Professional Documents
Culture Documents
of the Prosecutor International Criminal Court PO Box 19519 2500 CM The Hague The Netherlands
Re: OTP-297/10; National United Front for Democracy against Dictatorship, Application to the Prosecutor of the International Criminal Court to Investigate the Situation of the Kingdom of Thailand with regard to the Commission of Crimes against Humanity, filed January 31, 2011
Supplemental Application requesting Office of the Prosecutor to initiate a Preliminary Examination into the crimes against humanity committed in Thailand in 2010
This
Supplemental
Application
is
filed
by
Amsterdam
&
Partners
LLP,
the
United
Front
for
Democracy
Against
Dictatorship
(UDD)
and
others
with
the
Office
of
the
Prosecutor
(OTP)
of
the
International
Criminal
Court
(ICC)
to
request
that
the
Prosecutor
undertake
a
Preliminary
Examination
into
crimes
against
humanity
committed
in
the
Kingdom
of
Thailand
under
Article
15(1)
and
15(2)
of
the
Rome
Statute
of
the
International
Criminal
Court
(Statute).
1
This
submission
follows
upon
and
supplements
the
Application
to
Investigate
the
Situation
of
the
Kingdom
of
Thailand
with
Regard
to
the
Commission
of
Crimes
Against
Humanity,
previously
filed
with
the
ICC
Prosecutor
on
31
January
2011
and
supplemented
by
the
Memorandum
on
ICC
jurisdiction
based
on
the
British
Nationality
of
Mark
Abhisit
Vejjajiva,
dated
17
April
2012,
as
well
as
by
the
letter
written
to
the
OTP
written
by
Professor
Thongchai
Winichakul,
a
leading
Thai
historian,
on
25
May
2012
Opening
a
Preliminary
Examination
now
is
both
warranted
and
urgent.
Jurisdiction
is
satisfied
by
the
British
nationality
of
the
chief
perpetrator,
namely
former
Thai
Prime
Minister
Mark
Abhisit
Vejjajiva.
The
complementarity
component
of
admissibility
is
satisfied
because
the
Thai
judiciary
has
thwarted
1
Article
15(1)
and
15(2)
of
the
Rome
Statute
of
the
International
Criminal
Court
.
2
Truth
for
Reconciliation
Commission
of
Thailand,
Second
Interim
Report,
December
2011.
efforts
to
bring
the
perpetrators,
including
Mr.
Abhisit,
to
justice.
Finally,
the
gravity
component
of
admissibility
is
satisfied
by
the
scale,
nature,
manner,
and
impact
of
the
crimes.
Systematic
and
widespread
crimes
against
humanity
were
carried
out
by
security
forces
under
a
plan
approved
by
Mr.
Abhisit,
resulting
in
the
deliberate
and
premeditated
killing
of
a
total
of
at
least
seventy-five
protesters,
five
medics,
and
three
journalists,
and
the
wounding
of
some
two
thousand
more
civilians,
according
to
an
estimate
by
the
Truth
for
Reconciliation
Commission
of
Thailand.2
Other
estimates
place
the
total
of
those
killed
as
high
as
ninety-eight.3
Most
urgent
at
present
is
the
fourth
component
of
gravity,
namely
the
impact
of
the
crimes.
As
explained
in
the
recently
submitted
letter
from
leading
Thai
historian
Thongchai
Winichakul,
Thailand
has
suffered
from
recurrent
episodes
of
state
violence,
followed
by
impunity
for
the
officials
responsible
for
the
abuses.
This
encourages
more
violence
and
further
disruptions
of
the
democratic
order,
which
in
turn
lead
to
more
violence.
Because
none
of
the
perpetrators
of
the
crimes
against
humanity
of
2010
have
been
brought
to
justice,
benefiting
from
the
complicity
of
a
politicized
justice
system
beholden
to
the
interests
of
the
military- dominated
establishment,
they
are
at
present
able
and
encouraged
to
undermine
and
intimidate
a
government
that
was
democratically
elected
in
2011,
including
by
threats
of
a
military
coup,
which
would
likely
require
further
violent
repression
of
civilian
dissent.
If
the
ICC
were
to
open
and
to
announce
publicly
a
Preliminary
Examination
into
crimes
against
humanity
committed
in
Thailand
in
2010,
this
would
serve
to
deter
the
perpetrators
from
committing
further
crimes,
and
strengthen
the
hand
of
those
who
seek
to
bring
them
to
justice.
Opening
a
Preliminary
Examination
into
the
crimes
committed
in
Thailand
would
thus
be
consistent
with
the
ICC
Prosecutors
policy
of
considering
the
extent
to
which
its
preliminary
examination
activities
can
serve
to
stimulate
genuine
national
proceedings
against
those
who
appear
to
bear
the
greatest
responsibility
for
the
most
serious
crimes.4
As
argued
forcefully
by
Professor
Thongchai
Winichakul,
ICC
action
at
this
time,
by
averting
another
descent
into
democratic
destabilization
by
means
of
military
force
and
legal
chicanery,
would
also
contribute
to
the
long-term
peace
and
stability
of
Thailand.
It
would
thus
be
consistent
with
the
ICC
Prosecutors
policy
that
the
impact
of
crimes
may
be
assessed
in
light
of,
inter
alia,
their
consequence
on
the
local
[]
community,
including
the
long
term
social,
[and]
economic
[]
damage.5
In
sum,
the
opening
and
public
announcement
of
a
Preliminary
Examination
into
the
2010
crimes
against
humanity
in
Thailand
are
urgently
needed
and
would
help
fulfill
the
stated
policies
of
the
ICC
Prosecutor.
As
further
detailed
below,
the
Applicants
respectfully
request
the
OTP
to
open
and
to
announce
publicly
a
Preliminary
Examination
into
the
alleged
crimes
against
humanity
committed
in
Thailand
in
April
and
May
2010.
2
Truth
for
Reconciliation
Commission
of
Thailand,
Second
Interim
Report,
December
2011.
3
Statement
of
the
Red
Shirts,
presented
in
meeting
with
OTP,
26
June
2012.
4
Office
of
the
Prosecutor,
Policy
Paper
on
Preliminary
Examinations,
4
October
2010,
par.
17;
OTP,
Report
on
Preliminary
Examination
Activities,
13
December
2011,
par.
15.
5
OTP,
Policy
Paper
on
Preliminary
Examinations,
4
October
2010,
par.
70(d).
Situation
in
Thailand
Beginning
on
12
March
2010,
the
Red
Shirts
of
the
National
United
Front
for
Democracy
against
Dictatorship
(UDD)
staged
massive
demonstrations
in
Bangkok,
Thailand,
demanding
new
elections
and
the
resignation
of
what
they
perceived
to
be
the
unlawfully
constituted,
military-backed
government
of
Prime
Minister
Abhisit.
For
the
next
two
months,
the
Red
Shirts
demonstrated
in
the
heart
of
Bangkok.
It
must
be
stressed
that
these
were
peaceful
and
organised
demonstrations
at
all
times
and
the
government,
in
developing
a
counter-narrative
and
utilizing
the
term
terrorism
has
attempted
continuously
to
blur
this
fact.
In
response
to
these
organized
and
peaceful
demonstrations,
the
Royal
Thai
Army under
the
direction
and
approval
of
Prime
Minister
Abhisit
and
others
in
the
governmentkilled
a
total
of
at
least
eighty-three
civilians
and
wounded
two
thousand
others
in
separate
crackdowns
staged
on
10
April
2010
and
13-19
May
2010.
Victims
included
journalists
documenting
the
events
and
medical
volunteers
assisting
the
injured.
We
submit
that
the
crimes
committed
in
Thailand
meet
the
legal
criteria
established
by
the
ICC
Statute
and
clarified
by
OTP
policies
to
warrant
a
Preliminary
Examination.
A
Preliminary
Examination
conducted
under
Article
15(1)
and
15(2)
of
the
ICC
Statute
is
designed
to
determine,
in
accordance
with
Article
53(1)(a)
to
(c)
of
the
ICC
Statute,6
whether
to
undertake
an
investigation,
based
on
the
existence
of
a
reasonable
basis
to
proceed.
Article
53.1
sections
(a)
to
(c),
require
the
Prosecutor
to
consider
whether:
(a)
the
information
available
to
the
Prosecutor
provides
a
reasonable
basis
to
believe
that
crime
within
the
jurisdiction
of
the
court
has
been
or
is
being
committed;
(b)
the
case
would
be
admissible
under
Article
17;
and
(c)
taking
into
account
the
gravity
of
the
crime
and
interest
of
the
victims
there
are
nonetheless
substantial
reasons
to
believe
that
an
investigation
would
not
serve
the
interests
of
justice.
We
submit
that
the
specificity
and
credibility
of
the
information
we
have
provided
to
date
and
which
we
continue
to
collate
satisfy
the
OTPs
stated
criteria
for
opening
a
Preliminary
Examination,
as
set
forth
in
the
2010
draft
OTP
Policy
Paper
and
the
2011
Report
on
Preliminary
Examinations. 7
Indeed,
the
evidence
submitted
meets
the
standard
for
opening
a
full
investigation:
a
reasonable
basis
to
proceed,
which
has
been
interpreted
by
the
ICC
to
require
a
sensible
or
reasonable
justification
for
a
belief
that
a
crime
falling
within
the
jurisdiction
of
the
6
Article
53(1),
ICC
Statute;
Rule
48,
ICC,
RPE.
7
Office
of
the
Prosecutor,
Policy
Paper
on
Preliminary
Examinations,
4
October
2010,
par.
17;
OTP,
Report
on
Preliminary
Examination
Activities,
13
December
2011,
par.
15.
