the 2007 Constitution gives

the Court the option to dissolve any party whose executive committee includes at

least one politician found guilty of fraud by the Election Commission of Thailand.

Concurrent with the dissolution of a political party, the Constitutional Court may

also ban the party’s entire executive committee from voting and holding elected

office for a period of five years.

In the specific instance, the Constitutional Court dissolved the People Power Party

and disqualified its executive committee exclusively on the basis of violations

that former House Speaker Yongyuth Tiyaparat was alleged to have committed

in the run-up to the 2007 general election. Of the 215 former party executives

who were stripped of their right to vote and stand for elected office as a result

of the court-ordered dissolution of Thai Rak Thai, the People Power Party, Chart

Thai, and Matchima Thippathai, only a tiny fraction were ever even accused of any

wrongdoing. More than two hundred among them were deprived of their civil and

political rights just by virtue of their association with the parties in question. In a

democracy, the notion of “collective guilt” cannot be the basis for the dissolution

of an entire political party that represents millions of members and in some

instances the electoral choices of more than ten million voters. Nor should a sitting

parliamentarian (or indeed any citizen) be deprived of his/her political rights

based on infractions committed by others without his/her knowledge, much less

complicity.

In and of themselves, these rules represent violations of several among the individual

rights sanctioned in the International Covenant on Civil and Political Rights (ICCPR)

— the right to “take part in the conduct of public affairs, directly or through freely

chosen representatives” (Article 25) and the right to “to freedom of association

with others” (Article 22). It matters little that a military junta managed to write


these provisions into the Constitution. These provisions stand in direct contrast to

the treaty obligations Thailand has freely contracted. Moreover, as Chulalongkorn

University legal scholar Narongdech Srukhosit has pointed out, these provisions

stand in direct conflict with the principle of freedom of association enshrined in

Section 65 of Thailand’s own Constitution.42

Certainly, many countries give the courts the power to dissolve or revoke the

registration of political parties found to be inactive or responsible for systemic

financial irregularities, association with paramilitary groups, and engagement in

violent subversive activities. However, no democratic country allows the courts,

as Thailand does, to order the disbandment of parties based on individual acts

misconduct, especially when responsibility for the alleged misconduct is only

determined by an administrative decision (such as the decisions rendered by the

Election Commission) and not “independent judicial procedures.” Nor does any

democratic country allow the Courts to strip the right of sitting parliamentarians

or party executives to vote or hold elected office based on the infractions of others.

Moreover, of the seven countries where the courts may dissolve political parties

that fail to submit proper financial reports (Argentina, Bulgaria, the Czech Republic,

Kenya, Portugal, Papua New Guinea, and Thailand), only in Thailand and the Czech

Republic can such decision be handed down based on a single instance in which the

party fails to submit the documentation in time.

While the Election Commission has referred to the Constitutional Court similar party

dissolution cases against the ruling Democrat Party, the courts have thus far found

a way to avoid ordering its dissolution. Between late November and early December

2010, the Constitutional Court dismissed on a technicality two dissolution cases

filed by the Election Commission of Thailand against the Democrat Party for taking

in millions of baht in illegal donations. After spending six months questioning

witnesses, examining evidence, and hearing closing arguments from both sides, the

Court ruled that the cases had been inadmissible all along, based on the timing of

the ECT’s referral of the cases to the Court.43 In the wake of the verdicts, political

scientist Thitinan Pongsudhirak wrote the following:

The dissolution of political parties and ban on politicians on one

42. Narongdech Srukhosit, “Some Reflections on the Dissolution of Political Parties in Thailand,” International Association of Law Schools, September 11-12, 2009.http://www.ialsnet.org/meetings/constit/papers/SrukhositNarongdech(Thailand).pdf

43. “EC Hits Back at Critics of Its Actions,” Bangkok Post, December 2, 2010.http://m.bangkokpost.com/topstories/209253


side of Thailand’s deepening divide while letting off those on the

other side is indicative of the so-called “judicialization” of Thai

politics. It is designed for the judiciary to set political directions

and untie the complicated knot of Thailand’s crisis. But instead

of achieving reconciliation and a way forward, judicialization has

exacerbated matters.44

Not only does Thailand’s legislation on party dissolution represent an unacceptable

restriction on freedoms guaranteed in the ICCPR that has no place in a democracy

and no equivalent in any free country. Its selective, discriminatory, entirely one-

sided application/enforcement is evidence of the fact that this legislation is just

another instrument that Thailand’s politicized judiciary has to alter the composition

of the parliament, overturn the choices made by the voters, and take opposition

politicians out of contention.

None of the politicians that were disqualified from politics since the 2006 coup will

be able to participate in the next elections, which are due by the end of 2011. The

111 Thai Rak Thai executives, who already had to sit out the 2007 elections, will

only recover their political rights in mid-2012, while the executives of the People

Power Party, Chart Thai, and Matchima Thippathai will have to wait until late 2013

before their rights are restored under the current rules. In light of the fact that the

parties that have won the last four elections were dissolved, and that the number

of potential candidates disqualified from holding elected office is almost half the

size of the House of Representatives, the cumulative effects of these decisions has

been to stack the deck in favor of the Democrats and to deprive the Thai people of

a real electoral choice.

The situation of these 215 men and women, most of whom are former parliamentarians,

closely resembles the case of Leopoldo Lopez Mendoza, a Venezuelan opposition

politician who was disqualified from holding public office in 2004 in spite of the

fact that he was never convicted of any wrongdoing. In 2009, the Inter-American

Commission on Human Rights, an organ of the Organization of American States,

referred the case to the Inter-American Court for Human Rights, requesting not only

that the Court order Venezuela immediately to restore Leopoldo Lopez Mendoza’s

political rights and adequately compensate him for the injustice he had suffered,

but also that Venezuela be compelled to change its domestic legislation.45 In the case

44. Thitinan Pongsudhirak, “Thailand’s Growing Political Abyss,” OpinionAsia, December 22, 2010.http://opinionasia.com/node/850

45. Inter-American Commission on Human Rights, “Application to the Inter-


of Thailand, to date no international organization has taken up the case of the more

than two hundred politicians (many among them former members of parliament)

who were similarly denied their right to hold public office in the absence of any

alleged wrongdoing.

Perhaps the strongest evidence of political persecution, however, are the massive

restrictions that have been placed upon freedom of expression, both in emergency

and non-emergency situations, through the imposition of the strictest censorship

regime Thailand has witnessed in thirty years, as well as the prosecution of an

unprecedented number of people for crimes of conscience. In and of themselves,

the Computer Crimes Act and Article 112 of the Criminal Code (sanctioning the

crime of lèse-majesté) unduly restrict the Thai people’s right to free expression

and the freedom to “seek, receive, and impart information and ideas of all kinds”

under the ICCPR. Even though government officials have justified the arrests made

under the laws with the need to protect “national security,” the freedom to criticize

the institutions of the state is precisely what the ICCPR is designed to protect.

A measure of the erosion observed in the rights of the Thai opposition over the

past several years is offered by Reporters Without Borders, whose “World Press

Freedom” index now ranks Thailand in 153rd place (sixty-sixth in 2006).

More recently, the imposition of the Internal Security Act (still in force at the time

of writing) and the Emergency Decree (revoked in late December 2010) have served

the purpose of restricting the Thai people’s constitutionally sanctioned right to

free assembly. Only anti-government demonstrators, however, have been subjected

to prosecution, indefinite detention, and the denial of due process for violating

regulations issued pursuant to the Emergency Decree. Meanwhile, pro-government

demonstrators have been repeatedly allowed to stage demonstrations without

incurring any such penalty. This constitutes an unacceptable double standard.

In conclusion, it is submitted that supporters of Thaksin Shinawatra and opponents

of Thailand’s Establishment have been subjected to a campaign political persecution

since the 2006 coup. While the acts describe in this Application clearly amount to

political persecution, the systematic and targeted enforcement of these restrictions

against citizens who remain loyal to Dr. Thaksin, citizens who stood in opposition

to the coup, and/or citizens who call for a reduction in the extra-constitutional

authority of the Royal Thai Army constitutes discrimination on the basis of political

affiliation.

American Court of Human Rights in the case of Leopoldo Lopez Mendoza (Caso 12.668) against Venezuela,” December 14, 2009.


4.2 CONTEXTUAL ELEMENTSCrimes Against Humanity are specified in greater detail in another important

document of the ICC — the Elements of Crimes. Those criteria are:

(i) The attack had to be directed against a civilian population;

(ii) A State or Organizational policy;

(iii) The specific conduct was part of either a widespread or systematic

nature of the attack;

(iv) A nexus between the individual act and the Attack;

(v) The perpetrator had to have at the least knowledge or intent that

the conduct was part of such a widespread or systematic attack.46

AN ATTACK “DIRECTED AGAINST A CIVILIAN POPULATION”The meaning of the term “attack,” although not addressed in the Statute, is clarified

by the Elements of Crimes, which states that for the purposes of Article 7(1) of the

Statute, an attack is not restricted to “a military attack.”47 Moreover, the Pre-Trial

Chamber, in the case of Jean Pierre Bemba Gomba, held that: “ [a]n attack consists

of a course of conduct involving the multiple commission of acts referred to in

Article 7(1).”48

In the Kenyan situation, the Pre-Trial Chamber considered that “[t]he potential

civilian victims of a crime under Article 7 of the Statute are groups distinguished

by nationality, ethnicity, or other distinguishing features.”49 The Prosecutor will

need to demonstrate that the attack was “[d]irected against civilian population as

a whole and not merely against randomly selected individuals.”50 In addition, the

civilian population must be the primary object of the attack in question and cannot

merely be an incidental victim.”51 The term “civilian population” refers to persons

46. See Article 7 (2) Rome Statute and Kenyan Decision on Article 15, para. 79.

47. Kenyan Decision on Article 15, para. 80 and Elements of Crimes, Introduction to Article 7 of the Statute, para. 3.

48. Pre-Trial Chamber II, ICC-01/05-01/08-424, Decision Pursuant to Article 61 (7) (a) and (b) of the Rome Statute on the Charges of the Prosecutor on against Jean Pierre Bemba Gomba, June 15, 2009, para 75.

49. Kenyan Decision on Article 15, para. 81 and JP Bemba Gomba Decision, para. 76.

50. Kenyan Decision on Article 15, para. 81and JP Bemba Gomba Decision, para. 76.

51. Kenyan Decision on Article 15, para 82.


who are civilians, as opposed to members of armed forces and other legitimate

combatants.

The extreme violence unleashed on Red Shirt demonstrators in April and May 2010

must be considered an attack that took place at the direction of the Royal Thai

Government. Although the government claims it has only applied deadly force

against violent elements among the Red Shirts, there is no evidence suggesting that

any of those killed on April 10, 2010 or during the weeklong crackdown between

May 13-19, 2010 posed any threat to security forces. In fact, dozens of video clips,

photographs, and eyewitness accounts point to several instances in which those

killed manifestly did not pose any danger, but were rather shot through the head

while holding slingshots, flags, cameras, or medical equipment.

The government has chosen to explain the danger posed by each of the persons

killed or injured as a result of the Royal Thai Army’s actions collectively as opposed

to individually — specifically, based on the victims’ participation in the activities of

a group the government has described as a “terrorist” organization. Whether or not

there is any factual basis to conclude that either the UDD or the broader Red Shirt

movement could be characterized as “terrorist,” the government’s actions amount

to targeting a “civilian population” based on “distinguishing features” (such as red

clothing) that identified them as members of a particular civilian group regardless

of whether the individuals themselves actually committed any acts of violence

or intimidation against the security forces. In conclusion, it can be said that the

civilian population identified on the basis of “distinguishing features” connoting

opposition to the government was the primary object of the attack. Once again,

witness testimonies presented earlier in this Application corroborate the claim that

the Red Shirt movement as a whole had been identified well in advance as the target

of a well-planned attack aimed at its thorough destruction.

“STATE OR ORGANIZATIONAL POLICY”In Paragraph 3 of the Elements of Crimes, it is stated that a “policy to commit such

an attack” requires the existence of a state or organizational policy that actively

promoted or encouraged the attack against a civilian population. Besides, it is

stated that: “[a] policy which has a civilian population as the object of the attack

would be implemented by State or organizational action. Such a policy may, in

exceptional circumstances, be implemented by a deliberate failure to take action,

which is consciously aimed at encouraging such attack. The existence of such a


policy cannot be inferred solely from the absence of governmental or organizational

action.”

The Statute does not provide definitions of the terms “policy” and “State or

organizational.” The Pre-Trial Chamber in the Kenyan situation and in the case

against Katanga and Ngudjolo Chui found that this requirement: “[...]must still be

thoroughly organized and follow a regular pattern. It must also be conducted in

furtherance of a common policy involving public or private resources. Such a policy

may be made either by groups of persons who govern a specific territory or by any

organization with the capability to commit a widespread or systematic attack against

a civilian population. The policy need not be explicitly defined by the organizational

group. Indeed, an attack which is planned, directed or organized — as opposed to

spontaneous or isolated acts of violence — will satisfy this criterion.”52

With regard to the term State or organizational policy, the Trial Chamber in the

Blaskic case held that: “This policy does not necessarily need to have been conceived

at the highest level of the State Machinery.” In the Kenyan decision, the Pre-trial

Chamber referred to this decision and noted: “a policy adopted by a regional or

even local organs of the State could satisfy the requirement of a State policy.”53

With regard to the term “organizational,” the Statute is unclear. In the Kenyan

decision, the Trial Chamber referred to the International Law Commission, which

held that: “The article does not rule out the possibility that private individuals

with de facto power or organized in criminal gangs or groups might also commit

the kind of systematic or mass violations of human rights.”54 The Trial Chamber

held that “the determination of whether a given organization group qualifies as an

organization under the statute must be made on a case by case basis.”55 It set out

six considerations:

(i) Whether the group is under a responsible command, or has an

established hierarchy;

(ii) Whether the group possesses, in fact, the means to carry out a

widespread or systematic attack against the civilian population;

(iii) Whether the group exercises control over part of the territory of

the state;

52. Pre-Trial Chamber II, ICC-01/04-01/07-717, Decision on the Confirmation of the Charges, para 396.





(iv) Whether the group has criminal activities against the civilian

population as a primary purpose;

(v) Whether the group articulates, explicitly or implicitly an intention

to attack a civilian population;

(vi) Whether the group is part of a larger group, which fulfills some or

all of the abovementioned criteria.

The Trial Chamber noted that these considerations may assist, but need not be

exhaustively fulfilled.56

The killings of April-May 2010 were not isolated or sporadic incidents, but were

rather the result of coordinated plans in response to the Red Shirts demonstrations.

Security forces were repeatedly mobilized and the instructions were conveyed along

a chain of command, including Mr. Abhisit’s civilian administration. Ultimately, the

Royal Thai Army was given what Reporters Without Borders calls “a license to kill”

— that is, carte blanche to use whatever force was deemed necessary to destroy the

Red Shirt movement. As the witness testimonies reported above show, operations

designed to inflict heavy losses among the Red Shirts were planned and rehearsed

by the Royal Thai Army well in advance of the their actual implementation, while

Master Sergeant (Ret.) Witty’s expert report and video evidence highlight the

intentional, indiscriminate discharge of military weapons. Abhisit Vejjajiva’s civilian

government, moreover, approved the operations without regard for the likelihood

that they would result in unnecessary loss of human life.

In conclusion, it is safe to say that the Royal Thai Army carried out an attack against

the Red Shirt civilian population according to a “state or organizational policy”

devised and approved at the highest levels of the country’s civilian and military

leadership.

“WIDESPREAD OR SYSTEMATIC NATURE” OF THE ATTACKAn act constitutes a crime against humanity when committed as part of a widespread

or systematic attack directed against any civilian population. The Trial Chamber

recently held that “the alleged acts must be either widespread or systematic to

warrant classification as crimes against humanity.57 In addition, a widespread attack


57. Kenyan Decision on Art. 15, para. 94, See also Pre-Trial Chamber I, Decision on the confirmation of charges, ICC-01/04-01/07-717, para. 412; ICTY, Prosecutor v. Kunarac et al. Case No. IT-96-23 & IT-96-23/1-A, Appeal Judgement, June 12, 2002,


may be the “cumulative effect of a series of inhumane acts or the singular effect of

an inhumane act of extraordinary magnitude.”58

The term systematic refers to the “organized nature of the acts of violence and

the improbability of their random occurrence.”59 In the Kenyan Decision, the Trial

Chamber referred to ICTY and held that the “systematic” element could be defined

as follows:

(i) being thoroughly organized;

(ii) following a regular pattern;

(iii) on the basis of a common policy;

(iv) and involving substantial public or private resources.60

In the Thai case, the scale and the duration of the killings, together with manner in

which they were conducted, suggests that the attacks against the civilian population

were both “widespread” and “systematic.” On the one hand, an aggregate casualty

toll of ninety civilians killed and approximately two thousand injured over a forty-

day period attests to the “widespread” nature of the attack. On the other hand, the

repeated occurrence of similar incidents across time and space demonstrates the

“systematic,” non-random nature of the offenses. In fact, the evidence presented

in this Application shows that the security forces were following precise rules of

engagement based on a common (if often unwritten) policy; the attack, which had

been thoroughly planned, involved substantial public resources of the government.

para. 97.

58. Kenyan Decision on Article 15, para. 95, ICTY, Prosecutor v. Blagojevic and Jokic, Case No. IT-02-60-T, Judgment, January 17, 2005, para. 545. See also Pre-Trial Chamber II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05- 01/08-424, para. 83, ICTY, Prosecutor v. Blaskic, Case No. IT-95-14-T, Judgement, March 3, 2000, para. 206; ICTY, Prosecutor v. Kordic and Cerkez, Case No. IT-95-14/2-A, Appeal Judgement, December 17, 2004, para. 94; ICTY, Prosecutor v. Blaskic, Case No. IT-95-14-A, Appeal Judgment, July 29, 2004, para. 101.

59. ICTY, Prosecutor v. Blagojevic and Jokic, Case No. IT-02-60-T, Judgement, January 17, 2005, para. 545. See also Pre-Trial Chamber II, JP Bemba Gomba Decision, para. 83, ICTY, Prosecutor v. Blaskic, Case No. IT-95-14-T, Judgement, March 3, 2000, para. 206; ICTY, Prosecutor v. Kordic and Cerkez, Case No. IT-95-14/2-A, Appeal Judgement, December 17, 2004, para. 94; ICTY, Prosecutor v. Blaskic, Case No. IT-95-14-A, Appeal Judgment, July 29, 2004 , para. 101; R. Dixon, C. K. Hall, “Article 7,” in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court.

60. ICTR, Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgement, September 2, 1998, para. 580.


“A NEXUS BETWEEN THE INDIVIDUAL ACTS AND THE ATTACK”It can be derived from previous case law that “the nexus between such acts and the

attack against a civilian population is one of the requirements that must be satisfied

in order for the commission of crimes against humanity to be established.”61 In

addition, when determining whether an act falling within the scope of Article (7)(1)

of the ICC Statute forms part of an attack, the Chamber must consider the nature,

aims and consequences of such act.62

While the Royal Thai Government has repeatedly denied requests put forth by defense

counsel for access to evidence pertaining to troop movements, rules of engagement,

as well as orders conveyed along the civilian and military chain of command during

the crackdown of April and May 2010, the evidence produced in this Application

demonstrates the existence of a nexus between the attack against the broader Red

Shirt movement and the specific acts of murder, imprisonment and other severe

deprivation of physical liberty, and other inhumane acts committed since the start

of the Red Shirt demonstrations. The same goes for the acts of political persecution

that have taken place since the 2006 as integral part of a campaign to eradicate

any active, organized opposition to the Establishment from Thailand’s political

landscape. On the one hand, publicly available information about the nature, aims,

and consequences of the acts in question provides overwhelming circumstantial

evidence of the nexus between such acts and the broader, coordinated attack. On the

other hand, information provided by high-placed insiders in the Royal Thai Army

and other government agencies not only speaks conclusively as to the existence

of such an attack, but also to the manner the attack was conceived, the tactics it

entailed, and the state officials involved in the its formulation and execution.

“KNOWLEDGE OR INTENT”All crimes require mens rea, or criminal intent, which is defined in Article 30 of the

Statute.63 According to ICC jurisprudence, Article 30 of the Statute encompasses

two forms of dolus, namely dolus directus (direct intent) in the first degree (the act

61. See Elements of Crimes, Article 7(l)(a)(2); 7(l)(d)(4); 7(1) (g)-l (3); (2), 7 (l)(g)-6 (4); 7(1) (k)(4); JP Bemba Gomba Decision, para. 85.

62. JP Bemba Gomba Decision, para. 86. See also ICTR, Prosecutor v. Kalelijeli, Case No. ICTR-98-44A-T, Judgement, December 1, 2003, para. 866; Prosecutor v. Semanza, Case No. ICTR-97-20-T, Judgement, May 15, 2003, para. 326.

63. The general objective (material) elements of a crime are referred to in article 30(2) and (3) of the Statute as conduct, consequence and circumstance.


in question was committed for the purpose of causing the result that occurred) and

dolus directus in the second degree (the act is committed with knowledge that the

result that subsequently occurred is at least a very probable consequence of the

act).64 As stated in Article 30, unless otherwise provided, a person shall be held

criminally responsible and liable for punishment for a crime within the jurisdiction

of the Court only if the material elements are committed with intent and knowledge.

The ICTY Appeals Chamber in Prosecutor v. Tadic held that: “a perpetrator needs to

know that an attack occurs on the civil population and that his acts are part of this

attack, besides knowing being aware of the risk that his/her actions comport and

willfully taking this risk.”65 However, it is not required that the perpetrator know all

the details of the attack.66

At least with regard to the crimes of murder and other inhumane acts, different

degrees of dolus directus apply at different levels of the chain of command.

Based on the evidence described in support of this Application, those involved in

the planning of an attack that was specifically designed to inflict death and serious

bodily harm — that is, Thailand’s top military leadership — demonstrated dolus

directus in the first degree.

As for the country’s civilian leadership, approval of the operations and knowledge

of the attack imply at a minimum dolus directus in the second degree. On May

17, 2010, for instance, the Thai-language daily Matichon reported that officials in

the “war room” set up by the Democrat Party were satisfied with the fact that

“only” thirty-five people had died up to that point — much lower than the two

to five hundred casualties they had expected.67 That number itself is consistent

with the evidence described earlier in this Application as well as a leaked internal

government report that UDD leader Jatuporn Prompan revealed to the press on

April 19, 2010, indicating that the military planned to carry out the crackdown

over a one-week period, setting the acceptable death toll of the operations at

five hundred.68 While statements like those given by Democrat Party officials to

64. JP Bemba Gomba Decision, See the elaboration on the forms of dolus in part VI of the decision, paragraphs 357 to 359.

65. ICTY, Prosecutor v. Blaskic, Judgement, March 3, 2000, Case No. IT-95-14-T, at 247, 251.

66. ICTY, Prosecutor v. Kunarac and others, Judgement, February 2001, Case No. IT-96-23-T, at 434.

67. Matichon, May 17, 2010.

http://www.matichon.co.th/news_detail.php?newsid=1274104360&catid=01.

68. “Sansern: 500 Terrorists Infiltrating Reds,” Bangkok Post, May 14, 2010.


