A LICENSE TO KILL

MAKING SENSE OF THE FINAL REPORT BY THE TRUTH FOR RECONCILIATION COMMISSION OF THAILAND (TRCT) AMSTERDAM & PARTNERS LLP
SEPTEMBER 24, 2012

1. INTRODUCTION
On September 17, 2012, the Truth for Reconciliation Commission of Thailand (TRCT) published its Final Report on the events of that took place in Bangkok in April and May 2010,1 when over 90 people were killed in military crackdowns against Red Shirt protesters. As predicted in filings submitted by legal counsel for the United Front for Democracy against Dictatorship (UDD) to the Prosecutor of the International Criminal Court (ICC) dating back to October 2010,2 the TRCTs long awaited report can only be described as an attempt to shield those who planned, approved, carried out, and oversaw the 2010 crackdowns from accountability. As detailed in these pages, the TRCT report does not uncover new evidence of any note, but offers a radical and highly selective re-interpretation of evidence already in the public record, absolving both the principals and the agents involved in the crackdowns of any responsibility for the death of protesters. Far from living up to its mission of promoting reconciliation by uncovering the truth, the TRCTs report underscores Thailands inability to end impunity, come to terms with the truth, and uphold its international responsibility to properly investigate incidents of state violence. The TRCTs decision to blame the violence entirely on the protestersand unidentified armed militants with asserted but never substantiated links with the UDDis not just likely to further inflame Thailands deep social divisions, but effectively grants any future government a license to kill unarmed demonstrations. Some commentators who have been critical of the Red Shirts in the past reached the same conclusion, also calling the report a license to kill (bai anuyat hai kha).3

Truth for Reconciliation Commission of Thailand (TRCT), Final Report of the TRCT, September 2012. http://www.thaitruthcommission.org:81/thaitruth/ 2 See Amsterdam & Peroff, Preliminary Report into the Situation of the Kingdom of Thailand with Regard to the Commission of Crimes against Humanity, October 2010, pp. 36-37. 3 Pibob Udomittipong, Raingan chabap sombun khong Kho.O.Po: bai anuyat hai kha. Prachatai, September 18, 2012.
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While expressing no surprise about the TRCT reports bias, Red Shirt leaders, members of parliament, and families of the victims were joined by some human rights activists, academics, and journalists in rejecting the Commissions findings. But for the intervention of an impartial international judicial body like the ICC, it is clear that the 2010 massacres will go unpunished, as civilian massacres in Thailand always have in the past.

2. BACKGROUND
The government of former Prime Minister Abhisit Vejjajiva appointed the TRCT in July 2010. From the start, critics raised questions about the Commissions independence and the clarity of its mandate. TRCT members were almost entirely selected from among supporters of the 2006 coup and vocal opponents of deposed Prime Minister Thaksin Shinawatra, some with known affiliations with the neofascist Peoples Alliance for Democracy (PAD). The TRCTs Chairman, Khanit na Nakhon, had earlier been tasked by the military junta that removed Mr. Thaksin from office in 2006 to investigate the 2003 War on Drugs, while Somchai Homla-or was a member of the PAD.4 Since the reports release, it has emerged that the TRCT relied on other PAD supporters and PAD guards in its investigation. In response to the revelations, Mr. Khanit argued that PAD affiliation did not compromise anyones impartiality.5 With regard to the Commissions mandate, aside from the general skepticism about the lack of power to initiate prosecutions or subpoena witnesses and evidence, it was the TRCT Chairman who raised eyebrows in public statements that evidenced a cavalier attitude to both uncovering the truth and promoting accountability. Days after his appointment, Mr. Khanit described the Commissions responsibility as promoting forgiveness as opposed to finding fact or identifying who was right and who was wrong.6 He further stated that his work was aimed as identifying the root causes of the conflict as opposed to investigating each particular instance.7 In the two years since its appointment, the TRCT made some attempt to dispel doubts about its sincerity and impartiality. The Commission denounced the lack of cooperation received from the military and the Center for the Resolution of the Emergency Situation (CRES),8 while Mr. Khanit publicly criticized measures taken by the previous government in the aftermath of the violence.9 The TRCTs interim reports, the last of which was published in April 2012, contained a number of progressive reform proposalsamong them, reducing prison sentences for those

http://prachatai.com/journal/2012/09/42698 4 Achara Ashayagachat, Mixed Reactions to Kanit Panel, Bangkok Post, July 8, 2010. 5 Mi Panthamit ruam thim Kho.O.Po khui chut dam, Khao Sod, September 21, 2012. http://www.khaosod.co.th/view_news.php?newsid=TUROd01ERXdOREl4TURrMU5RP T0=&sectionid=TURNd01RPT0=&day=TWpBeE1pMHdPUzB5TVE9PQ== 6 Atiya Achakulwisut, Reconciliation Will Have Its Price, Bangkok Post, June 15, 2010. 7 Kanit to Dig for Root Causes of Political Conflict, The Nation, July 8, 2010. 8 Human Rights Watch, Thailand: Repeal the Emergency Decree, November 24, 2010. http://www.hrw.org/en/news/2010/11/24/thailand-repeal-emergency-decree 9 See Kanit Decries Chaining of Reds, The Nation, July 24, 2010. See also Kanit Panel Calls for Transparency over Unrest Details, The Nation, August 3, 2010.

convicted of lese majeste, lifting restrictions to freedom of the press, improving the treatment of prisoners, tackling corruption, reducing economic inequalities, and addressing the systematic injustices of Thailands political and legal system. While many of these proposals also appear in the TRCTs Final Report, the report confirms the worst fears initially voiced about its lack of independence and impartiality. The product of its two-year investigation is in fact worse than initially expected. That the TRCT would not have been able to uncover evidence not available to others, and that its investigation would have stopped well short of holding senior government officials responsible for the violence, was entirely predictable. What was not predicted is that the Commission would be so brazen as to attempt to place the entirety of the blame on the protesters, thereby excusing all officials involved in the crackdown, from top to bottom, of any moral or legal responsibility. Regrettably, that is precisely what the TRCTs Final Report seeks to accomplish.