Jurisdiction
For a crime to fall within the jurisdiction of the court, it must satisfy three conditions: (i) (ii) it must fall within the category of crimes referred to in Article 5 and defined in Articles 6, 7, and 8 of the ICC Statute (jurisdiction ratione materiae); it must fulfill the temporal requirements specified under Article 11 of the ICC Statute (jurisdiction ratione temporis); and
(iii)
it
must
meet
one
of
the
two
alternative
requirements
embodied
in
Article
12
of
the
ICC
Statute
(jurisdiction
ratione
loci
or
ratione
personae).
This
entails
either
that
the
crime
occurs
on
the
territory
of
a
State
Party
to
the
ICC
Statute
or
a
State
which
has
lodged
a
declaration
by
virtue
of
Article
12(3)
of
the
ICC
Statute,
or
be
committed
by
a
national
of
any
such
State.9
Jurisdiction
ratione
materiae
In
this
case,
jurisdiction
ratione
materiae
is
satisfied
because,
as
documented
in
the
initial
Application
and
subsequent
submissions,
the
crimes
committed
by
security
forces,
including
the
deliberate
killing
and
wounding
of
scores
of
unarmed
protesters,
were
an
attack
on
a
civilian
population
of
both
a
widespread
and
systematic
nature,
pursuant
to
a
policy
aiming
to
destroy
the
Red
Shirt
movement
and
to
intimidate
the
general
public.
The
policy
was
designed
and
authorized
at
the
highest
level
of
the
Thai
government;
the
military
operations
staged
pursuant
to
the
policy
in
question
were
personally
authorized
by
former
Prime
Minister
Abhisit
Vejjajiva.
The
crimes
thus
amount
to
crimes
against
humanity
directed
from
the
highest
levels
of
the
Thai
government.
The
use
of
force
against
civilians
was
effectuated
by
military
forces
of
the
Royal
Thai
Army
at
the
direction
of
former
Prime
Minister
Abhisit
and
officials
in
the
Center
for
the
Resolution
of
the
Emergency
Situation
(CRES),
established
by
an
order
of
the
Prime
Minister
pursuant
to
the
declaration
of
a
State
of
Emergency
on
7
April
2010
for
the
purposes
of
coordinating
the
governments
response
to
the
Red
Shirt
demonstrations.10
CRES
included
the
leaders
of
all
branches
of
Thailands
military
and
law
enforcement
apparatus,
and
was
led
by
Mr.
Abhisits
Deputy
Prime
Minister,
Suthep
Thaugsuban.
Evidence
presented
in
the
Application
as
well
as
evidence
subsequently
gathered
by
the
Applicant
indicates
that
former
Prime
Minister
Abhisit
was
principally
8
Situation
in
the
Republic
of
Kenya,
Decision
Pursuant
to
Article
15
of
the
Rome
Statute
on
the
Authorization
of
an
Investigation
into
the
Situation
in
the
Republic
of
Kenya,
ICC-01/09-19-Corr,
31
March
2010,
para
35.
9
Ibid.,
para.
39.
10
By
law,
CRES
played
an
advisory
role.
The
2005
Emergency
Decree,
whose
provisions
were
invoked
in
2010,
specifically
provides
for
the
establishment
of
government
bodies
such
as
CRES
(Section
6);
Section
6,
however,
also
provides
that
the
establishment
of
any
such
body
does
not
diminish
the
authority
of
the
Prime
Minister.
responsible for the crimes against humanity, by signing orders and documents, by directing or authorizing subordinates to sign them, by presiding over meetings to plan and then oversee the violent and criminal repression of civilian protesters, and by failing to take reasonable measures to suppress or later to punish the crimes against humanity. Indeed, far from suppressing the crimes, Mr. Abhisit publicly and repeatedly praised the actions of the military, even as civilians had been and continued to be murdered and criminally wounded. Mr. Abhisits government in fact approved the promotion of most of the generals involved in the planning and implementation of the crackdown. Many of the written orders transmitted down the chain of command during the crackdowns were signed by the Director of CRES, Suthep Thaugsuban. While Mr. Abhisit recently testifiedcontrary to the evidence as shown belowthat he was not involved in the activities of CRES,11 he is at a minimum responsible for the any orders or directives issued by CRES. According to Section 6 of 2005 Emergency Decree, under whose provisions CRES was established, the powers and duties of any such body are limited to monitoring and inspecting the emergency situation for the purposes of advising the Prime Minister on appropriate measures. While the Emergency Decree allows the Prime Minister to delegate some powers in an emergency situation, nowhere does it provide that the authority of the Prime Minister as the countrys chief executive is in any way diminished in the context of a declared emergency. CRES, in other words, served at the pleasure of the Prime Minister, and only exercised authority granted to it by the Prime Minister. In fact, the Prime Minister was directly involved in the planning and approval of the operations. In the case of the first crackdown of 10 April 2010, the secret directive issued by CRES to security forces, which was subsequently leaked to the press, specifically mentioned that CRES had been ordered by the Prime Minister to disperse the demonstrations.12 In the case of the second crackdown of 13-19 May 2010, Mr. Abhisit personally gave the order at a CRES meeting on 12 May, according to a report on the operations commissioned by the Royal Thai Army and later published in a military journal. 13 Former CRES Spokesperson Col. Sansern Kaewkamnerd also testified to police in November 2011 that the military operations were carried out on the orders of the Prime Minister and the CRES Director.14 CRES met in the same building, the headquarters of the Eleventh Infantry Regiment in Bangkok, where Mr. Abhisit was housed for security reasons throughout the Red Shirt demonstrations. There, Mr. Abhisit was widely reported in the press to have regularly participated in CRES meetings, both before and
11 Thai Ex-PM Grilled over Deadly Army Crackdown, AFP, 9 December 2011. 12 The document can be viewed/downloaded at: http://thaienews.blogspot.com/2012/01/10-smoking-guns-
that-tied-abhisit.html. 13 Lessons from the Military Operations in the Siege of Ratchaprasong, May 14-19, 2010, Senathipat, Vol. 59, Issue 3, 2010, p. 58. The report was commissioned by a Lt. General in the Royal Thai Army to provide a set of guidelines on combating urban unrest. A summary in English is provided at: http://robertamsterdam.com/thailand/?p=840. 14 Col Sansern Testifies to Police on April-May Crackdown Last Year, Prachatai, November 18, 2011.
during the crackdowns.15 Far from distancing himself from the violent crackdowns, since then Mr. Abhisit has repeatedly defended all actions by the government, CRES, and the Royal Thai Army as justified and necessary to upholding the law.16 As a result of former Prime Minister Abhisit's personal, direct, and indirect authorization and oversight of the crimes against humanity, there is reason to believe that he is liable under multiple categories of criminal responsibility set forth in Articles 25 and 28 of the Rome Statute. By giving written and oral orders and authorizations of the violent repression of unarmed civilians, he is responsible as a principal perpetrator under Articles 25(2) and 25(3)(a) and (b). By providing substantial support to the crimes through his orders, authorizations, and public statements, in the knowledge that his actions would contribute to the commission of the crimes, he is responsible as one who aids, abets, or otherwise assists the crimes under Article 25(3)(c). By otherwise intentionally contributing to the crimes, with the aim of furthering the criminal activity or purpose of the group of government and military commanders over which he presided, or with knowledge of the intention of the group to violently and criminally suppress unarmed civilian protesters, he is responsible under Article 25(3)(d). Finally, because former Prime Minister Abhisit knew or had reason to know of the crimes against humanity that were taking place or were about to take place, and failed to take reasonable measures within his effective responsibility and control to prevent or repress the commission of the crimes, he is responsible as a superior under Article 28. Whether, in the circumstances, he effectively acted as a military commander under Article 28(a), or as a civilian superior under Article 28(b), or both, are matters to be clarified by the Preliminary Examination or by a full investigation. Jurisdiction ratione temporis and jurisdiction ratione personae Jurisdiction ratione temporis and ratione personae are met because, under Article 12(2) of the ICC Statute, the principal person responsible for the crimes against humanity, former Thai Prime Minister Abhisit, is a national of a State Party, namely the United Kingdom, which ratified the Rome Statute in 2001 and has been a State Party to the ICC since the Statute entered into force in 2002. As previously documented in our Submission RE Mr. Mark Abhisit Vejjajivas Nationality, dated 17 April 2012, Mr. Abhisit is now, and was at the time of the crimes over which he presided, a British national under British domestic law. Because he was born in the UK, Mr. Abhisit is deemed a British national under UK domestic law. The British Nationality Act, 1948, in force and effect when he was born in 1964, provided in Section 4 that every person born within the United
15
For
instance,
see
PM
Arrives
at
11th
Infantry
Regiment
for
Meeting
with
CRES,
National
News
Bureau
of
Thailand
Public
Relations
Department,
May
13,
2010.
16
Thai
PM
Defends
Crackdown
on
Riots,
ABC
Australia,
June
15,
2011.
Kingdom and Colonies after the commencement of this Act shall be a citizen of the United Kingdom and Colonies by birth.17 Mr. Abhisit has maintained his British citizenship, including at the time of his alleged commission of crimes against humanity in 2010. A newspaper report dated 25 February 2011 quotes him as stating in the Thai Parliament, You ask have I ever formally renounced my British citizenship, I admit I have not renounced my British citizenship.18 Mr. Abhisit thus falls within the terms of Article 12(2)(b) as a national of the UK. Moreover, his British nationality derives from birth rather than from naturalization, and he was born while his parents were living in the UK rather than briefly visiting. There can be no claim that he or his parents procured his nationality by fraud or with intent to abuse the law. In addition, he actively claimed his British nationality when he enrolled at Oxford University in 1983 and was registered to vote in the United Kingdom for several years thereafter.19 As summarized in our 17 April 2012 submission on nationality jurisdiction: The facts of Mr. Abhisits birth in the United Kingdom; his uninterrupted British nationality ever since; his longstanding ties to the UK; his actively claiming his British citizenship when he enrolled as a student at Oxford; the ordinary meaning of the word national in Article 12.2 (b) of the Rome Statute; the object and purpose of the Statute; the publicly stated interpretation by the ICC Prosecutor; the domestic law of the UK on nationality; and the respect to which that UK nationality law is entitled under the Hague Convention, all lead to the same conclusion: Mr. Abhisit is a UK national for purposes of ICC jurisdiction under Article 12(2)(b).20
Crimes v. Situations
Previous
submissions
filed
by
the
Applicants
with
the
ICC
had
requested
that
the
OTP
open
a
preliminary
investigation
into
the
Situation
in
the
Kingdom
of
Thailand.