Matichon do not demonstrate any particular desire to kill or injure protesters, such

statements do speak to at least knowledge of the attack, an understanding of the

consequences of the attack, and a willingness to risk bringing those consequences

about if necessary to the attack’s success. A similar reasoning may apply to mid-

level commanders who either conveyed the orders to the troops on the ground or

led the units into battle.

It is further submitted that the security forces who materially perpetrated murder

and other inhumane acts (i.e., fired their weapons) over the course of the 2010

crackdowns committed the acts with the intent to cause serious injury or at least

with a disregard for human life and dignity. In addition, while it is not realistic to

conclude that the troops involved had knowledge of all the details of the attack

against the civilian population, the intensive training some of the elite forces (like

snipers) are known to have received would have provided them with knowledge of

the attack’s existence and an understanding of its broad contours. More generally,

the fact that at least the May crackdown spanned an entire week, and unfolded in

a similar manner in different parts of the city assigned to different units, indicates

that the troops involved in the operations acted under precise rules of engagement

that would have given them knowledge of the intended target of the attack and the

manner in which the attack was to be carried out. As a result, at a minimum dolus

directus in the second degree obtains.

Taken together, there is strong indication that those involved in suppressing the

Red Shirt demonstrations at various levels of the military and civilian chain of

command acted with knowledge of the attack as well as either the intent to kill and/

or cause serious bodily harm or the knowledge that death and/or serious bodily

harm were highly probable consequences of their actions. This, in other words,

demonstrates mens rea in the commission of potential crimes against humanity.

4.3 CRIMINAL RESPONSIBILITYAccording to the Elements of Crimes, Crimes Against Humanity warrant and entail

criminal responsibility and require conduct which is impermissible under generally

applicable international law, as recognized by the principal legal systems of the

world.69

http://www.bangkokpost.com/breakingnews/177896/500-terrorists-blending-with-reds-sansern

69. Elements of Crimes Introduction under (1).


INDIVIDUAL CRIMINAL RESPONSIBILITYArticle 25(3) of the Rome Statute sets out the general principles of individual criminal

responsibility, distinguishing between various modes of individual responsibility:

In accordance with this Statute, a person shall be criminally

responsible and liable for punishment for a crime within the

jurisdiction of the Court if that person:

(a) Commits such a crime, whether as an individual, jointly with

another or through another person, regardless of whether that

other person is criminally responsible;

(b) Orders, solicits or induces the commission of such a crime which

in fact occurs or is attempted;

(c) For the purpose of facilitating the commission of such a crime,

aids, abets or otherwise assists in its commission or its attempted

commission, including providing the means for its commission;

(d) In any other way contributes to the commission or attempted

commission of such a crime by a group of persons acting with a

common purpose. Such contribution shall be intentional and shall

either:

(i) Be made with the aim of furthering the criminal activity or

criminal purpose of the group, where such activity or purpose

involves the commission of a crime within the jurisdiction of

the Court; or

(ii) Be made in the knowledge of the intention of the group to

commit the crime;

(e) In respect of the crime of genocide, directly and publicly incites

others to commit genocide;

(f) Attempts to commit such a crime by taking action that commences

its execution by means of a substantial step, but the crime does

not occur because of circumstances independent of the person’s

intentions. However, a person who abandons the effort to commit

the crime or otherwise prevents the completion of the crime shall

not be liable for punishment under this Statute for the attempt to

commit that crime if that person completely and voluntarily gave

up the criminal purpose.

Although in this stage of the ICC proceedings it is not required to specifically


identify the specific perpetrators, the evidence submitted through this Application

is particular relevant in view of the interpretations by the various Pre-Trial Chambers

of the ICC of Article 25(3)(a) of the Rome Statute.

The first alternative mentioned in this provision is the liability of an individual

as a principal under international criminal law. The second alternative mentioned

by Article (25)(3)(a) of the Statute is the joint commission of a crime. Each one

within this “joint perpetration” is individually responsible for the crime. According

to the ICC Pre-Trial Chamber in the Lubanga case, the essential distinction between

principals, as mentioned in Article 25(3)(a) of the Statute, and accessories, is that

the former have control over the crime.70 In the Lubanga case the Pre-Trial Chamber

held that co-perpetration entails two objective and three subjective elements.

The Pre-Trial Chamber II in the Bemba case introduced the two objective elements:

(i) the suspect must be part of a common plan or an agreement with one or more

persons; and (ii) the suspect and the other co-perpetrator must carry out essential

contributions in a coordinated manner which result in the fulfillment of the material

elements of the crime.71

As to the subjective elements, there are three cumulative elements that must be

satisfied. In particular, the suspect must (a) fulfill the subjective elements of the

crimes charged, namely intent and knowledge as required under Article 30 of the

Statute; (b) be aware and accept that implementing the common plan will result

in the fulfillment of the material elements of the crimes; and (c) be aware of the

factual circumstances enabling him to control the crimes jointly with the other co-

perpetrator.72 The evidence in this Application provides for a prima facie basis that

all these elements have been fulfilled.

The third alternative under Article 25(23)(a) is perpetration by means. In this case,

the principal (the “perpetrator-by-means”) uses the executor (the direct perpetrator)

as an instrument for the commission of the crime.

The Pre-Trial Chamber I in the Lubanga case defined a doctrine on perpetration

that served to make clearer the distinction between principal and accessorial

liabilities within the context of the collective and multi-level commission of crimes.

In the Katanga and Chui case the Chamber decided that this form of participation

70. Lubanga Confirmation of Charges, paras. 326-339.

71. Prosecutor v. Jean-Pierre Bemba Gombo, ICC 01/05–01/08, Decision Pursuant to Article 61(7)(a) and (b) on the Charges against Jean-Pierre Bemba Gomba, June 15, 2009 (hereafter Bemba confirmation decision), para. 350.

72. Bemba Confirmation Decision, para. 351.


is particularly relevant when the ‘perpetrator behind the perpetrator’ commits an

international crime through another by means of his ‘control over an organized

apparatus of power.73 The Pre-Trial Chamber I has identified in the Lubanga

and in the Katanga and Chui case four elements which characterize the concept

of perpetrations by means, which will be dealt with below.74 In the decision on

the Confirmation of Charges against Katanga and Chui, the Chamber added that

the requirements of indirect perpetration include the existence of an organized

apparatus of power, within which the direct and indirect perpetrators operate, and

which enables the indirect perpetrator to secure the commission of the crimes.

First, the organization must be based on hierarchical relations between superiors

and subordinates. The organisation must also be composed of sufficient

subordinates to guarantee that superiors’ orders will be carried out, if not by

one subordinate, then by another. These criteria ensure that orders given by the

recognized leadership will generally be complied with by their subordinates.75 In

addition, any subordinate who does not comply may simply be replaced by another

who will produce the criminal result “automatically.”76 Another element stressed

by the Chamber in the Lubanga case is that the chief, or leader, exercises authority

and control over the apparatus and that his authority and control are manifest in

the subordinates’ compliance with his orders. The means for exercising control

may include the capacity to hire, train, impose discipline, and provide resources

to subordinates. It must be established that the leader did use his control over the

apparatus to execute crimes, which means that he, as the perpetrator behind the

perpetrator, mobilizes his authority and power within the organization to secure

compliance with his orders. Compliance must include the commission of any of the

crimes under the jurisdiction of this Court77

Based on the testimonies supporting this Application, the requirements set forth by

the ICC judges are on its face fulfilled.

SUPERIOR RESPONSIBILITYAside from any individual criminal liabilities, superior responsibility arises in this

73. Katanga and Chui Confirmation of Charges, paras. 500-510.

74. Lubanga Confirmation of Charges, paras 94-96; Katanga and Chui Confirmation of Charges, paras. 511-518.

75. Katanga and Chui Confirmation of Charges, para. 512.

76. Katanga and Chui Confirmation of Charges, para. 512.

77. Katanga and Chui Confirmation of Charges.


instance. “Superior responsibility” sanctions the omission to act: a superior may be

held criminally responsible under that doctrine where, despite his awareness of the

crimes of subordinates, he culpably fails to fulfill his duties to prevent and punish

these crimes. On the one hand, this principle establishes direct liability for lack of

supervision. On the other hand, it establishes indirect liability for the criminal acts

of their subordinates.

“Superior responsibility” is codified in Article 28 of the Rome Statute:

In addition to other grounds of criminal responsibility under this

Statute for crimes within the jurisdiction of the Court:

(a) A military commander or person effectively acting as a military

commander shall be criminally responsible for crimes within the

jurisdiction of the Court committed by forces under his or her

effective command and control, or effective authority and control

as the case may be, as a result of his or her failure to exercise

control properly over such forces, where:

(i) That military commander or person either knew or, owing to

the circumstances at the time, should have known that the

forces were committing or about to commit such crimes; and

(ii) That military commander or person failed to take all necessary

and reasonable measures within his or her power to prevent

or repress their commission or to submit the matter to the

competent authorities for investigation and prosecution.

(b) With respect to superior and subordinate relationships not described

in paragraph (a), a superior shall be criminally responsible for crimes

within the jurisdiction of the Court committed by subordinates under

his or her effective authority and control, as a result of his or her

failure to exercise control properly over such subordinates, where:

(i) The superior either knew, or consciously disregarded

information which clearly indicated, that the subordinates

were committing or about to commit such crimes;

(ii) The crimes concerned activities that were within the effective

responsibility and control of the superior; and

(iii) The superior failed to take all necessary and reasonable

measures within his or her power to prevent or repress

their commission or to submit the matter to the competent

authorities for investigation and prosecution.


Article 28 of the Rome Statute is drafted in a manner that distinguishes between

two main categories of superiors and their relationships — namely, a military or

military-like commander and civilians occupying de jure or de facto positions of

authority.

The evidence submitted in this Application should be seen in the context of the

mens rea threshold for both individual and superior responsibility — i.e. that of

dolus eventualis, where the level of intent seems sufficient to bring a case before

the ICC, at the least from the perspective of some of the Pre-Trial Judges of the

ICC. With respect to dolus eventualis as the third form of dolus, recklessness or any

lower form of culpability, the ICC Pre-Trial Chamber in the Lubanga case, did accept

dolus eventualis.78 In the Thai situation, at the least dolus eventualis on the part of

its officials emerges quite clearly from the evidence contained in video recordings

as well as the witness statements and Master Sergeant (Ret.) Witty’s expert report

presented in support of this Application.

IMPLICATIONS FOR THE THAI SITUATIONAlthough it is not a requirement at this stage of the proceedings that the Applicant

already identify perpetrators or other individuals responsible for the crimes

set out in the Application, it is reasonable to conclude that potential individual

criminal responsibility under Article 25 and Article 28 of the ICC Statute extend

to the highest levels of both the civilian and military leadership of the Royal Thai

Government. The use of force against civilians was effectuated by military forces

of the Royal Thai Army at the direction of officials in the Center for the Resolution

of the Emergency Situation (CRES), which was established concurrently with the

imposition of the State of Emergency on April 7, 2010 and served as a command

and control center for the state’s response to the Red Shirt protests. A preliminary

list of key government officials and military officers, most of them high-ranking

members of CRES, who are known to have participated in the formulation of the

policy under which the crimes described in this document took place includes:

1. Abhisit Vejjajiva, Prime Minister.

2. Suthep Thaugsuban, Deputy Prime Minister and former Director

of CRES.

3. General Anupong Paochinda, former Commander in Chief of

78. See Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04–01/06, Decision on the Confirmation of Charges, January 29, 2007, paras. 349 ff. (352).


the Royal Thai Army and former “chief officer in charge of the

emergency situation.”

4. General Prawit Wongsuwan, Minister of Defense and former

Assistant Director and Director of CRES.

5. General Prayuth Chan-ocha, current Commander in Chief of

the Royal Thai Army and former “chief officer in charge of the

emergency situation” (served as Deputy Chief of the Army during

the crackdowns).

6. General Kittipong Ketkowit, Permanent Secretary of Defense and

former Assistant Director of CRES.

7. General Songkitti Jaggabatara, Supreme Commander of the Royal

Thai Armed Forces and former Assistant Director of CRES.

8. Admiral Kamthon Phumhiran, Commander of the Royal Thai Navy

and former Assistant Director of CRES.

9. Air Chief Marshal Chalit Pookpasuk, Commander of the Royal Thai

Air Force and former Assistant Director of CRES.

10. Police General Patheep Tanprasert, Acting National Police Chief and

former Assistant Director of CRES at the time of the crackdowns.

11. Tharit Pengdit, Director-General of the Department of Special

Investigations and former member of CRES.

12. General Piroon Paewpolsong, former Chief of Staff of the Royal

Thai Army.

13. General Wit Thephadsadin Na Ayutthaya, Assistant Commander-

in-Chief of the Royal Thai Army at the time of the crackdowns.

14. General Teerawat Boonyapradap, Assistant Commander-in-Chief

of the Royal Thai Army at the time of the crackdowns.

15. General Daopong Rattanasuwan, Deputy Chief of Staff of the Royal

Thai Army at the time of the crackdowns.


5. JURISDICTION OF THE ICC In matters of genocide, war crimes, and crimes against humanity, the ICC operates

“parallel” to the national justice systems that are positioned to prosecute the

offenses in question.1 The rationale behind this premise is that whenever the national

justice system fails, the ICC may step in as “last resort.”2 This chapter discusses two

mechanisms that may bring the instant case under the jurisdictional ambit of the

ICC: 1) Referral by the United Nations Security Council; and 2) Personal jurisdiction

(jurisdiction ratione personae). The request for the initiation of a procedure by

a State Party according to Article 14 of the ICC Statute is not the subject of this

Application, as Thailand did not sign and ratify the ICC Statute.

5.1 REFERRAL BY THE UN SECURITY COUNCILThe first jurisdictional mechanism relevant to the Application at hand relates to the

possibility of a Security Council referral, governed by Article 13(b). This provision

authorizes the Court to exercise its jurisdiction, in accordance with Article 5,

in instances where the Security Council, acting under Chapter VII of the United

Nations’ Charter, refers to the Prosecutor a situation in which one or more crimes

appear to have been committed. Article 2 of the Relationship Agreement between

the United Nations and the ICC points out that the cooperative relationship may

be governed only on the basis of respect for the principles directing the activity of

both organizations. Article 17 of the Relationship Agreement specifically provides

for cooperation in the event of a Security Council referral.3

1. See W. A. Schabas, An Introduction to the International Criminal Court (Cambridge: Cambridge University Press, 2008), p. 78.

2. Schabas, An Introduction to the International Criminal Court, pp. 79-80.

3. Negotiated Agreement Between the International Criminal Court and the United


RIGHTS OF THE SECURITY COUNCIL IN RELATION TO THE ICC STATUTEArticle 53 (1), (3) and (4) of the ICC Statute and Rules 104 to 110 of the Rules of

Procedure and Evidence further define the Security Council’s right to access to the

Court. This includes the right of the Security Council to Request that the Prosecutor

of the ICC initiate an investigation over a particular situation.4 In addition, it

is possible for the Security Council to transmit to the Office of the Prosecutor

information in support of the activation request.5 Once the Prosecution accepts to

carry out a preliminary examination, the Security Council has the right to gather

the information necessary to access the merits of the activation request.6 Besides,

the Security Council has the right to obtain, within a reasonable period of time, a

decision by the Office of the Prosecutor on the merits of the activation request.7

Once the Office of the Prosecutor has made a decision not to initiate an investigation

(Rule 105(1) of the RPE)8 or has made the decision not to prosecute (Rule 106(1) of

the RPE), the Security Council has the right to be notified. In addition, the Security

Council may ask the Pre-Trial Chamber to review the Prosecution’s Decision not to

initiate an investigation (Rule 107(4) RPE).9 Furthermore, the Security Council shall

be notified of the Pre-Trial Chamber’s decision on the review request (Rule 109 (2)

RPE).10 The Security Council may also ask the Appeals Chamber to reverse the Pre-

Trial Chamber’s decision not to ask the Prosecution to reconsider the decision to

reject the activation request in whole or in part11 and has the right to be notified of

the Appeals Chamber decision.12 The Security Council is permitted to submit a new

activation request to the Prosecution regarding the same situation on the basis of

new facts or information.

The broad scope of the right to access to the Court vested in the Security Council

reflects its status as petitioner or requesting party in triggering procedures. This

mechanism should also ensure that “The subject matter and scope of the ICC’s

Nations, Article 17.

4. Article 1 (1) UN Charter.

5. Article 1 (3) UN Charter.

6. Article 1 (4) UN Charter .

7. Paras 3, 4, 5 and 9 of the preamble of the Rome Statute.

8. Security Council Resolution 1422 (2002), U.N. Doc. S/ Res/1422 (2002), July 12, 2002.

9. Security Council Resolution 1487 (2003) U.N. Doc S/RES/1487 (2003), June 13, 2003.

10. Security Council Resolution 1422 U.N. Doc. S/ Res/1422 (2002), July 12, 2002.

11. Para. 6 of the preambles to Security Council Resolutions 1422 and 1487.

12. Para 7 of the preambles to Security Council Resolutions 1422 and 1487.


jurisdiction [be] limited to those crimes that are likely to undermine international

peace and security.”13

REQUIREMENTSThe ICC Statute and the RPE provide that two formal requirements must be met for

a Security Council referral. First, Rule 45 of the RPE requires that a referral be made

in writing.14 Second, Article 13 (b) Rome Statute requires that the referral be based

on a Security Council Resolution under Chapter VII of the UN Charter.

In addition, there are two material requirements that must be met for the act of

referral to constitute said activation. First, although not expressly provided by the

Rome Statute, the referral must predetermine the personal, territorial and temporal

parameters of the situation being referred. Subsequently, the Security Council’s

referral will have to contain the reasons for the activation request, namely that

the activation prerequisites have been met with regard to the situation at hand.15

Neither the Rome Statute nor the RPE contain provisions for the formal and material

requirements of the Prosecutor’s decision on the merits of the Security Council’s

activation request.16

PRECEDENTS

For the case at hand, it is illustrative to look into relevant legal precedents. On

September 18, 2004, the Security Council adopted Resolution 1564 in relation

to the situation in Darfur–Western Sudan. In the resolution, the Security Council

requested that an international commission of inquiry be established in order to

“immediately investigate reports of international humanitarian law and human

rights law in Darfur.” In addition, the Security Council requested that the commission

determine whether acts of genocide had occurred and identify the perpetrators of

such violations.17

13. Héctor Olásolo, The Triggering Procedure of the International Criminal Court (Leiden: Martinus Nijhoff, 2005), p. 91.

14. See also article 17 Negotiated Agreement Between the International Criminal Court and the United Nations.

15. Olasolo, The Triggering Procedure of the International Criminal Court, p. 92.

16. Olasolo, The Triggering Procedure of the International Criminal Court, p. 93.

17. Report of the International Commission of Inquiry on Darfur to the United Nations Secretary- General, Pursuant to Security Council Resolution 1564 of September 18, 2004, Geneva, 25 January 2005.


In its January 2005 report, the International Commission of Inquiry requested a

Security Council referral to the Internal Criminal Court in relation to the situation

in Darfur. The Commission provided for six major merits. The Commission argued

that: “[...] The Court was established, with an eye to crimes likely to threaten peace

and security.” This was “the main reason why the Security Council may trigger the

Courts jurisdiction under Article 13(b) ICC Statute.”18 Subsequently, the Security

Council adopted Resolution 1593, in which it referred the situation to the Court.19

IMPLICATIONS FOR THE PRESENT CASEThailand has been a member state of the United Nations since 1946. Therefore,

the Security Council, acting under Chapter VII of the United Nations Charter,

is authorized to adopt a resolution that refers the case of Thailand to the ICC

Prosecutor.

The UN General Assembly may discuss any questions relating to the maintenance

of international peace and security brought before it by any member of the United

Nations, or by the Security Council, or by a state that is not a member of the United

Nations in accordance with Article 35, paragraph 2 of the UN Charter.20 In addition,

the General Assembly may make recommendations to the Security Council with

regard to any such questions.21 Moreover, it may call the attention of the Security

Council to situations that are likely to endanger international peace and security.22

While the Security Council is exercising, with respect to any dispute or situation,

the functions assigned to it in the Charter, the General Assembly shall not make

any recommendation with regard to that dispute or situation unless the Security

Council so requests.23

The General Assembly consists of many committees and working groups that report

to the Assembly on several issues. It is possible for member states or an NGO to

submit issues to these committees and working groups, with the objective of seeing

the issue debated in a general meeting of the General Assembly.

18. Report of the International Commission of Inquiry on Darfur to the United States, Secretary General, Pursuant to SC resolution 1564 of 18 September 2004, Geneva, January 25, 2005. See also Schabas, An Introduction to the International Criminal Court, p. 153.

19. Resolution 1593 of the United Nations Security Council.

20. Article 11 (1) Charter of the United Nations.





With respect to the instant case, the Thai situation can also be brought within

the jurisdictional remit of the ICC by forwarding this Application to the General

Assembly, which might subsequently refer it to the Security Council. To this end,

the office of the Prosecutor can forward this Application to the First or Third

Committee of the General Assembly of the United Nations.

In turn, this (prospective) jurisdictional mechanism creates a legal foundation for

the ICC Prosecutor to launch an investigation against a non-Party State, with a view

to subsequently seeking a Security Council resolution referring the situation in

Thailand to the ICC. Article 53 of the Rome Statute provides the statutory basis for

such an investigation, as the expression “within the jurisdiction of the Court” does

not exclude the possibility that the ICC Prosecutor might launch an investigation in

preparation for referral by the Security Council.

5.2 PERSONAL JURISDICTIONThe second jurisdictional mechanism discussed in this Application is based on

personal jurisdiction. Specifically, while the ICC has the authority to prosecute

nationals of states not parties to the Rome Statute (like Thailand) only in the event

that the state in question accepts the jurisdiction of the ICC on an ad hoc basis or

pursuant to a decision of the UN Security Council,24 the ICC does exercise jurisdiction

over nationals of a State Party who are accused of a crime, regardless of where the

acts are perpetrated, according to Article 12(2)(b) of the Rome Statute.

As noted, in the recent Kenya case, aside from the conditions of jurisdiction ratione

materiae and jurisdiction ratione temporis, the ICC Pre-Trial Chamber ruled that

for a crime to fall within the jurisdiction of the Court, it must meet one of the two

alternative requirements mentioned in Article 12 of the Statute (jurisdiction ratione

loci or ratione personae). Jurisdiction ratione loci applies to situations where the

crime occurred on the territory of a state that is party to the Statute or a state

which has lodged a declaration by virtue of Article 12(3) of the Statute. Jurisdiction

ratione personae applies to situations where the crime was committed by a national

of any state that signed and ratified the Statute.

PREVIOUS SITUATIONSTo date, the ICC has never exercised its jurisdiction ratione personae, but solely

based its jurisdiction on the principle that crimes have been committed on the

24. Schabas, An Introduction to the International Criminal Court, p. 71.


territory of a state party or upon UN Security Council referral. With regard to the Iraq-

related prosecutions, however, the ICC Prosecutor indicated in its 2006 report that

inquiries had been made concerning nationals of the United Kingdom with respect

to acts perpetrated on the territory of Iraq, which is not party to the ICC Statute.25

In the Kenya case, moreover, the Pre-Trial Chamber noted the following with regard

to the jurisdiction ratione personae: “if the territoriality requirement was not met,

the Chamber would still be obliged under Article 53(l)(a) of the Statute to examine

personal jurisdiction, albeit limited only to whether the potential perpetrators are

nationals of States Parties, in order to verify that it could open an investigation.”26

RULES ON IMMUNITYThe Rome Statute excludes the possibility that any type of criminal immunity be

granted to governmental officials. Article 27, the pivotal provision of the Rome

Statute with regard to immunity before the Court, states:

(1) This Statute shall apply equally to all persons without any distinction

based on official capacity. In particular, official capacity as a Head

of State or Government, a member of a Government or parliament,

an elected representative or a government official shall in no case

exempt a person from criminal responsibility under this Statute,

nor shall it, in and of itself, constitute a ground for reduction of

sentence.