However,
while
the
Applicant
has
established
that
the
ICC
can
exercise
its
jurisdiction
ratione
personae
over
Mr.
Abhisit,
the
other
chief
perpetrators
of
crimes
committed
in
Thailand,
which
is
not
a
State
Party
of
the
Rome
Statute,
cannot
be
subject
to
prosecution
by
the
ICC
except
in
the
event
of
referral
by
the
UN
Security
Council,
or
a
formal
declaration
lodged
by
the
government
of
Thailand
under
Article
12(3)
accepting
the
jurisdiction
of
the
ICC
with
respect
to
the
crime
in
question.
17
Subsections
4
(a)
and
(b)
of
the
1948
Act
laid
down
exceptions
to
this
general
rule
of
UK
citizenship,
for
persons
born
in
the
UK
to
fathers
who
were
diplomats
or
enemy
aliens.
When
Mr.
Abhisit
was
born
in
the
UK,
his
father
was
a
medical
student,
not
a
diplomat,
and
Thailand
was
not
at
war
with
the
UK.
Although
the
1948
Act
has
since
been
replaced
by
the
1981
Nationality
Act,
the
1981
Act
by
terms
does
not
apply
retroactively
to
persons
like
Mr.
Abhisit
who
were
born
before
the
new
law
entered
into
force
in
1983
(Part
I
of
the
1981
Act,
British
Citizenship,
applies
to
Acquisition
after
commencement,
i.e.,
to
acquisition
of
citizenship
after
the
commencement
of
the
1981
Act
in
force).
18
Thailands
Prime
Minister
Confesses
He
Is
Also
British,
Thailand
Business
News,
25
February
2011.
19
MAV
birth
certificate
&
MAV
Voter
registration.
20
17
April
2012
submission,
p.
8.
Unfortunately,
both
options
are
at
present
highly
problematic:
a
referral
by
the
UN
Security
Council
is
unlikely
for
obvious
geo-political
reasons,
while
the
government
of
Thailand
would
likely
face
a
military
coup
if
it
were
to
file
a
declaration
to
the
ICC
under
Article
12(3).
This
in
turn
raises
the
question
of
how
the
OTP
can
investigate
the
Thai
situation
when
the
ICC
only
has
jurisdiction
over
Mr.
Abhisit.
The
answer
is
that
in
instances
where
the
OTP
is
asked
to
act
on
its
own
initiative,
and
not
on
the
basis
of
a
referral
by
a
State
or
by
the
Security
Council,
its
mandate
is
to
investigate
crimes,
not
situations.
The
fundamental
distinction
between
situations
and
crimes
is
demonstrated
in
the
text
of
the
Rome
Statute,
confirmed
by
OTP
precedent,
and
supported
by
OTP
policy
reflecting
the
purpose
of
the
Rome
Statute.
(1)
The
Rome
Statute:
Situations:
When
States
or
the
Security
Council
refer
a
matter
to
the
ICC,
the
ICC
jurisdiction
is
over
the
situation,
as
spelled
out
in
the
Rome
Statutes
Article
13(a)
(situation
referred
by
State
Party)21
and
Article
13(b)
(situation
referred
by
Security
Council).22
There
were
good
reasons
to
require
referrals
only
of
situations,
and
not
of
particular
crimes.
The
drafters
did
not
wish
to
permit
States
to
selectively
and
discriminatorily
refer
to
the
ICC
only
crimes
committed
by
their
adversaries,
while
leaving
the
ICC
powerless
to
investigate
crimes
committed
by
State
agents
in
the
same
situation.
This
was
avoided
by
requiring
States
to
refer
an
entire
situation,
thus
leaving
it
to
the
impartial
ICC
to
determine
which
crimes,
by
which
parties,
to
investigate.
Similarly,
in
the
case
of
Security
Council
referrals,
the
drafters
did
not
wish
to
permit
the
Council
to
assume
what
is
properly
a
prosecutorial
and
a
judicial
function,
namely
to
determine
which
crimes
merit
investigation
and
possible
prosecution.
This
goal,
too,
was
accomplished
by
requiring
the
Security
Council
to
refer
only
a
situation,
not
a
particular
crime.
Crimes:
None
of
the
foregoing
concerns
apply
to
the
case
of
Thailand.
In
this
instance,
no
referral
to
the
ICC
was
made
by
a
State
or
the
Security
Council;
rather,
the
Applicant
has
requested
the
OTP
to
exercise
its
authority
under
Article
13(c)
to
launch
an
investigation
on
its
own
initiative.
Unlike
Article
13(a)
(State
referrals)
and
13(b)
(Security
Council
referrals),
Article
13(c)
speaks
not
about
a
situation,
but
about
a
crime.
Insofar
as
it
is
pertinent
to
our
case,
Article
13(c)
states
as
follows:
The
Court
may
exercise
its
jurisdiction
with
respect
to
a
crime
referred
to
in
Article
5
if:
[]
21
Article
13
(a)
states
as
follows:
The
Court
may
exercise
its
jurisdiction
with
respect
to
a
crime
referred
to
in
Article
5
in
accordance
with
the
provisions
of
this
Statute
if:
(a)
A
situation
in
which
one
or
more
of
such
crimes
appears
to
have
been
committed
is
referred
to
the
Prosecutor
by
a
State
Party
in
accordance
with
article
14;
22
Article
13
(b)
states
as
follows:
The
Court
may
exercise
its
jurisdiction
with
respect
to
a
crime
referred
to
in
Article
5
in
accordance
with
the
provisions
of
this
Statute
if:
(b)
A
situation
in
which
one
or
more
of
such
crimes
appears
to
have
been
committed
is
referred
to
the
Prosecutor
by
the
Security
Council
acting
under
Chapter
VII
of
the
Charter
of
the
United
Nations;
(c)
The
Prosecutor
has
initiated
an
investigation
in
respect
of
such
a
crime
in
accordance
with
Article
15.
(emphasis
added)
Rationale
for
Distinction:
There
is
good
reason
to
authorize
the
OTP,
when
acting
under
Article
13(c),
to
initiate
an
investigation
of
a
crime,
without
having
to
investigate
an
entire
situation.
The
OTP
is
assumed
to
be
impartial,23
and
hence
is
required
not
to
discriminate
in
favor
of
one
side
or
the
other
in
selecting
crimes
to
investigate.
Likewise,
when
the
OTP
acts
on
its
own
initiative
under
Article
13(c),
it
is
required
to
act
independently,24
without
allowing
political
pressures
to
bias
the
choice
of
crimes
to
investigate.
In
short,
the
reasons
that
required
States
and
the
Security
Council
to
refer
entire
situationsfear
of
discrimination
or
of
undue
interference
by
political
bodiesdo
not
apply
when,
as
in
this
case,
the
OTP
is
asked
to
initiate
an
investigation
proprio
motu.
Other
Articles:
None
of
the
articles
in
the
Rome
Statute
that
are
relevant
to
the
case
at
hand
mentions
a
situation,
much
less
requires
the
investigation
of
an
entire
situation.
Instead,
like
Article
13(c),
other
relevant
articles
refer
to
ICC
jurisdiction
over
a
crime
or
crimes.
Article
15
Crimes:
The
Applicant
has
requested
the
OTP
to
open
a
Preliminary
Examination
under
Article
15(1)
and
15(2),
with
a
view
toward
determining
whether
to
open
a
full
investigation.
Article
15(1)
states,
The
Prosecutor
may
initiate
investigations
proprio
motu
on
the
basis
of
information
on
crimes
within
the
jurisdiction
of
the
Court.
(Emphasis
added.)
The
Article
15
authorization
is
to
investigate
crimes,
not
situations.
Article
12
crimes:
The
preconditions
of
ICC
nationality
jurisdiction
contained
in
Article
12
likewise
address
crimes,
not
situations.
Article
12(1)
states,
A
State
which
becomes
a
Party
to
this
Statute
thereby
accepts
the
jurisdiction
of
the
Court
with
respect
to
the
crimes
referred
to
in
Article
5.
(Emphasis
added.)
Again
there
is
no
reference
to
situations;
instead
the
jurisdiction
is
over
crimes.
In
the
part
pertinent
to
the
case
at
handnationality
jurisdictionArticle
12(2)(b)
specifies
that
the
Court
may
exercise
its
jurisdiction
if
one
or
more
of
the
following
States
are
Parties
to
this
Statute:
(b)
The
State
of
which
the
person
accused
of
the
crime
is
a
national.
(Emphasis
added.)
Again,
the
jurisdiction
is
over
the
crime,
not
the
situation.
(2)
OTP
Precedent:
The
ordinary
meaning
of
the
text
of
the
Rome
Statute,
which
authorizes
the
OTP
acting
on
its
own
initiative
under
Article
15
to
examine
crimes
rather
than
situations,
is
confirmed
by
ICC
precedent
in
a
case
strikingly
similar
to
23
Article
42(7)
of
the
Rome
Statute.
24
Articles
42(1)
and
42(5)
of
the
Rome
Statute.