(2) Immunities or special procedural rules which may attach to the

official capacity of a person, whether under national or international

law, shall not bar the Court from exercising its jurisdiction over

such a person.

Article 27 of the Rome Statute therefore makes is perfectly clear that the Statute

operates to remove all immunities that any individual might claim before the ICC.

On the basis of Article 27, the ICC exercises jurisdiction ratione personae over

individuals who are nationals of party states irrespective of their position —

including heads of state and heads of government.27

25. “Letter of the Prosecutor dated 9 February 2006” (Iraq). Cited in Schabas, An Introduction to the International Criminal Cour, p. 72.

26. Pre-Trial Chamber II, 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, 31 March 2010, para. 65.

27. Von Michiel Blommestijn and Cedric Ryngaert, “Exploring the Obligations for States to Act upon the ICC’s Arrest Warrant for Omar Al-Bashir, A Legal Conflict between the Duty to Arrest and the Customary Status of Head of State Immunity,”


IMPLICATIONS FOR THE PRESENT CASEAt least with regard to one person mentioned in this Application as responsible

for potential crimes against humanity, the ICC does have jurisdiction ratione

personae over the Thai situation. There is evidence, in particular, that Mr. Abhisit

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 ICC Statute. Prime Minister Abhisit was born in the United

Kingdom on August 3, 1964. Under the laws of the United Kingdom, anyone born

in the United Kingdom prior to 1983 “shall be a citizen of the United Kingdom and

Colonies by birth” unless the child of diplomats or enemy aliens.28 Citizenship is

acquired automatically and in perpetuity, regardless of residency status. Unless

Prime Minister Abhisit formally renounced his citizenship by making a declaration

of “renunciation of citizenship of the United Kingdom and Colonies,”29 he is a

citizen of the United Kingdom and was a citizen of the United Kingdom at the

time of the crimes in question. The applicant is informed and believes that Prime

Minister Abhisit has made no such renunciation and that, indeed, he holds current

United Kingdom citizenship.

5.3 CONCLUSIONFrom the above, it can be concluded that the ICC has jurisdiction over the instant

case in two ways. First, the ICC Prosecutor may open a preliminary investigation

in preparation for jurisdictional referral by the United Nations Security Council

according to Article 13(b) of the ICC Statute. Second, because the United Kingdom is

a ratifying state party to the ICC, it is well within the Court’s authority (even in the

absence of a Security Council resolution) to assert its jurisdiction ratione personae

over Prime Minister Abhisit Vejjajiva, based on the Prime Minister’s presumed

British nationality.

available at: http://www.zis-online.com/dat/artikel/2010_6_461.pdf (last accessed January 6, 2011), p. 432.

28. “British Nationality Act, 1948,” Section 4. The 1948 Act is superseded by the 1981 Nationality Act, which however does not apply retroactively, to those born before its entry into force in 1983.

29. “British Nationality Act, 1948,” Section 19.


6. ADMISSIBILITY The requirement to consider after the establishment of the ICC’s jurisdiction is

the question of admissibility. The issue of admissibility relates to the question

of whether matters over which the ICC has jurisdiction should be litigated before

the ICC. The admissibility procedure applies to all cases that come before the ICC,

even those resulting from a referral by the Security Council. The Trial Chamber

has ruled that in relation to admissibility, Article 53(1)(b) of the ICC Statute must

be construed in its context, and accordingly an assessment on admissibility during

the Article 53(1) stage should in principle be related to “a situation” (instead of

referring to a full case).1

In relation to the determination of admissibility, there are two conditions which

need to be satisfied:

(1) The “gravity” threshold must be met.

(2) An assessment must be made about whether the national justice

system has “remained inactive” or is “unwilling or unable to

prosecute.” This is the issue of “complementarity” mentioned in

the preamble of the Statute.

6.1 GRAVITYThe threshold of gravity is described in Article 17(1)(d) of the Rome Statute. In

the Lubanga case, the Pre-Trial Chamber held that the gravity threshold was in

addition to the drafters’ careful selection of the crimes included in Articles 6-8

of the Statute, a selection based on gravity and directed at confining the material



jurisdiction of the Court to “the most serious crimes of international concern.”2

As a result, “the relevant conduct must present particular features which render

it especially grave.”3 The Pre-Trial Chamber held that there are four elements that

must be considered:

(i) The conduct which is the subject of the case must be either

systematic (patterns of incidents) or large–scale;

(ii) The nature of the unlawful behavior of the crimes (i.e. the manner

of their commission);

(iii) The employed means for the execution of the crimes;

(iv) The impact of the crimes and the harm caused to victims and

their families. In this respect the victims’ representations will be

of significant guidance for the Chamber’s Assessment.4

The Chamber reiterated that all crimes falling within the jurisdiction of the ICC

are serious. Therefore, reference to insufficient gravity represents an additional

safeguard put in place to prevent the Court from investigating, prosecuting, and

trying peripheral cases.5

6.2 COMPLEMENTARITYAt the heart of the functioning of the ICC is the principle of complementarity. The

ICC monitors the primary jurisdiction of national courts. This means that the ICC is

a Court “of last resort” that will only intervene, according to Article 17 of the Rome

Statute, when no effort was made to launch any domestic investigation/prosecution

or when the investigative/legal proceedings are vitiated by the unwillingness or

inability to genuinely carry out the investigation or prosecution.

The first three investigations of the ICC prosecutor, namely — the situations in

The Democratic Republic of the Congo, The Central African Republic, and Uganda

— have been triggered by referrals made by those states pursuant to Article 14 of

2. Schabas, An Introduction to the International Criminal Court, p. 186.

3. Schabas, An Introduction to the International Criminal Court, p. 187 see also Prosecutor v. Lubanga (ICC-01/04-01/06-8), Decision on the Prosecutor’s Application for a Warrant of Arrest, 10 February 2006, para. 45.

4. Kenyan Decision on Article 15, para. 62. See also Rule 145 (10 and 2(b) (iv) of the RPE ICC.



the ICC Statute.6 These so-called self-referrals appear to have been solicited by the

ICC prosecutor, “when he proclaimed in respect of the Congo that a referral and

active support from the DRC would assist his work.”7 Nothing in the Rome Statute

prohibits these waivers of complementarity.

In the situation of Darfur, the case was referred by the United Nations Security

Council. In this case, it was accepted by the Pre-trial Chamber that the Sudanese

justice system was unwilling and unable to address the crimes. The absence of

effective criminal proceedings was a reason for the ICC prosecutor to find the

case admissible. The subjects of genuine national investigations or prosecutions

are important for the assessment of admissibility. Any independent and impartial

(national) proceedings that meet the standards required by the Rome Statute must

be respected by the ICC.8

UNABLE AND UNWILLINGThe issue of unwillingness arises whenever a national justice system is starting

an investigation but lacks the will to see the proceedings through, or there are

indications that it may perform a “sham trial.” The Statute requires the Court to

consider these issues with regard to the principles of due process recognized by

international law.

According to the Appeals Chamber in the Katanga case, the initial questions to ask

when considering whether a case is inadmissible under Article 17(1)(a) and (b) of

the Statute are the following:

(1) Whether there are ongoing investigations or prosecutions;

(2) Whether there have been investigations in the past and the State

having jurisdiction has decided not to prosecute the persons

concerned.

6. Article 14 reads: (1) “A State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the situation for the purpose of determining whether one or more specific persons should be charged with the commission of such crimes. (2) As far as possible, a referral shall specify the relevant circumstances and be accompanied by such supporting documentation as is available to the State referring the situation.”

7. Press release of 23 June 2004, available at www.icc-cpi.int. Cited in Alexander Zahar and Goran Sluiter, International Criminal Law: A Critical Introduction (Oxford: Oxford University Press, 2008), p. 455-456.

8. Report of the Prosecutor of the International Criminal Court, Mr. Luis Moreno Ocampo, to the Security Council pursuant to UNSCR 1593 (2005), p. 5.


The issues of unwillingness and inability only arise in the event that the answer

to either of these questions is affirmative. If the state is inactive, questions of

unwillingness and/or inability do not arise. The state’s decision not to investigate

and/or prosecute, in fact, renders a case admissible before the Court subject to

Article 17(1)(d) of the Statute.9

While precise standards of review were formulated by the jurisprudence of the ICC,

Article 17 of the Rome Statute offers some guidance as to what is to be understood

by “unwillingness” and “inability” to prosecute.

With regard to the “unwillingness” to prosecute, Article 17(2) of the Rome Statute

provides:

In order to determine unwillingness in a particular case, the Court

shall consider, having regard to the principles of due process

recognized by international law, whether one or more of the

following exist, as applicable:

(a) The proceedings were or are being undertaken or the national

decision was made for the purpose of shielding the person

concerned from criminal responsibility for crimes within the

jurisdiction of the Court referred to in Article 5;

(b) There has been an unjustified delay in the proceedings which

in the circumstances is inconsistent with an intent to bring the

person concerned to justice;

(c) The proceedings were not or are not being conducted independently

or impartially, and they were or are being conducted in a manner

which, in the circumstances, is inconsistent with the intent to

bring the person concerned to justice.

With regard to the “inability” to prosecute, Article 17(3) of the Rome Statute provides:

In order to determine inability in a particular case, the Court

shall consider whether, due to a total or substantial collapse or

unavailability of its national judicial system, the State is unable

to obtain the accused or the necessary evidence and testimony or

otherwise unable to carry out its proceedings.”

If the ICC finds that any of these above-mentioned scenarios applies, it may declare

the particular case admissible and exercise its jurisdiction despite the existence



of current or past investigations or prosecutions in relation to the same case at

national level.10

NE BIS IN IDEMIn the event that a case has already been tried by a domestic justice system, the

admissibility provision in the Statute points to Article 20. If a domestic trial has

already been completed, the judgment bars prosecution by the Court except in

the case of “sham proceedings.” These are defined as trials designed to shield

an offender from criminal responsibility as well as trials that were otherwise not

conducted independently or impartially, or were held in a manner inconsistent with

the intent to bring the person to justice.

6.3 IMPLICATIONS FOR THE THAI SITUATIONIn relation to the requirement of gravity, this Application has described a pattern

of incidents on a substantive scale. Most of the extra-judicial killings were carried

out not in the “heat of battle,” but rather by snipers who targeted unarmed civilians

from a distance. Moreover, the power to arrest and detain hundreds of opposition

supporters, as well as restrict a host of other rights sanctioned in the ICCPR,

was conferred upon the government by an Emergency Decree that was imposed

arbitrarily and for the sole purpose of providing the government a pseudo-legal basis

to violate the constitutional rights of its citizens. As stressed in this Application,

there is no justification for any of the crimes committed. Moreover, it is clear that

the harm caused to the victims, their families, and society as a whole was severe.

It might also be submitted that the situation is rendered all the more grave by the

serial occurrence of similar incidents over the past four decades. While hundreds

of people were massacred by the Royal Thai Army in 1973, 1976, and 1992, the

impunity that security forces and civilian officials have invariably enjoyed for these

abuses continues to make it safe for Thailand’s unelected “Establishment” to resist

calls for democracy by turning its guns on its own people.

With regard to the issue of complementarity, nothing in the history of Thailand or

in the steps that the Royal Thai Government has taken since the dispersal of the Red

10. Enrique Carnero Rojo, “The Role of Fair Trial Considerations in the Complementarity Regime of the International Criminal Court: From ‘No Peace without Justice’ to ‘No Peace with Victor’s Justice’?” Leiden Journal of International Law, 18(2005), p. 833.


Shirt rallies suggests that any serious, independent inquiry is forthcoming. While the

Abhisit administration has outwardly acknowledged the need for an investigation

into the abuses committed in April and May 2010, the measures it has taken in the

months since the carnage are rather more indicative of an incipient cover-up. As in

the scenario specified in Article 17(2) of the Rome Statute, the inquiries launched by

the Royal Thai Government are plagued by unjustifiable delay as well as a complete

lack of independence and impartiality. Rather than having been undertaken in the

interest of bringing the persons responsible to justice, the evidence demonstrates

that the proceedings initiated by the Thai authorities are aimed at shielding those

involved from criminal responsibility. Several factors demonstrate that the Thai

government is both “unwilling” and “unable” to genuinely carry out investigations

into the Bangkok massacres.

A HISTORY OF IMPUNITYThe 2010 Bangkok Massacres bear strong similarities with well-known incidents

that have taken place over the past four decades, when the Royal Thai Army

violently suppressed large demonstrations calling for establishment (or restoration)

of democracy in Thailand. In none of these previous instances — October 1973,

October 1976, and May 1992 — has anyone responsible for the deaths of dozens of

demonstrators faced any form of accountability. Based on the fact that each of these

four events have followed very similar dynamics, and involved many of the same

players, it would be unreasonable to expect that a fair and complete investigation

into the most recent killings would ever be allowed to take place in Thailand.

Aside from the casualty figures, there are at least three major similarities between

the 2010 massacres and the military crackdowns of 1973, 1976, and 1992.

First, much like previous pro-democracy demonstrators, the Red Shirts have been the

subject of a virulent media campaign that portrayed them as “terrorists” and enemies

of the monarchy. The systematic demonization of pro-democracy demonstrators as

an instrument to build public support for state violence is a technique with a long

track record in Thailand. As they have over the course of the most recent incidents,

for instance, throughout the events of Black May 1992 the demonstrators had been

portrayed as violent “revolutionaries” aiming to overthrow Thailand’s monarchy,11

while the military had earlier characterized the 1973 protesters as communist

agents.

11. Tan Lian Choo, “Clashes Provoked by Group Bent on Revolt: Suchinda,” The Straits Times, May 20, 1992.


The government’s portrayal of the Red Shirts is even more reminiscent of the

manner in which the military justified to the public the murder of several dozen

pro-democracy students that took place at Thammasat University on October 6,

1976. Much like the Red Shirts, the students who barricaded themselves in the

Thammasat University campus were falsely accused of having stockpiled large

amounts of weapons. Much like the Red Shirts, the students had been dehumanized

through genocidal language that referred to them as beastly, un-Thai and, as a famous

1970s propaganda song did at the time, “the scum of the earth” (nak paendin).12

Much like the Red Shirts, the students had been accused of posing a threat to the

institution of the monarchy, of having been infiltrated by foreign agents, and of

harboring radical ideals. In 1976, the students were labeled “communists;” in 2010,

the government updated its terminology to the changed geo-political context and

branded the Red Shirts “terrorists.”

Second, as it has throughout the Red Shirt rallies in 2010, in all previous incidents

the Royal Thai Government has repeatedly enlisted agent provocateurs to cause

disorder and provide the pretext for a violent crackdown. In 1973 and 1992,

agents of the state successfully sparked the riots that led to soldiers firing into

crowds of unarmed demonstrators. On October 14, 1973, security forces encircled

demonstrators who had assembled outside Chitrlada Palace to request the King’s

intervention against the military government of Thanom Kittikachorn and Praphas

Charusatien. Once the protesters agreed with a palace representative to disperse,

the police forced tens of thousands of demonstrators to stream out of the courtyard

where they were essentially trapped from a single, narrow exit. The chaos that

ensued provided the military with the excuse to fire on the protesters.13 Similarly, on

May 17, 1992, the military’s violent repression was sparked by incidents of rioting

and arson that took place in the vicinity of the Phan Fa Bridge, widely believed to

have been the work of an unidentified “third hand.”14

The most important historical precedent for the protracted strategy of tension and

12. It is noteworthy that the song has been recently dusted off for use in demonstrations by the People’s Alliance for Democracy and for playing on radios controlled by the Royal Thai Army. For reports of the former, see “Fierce PAD Nationalism on Stage,” Prachatai, November 17, 2009 (http://www.prachatai.com/english/node/1495). For reports of the latter, see Andrew Walker, “Scum of the Earth,” New Mandala, September 11, 2007(http://asiapacific.anu.edu.au/newmandala/2007/09/11/scum-of-the-earth/).

13. See Alan Klima, The Funeral Casino: Meditation, Massacre, and Exchange with the Dead in Thailand (Princeton, NJ: Princeton University Press, 2004), p. 61-62.

14. Klima, The Funeral Casino, pp. 117-119.


sabotage observed in 2010, however, is the campaign of violence systematically

carried out by the state and state-sanctioned civilian vigilantes in an attempt

to undermine the elected governments of the mid-1970s. In the build-up to the

1976 elections, officially endorsed, state-funded groups like the Village Scouts,

Nawaphon, and the Red Gaurs are known to have engaged in a campaign of extra-

judicial executions against purported socialists, provincial politicians, and rural

activists. The same groups were also responsible for violent clashes with students

and workers, for inciting ethnic riots against the Vietnamese community in the

Northeast, and for violent bombings that killed scores of people at campaign rallies

all over the country. The violence created a climate of instability and fear that set

the stage for the carnage of October 6, 1976, when hordes of civilian vigilantes,

rallied to the capital city to defend Thailand from “communists” (who, among other

things, were accused of planning to burn down Wat Boworniwet), surrounded the

campus of Thammasat University and carried out a horrific massacre.15

Third, the aftermath of all previous massacres has been characterized by the

government’s attempt to blame the victim. Before the ousting of Thanom and

Praphas, and their forced departure from Thailand, the two generals had sought

to justify the deaths of October 14, 1973, by asserting that the protesters had

been responsible for the violence — and that some among them were armed with

machine guns.16 Similarly, in the wake of the violence on May 17-18, 1992, the

military claimed that the soldiers had only shot in self-defense,17 while television

stations repeated the groundless accusation that armed protesters had prompted

the crackdown by attempting to stage an attack on the King’s residence at Chitrlada

Palace.18

Once again, on this count the events of 1976 are those that bear the closest

resemblance to the 2010 massacres. In the aftermath of the horrible carnage,

hundreds of student protesters were arrested by the authorities, while hundreds

more went into hiding. Much like the UDD leaders today, moreover, leaders of the

1976 student/labor movement — known as the “Bangkok Eighteen” — were subjected

to prosecution in military courts for a variety of charges including lèse majesté

15. For an overview, see Katherine Bowie, Rituals of National Loyalty: An Anthropology of the State and Village Scout Movement in Thailand (New York: Columbia University Press, 1997), pp. 21-33 and pp. 105-110.

16. See Ross Prizzia, Thailand In Transition: The Role of Oppositional Forces (Honolulu: Hawaii University Press, 1985), p. 69.

17. “Shootings Were in Self-Defence, Says Spokesman,” The Nation, May 20, 1992.

18. See Paul M. Handley, The King Never Smiles: A Biography of Thailand’s Bhumibol Adulyadej (New Haven: Yale University Press, 2006), p. 353.


against the Crown Prince, armed insurrection, communist conspiracy, murder and

attempted murder of state officials.19 They were freed only after an amnesty was

granted in 1978, which conveniently shielded the state officials, state agents, and

civilian vigilantes responsible for the massacre from any legal proceeding.

These historical parallels point to the fact that the most recent wave of demonstrations

and violence played out according to the same script followed by the events of 1973,

1976, and 1992. Just as in all those instances, the Red Shirts’ calls for “democracy”

were described by the government as a façade for an ideology threatening the

security of the Thai state. Just as in all previous instances, the Red Shirts did

engage in some violence, looting, and property destruction — mostly in situations

when they were themselves under fire — but were not the armed “terrorists” the

government had made them out to be. Just as in all previous instances, however,

dubious accusations of ideological extremism and violent tendencies were highly

instrumental to the case made by the military to justify the imposition of repressive

measures and shoot scores of unarmed demonstrators with the utmost impunity.

Now as ever, 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.

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

over 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 here, 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.

It should be added that the current government has a poor record of “independent

investigations.” Its failure to investigate human rights abuses perpetrated over its

tenure in office, such as the death of five hundred Rohingya refugees the Royal

Thai Navy towed out to the high seas in January 2009, does not augur well for the

investigations into the events of April and May 2010.

19. See David Streckfuss, The Truth on Trial in Thailand: Defamation, Treason, and Lèse-Majesté (London: Routledge, 2010), Ch. 10.


LACK OF JUDICIAL INDEPENDENCEIt is widely recognized among academics and observers that the past several years

have witnessed, on the one hand, the increased “judicialization” of Thailand’s

political system and, on the other, the increased politicization of the country’s

judicial branch.

Since 2006, the courts have intervened repeatedly in the country’s politics, in a

series of highly dubious decisions that annulled an election (April 2006), dissolved

the Thai Rak Thai party (May 2007), removed Prime Minister Samak over a cooking

show (September 2008), and then gutted the House of Representatives by dissolving

three governing parties (December 2008), allowing Abhisit Vejjajiva to become

Prime Minister. Conversely, the courts have spared the current government a similar

treatment. Much like the proceedings before the Constitutional Court, criminal cases

have also been prosecuted and judged in an entirely one-sided manner. Contrary

to the Red Shirt protesters, whom the judiciary has thus far dealt with harshly, no

sanction has yet been imposed on leaders of the People’s Alliance for Democracy

responsible for a string of violent incidents and other illegal acts in 2008, above

all the occupation of Suvarnabhumi International Airport. As Human Rights Watch

put it in early 2010, “Long delays in prosecuting PAD leaders are fuelling a growing

public perception that they are immune to legal accountability.”20 In the year

since the release of HRW’s report, the judiciary has done nothing to change that

perception.

Aside from suffering from the same lack of credibility and corruption that plagues

most government institutions in Thailand, time and time again the courts have

shown themselves highly susceptible to external pressure from Establishment

figures. In April 2006, Constitutional Court judges were caught on tape in a

telephone conversation where the decision to annul the election was described in

entirely political terms.21 More recently, in a series of videos posted on YouTube

in mid-October 2010, Democrat Party officials are seen lobbying Constitutional

Court judges to render a favorable decision on the party’s own dissolution cases.

In these tapes, the judges can not only be heard discussing the possibility that

clearing the Democrat Party might reinforce the Red Shirts’ claims about “double

standards;” the justices themselves consistently refer to opposition politicians by

20. Human Rights Watch, “Thailand: Serious Backsliding on Human Rights,” January 20, 2010.http://www.hrw.org/en/news/2010/01/20/thailand-serious-backsliding-human-rights

21. Pasuk Phongpaichit and Chris Baker, Thaksin (Chiang Mai: Silkworm, 2009), p. 276.


using the pronoun “mun” (it), which generally refers to animals. In the same tapes,

the Constitutional Court judges can also be heard discussing how they managed

to rig a judicial entry exam to favor their own relatives and cronies. While criminal

proceedings were initiated against the persons believed to have shot and leaked the

videos,22 the Constitutional Court justices have not faced any legal or disciplinary

sanction for their corrupt conduct.23

Given the politicization of Thailand’s judicial branch, it is virtually certain that

the judiciary will neither investigate the abuses committed by the state nor treat

the Red Shirt leaders accused of serious crimes with the appropriate measure of

fairness.

THE DEPARTMENT OF SPECIAL INVESTIGATIONSOn April 20, 2010, CRES placed the authority to investigate the killings in the

Department of Special Investigations (“DSI”), which is headed by Tharit Pengdit.

This transfer of investigative authority away from the police department put

an immediate stop to the investigations by the Royal Thai Police, which were in

progress. Given Tharit’s membership in CRES, the choice of DSI to investigate the

facts demonstrates the Thai government’s lack of interest in conducting independent

and impartial investigations.

In late August 2010, after having announced that it would update the public about

the progress of the investigations and disclose the results of autopsies conducted

on the bodies of ninety-one people,24 the Department of Special Investigations

held a press conference where officials steadfastly refused to provide any new

information. While DSI Director-General Tharit Pengdit had previously stated that

all autopsies had been completed, Thai authorities reversed themselves, claiming to

have performed only forty-two autopsies up to that point. While he announced that

no disclosure would be made until the entire investigation was completed, the DSI

spokesman hastened to add that the reports whose contents he could not disclose

22. “Arrest Warrants for 2 in Court Scandal,” Bangkok Post, November 16, 2010. http://www.bangkokpost.com/breakingnews/206665/warrants-for-2-in-court-scandal-approved

23. “Court Scandals in Thailand: Judges in the Dock,” The Economist, November 11, 2010.http://www.economist.com/node/17472738

24. “Red Shirt Autopsy Results Tomorrow,” The Nation, August 22, 2010.http://www.nationmultimedia.com/home/Red-shirt-autopsy-results-tomorrow-30136337.html


confirm that “not all” ninety-one people were shot by the authorities.25

In the months since, while the DSI continued to keep the results of the autopsies

from the public, law enforcement insiders disillusioned with the government’s

determination to suppress the evidence of its abuses leaked to the press a series

of documents including autopsy reports, witness statements, and the results of

investigations into the circumstances surrounding the deaths of more than a dozen

people killed in the demonstrations. In each case, the investigative authorities

concluded that the victims had been killed by state agents.26

DSI Special Case No. 61/2553, relating to Mr. Muramoto, is an investigation into a

violation of Sections 288 and 289 of the Thai Criminal Code (killing with intent).

The investigation was performed by a team of two DSI officers, Police Lt. Colonel

Weerawatch Dejboonpa and Police Lt. Col. Bantoon Chimgra (the “DSI Investigators”).

The Investigators interviewed seven witnesses who were present on April 10, 2010

on Dinso Rd. in Bangkok, where Mr. Muramoto, on assignment for Reuters, was

filming the Red Shirt Demonstrations at Democracy Monument. Included among the

witnesses was a plain-clothes police officer who was been standing about one meter

from Mr. Muramoto when he was shot, catching and holding him while summoning

for medical help.

Based on their interviews, the investigators issued the following findings: (1) Mr.

Muramoto was killed by a high-velocity bullet that pierced the left side of his chest,

exiting through his right upper arm; (2) The rifle shot came from a soldier of the

Second Infantry Division (Queen’s Guard), under the command of Colonel Thamnoon

Withee, who had earlier witnessed Mr. Muramoto filming the demonstrations; and

(3) Mr. Muramoto was positioned sideways, with his flank facing the Royal Thai

25. Pongphon Sarnsamak “Anger over Riot Autopsy Report,” The Nation, August 24, 2010.http://www.nationmultimedia.com/home/Anger-over-riot-autopsy-reports-30136447.html

26. Pravit Rojanaphruk, “‘Leaked’ Reports Blame Military for Some Crackdown Deaths,” Prachatai, December 24, 2010.http://www.prachatai.com/english/node/2209Pravit Rojanaphruk, “Leaked DSI Report Reveals Shooting of Teenager,” Prachatai, December 25, 2010.http://www.prachatai.com/english/node/2211 Pravit Rojanaphruk, “Leaked Reports Tie Soldiers to Two Shootings,” Prachatai, December 27, 2010.http://www.prachatai.com/english/node/2212Pravit Rojanaphruk, “Reports Link Two More Civilian Deaths to Army,” Prachatai, January 4, 2011.http://www.prachatai.com/english/node/2224


Army, when he was shot, as he filmed the Red Shirt demonstrators, which was

confirmed by video taken from his camera and now in possession of DSI.

Based on these findings, the Investigators concluded that Mr. Muramoto’s death

was caused by “shooting by an Army soldier acting within the course of his duties.”

Their recommendation was that the matter be assigned to the Police Department

for proper processing under Thai law.

DSI Special Case Number 3234/2553 involves an investigation into the deaths of

six people on May 19, 2010, inside the Pathumwanaram Temple compound where

thousands took refuge after the surrender of the Red Shirt leaders. The investigation

was conducted by DSI Police Lieutenant Colonel Toranin Klangthong and Ms.

Napasnant Watanatouchpong. The investigators interviewed forty-one witnesses

and gathered numerous pieces of evidence— including medical reports, ballistics

reports, weapons, video clips, and copies of the Thai Royal Army armory log-out

sheet reflecting the specific weapons assigned to individual soldiers.

Based on the evidence collected, the Investigators issued the following findings: (1)

Four units of the First Special Forces Battalion, Third Special Force Regiment were

assigned to the elevated BTS train tracks outside the Temple during the afternoon

of May 19, 2010, under the command of Major Nimitr Wirapong; (2) Five of those

soldiers fired live rounds into the Temple area, using M16A2 rifles firing 5.56 mm

caliber bullets; (3) Fragments of green-tipped bullets in 5.56 mm caliber, of the

type assigned to the First Special Forces, Third Special Force Regiment, were found

inside the bodies of the six victims; (4) The bullets inside the victims were fired from

elevated positions; and (5) Spent shell casings in 5.56 mm caliber were found atop

the BTS train rails outside the Temple. Based upon these findings, the investigators

concluded that it was reasonable to believe that the six victims inside the Temple

were killed by soldiers firing from the BTS rails outside the Temple, and that the

matter should be referred to the Royal Thai Police for proper processing under Thai

law.

At least eight additional investigative reports that were leaked to the press contain

similar conclusions, holding soldiers of the Thai Royal Army responsible for killing

unarmed civilians during operations to disperse the Red Shirt demonstrations.

Once handed over to the DSI leadership, however, these investigative reports have

been suppressed.

Not only has no legal or disciplinary action been taken against the security forces

over these deaths. Despite overwhelming evidence to the contrary, as of December


2010 CRES spokesperson Colonel Sansern Kaewkamnerd continued to claim: “I can

categorically deny that the army has killed or hurt any Red Shirts or protesters.”27

Finally, on January 20, 2011, the DSI made an official announcement about the

long-awaited results of its investigations. Unsurprisingly, DSI chief Tharit Pengdit

declared that the investigation had yielded “inconclusive” findings for the vast

majority of the people killed — including each of the incidents described above,

where the DSI’s own investigators had indeed identified those responsible in their

internal reports — adducing a number of excuses for his agency’s failure to identify

those responsible for the deaths.28

The Statement of Anonymous Witness No. 20 is an amalgam of information from a

number of law enforcement sources described as employed by a government agency

in Thailand “in a position to acquire information concerning the investigations

being carried out by the Royal Thai Police and the DSI.” Once again, the statements

were merged to render the individuals who risked their lives and careers to provide

testimonies more difficult to identify. The statement contains the following

information with regard to the DSI investigation into the killings. It is worth

reproducing the full text of the testimony, which speaks to several dimensions of

the cover-up the DSI has been carrying out:

I am employed by an official government agency in Bangkok. My

position allows me to acquire information concerning the

investigations being carried out by the Royal Thai Police (“Police”)

and the Department of Special Investigations (“DSI”) into the

killings that occurred during the Red Shirt demonstrations in

Bangkok in April and May 2010.

It has been the official policy of the government of Thailand to

conceal and/or eliminate all evidence of criminal conduct by the

government or the Army leaders in connection with the civilian

killings. One example of that policy involved the decision to

release the bodies of the civilian victims to their families with

full knowledge that the remains would be cremated, leaving no

possibility of challenging any of the conclusions made in the official

medical reports. Another example involved a massive campaign

27. Anthony Kuhn, “Thai Riots Sign Of Simmering Political Tensions,” NPR, December 17, 2010.http://www.npr.org/2010/12/17/132143512/thai-riots-sign-of-simmering-political-tensions

28. “Causes of Riot Deaths Inconclusive,” Bangkok Post, January 20, 2010.http://www.bangkokpost.com/breakingnews/217349/causes-of-riot-deaths-inconclusive


by the Bangkok Metropolitan Administration (“BMA”) — under

orders from CRES — to clean the streets of Bangkok immediately

after the conclusion of the Red Shirt demonstrations on May

19. This campaign lasted several days and, in the process, the

BMA destroyed most of the physical and crime scene evidence of

the civilian deaths. This campaign violated Thai laws concerning

preservation of evidence, but it was intentionally carried out in

order to remove any evidence of criminal conduct by the Army

leaders and/or the Thai government.

After the violent events in Bangkok on April 10, 2010, during

which some twenty-five people were killed, the CRES caused the

investigation into those deaths to be assigned to the DSI. The case

was not assigned to the Police because it was determined that the

Police were too numerous and diverse, and it would be impossible

to control the results of their investigations. The DSI, on the other

hand, is much smaller, and its Director, Tharit Pengdit and Deputy

PM Suthep Thaugsuban, are themselves members of the Centre

for Resolution of Emergency Situation (“CRES”). This assignment

to the DSI, however, represented a gross conflict of interest in

that the CRES should itself be a target of criminal investigation in

connection with the killings on April 10.

Nevertheless, on April 16, 2010, DSI Director Tharit was formally

vested with the authority to conduct the investigation into the April

10 killings. Director Tharit promptly assigned the investigation into

all of the 25 deaths to DSI investigator Wirawat Dejboonpa, who is

loyal to Tharit. Investigator Wirawat intentionally did nothing to

investigate the cases. Later, after additional killings in May, a total

of eighty-nine deaths were assigned to investigator Wirawat. He

has to this day failed to conduct any serious investigation into the

killings of innocent civilians, but rather has tried to assign criminal

responsibility to the Red Shirt leaders currently incarcerated, in

order to provide ostensible support for the terrorism charges

asserted against them by the Thai government.

Quite to the contrary, Investigator Wirawat’s investigations have

been improperly biased in favor of the government’s official

position. His investigative conclusion, for example, is that the

Red Shirts were responsible for the explosions on Dinso Road

on the night of April 10 that killed Colonel Romklao Tuwatham

and several other soldiers. However, he has conceded openly that

he has no evidence to support that conclusion. This absence of


evidence is further supported by the fact that nobody has been

arrested in connection with physically causing those explosions.

During the period between May 13 and May 19, 2010, more than

sixty additional people were killed in connection with the Red Shirt

demonstrations. DSI Director Tharit, however, did not assign any of

these killings to his subordinates for investigation until August 30,

2010, when public outcry forced him take some action. This delay

constitutes a violation of Thai law, which requires investigations

into deaths caused by public officials to be concluded within a

specific period of time.

Many of these remaining cases were assigned to investigators

who are unwilling to ignore the truth, and will not whitewash the

investigations out of loyalty to Tharit or the Abhisit government.

Indeed, the majority of the DSI investigators are committed to

proper conduct, and will not fabricate evidence or conceal the

truth in order to reach a predetermined conclusion. At this time,

investigations into more than half of the eighty-nine deaths during

the Red Shirt demonstrations — which are in various stages of

progress — have concluded, at least preliminarily, that the killings

were caused by certain soldiers of the Royal Thai Army under

orders from the Thai government and the CRES.

Some of the DSI investigators that have reached these conclusions

have been instructed by their superiors to change their conclusions.

Some of the killings from the period between May 13 and May

19, 2010 have been assigned to DSI investigators who are loyal

to Director Tharit and are willing to ignore proper investigative

procedures. These DSI investigators are doing nothing substantive

to advance their investigations. They are also hoping for special

promotions that DSI Director Tharit is seeking from the government

on their behalf.

At the moment, certain DSI investigators have completed their

initial reports regarding at least four killings in May 2010, which

conclude that certain soldiers of the Royal Thai Army, under

orders from the government, caused the deaths. At this stage, the

DSI would ordinarily consult with the District Attorney’s Office

and request the assignment of a District Attorney to interface

with the DSI investigators to begin assessing whether the killings

were carried out with intent, or whether they were in self-defense.

However, DSI Director Tharit has taken no steps to begin any


investigation into the issue of intent. This is contrary to normal DSI

procedures and the requirements of Thai law, and is an attempt

to delay the cases.

DSI Director Tharit is engaged in a purposeful effort to delay the

outcome of the DSI’s investigations. This is evident from his failure

to assign the cases promptly for investigation, and from his failure

to initiate any investigation into the issue of intent. His failure to

advance the case is motivated, at least in part, by the fact that he

is a member of CRES, which, under ordinary circumstances, would

be the focus of an investigation.

Additionally, consistent with other government efforts to

suppress evidence, DSI Director Tharit has issued orders that the

DSI investigators are prohibited from summoning any soldier of

the Royal Thai Army for interrogation. This position is wholly

inconsistent with ordinary practices of the DSI, which would have

long ago interrogated anyone the DSI had concluded had been the

cause of a killing.

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.

Additionally, following his meeting with Deputy Prime Minister

Suthep, DSI Director Tharit informed all of his investigators that if

they are unable to identify with specificity the names of the people

who pulled the triggers that led to killings during the Red Shirt

demonstrations, they must conclude that Red Shirts pulled the

triggers. Additionally, where DSI investigators had concluded that

at least five of the six victims from inside the Wat Patumwanaram

Temple had been killed by Army soldiers, DSI Director Tharit

unilaterally reduced that number to three.

It is abundantly clear from these events that DSI Director Tharit

assured Prime Minister Abhisit, through Deputy Prime Minister

Suthep, that he would conclude that there was no criminal intent

on the part of any Army soldiers in connection with the civilian and

soldiers deaths in April and May 2010, regardless of any finding

by DSI investigators concerning the cause of death. In exchange

for this concession, DSI Director Tharit was allowed to keep his

job.

There is absolutely no possibility that the DSI will voluntarily

conduct a proper investigation into the killings of the civilians

and soldiers during the Red Shirt demonstrations.

As the Department of Special Investigations Deputy Head, Pol. Lt. Col. Seksan

Sritulakarn stated this past summer, routine external pressure has made the DSI

into an entirely “political tool.”29

PROSECUTING THE RED SHIRTSWhereas the government has sought to ensure that the investigations into the

killings lead nowhere, in the presence of overwhelming evidence for the Royal Thai

Army’s crimes, the Abhisit administration has conversely displayed considerable

aggressiveness in its prosecution of the Red Shirts. On July 30, 2010, the DSI

submitted to the Office of the Attorney General a request to indict twenty-four

core leaders of the UDD, as well as former Prime Minister Thaksin Shinawatra, on

29. , Matichon, 12 July 2010.

http://www.matichon.co.th/news_detail.php?newsid=1278918895&catid=17


charges of “terrorism.”30 On August 11, as expected, the Attorney General indicted

nineteen of them, all of whom are in custody, and delayed its decision on the six

who remain at large.31 All face possible death sentences if eventually convicted.

Aside from the fact that the Red Shirt leaders are accused of causing the deaths

that took place during the 2010 Red Shirt demonstrations — in the absence of any

finalized police investigation corroborating those claims and in the absence of any

parallel proceedings against state officials responsible for most (if not all) of the

killings — the Court has systematically deprived the Red Shirt leaders of their due

process rights by preventing them from mounting a proper defense against the

charges. The proceedings are assigned to Judge Sujitra Potaya, who has participated

in all of the criminal cases against former Prime Minister Thaksin.

First, despite the seriousness of the capital charges against the Red Shirt leaders,

Judge Sujitra has repeatedly barred the defendants from attending their own trial

hearings. At the Preliminary Hearing on September 27, 2010, the defendants were

denied access to the courtroom. Further, in the written Order memorializing the

Preliminary Hearing, Judge Sujitra stated:

Due to the fact that a lot of people who do not involve in the case

are in the court room, the seats are not sufficient. The next hearing

will determine the number of witnesses, the number of hearings

so the Defendants are not required to appear before court, but the

Defendant’s lawyers shall appear before court.32

On the day the next hearing was convened, the defendants were transferred from

their jail cells to the basement of the courthouse, but Judge Sujitra refused to allow

them to be brought into the courtroom. Formal requests to move the proceedings

to a larger courtroom have been denied. Thus, the defendants are being deprived

of the fundamental right to assist their lawyers in the preparation of their own

defense, based on the rationale that the courtroom to which the case is assigned

is simply too small. Although families of the defendants and the victims are also

30. “UDD Presents Long New Witness List,” Bangkok Post, August 2, 2010.http://www.bangkokpost.com/news/politics/189110/oag-asked-to-question-250-more-witnesses

31. “Prosecution Review Completed, 19 Red Shirts to Face Terrorism Trial,” The Nation, August 11, 2010.http://www.nationmultimedia.com/home/Prosecution-review-completed-19-red-shirts-to-face-30135707.html

32. Order dated September 27, 2010, at p. 11. An English translation of Judge Sujitra’s Order is reproduced in the Appendix.


being kept out of the proceedings, select members of the Thai media are permitted

to observe and report.

Second, Judge Sujitra has barred the defendants from calling key witnesses needed

for their defense. Specifically, the defendants included on their proposed witness

list the Directors of at least thirteen hospitals in Bangkok where victims were treated

during the Red Shirt demonstrations. These witnesses were named because, as the

official custodians of the records of their respective hospitals, the Directors are the

only persons who are able to identify the names of the various doctors who treated

the victims. Without the testimony of the Directors, the defense will be unable to

identify and call the treating physicians to testify about the nature of the injuries

suffered by the victims. Judge Sujitra, however, barred the defendants from calling

the Directors, stating that:

[T]he court is of the view that they are not the physicians who had

directly provided treatment to the patients so the court does not

permit to refer them as witnesses, and will not call them to testify

as requested.33

Further, Judge Sujitra drafted her Order in such as way as to suggest that the

Defendants’ counsel had agreed voluntarily to withdraw the Directors as witnesses,

which, pursuant to the Thai rules of criminal procedure, renders the decision non-

appealable. As a result, the defense lawyers took the extraordinary step of refusing

to countersign Judge Sujitra’s Order.

The government also ignored repeated requests to review the evidence upon which

the terrorism cases are built and has steadfastly refused to grant the UDD leaders

currently on trial access to all forensic, documentary and audio/video evidence

pertaining to their prosecution. In addition, the “evidence” that has been given

to the public about the premeditated nature of these acts of terrorism and their

connection with the UDD leaders remains scant — thus far, all the government has

been able to offer are two speeches given back in January 2010 by UDD leaders

Nattawut Saikua and Arisman Pongruangrong, in which the speakers warned of

retaliation in the event of a military coup (in Mr. Nattawut’s case) or use of deadly

force against the Red Shirts (in Mr. Arisman’s case). With regard to Dr. Thaksin,

prominent government officials accused the former Prime Minister of providing

financial support for the attacks, alleging that at least a few were committed at his

behest for the purpose of sabotaging any agreement on the so-called “roadmap

33. Order dated September 27, 2010, at p. 10.


for reconciliation,” but have failed to support these inflammatory statements with

any actual facts. The Royal Thai Government has been quick to label its opponents

“terrorists,” but it has done a rather poor job of substantiating these claims.

Considering the aggressiveness that the government has demonstrated in

disseminating information that supports its account of the tragic events of April and

May, one must conclude from its refusal to provide the defense team or the public

with any hard evidence of the UDD leaders’ involvement that the charges it has

filed are political — in fact, that the accusations of “terrorism” amount to nothing

other than a media campaign against the Red Shirts supported by the actions of

politicized investigators and a notoriously pliant judicial system. Indeed, the point

of these inquiries was never to find out the truth. The purpose of these criminal

prosecutions is rather to lend some legitimacy to the government’s media campaign

and perhaps keep the UDD leaders in prison as long as possible — whether or not

the investigations uncover any of the facts is besides the point. This is consistent

with many other aspects of Thai politics, where constitutional/legal processes serve

either as sideshow or smokescreen, while most decisions of any consequence are

made elsewhere.

OBFUSCATION AS “RECONCILIATION”In the wake of the dispersal of the Red Shirt rallies at the Ratchaprasong

intersection, Prime Minister Abhisit Vejjajiva committed himself and his

government to “reconciliation.” Regrettably, it is now clear that the forces presently

governing Thailand have neither the capacity nor the intention to promote

genuine reconciliation. Coupled with the draconian measures and campaign of

persecution launched over the past months — marked by the repeated renewal

of the Emergency Decree, the continuing reliance on the Internal Security Act, the

arrest and detention of hundreds of Red Shirt sympathizers, the internment of

UDD leaders in army camps, and the suppression or censorship of all alternative

media — the staffing of the committees set up under the pretense of moving the

country forward demonstrates that what the government means by “reconciliation”

is in fact “ideological conformity” enforced through a mixture of propaganda and

repression.

In response to the international outcry over the violence in April and May, the

Abhisit administration agreed to impanel a “fact-finding” committee tasked with

investigating the violence and pave the way for “reconciliation.” The committee


is led by former Attorney-General Kanit na Nakhon and is stacked with people

whose loyalty to Thailand’s Establishment is unquestioned. The committee quickly

came under sharp criticism for its apparent lack of independence as well as the

opaqueness of its mandate. In fact, it was clear from the very beginning that its

inquiry was not likely to result in any prosecutions, or bring forth clear allegations

of wrongdoing against top military men. Mr. Kanit himself initially stated that the

“fact finding committee” is less interested in “finding fact or identifying who was

right and who was wrong” than it is in “promoting forgiveness.”34

To his credit, Mr. Kanit has been outspoken in criticizing several measures the

government has taken in the aftermath of the violence. Shortly after his appointment,

Mr. Kanit complained about the practice of forcing the Red Shirt leaders to appear

in court with their ankles heavily shackled and chained as something “against the

UN human-rights principles.”35 In early August, Mr. Kanit urged the government to

reconsider its use of the State of Emergency.”36 Subsequently, Mr. Kanit interviewed

leaders and supporters of groups representing a broad cross-section of Thai civil

society and called on the government to grant bail to Red Shirts who have spent

months in prison awaiting trial.

However, Mr. Kanit’s so-called “Truth and Reconciliation Committee” is reported

to have made no effort to investigate the violence or meet with the victims,37

focusing instead on the task of formulating a broad analysis of Thailand’s political

crisis. Indeed, since the commencement of the Committee’s activities Mr. Kanit has

repeatedly explained that his work was aimed as identifying the “root causes” of

the conflict as opposed to investigating “each particular instance”38 — perhaps in

34. Atiya Achakulwisut, “Reconciliation Will Have Its Price,” Bangkok Post, June 15, 2010. http://www.bangkokpost.com/opinion/opinion/38778/reconciliation-will-have-its-price

35. “Kanit Decries Chaining of Reds,” The Nation, July 24, 2010.http://www.nationmultimedia.com/home/Kanit-decries-chaining-of-reds-30134467.html

36. “Kanit Panel Calls for Transparency over Unrest Details,” The Nation, August 3, 2010.http://www.nationmultimedia.com/home/Kanit-panel-calls-for-transparency-over-unrest-det-30135083.html

37. Pongphon Sarnsamak, “DSI Report ‘Ambiguous, Unclear’,” The Nation, November 19, 2010.http://www.nationmultimedia.com/home/DSI-report-ambiguous-unclear--30142568.html

38. “Kanit to Dig for Root Causes of Political Conflict,” The Nation, July 8, 2010.http://www.nationmultimedia.com/home/Kanit-to-dig-for-root-causes-of-political-conflict-30133319.html


light of the fact that, as he admitted, the committee “[has] been unable to obtain

complete information from the CRES about security forces’ deployment plans,

operations of the security forces, autopsy reports, witness testimonies, photos, or

video footage.”39 Not surprisingly, thus far the investigation has failed to produce

findings of any note.