Thailands. In 2006, the ICC Prosecutor publicly explained the completion of his Preliminary Examination of alleged ICC crimes in Iraq.25 Like Thailand, Iraq was not a State Party to the ICC. Hence territorial jurisdiction was not available. However, as in Thailand, British nationals allegedly committed ICC crimes in Iraq. Thus, as in the Thai case, nationality-based jurisdiction under Article 12(2)(b) was available for crimes committed by British nationals in Iraq. Also, as in Thailand, there had been no referral by a State or by the Security Council; accordingly, the Prosecutor conducted his Preliminary Examination under Article 15 of the Rome Statute. In those circumstances, which were similar to the Thai case with regard to jurisdiction and admissibility, the ICC Prosecutor made no reference to a situation. Instead he expressly examined crimes. As he explained: In accordance with Article 15 of the Rome Statute, my duty is to analyse information received on potential crimes, in order to determine whether there is a reasonable basis to proceed with an investigation.
The
ICC
Prosecutor
further
elaborated
on
the
factors
he
must
consider.
First
was
whether
there
was
a
reasonable
basis
to
believe
that
a
crime
within
the
jurisdiction
of
the
Court
has
been
or
is
being
committed.
If
so,
he
must
then
consider
admissibility,
including
gravity
and
complementarity,
and,
if
those
factors
are
positive,
he
must
also
consider
the
interests
of
justice.
None
of
these
factors
included
any
reference
to
the
situation.
On
the
contrary,
his
examination
was
predicated
on
whether
an
ICC
crime
had
been
committed.
The
Prosecutor
proceeded
to
find
a
reasonable
basis
to
believe
that
crimes
within
the
jurisdiction
of
the
Court
had
been
committed.
However,
because
the
number
of
victims
of
ICC
crimes
allegedly
committed
by
British
nationals
in
Iraq
was
relatively
smallan
estimated
four
to
twelve
victims
of
wilful
killing
and
a
limited
number
of
victims
of
inhuman
treatment,
totalling
in
all
less
than
twenty
persons
the
case
was
deemed
to
have
failed
to
meet
the
gravity
standard
for
admissibility,
and
the
Prosecutor
declined
to
open
a
full
investigation.
Thus,
in
the
closest
ICC
precedent
to
the
Thai
case,
the
Prosecutor
made
no
effort
to
examine
a
situation,
but
instead
examined
the
commission
of
crimes.
His
methodology
confirms
the
foregoing
analysis
of
the
text
of
the
relevant
provisions
in
the
Rome
Statute
in
cases
where,
as
here,
the
OTP
acts
on
its
own
initiative
rather
than
on
a
referral
by
a
State
or
the
Security
Council.
(3)
OTP
Policy:
A
focus
on
crimes
rather
than
an
entire
situation
in
instances
where
the
OTP
acts
on
its
own
initiative
is
further
supported
by
the
policy
of
the
ICC
Prosecutor
to
25
OTP
Response
to
communications
received
concerning
Iraq,
9
February
2006.
Accessible
at:
http://www.icc-cpi.int/NR/rdonlyres/04D143C8-19FB-466C-AB77- 4CDB2FDEBEF7/143682/OTP_letter_to_senders_re_Iraq_9_February_2006.pdf.
10
prosecute
those
persons
who
are
most
responsible
for
committing
the
most
serious
crimes.26
This
policy,
in
turn,
is
consistent
with
the
declared
purpose
of
the
Rome
Statute:
to
end
impunity
for
the
persons
responsible
for
the
most
serious
international
crimes.27
This
policy
argues
for
the
OTP
to
investigate
the
alleged
crimes
against
humanity
committed
by
former
Prime
Minister
Abhisit
in
Thailand.
If
the
OTP
were
required
to
refrain
from
investigating
or
prosecuting
him,
merely
because
it
does
not
have
jurisdiction
to
investigate
all
others
implicated
in
the
situation,
then
one
of
the
persons
most
responsible
for
crimes
against
humanity
(Mr.
Abhisit)
would
enjoy
impunityeven
though
the
ICC
has
nationality
jurisdiction
under
Article
12(2)
to
investigate
him
for
the
crimes
for
which
he
is
responsible.
That
result
would
prevent
the
ICC
from
acting
to
end
impunity
for
a
principal,
merely
because
it
lacks
jurisdiction
also
to
end
impunity
for
all
others.
Such
an
all-or-nothing
result
would
defeat
the
purpose
of
the
ICC
as
set
forth
in
the
Rome
Statute
to
end
impunity
to
the
extent
the
ICC
has
jurisdiction.
Admissibility
For
purposes
of
Preliminary
Examinations,
admissibility
has
two
prongs:
complementarity
and
gravity.28
(1) Complementarity
Article
17
of
the
Rome
Statute
provides
that
a
case
is
admissible
where
the
State
is
unwilling
or
unable
to
genuinely
carry
out
an
investigation.29
Unwillingness
is
reflected
in
a
purpose
to
shield
the
perpetrator
from
criminal
proceedings.
It
is
evidenced
either
by
an
unjustified
delay
in
the
proceedings,
30
or
by
evidence
that
the
proceedings
are
not
independent
or
impartial,
provided
in
both
cases
that
the
proceedings
are
being
conducted
in
a
manner
inconsistent
with
the
intent
to
bring
the
person
concerned
to
justice.31
We
submit
that
our
request
is,
as
stipulated
by
Article
53(1)(b),
admissible
under
Article
17
of
the
ICC
Statute.
Previous
filings
submitted
to
the
ICC
Prosecutor
have
described,
on
the
basis
of
both
publicly
available
information
and
witness
testimony,
how
the
government
of
former
Prime
Minister
Abhisit
and
the
Royal
Thai
Army
systematically
sought
to
cover
up
the
crimes
alleged
in
our
Application.
26
[A]s
a
general
rule,
the
Office
of
the
Prosecutor
should
focus
its
investigative
and
prosecutorial
efforts
and
resources
on
those
who
bear
the
greatest
responsibility,
such
as
the
leaders
of
the
State
or
organisation
allegedly
responsible
for
those
crimes.
Paper
on
Some
Policy
Issues
before
the
Office
of
the
Prosecutor,
Sept.
2003,
p.
7,
accessible
at
http://www.icc-cpi.int/NR/rdonlyres/1FA7C4C6-DE5F-42B7-8B25- 60AA962ED8B6/143594/030905_Policy_Paper.pdf
27
Rome
Statute,
Preamble.
28
OTP
Policy
Paper,
par.
51.
There
is
no
evidence
of
any
interests
of
justice
that
would
counsel
against
opening
a
Preliminary
Examination
of
the
crimes
against
humanity
in
Thailand.
29
Article
17(1)(a)
of
the
Rome
Statute
30
Article
17(2)(b)
of
the
Rome
Statute
31
Article
17(2)(c)
of
the
Rome
Statute
11
Initial
investigations
launched
in
2010
were
assigned
to
the
Department
of
Special
Investigation
(DSI).
The
DSI
was
neither
independent
nor
impartial,
in
that
it
answered
to
the
Center
for
the
Resolution
of
Emergency
Situation
(CRES).
As
a
member
of
CRES,
DSI
Director
Tarit
Pengdit
was
directly
involved
in
the
planning
of
the
operations
that
resulted
in
the
commission
of
crimes
against
humanity.
The
assignment
of
investigative
duties
to
DSI
was
therefore
prima
facie
evidence
of
an
investigation
inconsistent
with
the
intent
to
bring
the
main
perpetrators
to
justice,
and
conducted
solely
for
the
purposes
of
shielding
the
persons
concerned
from
criminal
responsibility.
Subsequently,
filings
previously
submitted
to
the
OTP
described
evidence
of
the
manner
in
which
the
Abhisit
government
and
the
Royal
Thai
Army
obstructed
the
proceedings
of
various
investigative
bodies
and
pressured
the
DSI
to
withdraw
or
change
the
findings
contained
in
internal
reports
leaked
in
late
2010,
which
cited
security
forces
as
responsible
for
some
of
the
killings.
Coupled
with
Thailands
lack
of
judicial
independence
and
the
institutionalization
of
a
regime
of
impunity
for
state
officials
responsible
for
human
rights
violations,
our
filings
concluded
that
Thailand
was
unwilling
genuinely
to
carry
out
the
investigation
or
prosecution.
In
the
Addendum
submitted
to
the
Prosecutor
on
12
September
2011,
roughly
six
weeks
after
the
new
government
of
Prime
Minister
Yingluck
Shinawatra
came
into
office,
we
submitted
that
while
the
elections
of
3
July
2011
may
have
produced
a
government
that
is
willing
to
investigate,
Thailands
ability
to
prosecute
those
responsible
may
not
necessarily
improve
as
a
result,
in
the
absence
of
major
transformations
in
the
role
of
the
military
and
the
judiciary.32
Events
occurred
in
the
intervening
time
only
confirm
that,
despite
the
good
intentions
of
the
new
civilian
government,
the
judiciary
and
the
military
in
Thailand
are
steadfastly
opposed
to
a
full
investigation
into
the
crimes
against
humanity
alleged
in
the
Application,
and
that
they
have
been
able
effectively
to
prevent
any
such
investigation
by
domestic
authorities.
Some
two
years
after
the
commission
of
the
crimes,
no
one
has
been
criminally
convicted
for
the
killings
of
unarmed
civilians
in
March
and
May
of
2010.
The
Department
of
Special
Investigation
(DSI),
which
was
given
the
responsibility
to
investigate
the
killings,
has
to
date
ruled
that
state
officials
acting
in
the
course
of
their
duties
caused
twenty-five
of
the
eighty-nine
deaths
it
has
investigated.33
The
twenty-five
cases
were
thereby
referred
to
the
Metropolitan
Police.
Since
then
court
hearings
have
been
held
to
ascertain
responsibility
for
only
seven
of
the
deathsthe
six
people
killed
in
Wat
Pathumwanaran
on
19
May
2010
and
a
man
killed
in
or
near
a
live
fire
zone
on
Rachaprarop
Road
on
15
May
2010.34
Despite
the
overwhelming
amount
of
evidence
attesting
to
the
unjustified
nature
of
the
killings,
the
material
responsibility
of
the
military,
and
the
direct
relationship
between
the
killings
and
the
policy
that
was
formulated
by
CRES
and
approved
by
former
Prime
Minister
Abhisit,
these
seven
cases
are
unlikely
to
32
Amsterdam
&
Peroff
LLP,
Addendum
to
the
Application
to
Investigate,
12
September
2011.