Mr. Kanit has expressed interest in “restorative justice” — that is, the idea that

future occurrences of violence may be averted by promoting mediation between

victim and offender without necessarily subjecting offenders to prosecution.

Among the key tenets of “restorative justice,” in particular, are the search for a

balance “between the rights of offenders and the needs of victims” and “between

the need to rehabilitate offenders and the duty to protect the public.”40 But while

his goals are laudable, there are both general and particular reasons that render

this approach inappropriate in this situation.

Generally, as the “Nuremberg Declaration on Peace and Justice” has reiterated in

2008, a sustainable peace can only be built on a foundation of justice — “understood

as meaning accountability and fairness in the protection and vindication of rights,

and the prevention and redress of wrongs.”41 In Thailand as anywhere else, dealing

with the past and administering justice for systemic abuses is the only basis upon

which a prosperous, peaceful future can be built.

Indeed, most recently the approach of the international community has been based

on “transitional justice,” which emphasizes accountability for the offenders. The

United Nations’ “Updated Set of Principles for the Protection and Promotion of

Human Rights through Action to Combat Impunity” establishes not only society’s

“inalienable right to the truth” and the victims’ “right to know,” but also specifically

speaks to the “right to justice,” which requires states to ensure “that those

responsible for serious crimes under international law are prosecuted, tried and

duly punished.”42 The UN Principles also contain guidelines for the activities of

commissions of inquiry and truth commissions. Aside from the requirement that

39. Human Rights Watch, “Thailand: Repeal the Emergency Decree,” November 24, 2010.http://www.hrw.org/en/news/2010/11/24/thailand-repeal-emergency-decree

40. Marian Liebmann, Restorative Justice: How It Works (London: Jessica Kingsley Publishers, 2007), p. 33.

41. “Nuremberg Declaration on Peace and Justice,” June 13, 2008.http://www.peace-justice-conference.info/download/Nuremberg%20Declaration%20A-62-885%20eng.pdf

42. United Nations, “Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity,” February 8, 2005.


these bodies be impaneled through procedures that ensure their independence and

impartiality, the UN Principles mandate that the investigation should focus as a

matter of priority on violations constituting serious crimes under international law.

The emphasis placed by Mr. Kanit on the “root causes” of the conflict, as opposed

to the specific human rights violations, places the workings of the body he leads

at odds with the standards set by the UN for the activities of actual “Truth and

Reconciliation Commissions.”

The specifics of Thailand’s case make an approach to “restorative justice” based

on impunity especially problematic. First, as the experience of previous massacres

that have taken place since 1973 has shown, granting state officials impunity in the

name of “reconciliation” and “forgiveness” only guarantees that the same tragedy

will happen over and over again. Second, if Kanit and others are serious about

digging for the “root causes” of the conflict, they need not dig very deep to find out

that one of the Red Shirts’ main grievances is that the principle of equality under

the law does not exist in Thailand, where “double standards” pervade the workings

of the country’s judicial process as well as much of the rest of society. In this sense,

shielding powerful people responsible for serious crimes such as murder from legal

prosecution does nothing but serve up fresh evidence of this claim. As such, aside

from being impermissible under international law, impunity for the abuses that

have taken place in 2010 is most likely to exacerbate the conflict.

Perhaps most importantly, though, however sincere Mr. Kanit might be about

promoting mediation between offender and victim, the Royal Thai Government has

taken no meaningful steps in this direction. Not only has the government committed

all resources at its disposal to pervert the course of justice. The continuing

imprisonment of Red Shirt leaders, the persistent demonization of the Red Shirts

as terrorists, the ongoing deprivation of the Red Shirts’ right to due process, and

the systematic recourse to repressive measures that justify the ongoing suspension

of civil and political rights demonstrate that the Royal Thai Government has no

interest in “reconciling” victim and offender — its agenda is rather to reconcile the

victim to the offender’s authority. Moreover, the Abhisit administration’s insistence

on withholding information, on whitewashing the investigation, and on propagating

a self-serving narrative at odds with the evidence demonstrates that the Royal Thai

Government is not just unwilling or unable to peruse the truth, but actively engaged

in an attempt to suppress it.

The events of the past eight months have made it obvious that the government’s

pledge to promote “reconciliation” is nothing more than rhetoric designed to distract


from its ongoing effort to annihilate the opposition and prevent those responsible

for one of the worst episodes of state violence in the country’s history from ever

being brought to justice. No truth or reconciliation will emerge from the proceedings

of Mr. Kanit’s panel. Much like every other initiative the Royal Thai Government

has taken in the name of “reconciliation,” the committee’s function is simply to

make impunity more palatable to the public and the international community. Its

activities, therefore, exemplify the definition of “sham proceedings” described in

the ICC Statute — investigations or trials that “conducted in a manner which, in

the circumstances, is inconsistent with an intent to bring the person concerned to

justice.”

6. 4 CONCLUSIONAside from meeting the test of “gravity” specified in Article 17(d) of the Rome

Statute, the Thai situation qualifies for admissibility before the ICC based on the

principle of complementarity.

It is clear that the Royal Thai Government will never carry out a fair and complete

investigation into the situation at hand. The Abhisit administration and its backers,

in particular, are unlikely to compromise their tenuous grasp on political power

by exposing military and civilian leaders to prosecution for international crimes.

Moreover, the prolonged detention and the disregard for the due process rights

of hundreds of Red Shirts, whom the government prejudged as “terrorists,” calls

into question the fairness of its probe. Finally, the corruption and politicization of

Thailand’s judicial branch, the lack of independence plaguing the investigations

conducted so far by DSI, the government’s reliance on investigators chosen for

their partisanship rather than their expertise, and the lack of interest on the part

of Mr. Kanit’s “Truth and Reconciliation Committee” in probing the facts of the

violations taints the entire inquiry.

The Thai government, in other words, is both unwilling and unable to conduct a fair

and complete investigation, in accordance with its obligations under international

law. This is in keeping with previous massacres of pro-democracy demonstrators

that the Thai state perpetrated in 1973, 1976, and 1992. But for the possible

intervention of the ICC, the 2010 massacres are on the verge of being whitewashed

through the same, illegal amnesties that have regularly guaranteed impunity for

those who killed hundreds of demonstrators in Thailand.


7. RELIEF SOUGHT For the reasons set out above, and on the basis of the information presented, the

Applicant respectfully requests that the Prosecutor of the International Criminal

Court start a preliminarily investigation into the situation in Thailand in relation

to the events of April and May 2010, as well as the campaign of persecution staged

since the 2006 coup.

A review of the evidence suggests that members of the Royal Thai Government and

the Royal Thai Army are responsible for a series of human rights violations and a

systematic campaign of political persecution, such that:

(1) There are reasonable grounds to believe that crimes have been

committed within the jurisdiction of the ICC, in particular crimes

against humanity consisting of murder, imprisonment and other

severe deprivation of physical liberty, persecution, and other

inhumane acts;

(2) There is evidence pointing to individual and superior responsibility

for a number of high-ranking officials in Thailand’s civilian and

military leadership.

Based upon the findings presented in this report, it can be said that the jurisdictional

and admissibility thresholds have been met, such as to justify the launch a preliminary

investigation into the situation in Thailand. While it is the duty of the Royal Thai

Government under international law to investigate its own abuses and bring those

responsible to justice, the “investigations” launched by Royal Thai Government

are guaranteed to result in a complete whitewash of the entire incident, just as

previous instances of large-scale state violence that have occurred in Thailand over

the past four decades. In other words, by all accounts the government of Thailand


is unwilling to carry out proper investigations into the Bangkok Massacres. Even

if the civilian administration had the will to investigate, its ability to do so would

be limited by the absence of civilian control over the military. As a result, the Thai

situation qualifies for ICC jurisdiction based on the principle of complementarity. In

the event the ICC Prosecutor would wish to consider the merits this Application on

the basis of the ongoing investigations in Thailand, the Applicant suggest that the

Prosecutor set a time limit within which the Thai authorities must decide whether

the proceedings will result in any criminal prosecutions.

In case the ICC Prosecutor so desires, the Applicant is willing and able to supplement

this Application with additional evidence, including names and biographical data

of several witnesses who have been included in the Application as anonymous

witnesses.

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1

EXPERT REPORT OF JOE RAY WITTY

I, Joe Ray Witty, state as follows:

1.I am a Green Beret and Master Sergeant (Retired) of the United States Army, Special Forces. I am a military-trained sniper and an explosives specialist, serving two tours of duty in military combat operations in Afghanistan and Iraq. I have participated in cross-training exercises with the Royal Thai Army, and I am familiar with its structure and armament.

INTRODUCTION

2.I am currently employed by Los Angeles Police Department SWAT (Special Weapons and Tactics) team, where I am a member of SWAT’s sniper and breaching cadres. I am also an instructor for the Los Angeles Police Department (LAPD) in crowd control and crowd management, and my responsibilities in that capacity include planning and execution of police response to public demonstrations throughout the greater Los Angeles area.

3.I have been retained by the law firm of Amsterdam & Peroff LLP to review and evaluate the Royal Thai Army’s response to the Red Shirt demonstrations in Bangkok in April and May 2010. In that capacity, I have reviewed extensive video, examined numerous witness statements, and conducted independent interviews. I have also personally examined various sites in Bangkok where the Royal Thai Army carried out operations in response to the Red Shirt demonstrations.

TRAINING AND PROFESSIONAL BACKGROUND

4.I enlisted in the United States Marine Corps (USMC) in 1982, serving approximately 8 years in the 1st Reconnaissance Battalion, where I supervised reconnaissance teams deployed around the world. While a member of the USMC, I trained and operated in many host countries in small unit tactics and firearms training, including two MEU-SOC (Marine Expeditionary Unit, Special Operations Capable) deployments in the West Pacific. My MEU-SOC deployments included twice attending joint training in Thailand during Cobra Gold exercises, during which I participated in cross-training with Royal Thai Army forces.

5.I earned my Green Beret in 1988, with primary responsibilities in combat engineering/explosive demolition. Additionally, my Green Beret qualification course training included land navigation, small unit tactics, live fire training, target interdiction, unconventional warfare, direct action operations, and survival/evasion/resistance/escape training.

6.I am trained and qualified to identify, maintain, employ and defuse all forms of U.S., NATO and Soviet Block hand grenades, anti-personnel mines and anti-tank mines. I am also trained in the maintenance, employment and destruction of military grade explosives. I am a specialist in the use of explosives for breaching and building entry in hostage situations, together with explosive demolition of local infrastructure in the assistance of unconventional warfare.

7.In 1991, I enlisted in the 19th U.S. Army Special Forces Group (Reserves). In 1994, I graduated from the U.S. Army Scout Sniper Course, earning my designation as a military scout sniper. As part of my sniper training, I successfully completed range qualification with the .308 caliber (7.62 mm) weapons platform on moving and stationary targets, at known and unknown distances up to 1,075 yards.

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8.As a member of the Special Forces, I served two tours of duty deployed with a Green Beret operational detachment to both the Afghanistan and Iraq combat theaters, with collateral duties as a sniper. During the course of those deployments, I engaged in some 160 battlefield operations, at least 30 of which as a sniper interdicting human targets.

9.I am formally qualified for the following weapons systems: Colt Model 1911 (.45 cal.) and Beretta 92F (9 mm) pistols, Remington 870 shotgun (12 ga.), Remington M24 sniper rifle (7.62 mm), Colt M16, M16A2 and M4 assault rifles (5.56 mm), H&K MP-5 submachine gun (9 mm), Barrett (50 cal.) sniper rifle, H&K SCAR-H assault rifle (7.62 mm) and H&K 416 assault rifle (5.56 mm). Additionally, I am intimately familiar with the operation of all NATO and Soviet Block weapons systems.

10.In 1990, I joined the LAPD, which is the law enforcement entity primarily responsible for crowd management and riot response in the Greater Los Angeles Metropolitan Area, covering some 450 square miles and containing a population of approximately 4 million civilians. As a member of the LAPD, I am a certified and credentialed instructor in crowd management and riot control, where I regularly teach tactics and procedures to other LAPD officers. Additionally, I teach crowd management and riot control to hundreds of other law enforcement agencies throughout the United States, under contract with the National Tactical Officers Association.

11.During my tenure with the LAPD, I have participated in at least 100 crowd management/riot control operations, many of which were carried out under my personal planning and direction. Some notable examples include the Los Angeles riots in 1993 stemming from the acquittal of four police officers charged with beating Rodney King, the 2000 Democratic National Convention in Los Angeles, annual hotel workers labor union demonstrations, numerous anti-war protests, and various gay rights demonstrations.

12.During the course of these incidents, I have encountered and responded to a wide range of demonstration techniques, both violent and non-violent, including: (a) use of hurling devices (slingshots, super-slingshots) for hard projectiles and corrosive substances; (b) burning of tires; (c) use of knitting needles and other sharp stabbing instruments; (d) use of firearms; (e) arson; (f) Molotov cocktails; (g) sit-downs, including various chaining methods, to disrupt and impede vehicular and pedestrian traffic flow; and (h) roman candles, bottle rockets and M80 firecrackers.

13. Some of these techniques are planned, while some behaviors are spontaneous, often stemming from a mob mentality. In all cases, however, the appropriate response of law enforcement is always measured and proportional to the encountered behavior. In no event is the use of lethal force by law enforcement appropriate except where there is an immediate threat to life, and in such cases the use of lethal force may continue only so long as such threat is present. Further, whenever any death or significant injury results from a law enforcement response to any form of civilian demonstration, a full investigation must be conducted to examine whether the use of force by law enforcement was appropriate under the specific circumstances present at the time.

14. In 1998, I was selected to join the LAPD SWAT team, where I am currently posted. The primary mission of SWAT is to analyze and resolve barricaded suspect situations, serve high-risk warrants and carry out hostage rescue operations. My collateral responsibilities with SWAT include sniper and explosive breacher duties.

15.As a SWAT sniper, my responsibilities include securing high risk areas, reconnaissance and intelligence gathering in the context of crowd management and/or potential terrorist activity, and application of lethal force as necessary to resolve crisis situations. I am also an

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LAPD and SWAT certified sniper instructor, and I teach sniper tactics, techniques and protocols to LAPD officers and other law enforcement entities throughout the United States.

16.My responsibilities as an explosive breacher involve the surgical application of explosives to provide entry into fortified structures, with minimal damage, for facilitation of law enforcement entry. I am also an LAPD and SWAT certified breacher instructor, and I teach explosive and mechanical breaching tactics, techniques and protocols to LAPD officers and other law enforcement entities throughout the United States. I hold a Blasting License issued by the State of California for Law Enforcement Tactical Breaching.

17.I have received various military and law enforcement awards, including two Bronze Stars, the Army Commendation Medal, four Army Achievement Medals, the National Defense Medal, the Iraqi Deployment Medal, the Afghanistan Deployment Medal and a Los Angeles Police Unit Citation.

18.I have held a U.S. State Department security clearance continuously since 1998, and I current hold a Top Secret security clearance.

SCOPE OF REPORT

19.I have been retained by the law firm of Amsterdam & Peroff LLP to review, evaluate and provide my professional opinion regarding the Royal Thai Army’s response to the Red Shirt demonstrations in Bangkok in April and May 2010. I understand that my opinion may be submitted to the International Criminal Court (ICC) in connection with a request by Amsterdam & Peroff LLP for the ICC to initiate an investigation into the situation in Thailand.

20.My opinions and conclusions as set out in this report are based upon:

a. my personal examination and analysis of various sites in Bangkok where the Royal Thai Army engaged in activities in response to the Red Shirt demonstrations;

b. personal interviews with various witnesses who were present in Bangkok during the Red Shirt demonstrations;

c. review and analysis of hundreds of video clips and photographs taken in Bangkok during the Red Shirt demonstrations in April and May 2010;

d. my personal examination and analysis of physical evidence recovered from the Pan Fa Bridge and Ratchaprasong areas in Bangkok following Royal Thai Army activities in response to the Red Shirt demonstrations; and

e. written witness statements provided to me by Amsterdam & Peroff LLP.

SUMMARY OF OPINIONS

21. Based upon the materials and evidence I have examined, I have arrived at the following overarching conclusions and opinions:

a. On April 10, 2010, the Royal Thai Army did not engage in a rational or reasonable crowd-management operation, which would necessarily have involved a genuine attempt to disperse the demonstrators without inflicting injury. Instead, the Royal Thai Army intentionally sealed off exit routes, herded the crowd into a confined area, and engaged in various illegal acts designed to provoke the crowd to violence so that the Army would appear justified in its use of deadly force against demonstrators. These illegal acts included, but are not necessarily limited to:

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i. The use of highly trained military snipers to shoot unarmed demonstrators with live rounds from elevated, concealed positions, without provocation or justification;

ii. The intentional, indiscriminate discharge of military weapons, including M-16 rifles and other automatic weapons firing live rounds, directly into dense crowds of unarmed demonstrators, without provocation or justification;

iii. The intentional detonation of multiple military-grade explosive devices within the immediate vicinity of Army troops, in a deadly form of “friendly fire” designed to create the false impression that the Army was under attack by demonstrators.

b. The Royal Thai Army formally adopted rules of engagement that comport with accepted crowd management standards in order to create the false impression of reasonable conduct. However, the Thai Royal Army systematically violated its stated rules of engagement in a manner constituting criminal conduct.

c. The Royal Thai Army’s operation on April 10, 2010 was military in nature. Its objective was to kill innocent civilians, without provocation or justification, in order to suppress the Red Shirt demonstrations.

d. The Royal Thai Army repeatedly targeted unarmed civilians during the period April 10 through May 19, 2010, using deadly force in a manner that was wholly inconsistent with reasonable law enforcement standards, but rather was unprovoked, unjustified, intentional and criminal.

e. The Royal Thai Army’s operations during the period May 13-18, 2010 were military in nature. They did not comport with accepted standards of crowd management or with the Royal Thai Army’s own stated ROE, and they were criminal in nature.

f. The Royal Thai Army’s operations on May 19, 2010 were military in nature. They did not comport with accepted standards of crowd management or with the Thai Royal Army’s own stated ROE, and they were criminal in nature. They were designed to kill innocent civilians, without provocation or justification, in order to suppress the Red Shirt demonstrations. objective of the operations was to kill innocent civilians, without provocation or justification, in order to suppress the Red Shirt demonstrations.

THE RED SHIRT DEMONSTRATIONS

April 10, 2010

22.For several weeks preceding the April 10 Army crackdown, thousands of Red Shirt demonstrators had occupied virtually the full length of Rachadamnoen Avenue, from the area of the Parliament, south to the Pan Fa Bridge area and winding east to the Democracy Monument and Khok Wah Intersection areas, stopping just a few blocks short of Pinklao Bridge on the Chaopraya River. I refer to this broad demonstration area in this report as the “Pan Fa Demonstration Area.” The gatherings in the Pan Fa Demonstration Area were carried out in conjunction with collateral Red Shirt demonstrations in the area of the Ratchaprasong intersection, which I refer to generally in this report as the “Ratchaprasong Demonstration Area.”

23.I have examined maps and diagrams of the Pan Fa Demonstration Area, including the areas around Democracy Monument, the Jor Por Ror intersection, Khok Wua intersection, Tanao, Road, Dinso Road, and the Pan Fa Bridge. I have also examined numerous witness

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statements – including anonymous witness statements provided by an officer of the Royal Thai Army with extensive knowledge of the events – and I have examined the Royal Thai Army’s blocking positions both on maps and in person.

24.On April 10, 2010, several platoons of Royal Thai Army soldiers were equipped with riot protective gear designed for crowd management situations. This equipment included: Kevlar ballistic helmets with clear acrylic, non-ballistic face shields; padded chest, shoulder, upper arm, forearm, elbow, hand and shin protectors covered with hard non-ballistic plastic; limited blood borne pathogen protection; abrasion protection; batons; and acrylic riot shields. This is standard crowd management protective gear used by many law enforcement organizations to protect officers from various forms of assault and/or projectiles during crowd management operations. Some Royal Thai Army soldiers were also equipped with gas masks, indicating anticipated tear gas deployment. Documenting video can be viewed at www.thaiaccountability.org/media/witty-video-1.

25.The Royal Thai Army’s stated Rules Of Engagement (ROE) involved the following seven steps, which should always be taken incrementally, only as necessary, and with clearly announced advance warning prior to escalation between steps: (1) show of force by lining up the security officers holding riot shields and batons; (2) informing and warning the protesters that the officers are about to use force; (3) use of shields; (4) use of water cannon or high-powered amplifiers; (5) use of throw-type tear gas; (6) use of batons; and (7) use of rubber bullets.1

26.Many elements of the Royal Thai Army were equipped with both M-16 rifles and crowd management protective gear. This combination serves no valid crowd management purpose. In my opinion, troops were equipped in this manner to intimidate and/or because their command planned to re-task them in a combat capacity. Documenting video can be viewed at

www.thaiaccountability.org/media/witty-video-1.

27.Numerous soldiers carried pump action or single shot shotguns. Based on witness statements, video evidence and physical evidence, the soldiers fired less-than-lethal munitions (i.e., rubber bullets) using these weapons. However, video evidence demonstrates that in some cases the soldiers fired less-than-lethal munitions directly at demonstrators who presented no threat, without any announced warning, in a manner likely to cause serious bodily injury. Such use of less-than-lethal munitions does not comport with accepted crowd management protocols or with the Royal Thai Army’s own stated ROE, and suggests criminal intent to inflict bodily injury. Documenting video can be viewed at www.thaiaccountability.org/media/witty-video-1.

28.Further, my examination of 12-gauge shotgun shell casing recovered from the scene of the Red Shirt demonstrations reveals that at least some soldiers loaded and fired live buckshot rounds. As detailed below, it is my opinion that the circumstances presented during the Red Shirt demonstrations at no time warranted the use of live ammunition by the Royal Thai Army.

29.The vast majority of soldiers deployed in combat gear were equipped with either Tarov-21 or M-16 automatic assault rifles. This suggests that their command expected to task them in a combat capacity rather than a strictly crowd management capacity. Documenting video can be viewed at www.thaiaccountability.org/media/witty-video-1.

1 http://www.thaiembassy.sg/announcements/backgrounder-current-political-situation-in-thailand, at note 2.

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30.The Royal Thai Army used automatic weapons during the daytime hours of April 10. I was able to discern from media clips the clear sound of at least one weapon fired on full automatic, in a three round burst. Several soldiers fired their weapons at an upward angle above the crowd. There is no question that these soldiers used live ammunition, based on several factors. First, none of the assault rifles fired into the air was fitted with a "Blank Firing Adaptor" (BFA), which prevents gases from escaping and allows the rifle to retain enough energy from the discharged blank to force the bolt to retract, ejecting the spent blank shell and loading a new blank round. Without a BFA, the operator of an assault rifle firing blanks must manually operate the weapon’s charging handle to chamber another blank round. However, none of the soldiers I observed was forced to recharge his weapon manually, despite firing repeated shots. Further, BFAs are always painted a bright color for safety reasons, to ensure that live ammunition is not introduced into a training environment, yet no such BFA was visible on any of the weapons fired by the Royal Thai Army. Documenting video can be viewed at www.thaiaccountability.org/media/witty-video-1.