33
DSI
Links
25
Riot
Deaths
to
Military,
Bangkok
Post,
18
May
2011.
34
Military
Bullets
Killed
Civilians,
Bangkok
Post,
19
June
2012.
12
result
in
prosecutions
and
convictions,
judging
from
Thailands
history
and
present
circumstances.
The
Royal
Thai
Army
has
continued
to
assert
that
none
of
the
protesters
were
killed
at
the
hands
of
its
officers.
Given
that
the
political
role
and
the
power
of
the
military
are
at
present
undiminished,
the
military
retains
the
means
to
prevent
its
members
from
being
held
to
account
for
the
deaths.
Certainly,
under
the
present
circumstances
there
is
no
chance
that
those
who
authorized
the
killingsmost
prominently
former
Prime
Minister
Abhisitwill
be
held
to
account,
particularly
given
that
a
military
coup
is
constantly
being
threatened.
Insiders
have
cited
as
the
primary
motive
for
staging
a
coup
the
determination
of
the
generals
involved
in
the
crackdown,
many
of
whom
received
promotions
in
its
aftermath,
to
avoid
accountability.35
In
addition,
Thailands
judiciary,
which
has
consistently
absolved
the
military
of
any
responsibility
for
serious
human
rights
violations,
most
recently
including
the
2004
massacre
of
seventy-eight
people
in
Tak
Bai,36
is
hardly
an
impartial
arbiter
in
these
cases.
Previous
filings
to
the
ICC
have
presented
evidence
for
the
fact
that
Thailands
national
justice
system
has
essentially
collapsed,
at
least
as
it
pertains
to
its
functioning
as
an
instrument
of
justice,
as
opposed
to
one
of
politics.
This
is
the
opinion,
among
others,
of
the
Truth
for
Reconciliation
Commission
of
Thailand,
which
concluded:
one
reason
for
political
conflict
in
Thailand
for
the
past
five
years
has
been
the
justice
process,
which
has
not
been
independent
and
was
vulnerable
to
political
intervention.37
In
recent
years,
Thailands
military-dominated
establishment
has
increasingly
relied
on
the
judiciary
to
subvert
the
electoral
process.
The
Constitutional
Courts
dubious
annulment
of
the
2
April
2006
election
set
the
stage
for
the
military
coup
of
19
September
2006.
Under
military
rule,
the
courts
played
a
crucial
role
in
supporting
the
junta,
which
designated
a
handpicked
Constitutional
Tribunal
to
eliminate
its
rivals,
resulting
in
the
dissolution
of
Thaksin
Shinawatras
Thai
Rak
Thai
party
and
the
disqualification
of
its
111
executives
from
elected
office.
Thanks
to
the
new
rules
inserted
in
the
2007
Constitution,
written
under
military
rule,
the
Constitutional
Court
intervened
repeatedly
in
the
political
process
after
the
return
to
civilian
rule
in
2008.
After
precipitating
the
resignation
of
a
Foreign
Minister
in
July,
and
removing
the
sitting
Prime
Minister
in
September,
in
December
the
Constitutional
Court
staged
what
was
described
as
a
judicial
coup.
Relieving
the
military
of
an
increasingly
onerous
traditional
responsibility,
the
Court
dissolved
three
more
governing
parties,
effectively
overturning
the
results
of
the
elections
held
on
23
December
2007.
The
Court
disqualified
enough
of
the
ruling
coalitions
parliamentarians
to
permit
the
formation
of
a
new
government,
led
by
Mr.
Abhisit
Vejjajiva.
The
extreme
politicization
of
the
Thai
judiciary,
and
its
disregard
for
the
laws
it
is
supposed
to
uphold,
are
further
evidenced
in
a
series
of
decisions
by
which
the
courts
have
recently
disqualified
sitting
members
of
parliament
from
office
on
35
Red
Shirt
Power
Makes
Generals
Wary
of
Mounting
a
Coup,
Bangkok
Post,
14
June
2012.
36
Appeals
Court
Rejects
Petition
by
Victims
Kin,
Bangkok
Post
9
June
2012.
37
TRCT
Calls
for
Reform
of
Justice
System,
The
Nation,
22
June
2012.
13
dubious
grounds,
have
unlawfully
ordered
parliament
to
cease
consideration
of
constitutional
amendments,
and
have
accepted
baseless
complaints
that
could
have
led
to
the
dissolution
of
the
governing
party
Pheu
Thai.38
These
more
recent
decisions
are
detailed
in
the
section
below
on
Impact
of
the
Crimes.
As
much
or
even
more
than
a
military
coup,
it
is
the
prospect
of
another
judicial
coup
that
appears
most
likely
in
the
months
to
come.39
A
branch
of
government
that
has
so
openly
taken
sides
and
has
worked
systematically
to
undermine
the
rule
of
law
cannot
be
expected
to
deliver
justice.
Even
in
the
unlikely
event
that
the
ongoing
investigations
were
to
result
in
genuine
prosecutions,
the
investigations
are
not
sufficiently
comprehensive
to
render
the
crimes
against
humanity
committed
in
Thailand
inadmissible
under
Article
17.
First,
while
concluding
that
twenty-five
deaths
were
caused
by
the
authorities,
the
DSI
claimed
that
an
additional
twelve
deaths
were
caused
by
protesters,
while
it
could
not
determine
responsibility
for
the
remaining
cases.
Each
of
these
claims
is
implausible
given
the
evidence
in
the
public
domain,
as
reported
in
previous
submissions
to
the
ICC,
which
clearly
attests
to
the
responsibility
of
the
military
for
the
vast
majority
of
the
killings.
Since
our
last
submission,
Thailands
most
respected
military
affairs
journalist,
Wassana
Nanuam,
published
a
book
where
she
reported,
citing
high-placed
military
sources,
that
the
infamous
men
in
black
alleged
to
have
killed
soldiers
in
clashes
on
10
April
2010
were
themselves
soldiers
belonging
to
a
rival
faction
within
the
Royal
Thai
Army,
not
supporters
of
the
Red
Shirts.40
This
comports
with
the
conclusions
of
expert
witness
Joe
Ray
Witty,
a
former
U.S.
Army
Sergeant
and
crowd
control
expert
with
the
Los
Angeles
Police
Department
SWAT,
whose
report
was
included
in
the
initial
Application.
Aside
from
contradicting
the
DSIs
claim
that
the
deaths
by
security
forces
are
attributable
to
Red
Shirt
protesters,
the
revelations
undermine
claims
made
by
former
Prime
Minister
Abhisit,
who
attributed
any
and
all
deaths
among
protesters
to
the
presence
of
men
in
black
in
their
ranks.41
The
DSIs
conclusion
that
state
officials
are
only
responsible
for
twenty-five
deaths
reflects
the
agencys
susceptibility
to
political
pressure,
its
ties
to
officials
and
government
bodies
who
planned
and
authorized
the
crackdowns
in
2010,
and
its
role
in
the
Abhist
governments
campaign
of
persecution
against
the
Red
Shirt
movement.
Second,
these
proceedings
pertain
only
to
a
small
subset
of
the
crimes
alleged
in
the
Application.
Aside
from
the
majority
of
the
killings,
no
effort
has
been
made
to
investigate
the
injury
of
some
two
thousand
protesters,
the
hundreds
of
illegal
detentions,
the
torture
of
detainees,
and
the
crime
of
political
persecution,
each
of
which
was
described
at
some
length
in
the
initial
Application
as
flowing
from
the
38
See
Amsterdam
&
Partners
LLP,
Judicial
Coup,
Redux,
5
June
2012
[http://t.co/CY3BUYQT].
39
Pavin
Chachavalpongpun,
Saving
the
Thai
Status
Quo,
Japan
Times,
15
June
2012.
40
Factions
and
Short
Fuses,
Bangkok
Post,
21
May
2012.
41
Fiery
Abhisit
Defends
Riot
Crackdown,
Pattaya
Today,
August
30,
2011.
14
same
official
policy
designed
at
the
highest
level
of
the
government
and
personally
approved
by
former
Prime
Minister
Abhisit
to
destroy
the
Red
Shirt
movement.
Third,
there
is
no
chance
that
the
courts
will
ever
examine
the
issue
of
superior
responsibility,
and
would
therefore
consider
prosecuting
former
Prime
Minister
Abhisit
or
other
senior
state
officials
for
their
role
in
planning
and
authorizing
the
operations.
Even
in
the
unlikely
event
that
prosecutions
might
result
from
the
small
number
of
cases
belatedly
referred
to
the
courts,
the
persons
accused
will
be
only
those
who
physically
carried
out
the
killings,
not
former
Prime
Minister
Abhisit
and
others
who
formulated
the
policy
from
which
the
killings
resulted.
A
primary
purpose
of
the
ongoing
proceedings
is
to
shield
the
principals,
including
former
Prime
Minister
Abhisit,
from
criminal
responsibility.
Based
on
the
events
of
the
past
two
years,
it
can
be
concluded
that
Thailand
remains
unwilling
genuinely
to
carry
out
a
complete
investigation
of
the
kind
that
would
render
the
crimes
committed
in
Thailand
inadmissible
before
the
ICC
under
Article
17(1)
of
the
Rome
Statute.
It
is
also
evident,
under
Article
17(2)(b)
and
17(2)(c),
that
there
has
been
an
unjustified
delay
in
the
proceedings, 42
that
investigations
have
not
been
conducted
independently
or
impartially,43
and
that
each
of
the
domestic
efforts
currently
underway
is
inconsistent
with
an
intent
to
bring
those
who
ordered
and
committed
the
crimes
to
justice.