31.Second, I examined numerous spent brass casings recovered from the demonstration areas, all of which were from expended live ammunition. None of these casings had the distinctive crimping around the crown of the cartridge, found on all blank rounds.

32.Shooting live rounds into the air is inherently dangerous. Every live round fired on an upward trajectory propels a bullet that eventually comes back down. According to US Army manual FM 3-22.9 (M16/A2 Rifle), the maximum range of the M16A2 rifle is 3600 meters. A live round fired randomly into the air poses risk to any person within that range. Indeed, a report published in December 1994 in Journal of Trauma states that doctors at the King / Drew Medical Center, at the time a major Los Angeles Trauma Center, treated 118 people between 1985 and 1992 for injuries caused by falling bullets discharged during New Years and Independence Day celebrations, with 38 of those victims perishing.2

33.Live rounds fired into the air by Royal Thai Army soldiers posed a grave risk to all civilians in the area. The use of live ammunition by the Royal Thai Army under non-threatening circumstances, even when directed over the heads of demonstrators, clearly violated accepted crowd management protocols and, in my opinion, constituted – at minimum – criminal negligence.

34.Based on my review of extensive video evidence, it is clear to me that the Thai government acted inappropriately in deploying the Royal Thai Army in a crowd management capacity. Many of the soldiers were obviously untrained in crowd management tactics and protocols, and were ill-equipped to enter any crowd management environment. This lack of proper training was exacerbated by the fact that many soldiers were issued crowd management protective gear together with assault rifles, which sent a contradictory and confusing message to these troops. In my opinion, the very deployment of military troops to perform a function that should always be limited to trained law enforcement personnel demonstrated a callous disregard for public safety.

35.The standard for crowd management in a similar situation is to establish a plan and brief all key leaders. Leaders should in turn brief and supervise at all levels of command to ensure that the ROE are understood and followed. Decisions should be made to encourage the direction of the crowd, for a natural dispersal. Blocking positions should identified and occupied. At least one major avenue should always remain open to permit natural egress of the crowd. Supervisors should use public address systems to broadcast dispersal orders 2 Ordog, Gary J.; Dornhoffer, Peter; Ackroyd, Greg; Wasserberger, Jonathan; Bishop, Michael; Shoemaker, William; Balasubramanium, Subramanium, THE JOURNAL OF TRAUMA INJURY, INFECTION, AND CRITICAL CARE, Spent Bullets and Their Injuries: the Result of Firing Weapons Into the Sky, December 1994, 3 January, 2011, http://journals.lww.com/jtrauma/toc/1994/12000.

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and communicate exit routes. Crowds should be given reasonable time to comply. Squads should form in a line, walking slowly toward the crowd, while supervisors instruct the crowd. Water cannons might be used to encourage dispersal, and less-than-lethal munitions might be used against specific unruly elements. Persons involved in criminal acts should be arrested, using only such force as is reasonably necessary. Perpetrators who escape into the crowd should be located and prosecuted subsequently, based on video evidence from cameras deployed by law enforcement.

36.It is obvious that these measures were not employed on April 10. There is no question that the Royal Thai Army failed to comply with accepted standards of crowd management and with their own stated ROE.

37.I have read the Statement of Anonymous Witness No. 22, at ¶ 35, which states that the methods employed by the First Infantry Division were “designed to intimidate rather than disperse.” Based on the evidence I have examined, I agree fully with that statement.

38.Based on witness statements, interviews and video evidence, the Royal Thai Army’s Second Infantry Division (Queen’s Guard) deployed company-sized elements in the late afternoon of April 10 from the rear gate of the First Army Region Headquarters, located on Outer Ratchadamneon Avenue near the Makhawan Bridge. Units moved by military vehicle south and occupied Tanao Road. They established and fortified a Command Post (CP) on Tanao Road north of the Khok Wua intersection west of the Democracy Monument, occupying the Sib Sarm hang Roundabout. Troops moved on foot to occupy and heavily fortify a blocking position on the north side of the Khok Wua intersection where Tanao Road meets Ratchadamneon Klang Avenue.

39.On Dinso Road, elements of the Second Infantry Division occupied a blocking position on the southern end of the road, where it meets Ratchadamnoen Klang Avenue at Democracy Monument Square. These troops were supported by three armored personnel carriers (APCs) with heavy machine guns mounted and manned on each vehicle. The machine guns were locked and loaded with belts of live .50 caliber ammunition.

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40.The Second Infantry Division established its positions with the military precision of units deployed under the threat of combat in a combat theater. On Dinso Road, they deployed a platoon-sized element in front of the APCs, equipped with crowd management protective gear and, in some cases, assault rifles, in violation of crowd management protocols. I estimate that this element was comprised of more than 80 soldiers. Immediately behind, a company-sized element of approximately 100 troops was deployed in combat gear, suggesting that the true intent of the Second Infantry Division was not to manage and disperse a demonstration that had been declared unlawful, but to treat the unarmed crowd as a hostile combat force. I observed tear gas canisters thrown into the protest crowd.

41.I have examined photographic evidence of shooters firing rifles from the third floor balcony on the white office building located on the corner of Tanao Road and Rachadamnoen Avenue (The Government Lottery Office). In my opinion, this photograph depicts an urban sniper hide, established by trained military snipers. I have read testimony that the Thai military leaders deployed trained snipers in the area of the Khok Wua intersection, which shot into the crowd beginning at approximately 17:00 hours on April 10, with the intent to provoked the crowd to violence. (See Anonymous Witness Statement No. 22, at ¶¶ 32 and 38.) In my opinion, the photographic evidence I examined supports that testimony.

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42.As darkness fell, the soldiers of the Second Infantry Division exercised little if any restraint in the discharge of their M-16 assault weapons. While some soldiers on Dinso Road fired their weapons at an upward angle, over the heads of the crowd assembled at Democracy Monument, several fired at a level angle, directly into the crowd. None of these

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weapons was fitted with a BFA, indicating that the soldiers were firing live ammunition. Documenting video can be viewed at www.thaiaccountability.org/media/witty-video-2 www.thaiaccountability.org/media/witty-video-3

43.I also observed a heavy machine gun (.50 caliber) mounted on one of the APCs firing in full automatic mode with its barrel level to the horizon, with no BFA attached, indicating that the weapon was firing live rounds. I also observed several soldiers seated calmly atop APCs during the same timeframe, indicating that they felt no genuine threat from the crowd. This type of heavy .50 caliber machine gun is often employed in the combat theater to disable military vehicles by firing large caliber bullets into engine blocks, and it is sometimes deployed in an anti-aircraft role. It possesses devastating destructive capability, and its use in the context of crowd management – particularly, like here, in the absence of any genuine threat to troops – is shocking and unconscionable. Documenting video can be viewed at www.thaiaccountability.org/media/witty-video-2; www.thaiaccountability.org/media/witty-video-3

44.Based on witness statements and photographic evidence, this heavy machine gun was being fired primarily into the Democracy Monument structure itself. The number of demonstrators in the Democracy Monument Square clearly numbered in the thousands, many of whom were directly in front of the soldiers, standing on parts of the monument at the same elevation as the top of the APCs. There is no question that the gunner on the APC was creating grave risk of injury from possible direct hits, falling and/or ricocheting bullets, and from concrete particles thrown off at high velocity by .50 caliber bullets impacting the monument structure.

45.Based on witness statements, interviews and video evidence, it is my opinion that the behavior of the crowd on April 10 at no time presented any genuine threat of significant injury to the troops. The use of live fire over the heads of the protesters did not comport with accepted crowd management standards, violated the Army’s own ROE, and constituted – at minimum – criminal negligence. Live fire directly into the crowd was beyond question criminal.

46.A few minutes prior of 19:15 hours, the troops on Dinso Road significantly increased the rate at which they were discharging their weapons. I observed the silhouette of a soldier repeatedly gesturing upward with his arm, apparently ordering the troops to increase their rate of fire, which in fact occurred in conjunction with the gesture. In response to this increase, some protesters threw water bottles, bricks, sticks and fireworks at the troops, which may have caused some minor injury, but in my opinion would almost certainly have been largely deflected by the riot shields, particularly considering that the Royal Thai Army’s use of tear gas had created substantial separation between the troops and the demonstrators. The separation between the troops and the crowd is also confirmed by the wide arc of the flying water bottles. Documenting video can be viewed at www.thaiaccountability.org/media/witty-video-2; www.thaiaccountability.org/media/witty-video-3

47.I also observed a soldier standing atop an APC, holding a semi-automatic pistol in his hand, which indicates to me that he was an officer and held a leadership position. In response to the plastic water bottles thrown by the demonstrators, he fired his pistol repeatedly into the air. There is no doubt that he was firing live rounds because a blank fired from a semi-automatic pistol does not generate sufficient back pressure to cause the weapon to complete its reloading cycle. The fact that this officer was discharging live rounds from a hand gun, in plain view of the troops and in the absence of any legitimate threat, further confirms that the troops were being ordered to fire their weapons, and it also suggests that the Army’s intent was to provoke the crowd. Documenting video can be viewed at www.thaiaccountability.org/media/witty-video-4.

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48. Based on witness statements regarding concurrent military sniper fire in the area of Democracy Monument (see Statement of Anonymous Witness No. 22), it is plausible that the troops on Dinso Road were ordered to increase their rate of fire to cover the sounds of sniper fire into the crowd. Additionally, given that the rate of fire increased shortly before 19:15 hours, it is also plausible that the increase was timed to coincide with the two explosions that would come at approximately 19:15 hours, in response to which the troops on Dinso Road opened fire without restraint into the crowd, killing many and injury hundreds.

49.Indeed, during this same timeframe, the street lights in the Democracy Monument Square were fired upon and shattered, greatly reducing the ambient light in the area. Not only was this action unwise in that it hampered the soldiers’ ability to react appropriately to the actions of the crowd, its timing moments before the explosions suggests to me that it was part of a larger plan to cause confusion and/or conceal.19

50.I have read the Statement of Anonymous Witness No. 22 at ¶ 41, which states that “this activity was designed to provoke the crowd to violence so that the troops would have an excuse to open fire.” In my opinion, the events are entirely consistent with that statement.

51.I have closely examined video of the explosions that killed several Royal Thai Army soldiers on Dinso Road at approximately 19:15 hours on April 10. I was able to pause one such video clip at the precise moment of the first explosion, and it is clear to me that it was caused by military-grade explosives, almost certainly a grenade. The shrapnel pattern generated by this device was highly symmetrical, indicating that the explosive material burned at a consistent rate. By contrast, the explosive pattern from an improvised device is almost always erratic because the seal is never perfect, owing to the fact that improvised devices are not created in an industry-grade manufacturing environment. Consequently, humidity will access the explosive material in an improvised device wherever there is even a minor breach in the seal, compromising the explosive material and reducing its burn rate in that area, leading to erratic shrapnel patterns. The first explosion on Dinso Road, however, was much too symmetrical to have been caused by an improvised device, leading me to conclude that it was almost certainly caused by a military-grade device.

52.Additionally, what appear to be sparks emanating from the explosion are fragments of molten metal of the type military grenades are designed to project. This was a high-order detonation, and the pattern of falling soldiers coincides with the effects of a grenade. In my opinion, the explosion was wholly consistent with the M67 hand grenades widely used by the Royal Thai Army. Documenting video can be viewed at www.thaiaccountability.org/media/witty-video-5a.

53.Thirty-four seconds after the first explosion, a second explosion can be heard on Dinso Road. Although this explosion is not visible on the video I examined, I was unable to discern any significant difference in tone or timbre between the sounds made by the two explosions. Because varying types of explosive devices differ significantly in the sound they produce, it is reasonable to conclude that the second explosion was also caused by a military grenade.

54.Following these explosions, the Army troops immediately react by firing directly into the crowd of demonstrators. The troops retreat north up Dinso Road, away from Democracy Monument, but as they do so, they continue to fire into the crowd. My understanding is that dozens of civilians were killed and thousands injured as a result. Documenting video can be viewed at www.thaiaccountability.org/media/witty-video-5b.

55.The video evidence and my personal examination of the site lead me to conclude that the first grenade could not possibly have come from the Red Shirt crowd. First, had the grenade come from the crowd, it would necessarily have been thrown a distance of at least 70 yards.

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The average soldier is able to throw a 14-ounce hand grenade less than half that distance, only about 30 yards.

56.Second, taking into consideration the trajectory of the water bottles being thrown from the crowd in the direction of the soldiers, it is inconceivable to me that an incoming 14-ounce grenade on the same or similar flight trajectory would not have been noticed in advance by the troops, given their numerical concentration in the area of the explosion. All soldiers – including those in the Royal Thai Army, with whom I have trained – are trained to react to any hazardous object thrown into their vicinity. In the case of an incoming grenade, or any object that even remotely resembles a grenade, all soldiers are specifically trained to yell a “grenade” warning and immediately seek cover or go prone. However, it is clear from the video evidence that the troops did not react in any way to the grenade in advance of the explosion. Documenting video can be viewed at www.thaiaccountability.org/media/witty-video-5c.

57.Third, proper law enforcement practice under the circumstances would have called for extensive deployment of video cameras in the area, monitoring the crowd for unruly elements for real-time interdiction and, if appropriate, subsequent prosecution. It is my understanding that the Thai government has been unable to produce any video of anyone from the Red Shirt crowd throwing a hand grenade into the ranks of the First Infantry Division on Dinso Road.

58.It is clear to me, therefore, that the grenade was either dropped or rolled along the ground by someone within the ranks of the troops in the immediate vicinity of the explosion. An M67 grenade has a timed fuse of five seconds, ample time for someone to surreptitiously drop a grenade in the area of the explosion and walk behind the adjacent APC, visible in the video evidence, in time to avoid injury. In my opinion, this is the only plausible deduction, based on the evidence I have examined.

59.I have heard that the Thai government claims that certain “men in black” or other unknown elements affiliated in some way with the Red Shirts carried out the grenade attacks on Dinso Road on April 10. In my opinion, this is an unreasonable deduction. The Second Infantry Division was deployed on Dinso Road with military precision, indicating that they were following military strategies and protocols designed to secure their perimeter and prevent access by undesirable elements. In my opinion, these protocols would have prevented any “man in black” or, indeed, anyone not affiliated with the Royal Thai Army from gaining access to the area near the explosion.

60.I have read the Statement of Anonymous Witness No. 22, which suggests that the grenade attack on Dinso Road may be been carried out by soldiers of the rival First Infantry Division (King’s Guard) or, alternatively, by elements working under the direction of General Prayuth Chan-ocha, Commander of the Second Infantry Division. In my opinion, either deduction is plausible, based on the evidence I have examined.

61.I have read the Statement of Anonymous Witness No. 22, which states that the Army’s strategy on April 10 “was not to disperse the demonstrators. Rather, the operational strategy was to concentrate the demonstrators in a confined area, provoke the crowd to violence in order to create a perceived need for self-defense, and open fire.” (Statement of Anonymous Witness No. 22, at ¶ 29.) In my opinion, based on all of the evidence I have examined, the events prior to the grenade explosions on April 10 were entirely consistent with that statement.

62.Further, this statement provides a rational motivation, in my opinion, for the grenade attacks themselves. This is particularly true given the troop reaction following the explosions, which was to open fire on the crowd.

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63.In my opinion, even if the grenades on April 10 had been thrown from the Red Shirt crowd – which, as explained above, is not a reasonable deduction – the Army’s reaction following the explosions was criminal in nature. The proper reaction to the grenade explosions would have been for the troops to hold fire, retreat, and deploy snipers with spotters to identify elements in the crowd who might be prepared to throw another grenade. Lethal sniper fire would be appropriate under such a scenario only if an individual were spotted preparing to throw another grenade. Instead, as indicated above, the troops immediately began to fire without restraint into the crowd, and they continued to fire into the crowd as they retreated north up Dinso Road. In my opinion, this is clearly criminal behavior.

64.Further, long after the troops retreated and reestablished blocking positions approximately 150 meters north of Democracy Monument Square on Dinso Road, the Army continued to shoot at unarmed civilians without provocation. This is abundantly clear from video evidence I examined. One notable example shows a young Thai man carrying a pole, to which a Red Shirt banner was attached, walking slowly across Dinso Road, from west to east, at least 150 yards from where the Second Infantry Division had taken up a position upon retreat after the grenade explosions. He was not approaching the troops, nor was he exhibiting any kind of threatening behavior, and he does not appear to be armed. Notwithstanding, he was struck in the head by a bullet, and, as he collapsed to the ground, his entire brain mass spilled from his cranium onto Dinso Road. This event was captured on videotape, and the victim’s wound was subsequently photographed at close range, shown below. The video evidence can be viewed at www.thaiaccountability.org/media/witty-video-6.

65. In my opinion, this young man’s head injury was not caused by a 5.56 mm bullet from an ordinary M-16 rifle. This kind of gaping wound was unquestionably created by a .50 caliber round or, at the very least, a 7.62 mm round. In my opinion, this man was shot by a military sniper equipped with either a Remington M24 sniper rifle firing a 7.62 mm round, or a .50 caliber Barrett sniper rifle, both of which are available in the Thai military arsenal. Given the non-threatening behavior of the victim immediately prior to his death, it is my opinion that shooting him in this manner constituted criminal conduct.

66.Another example of the unprovoked shooting that continued well after the Army troops had retreated on Dinso Road can be seen in a video clip that shows a wounded soldier lying on the curb a few yards north of where Dinso Road meets Democracy Monument Square. It is not clear from the video evidence how his injury was caused, but it is plausible that it resulted from one of the grenade explosions or perhaps from the indiscriminate rifle fire of the troops as they retreated north on Dinso road. The wounded soldier calls out in Thai, and

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I understand from an interpreter that he was requesting assistance. There is audible gunfire nearby. A man – Anonymous Witness No. 15 – approaches the injured soldier, carrying a medical kit with a red cross prominently displayed. Two shots ring out immediately, and the medic is wounded in the foot. Documenting video can be viewed at www.thaiaccountability.org/media/witty-video-7. Statement of Anonymous Witness No. 15 is available here: www.thaiaccountability.org/wp-content/uploads/2011/01/Witness-15-statement.pdf.

Summary of Opinions Regarding Events of April 10, 2010

67. A summary of my opinions concerning the events of April 10, 2010 follows immediately below. These are my broad, overarching views, and their summary here does not in any way diminish or detract from any other opinion I may have expressed elsewhere in this Expert Statement.

68.It is my opinion that the Royal Thai Army did not engage in a rational or reasonable crowd-management operation, which would necessarily have involved a genuine attempt to disperse the demonstrators without inflicting injury. Instead, the Royal Thai Army intentionally sealed off exit routes, herded the crowd into a confined area, and engaged in various illegal acts designed to provoke the crowd to violence so that the Army would appear justified in its use of deadly force against demonstrators. These illegal acts included, but are not necessarily limited to:

a. The use of highly trained military snipers to shoot unarmed demonstrators with live rounds from elevated, concealed positions, without provocation or justification;

b. The intentional, indiscriminate discharge of military weapons, including M-16 rifles and other automatic weapons firing live rounds, directly into dense crowds of unarmed demonstrators, without provocation or justification; and

c. The intentional detonation of multiple military-grade explosive devices within the immediate vicinity of Army troops, in a deadly form of “friendly fire” designed to create the false impression that the Army was under attack by demonstrators.

69. The Royal Thai Army formally adopted rules of engagement that comport with accepted crowd management standards in order to create the false impression of reasonable conduct. However, the Thai Royal Army systematically violated accepted standards of crowd management and its own stated rules of engagement in a manner constituting criminal conduct.

70.The Royal Thai Army’s operations on April 10, 2010 were military in nature. Its objective was to kill innocent civilians, without provocation or justification, in order to suppress the Red Shirt demonstrations.

May 13-19, 2010

71.It is my understanding that, following the events of April 10, 2010, the Red Shirt demonstrators voluntarily dispersed from the Pan Fa Demonstration Area and concentrated their protests at the Ratchaprasong Demonstration Area. The Royal Thai Army established a perimeter around the Ratchaprasong Demonstration Area until, on May 19, they breached the Red Shirt barricades, leading to the surrender of the Red Shirt leaders and the official end of the demonstrations.

15

72.After the events of April 10, the Thai government issued the following statement amending its previously established ROE:

Following the incidents on 10 April 2010, during which use of weapons by armed elements among the protesters cost the lives of not just unarmed demonstrators but also a number of security officers, this rule has been revised for the operations to cordon off the Ratchaprasong Area in May to permit use of live bullets in one additional case, namely: to retaliate against clearly identified elements armed with weapons. Also, with a view to preventing casualties due to close confrontation as happened on 10 April, shotguns may be used against armed groups and terrorist elements approaching security units to prevent them from causing harm to others, and in this case, security forces would only aim below the knee level. The use of tear-gas launcher is also permitted in order to maintain distance between the officers and armed protesters. As a principle, security units would not use lethal weapons against unarmed demonstrators and in no circumstances would they be used against women and children.3

73.In my opinion, these amended ROE are inappropriate because they establish an official policy to use deadly force “to retaliate.” Retaliation has no place in reasonable and accepted standards of crowd management. In my opinion, the phrase “to retaliate” suggests an intent by the Thai government to engage in further criminal conduct through the use of unprovoked deadly force against the Red Shirt demonstrators.

74. It is my understanding that, beginning in early May 2010, the Second Cavalry Division was assigned to secure Rama IV Road in the Bonkai area south of Ratchaprasong, while the First Infantry Division was assigned to secure the Ding Dang and Rajaprarop areas north of Ratchaprasong. It is my further understanding that the commanding officers of these divisions were given unwritten orders for their troops to shoot any moving target in their respective designated areas, regardless of whether such targets represented a threat. (See Statement of Anonymous Witness No. 22, at ¶¶ 48 and 52.) Such orders would unquestionably violate any reasonable standard of crowd management, and would constitute criminal conduct.

75.Nevertheless, based on witness statements, interviews and video evidence, it is my conclusion that the Royal Thai Army indeed set up live fire zones in the Bonkai, Ding Dang and Rajaprarop areas near Ratchaprasong. Although there is ample video evidence of unarmed civilians being fired upon, injured and killed by bullets coming from the direction of Army blocking positions in these areas during the period between May 13-19, one video clip in particular, taken from directly behind Army soldiers deployed in elevated positions, clearly demonstrates that the

3 . http://www.thaiembassy.sg/announcements/backgrounder-current-political-situation-in-thailand, at note 3.

16

soldiers were acting under orders to shoot any moving target, without regard to whether they represented a threat. This documenting video evidence can be viewed at www.thaiaccountability.org/media/witty-video-8.

76.In my opinion, the persons shown running across the alley represented no threat whatsoever to the troops, which are clearly deployed in an elevated position, armed with weapons that are not fitted with BFAs. The troops immediately opened fire upon seeing the civilians, in a clear attempt to use deadly force without provocation or justification. In my opinion, this is criminal conduct, as is any order to engage in such conduct.

77.I also understand that the Second Cavalry and the First Infantry Divisions were given orders to prevent any photographic evidence of Army troops killing civilians, and that these orders resulted in the intentional targeting of journalists. I also understand that these same Divisions were ordered to prevent the bodies of any persons killed by Army troops from being removed, which resulted in the intentional targeting of medical personnel. (See Statement of Anonymous Witness No, 22, at ¶¶ 48-50 and 52.) Such orders, to the extent that they call for troops to use deadly force against a person merely because they are taking photographs or assisting the wounded – rather than presenting an immediate threat of severe bodily injury – would violate accepted standards of crowd management, and would constitute criminal conduct, as would the carrying out of such orders.

78.Further, such orders would seem to represent a concerted and organized effort to suppress evidence. As an active law enforcement officer, it is clear to me that the intentional suppression, destruction and/or fabrication of evidence would constitute criminal conduct, as would any orders to engage in such conduct.

79.I understand that troops from the Second Infantry Battalion of the 31st Infantry Regiment, with support from the Third Special Forces Regiment, breached the Red Shirt barricades around Ratchaprasong on May 19, 2010. I also understand that their orders were to shoot any person suspected of having weapons, although they were not required to make a determination about whether such persons were actually armed. Further, their orders expressly stated that any individual carrying a slingshot was to be considered armed and dangerous. (See Statement of Anonymous Witness No. 22, at ¶¶ 56-57.)

80.In my opinion, such orders do not comport with accepted standards of crowd control or law enforcement. No law enforcement officer should use deadly force except where there is an imminent threat of severe injury to the officer or to other persons. Absent such a threat, actual possession of a deadly weapon does not constitute a justification to employ deadly force. Further, mere suspicion that someone might possess a deadly weapon is never a sufficient justification to use deadly force. In my opinion, these orders effectively gave the Army troops carte blanche to employ deadly force without provocation or justification,

81.It is my understanding that Army troops did, in fact, kill civilians on May 19 without provocation or justification, pursuant to these orders. Although I understand that they were not the only such victims on May 19, six people – including three nurses – were shot by Army troops from an elevated train rail outside the What Patumwanaram Temple that day, as they were taking refuge from the troops. This conduct is clearly criminal, as were any orders to engage in such conduct.

82.It is also my understanding that the Army troops who breached the Red Shirt barricades on May 19 were given orders to kill the Red Shirt leaders and any Red Shirt guards, without regard to whether they were armed, dangerous, or presented any threat. (See Statement of Anonymous Witness No. 22, at ¶¶ 57-58.) Such conduct would clearly be criminal in nature, as would any order to engage in such conduct.

17

83.In my opinion, the Royal Thai Army approached the clearing operation on May 19 not as a civilian crowd control operation, but as a military exercise, treating the demonstrators in the Ratchaprasong area as an opposing military force instead of civilians engaged in a demonstration that had been declared illegal.

Summary of Opinions Regarding Events of May 13-19, 2011

84.A summary of my opinions concerning the events of May 13-19, 2011 follows immediately below. These are my broad, overarching views, and their summary here does not in any way diminish or detract from any other opinion I may have expressed elsewhere in this Expert Statement.

85.It is my opinion that The Royal Thai Army’s operations during the period May 13-18, 2010 were military in nature. They did not comport with accepted standards of crowd management or with the Royal Thai Army’s own stated ROE, and they were criminal in nature.

86.It is my opinion that the Royal Thai Army’s operations on May 19, 2010 were military in nature. They did not comport with accepted standards of crowd management or with the Thai Royal Army’s own stated ROE, and they were criminal in nature. They were designed to kill innocent civilians, without provocation or justification, in order to suppress the Red Shirt demonstrations.

CONCLUSIONS

87. I am willing to review evidence – if any exists – that might contradict my opinions. As of this date, however, I have not seen any.

Dated: January 25, 2011

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From VDO interviews Name: Kangsadal Age: Contact number: Incident Location: Behind Satreevittaya 2, Dindeang Intersection Date: 10th April 2010, 14 May 2010 Interviewer: Where is your hometown? Kangsadal: Aythaya Interviewer: So you are officially a member of RED Ayuthaya? Kangsadal: I wasn’t so active before the last year event (in April). I supported the RED just like others but I did not know that it would come this far, so, I have been quite active this year. Interviewer: Were you at the protest camp all the time? Kangsadal: No, I usually came in the morning and left for work couple of hours later. Interviewer: You lived in Bangkok? Kangsadal: Yes Interviewer: Did you join the protest in PhanFa area? Kangsadal: Yes, I was there on the 10th too Interviewer: Can you tell us what happened? Kangsadal: Yes, I came here with my son. Interviewer: What time did you get there? Kangsadal: I got to the protest area around 7.30 – 8.00 Interviewer: So, you were monitoring the news before you got there? Kangsadal: Yes, and when I heard from the radio that the soldiers were coming closer then I knew that the situation would get worse so I decided to leave home to the protester to help.

Interviewer: Where about do you lived in Bangkok? Kangsadal: Ladplakao, I heard K.Nattawut on the radio that they needed people from Rachaprasong camp to help Phanfa camp so I took the motorcycle with my son and my nephew to Phanfa camp as soon as I heard the announcement. When I got to the stage I saw people rushed to the dead bodies up on the stage, I didn’t want to see that scene so I ride back to Wisutkasat area. At that time the soldiers were about to come out. The drivers of the first 3 cars drove very fast. Interviewer: What time was it? Kangsadal: Around 8.00-9.00 pm already Interviewer: It was when they brought the dead body on the stage right? Kangsadal: I am sure because I didn’t want to see the dead bodies on the stage, that why I came out. I came as far as Wisuttikasat near Deves Insurance building. Interviewer: Ok, you got to that junction and you met the troops? Kangsadal: There weren’t many red protesters at that area. But I saw groups of soldiers stood by the side of the road and wait for the car to pick them up. The first 3 car went past me very fast, the drivers drove very fast and I saw the reds inside the 4th or 5th cars I don’t remember exactly. There were so many red shirts inside. At first I thought they were soldiers but dressed as red, I thought they were tricky. Interviewer: The protesters were inside the car to the soldiers’ trucks? Kangsadal: I saw soldiers’ trucks only and the last truck carried red shirts too. Interviewer: Did you remember, what the trucks looked like? Kangsadal: They were like buses with individual seats. Interviewer: So it was soldiers’ buses Kangsadal: Yes and there was one full of Red Shirts inside. At first I thought they were the Fake Reds or Reds soldiers who came and help. I did not understand the situation because it just happened, I got quite confused so I asked them and I got the message that they were all Red protesters inside the last bus, all Reds. Interviewer: All men? Kangsadal: Yes, all men. Young men Interviewer: How do you that they were young?

Kangsadal: It wasn’t clear, they drove very fast. Interviewer: But all I know is all of them wore red shirts, did you see anything after that? Kangsadal: I waited until the last truck drove passed me and the last one was tank so the crowd were screaming and tried to push the tank but we could not do anything much. Interviewer: ahead of that street is where Tri-Tossathep temple is located, is that right? Were you standing at the intersection? Kangsadal: Yes, I was there. There was a police box and next to the box was a hotel but I don’t remember the name of the hotel. I waited until there were no soldiers left in that area. But I was sure that I saw red shirts on the last bus and they drove incredibly fast. Interviewer: Did you follower them? What did you do after that? Kangsadal: I was waiting for my nephew and my son because they wanted to go inside the killing zone. But my mother called and asked us to go home so we went back home but not on the same motorcycle. My other 2 nephew took another motorcycle but before they left they went back to the area and they took some of the bullets from the killing zone. Interviewer: Around 10.00-11.00 pm? Kangsadal: It was almost mid night but the kids went back to the killing area. Interviewer: What you have told us was the incident on the 10th April right? Kangsadal: Yes, But I went home first. Interviewer: How about Rachaprasong? Where were you? It was on the 14th right? Kangsadal: I entered the protest area by Pratu Nam gate, it was still accessible but I saw the guards were building barricades using tyres and fences. And some of the guards rushed to Makkasan area to build the barricades there as well. Interviewer: To make it harder for the soldier to get to Rachaprasong? Kangsadal: Yes, When I was in front of Intra Hotel the situation wasn’t so good so I called my daughter. She is quite a stressful girl so I couldn’t just call and ask her to come home so I went back home by myself and kept wondering what would happen there? But my daughter came home just a while after I got home and she told me that we should not go anymore because it was very dangerous there. But I couldn’t bare not knowing anything so I took a motorcycle to the protest area again in the evening.

Interviewer: When was that? What time? Kangsadal: It was around 4 pm. I used Soi Morleng to get into the protest area but the soldiers were blocking my way. So I tried using another road but they blocked it as well so I waited there for a while until the situation got worse. I was sure that they were going to start shooting and they laterally did because they were sitting on the ground already. Interviewer. Who sat on the ground? Kangsadal: Soldiers where sitting on the ground and getting ready. There was one woman, she went up to the soldiers and started to told them off for killing people and blocking the ways. When I was this woman I was sure that things would get more intense and the Soi or the road was very small. We were so near to the soldiers, they were in front of the Soi Interviewer: Soi Morleng? Kangsadal: Not exactly, It was Rachaprarob 22. I went back to get my motorcycle and drove back to Din Dang intersection. I was the only vehicle on the road and it was scary. There were so many soldiers on the way to the monument. I parked my motorcycle near Chai Samorapum monument there were other vehicles parking at that area too. Interviewer: So, it was near Century hotel? Kangsadal: Yes, I was there and I was with the crowd confronting the soldiers line. Interviewer: What time was it? Kangsadal: It was around 4-5 pm I saw on motorcycle trying to pass the soldiers line but they did not let him on and the protesters were screaming at the soldiers. Interview: They did not let him to go to which place? Kangsadal: To the main stage area but I think he was trying to get home. I believed his home is near to the protest area. And the soldiers tried to put the fence up to blocked the area from one end to another end, across the street. Around Rachaprarob soi 20-22 they did not anyone in anymore. Absolutely noone. They were so well prepared, like they have been practicing all this before. Interviewer: You were next to the police box right? Kangsadal: I hided behind the box and I saw some of the soldiers were getting ready and people were saying that they were going to shoot. They were going to literally shoot! And then fire at the crowd. Interviewer: To your direction?

Kangsadal: Yes, at us. I thought it was getting really bad so I tried not to stay still I tried to move and when I got to the round corner near Century Hotel I heard more gun shots and people were shouting. They are shooting, shooting!! And I heard series of gun shots, very loud so I ran until the loud stop hearing those shots and I try to help those who fell down because they got shot! Interviewe: Were you helping or trying to escape the bullets? Kangsadal: I tried to help because they fell down. I thought they started shooting to warn us not to go near. But people fell down, things went very fast I was trying to run and help the one who fell. As soon as we ran they fired. Interviewer: Where were you heading? Kangsadal: Ran up somewhere to find a place to hide. Interviewer: To the building? Kangsadal: Headed towards the monument. Interviewer: Did you see many soldiers shooting at people? Kangsadal: Yes, there were many of them and they blindly shooting at us. So we had to run away from their direction. Interviewer: How many of you? Kangsadal: I did not remember but there were many of us as well. Interviewer: Did you see the soldiers’ weapons Kangsadal: They were carrying rifles, M16 I think. Interviewer: Do you know what M16 look like? Kangsadal: I am not sure But I knew they used live rounds and it was automatic guns because I heard series of load gun shots many bangs in one go. Interviewer: What did you do after you ran to the point where you found the place to hide? When did you realize that you got shot as well? Kangsadal: As soon as I started to run I knew there was something and people where shouting, someone got shot!! But they did not stop shooting so we had to run until we met the motorcycle and he took me to the hospital. To Rachaviti hospital. More casualties kept coming into the hospital while I was there. The bullet did not reach my bones it went through. Luckily it did not harm important part. Interviewers: You believed that you have been shot by one of the soldiers?

Kangsadal: Yes, because I saw them. They were firing at were I was. I they were around 50 meters from Century hotel, near the intersection and the police box. But before they start shooting I was quite close to where they were. Interviewer: Did you know other people who got shot at that area? Kangsadal: We got to know each other at the hospital but I did not ask for their contact but I’m sure that hospital has. Interviewer: Did you know their names? Kangsadal: No, I did not ask at all. But one of them told me that both her boyfriend and she was injured. Her boyfriend got shot and she was stepped on by someone. Her boyfriend was at Rachavidhi hospital as well. Interviewe: They were together? And was injured around the same time? Kangsadal: Yes. Interviewer: Khun Kangsadal’s report will be handed to the ICC and she might be ask by the ICC for another interview, when they have investigated the document and evidence. Would you cooperate with them again if they needed more information? Kangsadal: Yes Interviewe: Thank you

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(Translation)

2

followed by M79 grenade. The second bomb dropped among us. They used laser for targeting before shooting. Question: Did this happen at Dindaeng? Khun Prathak: No, at the opposite of Indra Hotel on [May] 14. When the laser aimed at any thing, it would be instantly followed by a bomb. I was hit by the second bomb, at this side of my back. I still keep an X-Ray film. I did not have any injection. The doctor told me to stay for a while. I have not had an operation, just taking medicine as prescribed by the doctor and having an injection. Question: What injured you? Khun Prathak: It probably was a small triangular fragment of M79. I still keep the X-Ray film with myself. Question: Was it shrapnel? Khun Prathak: Yes, it is. I also appeared on ‘Spring News’ in that night, on TV. A friend of mine called me immediately. I carried my mobile phone with myself at all times. My blood flew out at all times. There were four injured persons. A foreigner was injured at the base of his ear, and a boy was wounded at his neck. I took pictures of all these four people. They could not come out from that area. I lied prostrate on that area for more than half an hour. A staff of Indra Hotel tried to contact ‘Sirinthorn’, but they could not enter the area. A red-shirt guard then contacted with the others to bring me out by a motorcycle. Question: How many injured people were there in such area? Khun Prathak: Four people. Questions: How long did it take? Khun Prathak: About half an hour. Any car entering such area would be shot. They tried to help me but they had to turn back because there was someone shooting from above. Even an ambulance with a white flag could not enter. They shot from the pedestrian bridge. We could not walk out of the area; otherwise, we would be shot. I heard the gun fire at all times. Then, I was taken to the UDD protest area by a motorcycle. After waiting for a while, I was taken into the basement of the Central World building and then to the Police Hospital. I stayed at the hospital until morning. Many people were injured and many were dead. My girlfriend was there as well. She waited for me for half an hour. Question: What time was it? Khun Prathak: It was half past 8 p.m. I was injured at around 7 p.m. The ‘Spring News’ also recorded a video. Question: Do you have a videotape? Khun Prathak: They shot video of me

(Translation)

3

Question: Did they give you a tape? Khun Prathak: No, I would like to watch it as well. A friend of mine has all video clips. Question: Oh, really? If possible, can we have the videotape? Khun Prathak: I am not sure whether I can contact him, but Spring News certainly has it. On [May] 14th, I wore this black shirt. Right now, the shirt still has a hole. Question: Is this the shirt? The hole still remains in the shirt? Khun Prathak: I had my brother patch it. Question: Is this the incident of the day you were injured? Is there any other day? Khun Prathak: After that, the wound became better, but I still join the protest. Question: How long did you stay in the hospital? Khun Prathak: Just one night because there were not enough beds. My injury was not so serious. Many other cases were much more serious than mine. I left the hospital at around 5 a.m. of 15th. I came back home for convalescing. Then, I went back to join at Dindaeng again. The Incident at Dindaeng, on 19th, around 2 p.m. Question: When did you join the protest? On 15th, is it right? Khun Prathak: Everyday, from 15th, 16th, 17th and 18th. Question: Once you left from the hospital at around 5 a.m. of 15th, you then joined the protest again in the evening, is it right? Khun Prathak: Yes. I have a bullet proof vest. I am a police officer. Everyone remembered me. Around 2 p.m. of 19th, a woman who collected waste everyday was shot at a police kiosk at Dindaeng intersection. She was shot in her head. I took her body out of that area. Question: Shot in the head? Khun Prathak: That is right, down from a pedestrian bridge at a Soi near Shell petrol station, Ratchaprarop. There was also a soldier at an apartment under construction. Question: In ChivaThai Building, is it right?

(Translation)

4

Khun Prathak: Yes, he shot the woman who was carrying a white sack. He might misunderstand. That woman was collecting garbage at the front of me. She was shot in the head and fell down. I tried to take her body out of that area. No one dared to go out. Then, a man riding a motorcycle to us and asked, “What happened?” I told him, “Don’t go! Don’t go!” I looked at the woman through a telescope. She lied down without moving. It was so sure that she was shot. We would like to take her out. That man volunteered to take her out by waving a white-cross flag. Everyone took a picture of him. I told him, “Can you please take the body of that woman out?” He said, “It’s alright, I’ll help you. I am also a red shirt.” He was so brave. He carried a white flag among many people. The soldiers were also standing above. Question: Did they shoot you? Khun Prathak: No, we had a white flag. I told him to move her body, but he told me, “She is dead.” Her brain splattered on the ground. I told him to drag her body out of the area and took her to Rajavithi Hospital. Question: Was she dead? Khun Prathak: Sure. She was a trash collector, died at around 1 p.m. Question: At which point? Khun Prathak: At a police kiosk, Dindaeng intersection. The police kiosk had been burned, so she went into the damaged kiosk to collect waste. Question: At the flyover, is that right? Khun Prathak: That is right, at the front of the burned kiosk. She fell down instantly on the road. She is quite slim and was shot in her head. She fell down with her plastic sack. Question: Where did you take her to? Khun Prathak: At Rajavithi Hospital. That is the police kiosk as I said. I explicitly saw she died. We then took her body out of the area. Question: Where was the shooter? Khun Prathak: From a high position. Question: ChivaThai Building? Khun Prathak: I think so, from the high position. Question: Sniper? Khun Prathak: Yes. I saw two of them standing up there. I was lying prostrate at the front of Century Park Hotel, and they kept firing. Question: You were at the front of the Century Park Hotel, right?

(Translation)

5

Khun Prathak: Yes. Question: While the trash collector was shot, where were you? Khun Prathak: I was behind her. At the intersection, there was a large drain pipe. We were all lying prostrate over there. She was shot and fell down instantly. Sorry, I cannot remember whether it was on 18th or 19th. Question: Was it on the date the rally was dispersed? Khun Prathak: Before that date. Question: On 19th, the situation was different, is that right? Khun Prathak: On 18th and 19th, I still joined the rally. As for the fire incident at the Center One Shopping Plaza, we did not set fire to it. A soldier in a Soi adjacent to the Shopping Plaza shot at a transformer causing a blast. Then, A fire broke out and spread through the Center One. We did not set fire. On that day, there were five soldiers shooting at the transformer. When the transformer blasted, we ran out of there. Khun Prathak: A friend of mine, who is a soldier, must be responsible for cartridge case. However, hundred thousands of cartridge cases were withdrawn and lost. Question: They used a lot, is it right? Khun Prathak: Yes, they shot all, whether hire motorcycle drivers or local people. A corpse which had been at Shell petrol station for two days could not be taken out. If you told these soldiers, who were standing on the sky train, to go to Saphan Kwai, they could not get there. They look so young and some could not even speak Thai. They were trained to shoot according to the instruction. They were instilled that the Red Shirts were all bad. Question: After the gunfire on that day, did you go back to that place again? Khun Prathak: Yes, I did on 20th, but was driven off by the ‘Black Ear’ [Police Major General Wichai Sungprapai], with a troop and a police team. I told them that they imposed curfew at night-time, and during daytime they also drove us to go back home, we could not go anywhere. My girlfriend also shouted at them. Then, four police officers carrying machine guns came towards us. I scold them that carrying weapons was prohibited, why they still carried the weapons. I also shouted at them to have them go away. Question: On 20th, did they allow anyone to enter the area? Khun Prathak: No, they blockaded the road. Question: Are you talking about the Victory Monument?

(Translation)

6

Khun Prathak: That is right. Question: If we need a witness, would you please give evidence for us? Khun Prathak: Sure I am pleased to do that. I love the Red Shirts. The last question, what do you want from giving these statements? Khun Prathak: Nothing. I want Khun Thaksin back to recover the economy and people would make good livings. End of Transcription

(Translation)

1

(22)

Court Proceedings Report For Court Use

(GARUDA)

Case Black No. Or.2542/2553

Case Red No. /25

Criminal Court

27 September 2010

Criminal Case

Public Prosecutor (Special Public Prosecutor Office,

Special Case Section 1) Plaintiff

een

Mr. Veera Musikapong and his associates, totaling 19 Defendants

The judges started the proceedings at 9:40 hours (engaging in other case)

The hearing was scheduled to be held for meeting about the case, examination

of the 19 Defendants’ statements and evidence and scheduling the date of witness

examination. The public prosecutor as the Plaintiff; the 19 Defendants (except the 2nd

and the 8th Defendants who are proportional MPs of Group 6 and Area 5 in Bangkok

from Phue Thai Party respectively since the court granted permission as per the

petition dated 19 August 2010 to postpone the examination of witness statements until

the end of the legislative ordinary session which under the Royal Decree on

Summoning the Legislative Ordinary Session B.E. 2553 (2010), the session started on

1 August 2010); Mr. Prakasith Traiyasunan as the 1st Defendant’s lawyer; Mr. Suphap

Phetsri, Mr. Sommhai Koosap as the 2nd Defendant’s lawyers; Miss Patima Srito as

the proxy of Mr. Ongart Kamthong who acts as the 2nd, 3rd, 5th, 10th Defendants’

lawyer; Mr. Viyatti Chartmontri as the 2nd, 3rd, 7th, 9th, 10th Defendants’ lawyer; Mr.

Opat Soison as the 3rd Defendant’s lawyer; Mr. Peera Limcharoen, Mr. Sutham

Sawasdee, Mr. Chamroon Kaewchamnong, Mr. Chetsada Chandee as the 4th

Defendant’s lawyers; Mr. Kamnuan Chalopatham as the 5th Defendant’s lawyer; Mr.

Between

(Translation)

2

Karom Pholtaklang as the 5th, 6th, 7th, 8th, 11th, 14th, 16th Defendants’ lawyer; Mr.

Thamrong Lakdan as the 6th Defendant’s lawyer; Mr. Suphawat Thaksin as the 9th

Defendant’s lawyer; Mr. Akom Rattanapojjanat as the 11th Defendant’s lawyer; Mr.

Jirasak Boonna as the 12th, 13th, 18th Defendants’ lawyer; Mr. Ketpanya Wongsilp as

the 12th, 18th Defendants’ lawyer; the proxy of Mr. Borphit Chamnanaue who acts as

the 14th Defendant’s lawyer; the proxy of Mr. Supacharaphoom Santaweesuk who

acts as the 15th Defendant’s lawyer; Mr. Surapon Boonsam as the 16th Defendant’s

lawyer; Mr. Surawut Prasithprasat as the 17th Defendant’s lawyer; Mr. Preeda

Nakpiew as the 19th Defendant’s lawyer; and Mr. Anon Namp as the 19th Defendant’s

lawyer appeared before court.

In regard to the 4th, 8th Defendants’ petition dated 18 August 2010, requesting

a preliminary hearing against the public prosecutor, the court was of the view that the

police officer as the inquiry officer conducted the inquiry before submitting to the

public prosecutor who is considered as the state lawyer under the first paragraph of

Section 165 of the Criminal Procedure Code. There is no ground requiring the court to

make the preliminary hearing before accepting the Plaintiff’s plaint for consideration.

Thus, the court dismissed the 4th, 8th Defendants’ petition.