Under
Article
17(3)
of
the
Rome
Statute,
finally,
the
politicization
of
the
national
judicial
system
and
the
role
of
the
military
impede
the
ability
of
the
new
government
to
ensure
that
genuine
investigations
and
prosecutions
are
conducted.
The
weakness
of
domestic
efforts,
alongside
the
authorities
characteristic
unwillingness
to
hold
state
officials
such
as
former
Prime
Minister
Abhisit
accountable
for
serious
crimes
and
human
rights
violations,
is
a
factor
sufficient
to
make
this
case
admissible
under
Article
17
of
the
ICC
Statute,
based
on
the
principle
of
complementarity. 44
This
was
the
case
at
the
time
of
our
initial
Application,
and
it
remains
the
case
today.
(2)
Gravity
Our
previous
submissions
to
the
ICC
document
the
massacres
that
took
place
in
2010
and
evidence
the
use
of
military
force
that
resulted
in
the
murder
of
at
least
eighty-three
civilians
and
the
injury
of
two
thousand
more.
As
stipulated
in
Regulation
29(2)
of
the
Regulations
of
the
OTP,
the
non-exhaustive
factors
that
guide
the
Prosecutors
assessment
of
gravity
include
scale,
nature,
manner
of
commission,
and
impact
of
the
crimes. 45
The
draft
OTP
policy
on
opening
Preliminary
Examinations
includes
the
same
four
components
of
42
Article
17(2)(b)
of
the
Rome
Statute.
43
Article
17(2)(c)
of
the
Rome
Statute.
44
Prosecutor
v.
Germain
Katanga
and
Mathieu
Ngudjolo
Chui,
Judgment
on
the
Appeal
of
Mr.
Germain
Katanga
against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, ICC-01/04- 01/07-1497, 25 September 2009, para. 78. 45 See, in concurrence with the Prosecutions submissions, Prosecutor v. Abu Garda, Decision on the Confirmation of Charges, ICC-02/05-02/09-243-Red, 8 February 2010, paras. 31; Situation in the Republic of Kenya, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, ICC-01/09-19-Corr, 31 March 2010, para 188
15
The Appeals Chamber has dismissed the setting of an overly restrictive legal bar to the interpretation of gravity that would hamper the deterrent role of the Court. It has also observed that the role of persons or groups may vary considerably depending on the circumstances of the case and therefore should not be exclusively assessed or predetermined on excessively formalistic grounds.47
Our previous Applications have alleged the commission of the following crimes against humanity: 1. Murder;48 2. Imprisonment and other severe deprivation of physical liberty;49 3. Other inhumane acts, covering acts of torture in detention and severe physical injury inflicted on two thousand civilians;50 4. Political persecution.51
As detailed below, the scale, nature, manner, and impact of these crimes merit the opening of a Preliminary Examination by the ICC Prosecutor. (2.1) Scale of the Crimes
As
shown
in
previous
filings,
the
alleged
crimes
took
place
on
a
large
scale,
as
reflected
in
the
number
of
people
killed
during
the
2010
crackdowns
(at
least,
and
possibly
more
than,
seventy-five
protesters,
five
medics,
and
three
journalists),
the
number
of
people
wounded
by
the
security
forces
(approximately
two
thousand),
the
number
of
people
subjected
to
imprisonment
and
other
severe
deprivation
of
physical
liberty
(approximately
five
hundred),52
and
the
extensive
campaign
of
political
persecution
launched
against
the
Red
Shirt
movement,
which
featured
the
institution
of
a
comprehensive
censorship
regime,
a
pervasive
public
relations
campaign
designed
to
discredit
it,
the
abuse
of
emergency
legislation,
the
prosecution
of
hundreds
of
people
on
crimes
of
conscience,
and
the
enlistment
of
the
judicial
branch
in
the
intimidation
and
punishment
of
dissidents,
the
dissolution
of
governing
parties,
and
the
disqualification
from
office
of
elected
representatives.
The
scale
of
the
killings
and
woundings
committed
by
the
Thai
security
forces
in
2010
is
comparable
to,
or
graver
than,
that
of
crimes
and
situations
into
which
the
46
OTP
Policy
Paper
on
Preliminary
Examinations,
4
October
2010,
par.
70.
47
Ibid.,
par.
69.
The
accompanying
footnote
41
cites
Situation
in
the
Democratic
Republic
of
the
Congo,
Judgment
on
the
Prosecutors
appeal
against
the
decision
of
the
Pre-Trial
Chamber
I
entitled
Decision
on
the
Prosecutors
Application
for
Warrants
of
Arrest,
Article
58,
ICC-01/04-169,
under
seal
13
July
2006;
reclassified
public
23
September
2008,
paras.
69-79.
48
Article
7(1)(a)
49
Article
7(1)(e)
50
Article
7(1)(k)
51
Article
7(1)(h)
52
Marwaan
Macar-Markan,
Jails
Fill
Up
with
Political
Prisoners,
Critics,
Inter-
Press
Service,
August
23,
2010.
http://ipsnews.net/news.asp?idnews=5257
16
OTP
has
opened
Preliminary
Examinations.
We
draw
reference
to
the
Preliminary
Examination
currently
underway
into
the
case
of
Honduras53
as
referred
to
in
the
Prosecutors
Report
on
Preliminary
Examination
Activities,
dated
13
December
2011.
In
Honduras
a
Preliminary
Examination
was
launched
and
announced
after
the
democratically
elected
government
was
removed
from
power
by
military
force,
a
State
of
Emergency
was
declared
when
thousands
of
opposition
marched
in
demonstration,
twenty
civilians
were
killed,
further
decrees
allowing
armed
forces
to
arrest
persons
without
restriction
were
issued
along
with
decrees
restricting
freedom
of
movement
and
assembly,
journalists
were
targeted,
and
investigations
by
a
National
Truth
and
Reconciliation
Committee
exposed
the
fact
that
the
authorities
had
designed
and
implemented
a
policy
to
attack
civilians.
These
facts
are
highly
comparable
to
those
of
Thailand.
In
October
2009,
moreover,
the
ICC
Prosecutor
announced
the
launch
of
a
Preliminary
Examination
in
the
case
of
Guinea.54
Hours
after
the
death
of
President
Lansana
Cont
on
23
December
2008,
a
military
junta
seized
power
in
a
coup.
Months
later,
opposition
protesters
staged
demonstrations
at
a
national
stadium,
only
to
be
violently
suppressed
by
security
forces.
What
became
known
as
the
28
September
massacre
took
the
lives
of
some
one
hundred
and
fifty
people.
The
legal
assessment
of
the
situation
characterized
the
2009
events
as
a
widespread
and
systematic
attack
against
the
civilian
population.
Analogous
to
the
events
in
Thailand,
the
Guinean
case
also
saw
extra-judicial
killings
by
state
security
forces,
forced
disappearances,
arbitrary
detention,
torture,
and
government
officials
attacking
civilians
based
on
their
affiliation
and/or
support
for
opposition
candidates.
Based
on
the
number
of
people
killed
and
wounded,
the
scale
of
the
crimes
committed
in
Thailand
also
exceeds
that
of
the
possible
crimes
committed
in
an
episode
of
inter-state
conflict
into
which
the
ICC
Prosecutor
has
opened
a
Preliminary
Examinations:
the
shelling
of
the
South
Korean
Yeonpyeong
Island
in
November
2010
and
the
sinking
of
the
South
Korean
warship
Cheonan
earlier
in
the
same
year.
(2.2)
Nature
of
the
Crimes
Previous
applications
have
provided
evidence
attesting
to
the
systematic
nature
of
the
crimes
against
humanity
committed
in
Thailand
in
2010.
With
regard
to
the
crimes
of
murder
and
other
inhumane
acts,
the
attacks
that
resulted
in
the
killing
of
eighty-three
civilians
and
the
wounding
of
two
thousand
more
people
took
place
over
an
extended
period
of
time
(an
entire
week,
in
the
case
of
the
government
crackdown
of
13-19
May
2010).
During
that
time,
similar
incidents
took
place
in
different
parts
of
the
city
of
Bangkok,
which
had
been
assigned
to
different
military
units.
The
evidence
presented
in
the
initial
Application
showed
that
the
security
forces
were
following
precise
rules
of
engagement
based
on
a
common
policy
53
Office
of
The
Prosecutors
report
on
Preliminary
Examination
Activities,
dated
13
December
2011
(p.10)
54
Ibid
(p.21)
17
authorized
by
former
Prime
Minister
Abhisit;
the
attack,
which
had
been
thoroughly
planned,
involved
substantial
public
resources
of
the
government.
The
systematic
nature
of
the
attack
was
later
confirmed
in
a
report
commissioned
by
the
Royal
Thai
Army
to
provide
a
set
of
guidelines
on
combating
urban
unrest,
published
in
the
Thai
military
journal
Senathipat.
Its
contents
were
summarized
in
the
Addendum
submitted
to
the
ICC
Prosecutor
on
12
September
2011.
In
that
report,
Col.
Boonrod
Srisombat
wrote
that
the
crackdown
of
13-19
May
2010
was
designed
as
a
battle
plan
for
full
scale
urban
warfare,
not
as
a
crowd
control/dispersal
operation.
In
the
aftermath
of
the
2010
crackdown,
hundreds
of
people
were
mopped
up
by
the
authorities
and
held
for
weeks
and
months,
often
incommunicado,
in
a
number
of
repurposed
military
facilities
across
Thailand.
These
incidents
of
enforced
disappearance,
as
Human
Rights
Watch
characterized
them, 55
could
not
be
described
as
episodic
in
nature,
given
the
number
of
victims
involved,
the
type
and
number
of
facilities
in
which
they
were
held,
and
the
length
of
their
illegal
detention.
This
speaks
to
the
fact
that
the
crime
of
imprisonment
and
other
severe
deprivation
of
physical
liberty
was
also
systematic
in
nature,
and
committed
pursuant
to
a
government
policy.