With respect of the petition dated 6 September 2010, requesting the court to

issue an order of autopsy and appointment of physician and expert for the 2nd, 3rd, 5th,

7th, 8th, 9th, 10th, 11th, 14th, 16th Defendants and for Mrs. Supharat Thongpuai, Mr.

Bancherd Pongklinchan, Mrs. Sunantha Preechaveth, Mrs. Boonnam Tawieng as the

authorized person of Mrs. Sa-ngad Wattananukul, Mrs. Nuan Chaiman, Miss

Boontrika Tangphet, Miss Charoen Thaiklang as the authorized person of Mr.

Kittinan Saechong, Mr. Samran Wang-ngam and Miss Namthip Puangtoum, who are

called as the 1st – 9th Petitioners respectively (the 1st - 9th Petitioners did not appear

before court), the copy of which has been sent the Plaintiff and no objection is made,

the court was of the view that the power of attorney of Mrs. Sa-ngad, the 4th Petitioner

and of Mr. Kittinan, the 7th Petitioner did not empower Mrs. Boonnam and Miss

Charoen to appoint a lawyer. Thus, the 4th and the 7th Petitioners’ petitions are

illegitimate and because the compiler does not have the power. In addition, Mr.

Karom Pholtaklang is not the 9th Defendant’s lawyer; hence, the 9th Defendant’s

petition is also illegitimate. Under the fifth paragraph of Section 150 of the Criminal

Procedure Code, only the public prosecutor has the power to file a petition requesting

(Translation)

3

the court to make an inquiry and issue an order indicating who a deceased person iss,

where and when he/she died? and what the cause of death is? Therefore, the filing of

the petition for the same by the 2nd, 3rd, 5th, 7th, 8th, 10th, 11th, 14th, 16th Defendants and

the 1st - 9th Petitioners are thus illegitimate. The court dismissed their petition.

Miss Theeranee Musikchai, Mr. Suthirojn Kamoltantirojn, Mr. Viroj

Sintaweelert, Mr. Suchot Rimvilai, Miss Niparat Chaothong by Mr. Sutham Suayroop

as lawyer, Miss Chittri Chittriphan by Mr. Vichitboon Kaewthanasilp, Mr. Narongvit

Thongnet, Miss Rapeeporn Patpeerapong, Mr. Jool Wattanasupanon by Mr. Thanapha

Juiklang, Mr. Chanachai Chaipanya, Miss Chuenjit Poolpholanan by Mr.

Watcharakorn Donkotchan, Mr. Chayasak Juanchanphet, Mrs. Kannika Khunchai,

Mr. Panjanat Sornchai by Mr. Prakorb Kruamakam, Mr. Aphisith Judasri, Miss

Anchalee Srivanalak, Miss Chatchaporn Kanwongkit by Mr. Somchai Sukpeerakit

filed by the lawyer’s administration officer, Mrs. Nittaya Densuphakit, Mr. Songsak

Pornprityapong, Miss Kanchana Praditsatien, Mr. Manop Thangthamyingyong, Mrs.

Kampong Daengsri and Mrs. Yanada Muansonthong by Mr. Phailin Dolsuk, filed the

petition dated today claiming that they are damaging parties and requesting

participation as the Plaintiffs. The copy of the petition was sent to the Plaintiff and no

objection was made. The court thus permitted the said petitioners to participate in this

case as 1st – 23rd joint Plaintiffs respectively.

The 2nd, 9th Defendants and the proxy of Mr. Ongart who acts as the 10th

Defendant’s lawyer (in fact he is the lawyer of the 2nd, 3rd, 5th, 10th Defendants) filed

the petition for postponement of the hearing. The petition is dated today, the copy of

which was sent to the Plaintiff and no objection was made. The court issued an order

allowing the 2nd, 9th Defendants not to appear before court today until the end of the

legislative ordinary session, and the examination of the Plaintiff’s witnesses will be

conducted after the end of the said session. Furthermore, the 10th Defendant did not

have only Mr. Ongart as the lawyer, but Mr. Vinyat also the 10th Defendant’s lawyer

who appears before court today. Therefore, there is no ground to postpone the

hearing as per the said three petitions.

The 1st Defendant by Mr. Prakasith filed a petition requesting the Appeal

Court to cancel the restrictions which are set forth as the conditions of the bail bond

dated 30 July 2010. The copy of the petition was sent to the Plaintiff and no objection

was made. This petition will be soon submitted to the Appeal Court for consideration.

(Translation)

4

The plaint was read and explained to the 19 Defendants (except the 2nd, 9th

Defendants) and to their lawyers. The 1st - 3rd, 8th, 10th - 16th Defendants gave the

statements of denial as per the statements of the 1st, 15th Defendants dated 16 August

2010 and the statements of the 3rd, 6th – 8th, 10th - 19th Defendants dated today, the

copies of which were sent to the Plaintiff. All Defendants’ statements of denial were

accepted and examined.

After asking Mr. Suphap and Mr. Sommhai as the 2nd Defendant’s lawyers and

Mr. Suphawat as the 9th Defendant’s lawyer, they stated that the 2nd, 9th Defendants

would defend the case and give the statements of denial as the same as other

Defendants.

The court asked the party about the witnesses to be reviewed by the other

party and filed with the court.

The Plaintiff stated that he wishes to refer documentary evidence of four

boxes, 26 files in a total of 84 items as per the details in the second additional list of

the Plaintiff’s witnesses dated today. The 19 Defendants (except the 2nd, 9th

Defendants) and the 19 Defendants’ lawyers reviewed the said documents. The

Plaintiff filed them with the court and the court deemed as Exhibits Jor. 1 to Jor. 84.

The 1st Defendant stated that Witness Item Nos. 29 and 30 i.e. around 50

VCDs or DVDs as per the list of the Defendant’ witnesses dated 23 September 2010

have not been reviewed by the Plaintiff and filed with the court. The 1st Defendant

requested court permission to subsequently file the same.

Up until present, the 2nd Defendant has not filed the list of witnesses under

Section 173/1 of the Criminal Procedure Code. The court will wait until the

scheduled date of checking the readiness of witnesses.

The 3rd Defendant stated that Witness Item No. 271 as per the list of the 3rd

Defendant’s witnesses dated 17 September 2010 which the court deemed as Exhibit

Lor. 1, as well as Witness Item Nos. 39, 132, 137, 144, 175, 272 i.e. around 25 VCDs

have not been reviewed by the Plaintiff and filed with the court. The 3rd Defendant

requested permission to subsequently file the same.

The 4th Defendant stated that Witness Item Nos. 145-205 i.e. documentary

evidence and around 100 VCDs or DVDs as per the list of the 4th Defendant’s

witnesses dated today have not been reviewed by the Plaintiff and filed with the court.

The 4th Defendant requested permission to subsequently file the same.

(Translation)

5

The 5th Defendant’s lawyer has already filed Witness Item Nos. 34-93 i.e.

documents and a partial amount of VCDS as per the list of the 5th Defendant’s

witnesses dated 17 September 2010 with the court, but he took them back for

rechecking the completeness after reviewing the Plaintiff’s witnesses. The 5th

Defendant requested permission to subsequently file the same.

The 6th Defendant stated that Witness Item No. 223 as per the list of the 6th

Defendant’s witnesses dated 17 September 2010 which the court deemed as Exhibit

Lor. 2. The 6th Defendant requested permission to subsequently file Witness Item

Nos. 213-215 (VCDs or DVDs), Nos. 216-217 and No. 34 as per the first additional

list of the 6th Defendant’s witnesses dated today.

The 7th Defendant stated that Witness Item No. 272 as per the list of the 7th

Defendant’s witnesses dated 17 September 2010, Witness Item Nos. 32-35 as per the

first additional list of the 7th Defendant’s witnesses dated today; Witness Item Nos.

273-290, Nos. 294-301 (around 50 VCDs) as per the list of witnesses dated 17

September 2553; and Witness Item No. 30 as per the additional list of witnesses have

not been reviewed by the Plaintiff and filed with the court. The 7th Defendant

requested permission to subsequently file.

The 8th Defendant stated that Witness Item Nos. 201-279, Nos.282-286 as per

the list of the 8th Defendant’s witnesses dated 17 September 2553 have not been

reviewed by the Plaintiff and filed with the court. The 8th Defendant requested

permission to subsequently file the same.

Up until present, the 9th Defendant has not filed the list of witnesses under

Section 173/1 of the Criminal Procedure Code. The court will wait until the

scheduled date of checking the readiness of witnesses.

The 10th Defendant stated that Witness Item No. 273, Nos. 294-296 as per the

list of the 10th Defendant’s witnesses dated 17 September 2553 and those in the

additional list dated today; Witness Item Nos. 25-40, Nos. 43-45, No. 274 and Nos.

276-301 as per the first list of witnesses; and Witness Item Nos. 41-42 as per the

additional list of witnesses i.e. around 25-30 VCDS or DVDs have not been reviewed

by the Plaintiff and filed with the court. The 10th Defendant requested permission to

subsequently file the same.

The 11th Defendant stated that Witness Item No. 223 as per the first additional

list of the 11th Defendant’s witnesses dated 20 September 2553; and Witness Item

(Translation)

6

Nos. 224-242, Nos. 246-253 i.e. around 60 VCDs or DVDs have not been reviewed

by the Plaintiff and filed with the court. The 11th Defendant requested permission to


The 12th, 13th and 18th Defendants stated that Witness Item Nos. 33, 77, 35-39,

42-43, 45-47, 49-62 and 73 as per the list of the 12th, 13th and 18th Defendant’s

witnesses dated today which the court deemed as Exhibits Lor. 3 to Lor 31; and

Witness Item Nos. 40-41 i.e. two DVDs which the court deemed as Exhibits

WorLor.1 to WorLor.2 respectively have not been reviewed by the Plaintiff and filed

with the court.

The 14th Defendant stated that Witness Item Nos. 252, 272-274, 280, 283,

285-288, 290-297, 299, 300, 301, 303-305 as per the list of the 14th Defendant’s

witnesses dated 17 September 2553; and Witness Item No. 3 as per the additional list

of witnesses dated today have not been reviewed by the Plaintiff and filed with the

court. The 14th Defendant requested permission to subsequently file the same. In

addition, the witnesses in the form of VCD or DVD are the same set as the 16th

Defendant’s.

The 15th Defendant stated that Witness Item No. 28 as per the list of witnesses

dated 17 September 2010 has not been reviewed by the Plaintiff and filed with the

court. The 15th Defendant requested permission to subsequently file the same.

The 16th Defendant stated that Witness Item Nos. 20-50 as per the first

additional list of witnesses dated 21 September 2010 i.e. 200 newspapers, 100

magazines, 200 slides, around 300 CDs and around 200 DVDs have not been

reviewed by the Plaintiff and filed with the court. The 16th Defendant requested

permission to subsequently file the same.

The 17th Defendant stated that there is no documentary evidence and material

to be reviewed by the Plaintiff or filed with the court.

The 19th Defendant stated that Witness Item Nos. 45-52 as per the list of the

19th Defendant’s witnesses dated 17 September 2010 to be reviewed by the Plaintiff

and filed with the court are in the case file on detention – section 5 and the court

deemed all of them as Exhibit Lor. 32. In regard to Witness Item No. 44, the 19th

Defendant will check whether the Plaintiff referred the same as his witness, if not, the

19th Defendant will do so by requesting the court’s subpoena and permission to


(Translation)

7

All the documents and instruments of evidence shall be separately kept. The

said Defendants are permitted to subsequently file the documentary evidence and

instruments of evidence by 29 November 2010. Upon a lapse of the specified period,

it shall be deemed that the Defendants do not wish to refer them as witnesses nor

adduce them.

There is no fact accepted by both parties.

The Plaintiff wishes to adduce a total of 334 oral witnesses as per the list of

witnesses dated 17 September 2010 such as Witness Item Nos. 1-2 i.e. the

complainants; Witness Item Nos. 3-7 i.e. the officials from the National Security

Council, the Intelligence Unit of the Special Branch – Royal Thai Police, et al;

Witness Item Nos. 8-13 i.e. the people who are oral witnesses of the events as per the

plaint; Witness Item Nos. 14-27 i.e. the government officials who are witnesses of the

attack against the parliament as per the plaint; Witness Item Nos. 28-30 i.e. the

witnesses who accepted the investigation reports but not the oral witnesses of the

explosion at the 1st Infantry Regiment; and Witness Item Nos. 31-33 i.e. officers who

are oral witnesses of the attack against Thaicom Satellite Station, Lat Lum Kaew.

Due to the fact that up until now, the Plaintiff still has a lot of witnesses to

adduce, the court requires the Plaintiff to file a statement indicating details of the

witnesses to adduce at least two months before the scheduled date of hearing.

The 1st Defendant states that he wishes to adduce a total of eight oral witnesses

as per the list of witnesses dated 23 September 2010, consisting of Witness Item Nos.

1-19 i.e. the 1st Defendant who claims himself and the 2nd -19th Defendants as

witnesses; Witness Item No. 20 i.e. the oral witness of the demonstration at

Ratchaprason Intersection and the positioning of the military force by the

government; Witness Item No. 21 i.e. the Secretary to the Prime Minister who is in

charge of coordinating between the government and the demonstrators; Witness Item

No. 23 i.e. the 1st Defendant’s lawyer who was in the suppression of demonstration at

Sala Daeng because his office is located there; Witness Item No. 25 i.e. the journalist

of the military news line – conflict among soldiers; Witness Item No. 26 i.e. Prime

Minister; Witness Item No. 27 i.e. Deputy Prime Minister and Head of the Center for

the Resolution of Emergency Situation; and Witness Item No. 28 i.e. the Center for

the Resolution of Emergency Situation’s Spokesman.

(Translation)

8

In regard to the 12th, 13th, 18th Defendants’ witnesses, the list of their witnesses

dated today consists of Witness Item Nos. 1-3 i.e. the 12th, 13th, 18th Defendants who

claimed themselves as witnesses; Witness Item Nos. 4-10 i.e. female merchants who

are oral witnesses of the events at Phan Fah Lee Lat Bridge and Ratchaprasong

Intersection and saw that the 12th Defendant sold red shirts and foot-shaped clappers

in the said two areas. Furthermore, additional seven witnesses i.e. female merchants

at the places of the events are included in the list, totaling 15 witnesses because it is

not sure whether all the witnesses in the existing list can appear before court. The

direction of the case defense is no involvement in the demonstration.

The 13th Defendant’s witnesses are Witness Item No. 11 i.e. his wife who

rented the apartment room owned by Witness Item No. 12 in Pratunam area; Witness

Item No. 12 i.e. the apartment owner who has the lease agreement as evidence and

will testify that such two persons are husband and wife and actually rented his

apartment room. In this respect, the direction of case defense is that the 13th

Defendant is the husband without marriage registration observed the event but was

injured by stray bullets. Additional five female merchants who rented the rooms in

the same apartment will be included in the list, totaling 8 witnesses.

The 18th Defendant’s witnesses consist of Witness Item Nos. 14, 15 i.e. the

supervisors – one of them will be adduced together with an order; Witness Item Nos.

16-20 i.e. the colleagues who were assigned to perform the same work in the same

place; Witness Item No. 21 i.e. the beloved person who testified that the 18th

Defendant had met her during weekends at her home in Cha-am District, Petchaburi

Province; Witness Item No. 22 i.e. the older brother who testified that some weekends

the 18th Defendant went to his home in Chachengsao Province where he lives with his

mother; Witness Item No. 23-24 i.e. the editors of Thai Rat/Khaosod Newspapers

who testified about the news published; Witness Item Nos. 25-27 i.e. the television

program masters of ceremony - National Channel and Kom Chad Leuk who are oral

witnesses of the event at Bon Kai; Witness Item Nos. 28-30 i.e. news reporters who

worked in the place of event; Witness Item No. 29 i.e. the person who was shot;

Witness Item No. 31 i.e. the owner of tour agency which arranged the tour program to

China for Seh Deang not for a training of weapon application; Witness Item No. 32

i.e. Seh Deang’s daughter who testified that that the 12th, 13th, 18th Defendants are

members of Kattiya Party not his father’s subordinates, totaling 20 witnesses. The

(Translation)

9

direction of case defense is that at the time of event he worked with the witnesses per

Witness Item No. 16-20 pursuant to the order of Battalion 153 – Hua Hin and

sometime was in Yala Province.

In respect of the 17th Defendant’s witness, the list of witnesses dated today

consists of Witness Item No. 1 i.e. the 17th Defendant who claims himself as witness;

Witness Item No. 2 i.e. his wife who was pregnant for eight months at the time of the

event and rented the room of Ratchadamri Place located behind 16 October Memorial;

Witness Item No. 3-5 i.e. the village head, assist village head (Moo 2) and member of

the Tambon Administration Organization; Witness Item No. 6 i.e. older sister who

testified that the 17th Defendant sometimes lives in Pattaya District, Chonburi

Province, totaling six witnesses. The direction of the case defense is that the 17th

Defendant is a merchant of used articles and travels between Bangkok and Buriram

Provinces.

This was at 15.30 hours, the 3rd, 4th, 5th, 6th, 7th, 8th, 10th, 11th, 14th, 15th, 16th

Defendants are required to prepare the statement indicating the number of witnesses

to be adduced and relation of the witnesses to be adduced for submission to the court

within two months from today. Upon a lapse of the specified period, it shall be

deemed that the Defendants do not wish to adduce such witnesses.

For the 2nd, 9th Defendants, the hearing for examining their statements is

scheduled to be held on 17 January 2011 at 9:0 hours The 2nd, 9th Defendants’ lawyers

shall file the lists of the 2nd, 9th Defendants’ witnesses, the petition showing details of

the relation of the witnesses to be adduced, and the document evidence or instrument

of evidence (if any) with the court by 17 January 2011. Upon a lapse of the specified

period, it shall be deemed that the Defendants do not wish to adduce such witnesses.

In connection with the witnesses to be adduced, the court reminds the parties

that the principle for referring oral witnesses of the Defendants should be based on the

fact that such witnesses will appear before court as the Defendants’ witnesses or

middleman witnesses whose testimonies will at least be in favor of the party referring

them as witnesses. In addition, they should not testify in the negative way nor testify

that they cannot remember or do not have involvement in any issue which will benefit

the Defendants’ direction of the case defend. The court may consider that such

circumstance is the impediment of the case proceedings or dishonest conduct of the

case with the intent to make nuisance and use the court as a tool to call the witness to

(Translation)

10

give testimonies even though their testimonies are not favorable or beneficial to the

Defendants such as Witness Item Nos. 26-28 of the 1st Defendant; Witness Item Nos.

140-143, 147-148, 164-173, 176-177, 189 (Mr. Saravuth Benjakul), 195, 198, 230,

204, 219, 222, 224, 245, 247-250, 261, 267-268, 270 of the 3rd Defendant; and the

same witnesses or the witnesses of the aforesaid nature all remaining Defendants,

who are not academicians (middleman witnesses) but the witnesses of the

government, military officers or military officers who performed the duties at the time

of the event who are in the opposite side of or have different opinion from the 19

Defendants as per the allegations in the plaint. The said witnesses may not appear

before court as witnesses of the 19 Defendants and their testimonies will actually not

be favorable to the case or the 19 Defendants’ direction of the case defense. If

wishing to ask for the discretion of officials, the document showing the reason for

exercising such discretion exists. With respect to the directors of the hospital such as

Central Hospital, Vachira Hospital, Ramthibordi Hospital, Hua Chiew Hospital,

Siriraj Hospital, Ratchavithi Hospital, Police General Hospital, Bhumiphol Hospital,

Lerdsin Hospital, Taksin Hospital, Charoenkrung Pracharak Hospital, Mission

Hospital, Somdej Pra Pinklao Hospital, the court is of the view that they are not the

physicians who had directly provided treatment to the patients so the court does not

permit to refer them as witnesses and will not call them to testify as requested.

Since the joint Plaintiffs’ lawyer prepared only one copy of the document and

the Plaintiff has received the same. An additional copy shall be give to each of the 19

Defendants within 30 days from today. Upon a lapse of the specified period, it shall

be deemed that they do not wish to participate as the joint Plaintiffs.

The court allows Mr. Akom, the 11th Defendant’s lawyer; Mr. Surapon, the

16th Defendant’s lawyer who engage in conducting the case at Southern Bangkok

Criminal Court; and Mr. Anon, the 19th Defendant’s lawyer who engages in

conducting the case at Talingchan Provincial Court to leave the court before 12.00

hours without signing this court proceeding report, but it shall be deemed that they

have duly acknowledged the order in this report.

The hearing shall be postponed to be held on 27 December 2010 at 9:00 hours.

The court urges that in this case, the Defendants have a lot of lawyers as listed

below:

(Translation)

11

Defendant Number of Lawyer(s)

1 3

2 3

3 3

4 4

5 4

6 1

7 2

8 1

9 2

10 2

11 2

12 1

13 1

14 2

15 1

16 2

17 1

18 2

19 3

The court urges that it will not consider a difficulty of the lawyer and will be

deemed as the impediment of the case proceedings.

Due to the fact that a lot of people who do not involve in the case are in the

court room, the seats are not sufficient. The next hearing will determine the number

of witnesses, the number of hearings so the Defendants are not required to appear

before court, but the Defendant’s lawyers shall appear before court. Additionally, the

court orders that any persons who do not involve in the case cannot access to the court

room so as to avoid any disorder/read.

-Signature- (Miss Suchitra Potaya) Recorded/Read

-Signature- (Mr. Somkiat Kaewmalee)

(Translation)

12

-Signature- Plaintiff 1st Defendant

(a hearing in absentia is

permitted) 2nd Defendant 3rd Defendant

4th Defendant 5th Defendant

6th Defendant (a hearing in absentia is

permitted) 7th Defendant







1st Defendant’s

Lawyer 2nd Defendant’s

Lawyer

Proxy of Mr. Ongart Kamthong, the 2nd, 3rd, 5th, 10th Defendant’s

Lawyer

2nd, 3rd, 7th, 9th, 10th Defendants’ Lawyer

3rd Defendant’s

Lawyer -Signature- 4th Defendant’s

Lawyer

5th Defendant’s Lawyer

5th, 6th, 7th, 8th, 11th, 14th, 16th Defendants’ Lawyer

6th Defendant’s

Lawyer 9th Defendant’s

Lawyer (allowed to leave early

without affixing signature) 11th Defendant’s Lawyer

12th, 13th, 14th Defendants’ Lawyer

12th, 18th Defendants’ Lawyer

Proxy of Mr. Borphit Chamnanaue, the 4th Defendant’s Lawyer

Proxy of Mr. Suphat Phoomsansuk, the 15th Defendant’s Lawyer

(allowed to leave early

without affixing signature) 16th Defendant’s

Lawyer 17th Defendant’s

Lawyer (allowed to leave early

without affixing signature) 19th Defendant’s

Lawyer

(Translation)

13

After reading the court proceedings report at around 17.00 hours, the court room officer informed verbally and prepared a report of officers in writing which is dated the same date and submitted today.

The declaration on the reason why the persons required to affix signatures failed

to affix their signatures is recorded at the end of this court proceedings report in place of affixing their signatures under Section 50(2) of the Civil Procedure Code in conjunction with Section 15 of the Criminal Procedure Code.

-Signature- (Mr. Somkiat Kaewmalee)

-Signature- (Miss Suchitra Potaya)

Documents

Red Shirts Application to the International Criminal Court to Investigate Crimes against Humanity in Thailand