(2.3)
Manner
of
Commission
It
has
already
been
substantiated
that
the
security
forces
who
materially
perpetrated
the
crimes
against
humanity
of
murder
and
other
inhumane
acts
over
the
course
of
the
2010
crackdowns,
as
well
as
former
Prime
Minister
Abhisit
and
other
government
officials
involved
in
the
planning
and
approval
of
the
operations,
committed
the
acts
with
the
intent
to
cause
death
or
serious
injury,
and
with
an
utter
disregard
for
human
life
and
dignity.
Most
of
the
extra-judicial
killings
were
carried
out
not
in
the
heat
of
the
battle
but
rather
by
snipers
targeting
unarmed
civilians
at
a
distance.
It
is
indisputable
that
professional
snipers
shooting
from
elevated
positions
were
deployed
to
strategic
locations, 56
and
fired
their
weapons
directly
into
dense
crowds
of
unarmed
demonstrators
without
provocation
or
justification.
Video
evidence,
moreover,
demonstrates
that
soldiers
fired
live
ammunition,
without
announcing
any
warning,
directly
at
demonstrators
who
presented
no
threat,
causing
them
serious
bodily
harm.
The
declaration
of
live
fire
zones,
where
soldiers
had
license
to
shoot
at
everything
that
moved,
could
also
not
have
been
undertaken
in
the
interest
of
minimizing
civilian
casualties.
Consistent
with
orders
issued
by
CRES
to
prevent
the
removal
of
bodies
from
the
scene
of
the
crackdown,
the
Royal
Thai
Army
closed
off
the
live
fire
zones
to
emergency
medical
staff57
and
repeatedly
opened
fire
on
medics
as
they
attempted
55
Human
Rights
Watch,
Descent
Into
Chaos:
Thailands
2010
Red
Shirt
Protests
and
the
Government
Crackdown,
May
2011,
p.
121.
56
Application
to
investigate
the
situation
of
the
Kingdom
of
Thailand
with
regard
to
commission
of
crimes
against
humanity
(p.24,
p33
and
statement
of
Anonymous
Witness
No.
22).
57
Medics
Banned
from
Entering
Red
Zones,
The
Nation,
May
16,
2010.
18
to
assist
injured
demonstrators,58
complicating
rescue
operations
for
the
scores
of
wounded
protesters.
Aside
from
the
five
medics
who
were
killed
in
the
rescue
operations,
an
independent
report
by
the
Thai
organization
Marginalized
Monsoon
Group
estimated
that
five
of
the
protesters
killed
between
13-19
May
2010
had
bled
to
death. 59
These
lives
might
have
been
saved,
but
for
the
governments
decision
to
close
off
the
sites
of
the
clashes
to
emergency
crews
and
the
incidents
where
troops
opened
fire
on
medics.
Journalists
also
appear
to
have
been
intentionally
targeted,
under
orders
issued
by
CRES
to
limit
photographic
evidence
depicting
the
killing
of
civilians.
Three
journalists
were
killed
during
the
government
crackdowns,
among
them
foreign
reporters
Hiro
Muramoto
and
Fabio
Polenghi,
while
several
others
were
wounded.
(2.4)
Impact
of
the
Crimes
The
impact
of
the
crimes
against
humanity
committed
in
2010
has
been
extremely
grave,
not
just
in
terms
of
the
death,
physical
injury,
and
economic
damage
inflicted
by
the
state
on
the
individuals
victimized
by
the
crackdowns,
but
also
in
terms
of
the
devastating
effects
that
the
campaign
of
persecution
undertaken
by
the
government
of
former
Prime
Minister
Abhisit
against
the
Red
Shirt
movement
has
had
for
the
countrys
democracy
and
stability.
The
purpose
of
the
campaign
was
not
just
the
dispersal
of
a
demonstration,
but
the
destruction
of
a
popular
movement,
to
be
achieved
by
eliminating
its
leaders,
terrorizing
its
members,
and
dehumanizing
its
supporters.
While
former
Prime
Minister
Abhisit
and
his
military
backers
have
to
date
failed
in
this
effort,
and
were
soundly
defeated
in
last
years
elections,
the
actions
pursuant
to
that
policy
have
done
great
damage
to
the
country,
nudging
it
closer
towards
a
military
or
judicial
coup,
further
widespread
violence,
or
even
civil
war.
Massacres
of
Thai
civilians
have
been
committed
regularly,
over
decades,
and
always
for
the
same
purpose:
to
deny
the
Thai
people
their
basic
right
to
self- determination.
As
horrific
and
traumatic
as
the
events
of
2010
were,
their
impact
might
pale
in
comparison
with
the
consequences
of
allowing
those
responsible
to
enjoy
continued
impunity
for
their
crimes.
The
most
recent
wave
of
demonstrations
and
state
violence
played
out
according
to
the
same
script
followed
by
events
that
took
place
in
Thailand
in
1973,
1976,
and
1992.
Just
as
in
previous
instances,
the
Red
Shirts
calls
for
democracy
were
described
by
the
government
as
the
faade
for
a
hidden
agenda
threatening
the
security
of
the
Thai
state.
Just
as
in
previous
instances,
dubious
accusations
of
ideological
extremism
and
violent
tendencies
were
instrumental
to
the
case
made
by
the
military
to
justify
the
imposition
of
repressive
measures
and
shoot
scores
of
unarmed
demonstrators.
Just
as
in
previous
instances,
finally,
the
Thai
establishment
answered
the
calls
for
democracy
with
the
dehumanization
of
their
opponents,
the
subversion
of
the
rule
of
law,
and
human
rights
violations
on
a
massive
scale.
58
Bill
Schiller,
Why
Did
So
Many
Civilians
Die
in
Bangkok
Violence?,
The
Star,
May
23,
2010.
59
Marginalized
Monsoon
Group,
Preliminary
Fact
Finding
Report
on
the
Political
Violence
of
May
13-19,
2011,
May
2011
(Thai-language),
p.
270.
19
Another
element
that
all
previous
massacres
have
in
common
is
that
none
of
the
perpetrators
have
ever
been
brought
to
justice
or
faced
any
form
of
accountability
for
the
killings.
None
of
those
involved
in
the
1973
massacre
were
prosecuted,
while
both
the
1976
and
1992
incidents
were
whitewashed
by
royal
decrees
granting
amnesty
to
everyone
involved.
The
only
one
among
these
prior
episodes
of
state
violence
to
ever
be
seriously
investigated
is
Black
May
1992.
Even
in
that
case,
however,
the
report
issued
in
2000
answered
few
questionssixty
percent
of
the
report,
including
all
information
pertaining
to
military
officers,
units,
orders,
and
actions,
was
redacted
on
the
grounds
that
the
privacy
of
those
responsible
would
have
otherwise
been
violated.
The
cover-up
of
the
events
surrounding
previous
massacres
in
1973,
1976,
and
1992,
in
turn,
has
not
only
deprived
the
Thai
people
of
their
right
to
justice
and
their
right
to
know
the
truth,
but
has
virtually
guaranteed
that
the
same
heinous
crimes
would
be
committed
again
and
again.
Impunity
has
given
forces
that
refuse
to
acknowledge
the
legitimacy
of
the
democratic
process
the
power
to
threaten
elected
governments,
stage
military
coups,
and,
whenever
faced
with
opposition
in
the
streets,
murder
scores
of
demonstrators.
There
are
now
signs
that
Thailand
may
be
going
through
the
same
cycle
once
more.
Emboldened
by
the
impunity
that
members
of
the
Thai
establishment
continue
to
enjoy
for
their
crimes
in
2010,
new
efforts
have
been
launched
in
recent
weeks
to
delegitimize
the
democratic
process
and
lay
the
groundwork
for
the
removal
of
a
duly
elected
and
legally
constituted
government,
whether
by
military
force
(as
in
2006)
or
by
judicial
intervention
(as
in
2008).
Since
the
2011
elections,
Thailands
politicized
judiciary
has
been
active
on
many
fronts
in
an
attempt
to
undermine
the
new
government
and
damage
the
Red
Shirt
movement.
In
the
past
weeks,
the
Constitutional
Court
disqualified
from
office
a
duly
elected
member
of
parliament
and
leader
of
the
UDD,
Jatuporn
Prompan.
Mr.
Jatuporn
was
banned
owing
to
his
failure
to
vote
in
the
2011
elections;
at
the
time,
Mr.
Jatuporn
was
held
in
Bangkok
Remand
Prison
after
the
revocation
of
his
bail
on
specious
terrorism
charges,
which
was
conveniently
timed
to
coincide
with
the
election
campaign.60
Later
the
Office
of
the
Constitutional
Court
filed
a
brief
with
the
Criminal
Court
requesting
that
Mr.
Jatuporns
bail
be
revoked
once
again,
owing
to
his
criticism
of
the
Courts
bias.
Another
member
of
parliament
and
UDD
leader,
Karun
Hosakul,
is
awaiting
a
decision
by
the
Supreme
Court,
which
will
rule
on
whether
to
uphold
the
Election
Commissions
recommendation
that
he
also
be
disqualified
from
office,
based
on
insulting
remarks
allegedly
made
by
Mr.
Karun
against
a
rival
candidate
in
the
2011
election.
The
ongoing
campaign
by
Thailands
judicial
branch,
representing
the
ongoing
nature
of
the
crime
of
political
persecution
alleged
in
the
initial
Application,
is
not
limited
to
targeting
elected
officials
supporting
the
elected
government.
While
the
number
of
people
arrested
for
crimes
of
conscience,
above
all
violation
to
the
lese
majeste
law,
has
dropped
off
sharply
since
the
2011
election,
the
politicized
courts
have
continued
to
wield
legislation
limiting
free
expression
to
victimize
activists
60
See
Amsterdam
&
Partners
LLP,
Judicial
Coup,
Redux,
5
June
2012
[http://t.co/CY3BUYQT].
20
and
ordinary
citizens
deemed
sympathetic
to
the
Red
Shirt
movement.
Parliament
has
been
unable
to
seriously
consider
amendments
to
the
laws,
as
the
military
made
it
clear
that
any
such
attempt
would
trigger
another
coup.61
In
May
2012,
Mr.
Amphol
Tangnoppakul,
a
sixty-one-year-old
cancer-stricken
man,
died
in
custody
while
serving
a
twenty-year
prison
sentence
on
four
counts
of
lese
majeste.
The
charge
was
initiated
by
Mr.
Abhisits
personal
secretary
in
2010,
a
year
in
which
478
cases
of
lese
majeste
reached
the
courts.62
Leading
up
to
his
death,
Mr.
Amphol
was
subjected
to
a
horrifying
array
of
violations
to
his
basic
human
rights:
two
months
in
detention
without
charge,
repeated
rejections
of
bail
requests
while
awaiting
trial,
denial
of
proper
medical
treatment,
and
finally
a
grotesque
prison
sentence
handed
down
at
the
conclusion
of
a
process
that
required
the
defendant
to
prove
his
innocence.
As
recently
as
February
2012,
the
Appeals
Court
reasoned
that
Mr.
Amphols
health
condition
was
not
serious
enough
to
warrant
bail.
Most
worrisome
for
Thailands
democratic
stability
and
the
risk
of
further
crimes
against
humanity,
however,
are
the
measures
that
the
Constitutional
Court
has
taken
since
1
June
2012.
On
that
day,
the
Court
took
the
extraordinary
step
of
issuing
an
injunction,
quickly
shown
to
have
violated
the
law
and
exceeded
the
bounds
of
its
constitutional
authority,
ordering
the
National
Assembly
to
cease
all
deliberations
on
a
proposed
amendment
to
the
2007
Constitution,
pending
a
review
of
the
amendments
constitutionality.
Ominously,
the
question
the
Constitutional
Court
accepted
to
review,
under
Section
68
of
the
Constitution,
was
whether
the
proposed
constitutional
amendments
constituted
an
attempt
to
overthrow
the
democratic
regime
of
government
with
the
King
as
Head
of
State.
Any
such
finding
could
have
empowered
the
Constitutional
Court
to
order
the
dissolution
of
the
governing
Pheu
Thai
Party
and
strip
away
the
political
rights
of
each
member
of
its
executive
committee,
much
as
the
Court
had
done
with
the
winners
of
each
of
the
previous
four
elections,
Thai
Rak
Thai
(dissolved
in
2007)
and
the
People
Power
Party
(dissolved
in
2008).
The
Constitutional
Courts
injunction
was
issued
on
the
same
day
when
a
few
hundred
activists
from
the
neo-fascist
Peoples
Alliance
for
Democracy
(PAD),
in
cooperation
with
members
of
Abhisits
Democrat
Party,
blockaded
all
roads
to
Thailands
parliament,
preventing
the
House
of
Representatives
from
meeting.
The
previous
two
sittings
of
the
House
had
been
disrupted
by
the
PADs
threat
to
storm
the
halls
of
parliament,
and
by
the
intemperate
outbursts
of
Democrat
Party
members
of
parliament,
some
of
whom
physically
assaulted
the
House
Speaker
and
other
representatives.
It
is
widely
understood
that
the
PAD
and
the
Democrat
Party
were
attempting
to
spark
a
confrontation,
of
the
kind
that
would
give
the
military
the
pretext
to
stage
another
coup,
as
demanded
by
the
PADs
leaders.63
In
a
ruling
issued
on
13
July
2012,
the
Constitutional
Court
eventually
dismissed
the
complaint
alleging
that
the
constitutional
amendment
under
consideration
in
the
National
Assembly
constituted
an
attempt
to
overthrow
the
democratic
61
Army
Chief
Safe:
'He's
Done
No
Wrong',
The
Nation
22
January
2012.
62
Discussing
Lse
Majest
Law,
Prachatai,
June
28,
2010.
63
Pavin
Chachavalpongpun,
Saving
the
Thai
Status
Quo,
Japan
Times,
15
June
2012.
21
regime
of
government
with
the
King
as
Head
of
State.
As
a
result,
it
declined
to
dissolve
Pheu
Thai.
However,
several
aspect
of
the
verdict
demonstrate
the
Courts
utter
disregard
for
the
law,
and
more
generally
the
extent
to
which
the
rule
of
law
has
been
dismantled
in
Thailand.
On
the
one
hand,
the
Constitutional
Court
declared
constitutional
something
that
the
Constitution
prohibits,
ruling
that
it
had
jurisdiction
to
examine
complaints
alleging
violations
to
Section
68
of
the
Constitution
without
a
prior
investigation
by
the
Attorney
General,
which
the
Constitution
explicitly
requires.
On
the
other
hand,
the
Constitutional
Court
declared
unconstitutional
something
that
the
Constitution
actually
allows.
In
this
respect,
the
Court
argued
that
the
National
Assembly
does
not
have
the
power
to
amend
the
Constitution,
in
accordance
with
the
procedure
mandated
by
the
Constitution,
in
a
manner
that
would
allow
a
Constitution
Drafting
Assembly
to
write
a
new
charter.
In
fact,
the
Constitution
contains
no
such
prohibition.
The
Court
also
stated
that
writing
a
new
charter
requires
a
referendum,
despite
the
fact
that
the
Constitution
never
cites
a
referendum
in
its
discussion
of
the
constitutional
amendment
process.
The
Constitutional
Courts
verdict
has
two
implications.
First,
the
Court
essentially
arrogated
the
authority
to
interfere
in
the
legislative
process
and
overturn
measures
approved
by
a
majority
of
parliamentarians,
even
if
such
measures
are
in
accordance
with
the
Constitution.
This
sets
a
precedent
that
will
likely
serve
to
justify
future
interference
by
Court
to
block
the
implementation
of
the
governments
agenda.
Second,
the
Court
demonstrated
that
a
duly
elected
government
in
Thailand
can
only
remain
in
office
if
it
refrains
from
actually
making
use
of
its
powers
under
the
Constitution.
When
a
government
takes
any
action
inconsistent
with
the
preferences
of
the
Thai
establishment,
as
it
did
in
this
case,
the
Constitutional
Court
reserves
the
right
to
conjure
up
additional
constitutional
requirements
mandating
that
the
government
stop
what
it
is
doing.
Should
the
government,
in
turn,
choose
to
defy
the
Courts
unlawful
order,
the
Court
implied
it
could
cite
this
act
of
defiance
to
remove
the
government
from
office.
Recent
events
show
that
Thailand
continues
to
be
held
hostage
by
groups
that
have
never
accepted
the
right
of
the
people
to
govern
the
country
through
their
elected
representatives,
and
refuse
to
play
by
the
most
basic
rules
of
the
democratic
process.
Given
the
opportunity,
Thailands
military,
bureaucratic,
and
judicial
establishment,
with
the
support
of
the
PAD
and
Abhisit
Vejjajivas
Democrat
Party,
will
not
hesitate
to
topple
the
elected
government
of
Yingluck
Shinawatra.
While
some
members
of
the
Thai
establishment
fear
the
backlash
that
this
action
will
likely
engender,64
the
impunity
they
have
enjoyed
thus
far
gives
them
the
option
to
yet
again
crush
any
demonstrations
that
might
be
staged
as
a
reaction
through
the
deployment
of
overwhelming
military
force.
It
is
only
by
ending
impunity
that
Thailands
cycle
of
coups
and
state
violence
can
finally
be
broken.
64
Red
Shirt
Power
Makes
Generals
Wary
of
Mounting
a
Coup,
Bangkok
Post,
14
June
2012.
22
Conclusion
As
the
OTP
stated
in
a
recent
report,
the
main
object
and
purpose
of
the
ICC
Statute
is
the
prevention
of
serious
crimes
of
concern
to
the
international
community
through
the
ending
of
impunity. 65
These
words
underscore
the
necessity
and
the
urgency
of
opening
a
Preliminary
Examination
into
the
crimes
against
humanity
committed
in
Thailand.
It
is
not
only
within
the
jurisdiction
of
the
ICC
Prosecutor
to
investigate
and,
if
the
facts
warrant,
prosecute
Mark
Abhisit
Vejjajiva,
the
man
who
personally
authorized
the
operations
that
killed
at
least
seventy-five
peaceful
protesters,
five
medics,
and
three
journalists
in
2010.
By
taking
the
historic
step
of
opening
and
announcing
a
Preliminary
Examination,
even
if
only
against
the
person
most
responsible,
former
Prime
Minister
Abhisit,
the
Prosecutor
can
make
a
decisive
impact
in
the
prevention
of
further
civilian
massacres,
finally
impressing
upon
local
authorities
that
they
can
no
longer
take
for
granted
the
impunity
they
have
historically
enjoyed
in
Thailand.
The
Applicants
submit
that
the
information
presented
with
regard
to
jurisdiction
and
admissibility
based
on
the
requirements
of
complementarity
and
gravity
warrants
the
urgent
opening
of
a
Preliminary
Examination,
and
moreover
establishes
the
existence
of
a
reasonable
basis
to
open
a
full
investigation.
The
Applicant
therefore
respectfully
requests
the
OTP
urgently
to
open,
and
to
announce
publicly,
a
Preliminary
Examination
into
the
crimes
against
humanity
committed
in
Thailand
in
2010.
Respectfully,
Robert R. Amsterdam AMSTERDAM & PARTNERS LLP Katy Epstein AMSTERDAM & PARTNERS LLP
Douglass Cassel AMSTERDAM & PARTNERS LLP Counsel for Robert Amsterdam doug.cassel@nd.edu
65
OTP,
First
Report
of
the
Prosecutor
of
the
ICC
to
the
UNSC
Pursuant
to
UNSCR
1970
(2011),
p.
2.
23