3. TRCT ON THE ROOT CAUSES OF THE VIOLENCE

Nowhere is the TRCTs bias more evident than in its analysis of the root causes of Thailands political divisions. While ideological differences and the Red Shirts concerns with double standards are acknowledged in the report, as are Thailands structural inequalities, the TRCT finds that the conflict is rooted in Thaksin Shinawatras tenure as Prime Minister (2001-2006), which is said to have caused a breakdown in the rule of law. More than anything else, the TRCT explains that the weakness of the rule of law is the reason why political conflict could not be prevented from escalating into violent confrontations.10 The TRCT acknowledges in its report the importance of the military coup of September 19, 2006 in giving rise to the grievances that fuel the Red Shirt movement. Those who staged or supported the coup, however, are reserved sympathetic treatment by the TRCT. The coup is not described as a criminal act aimed at the destruction of democracy, but as a desperate measure to which those concerned about parliamentary dictatorship and tyranny of the majority11 turned when they felt they had no other option. TRCT Chairman Khanit na Nakhon is cited in the press as comparing Thaksin Shinawatra to Adolf Hitler, arguing that World War II would have been averted if Hitler had been somehow removed from power.12 The implication is that the coup, while not ideal, may have spared Thailand from suffering a similar tragedy. While the TRCT urges the military to stay out of politics, Mr. Khanit emphasized the need for Dr. Thaksin to do likewisein practice, drawing an equivalence between the legitimacy of the militarys political role and the role of an elected Prime Minister removed in a military coup. Pinning the blame on Dr. Thaksin requires the TRCT to ignore the fact that the weakness of the rule of law in Thailand predates Dr. Thaksin by several decades. Virtually none of the thousands of extrajudicial executions carried out by the state

TRCT, Final Report, pp. 53-56. The terms parliamentary dictatorship (phadetkan ratsapha) and tyranny of the majority (phadetkan siang khang mak) are used, uncritically, to describe the oppositions grievances after Thaksin Shinawatras party won an overwhelming majority of the seats in the 2005 elections. See TRCT, Final Report, p. 53. 12 Avudh Panananda, TRCT Report Is about Flawed Rule of Law, The Nation, September 14, 2012.
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between 1946 and 2001 have ever been investigated, prosecuted, or punished. Not a single reference, moreover, is made in the hundreds of pages of TRCTs Final Report to the massacres of pro-democracy demonstrators carried out by the state, with complete impunity, in 1973, 1976, and 1992. Not only do these tragic incidents, as Prof. Thongchai Winichakul recently explained in a letter to the ICC, represent relevant historical precedents for the events of 2010; the impunity that state authorities enjoyed for the killing of protesters in the past directly contributed to the abuses committed in 2010.13 Whereas, moreover, Dr. Thaksin is blamed for bringing the 2006 coup upon himself, the removal of a lawful government by illegal means is hardly unprecedented in Thailand, considering that a dozen successful coups have been staged in the twentieth century before Dr. Thaksin ever came to office. While the focus on Dr. Thaksin allows the TRCT to ignore the real roots of the conflict, which are located in the efforts by the Thai establishment to prevent the countrys democratization by any means necessary, the omission speaks volumes about the Commissions intellectual dishonesty and its utter disinterest in conducting a complete, dispassionate investigation into the violence and its causes.

4. TRCT ON THE 2010 BANGKOK MASSACRES

The TRCTs Final Report is an embodiment of the same double standards of justice that are at the heart of Thailands political divisions. This is not just evident in TRCTs analysis of root causes and purported solutions to the crisis, but also in the presentation of its findings about the 2010 massacres. Far from advancing accountability, the TRCTs report attempts to exonerate senior government officials involved in the planning and implementation of the crackdowns of all responsibility for the deaths of 82 civilian demonstrators, journalists, emergency workers, and bystanders. The TRCTs findings not only serve to protect the impunity that Thailands highest authorities have always enjoyed for killing protesters, but will likely further polarize an already deeply divided society, reinforcing the well-founded perception that Thailands justice system is systematically stacked in favor one side of the countrys political divide. As in previous episodes of state violence, the denial of truth and accountability renders reconciliation impossible and guarantees the future reoccurrence of similar abuses. The Crackdown of April 10, 2010 The crackdown of April 10, 2010 resulted in the death of 26 people, including five military officers, twenty protesters, and Japanese photojournalist Hiroyuki Muramoto. Each of the military officers died as a result of injuries from shrapnel, which the TRCT concludes were fired by a M-67 grenade launcher and, in one case, possibly an M-79 grenade launcher. Among the 21 civilians, one collapsed after suffering a respiratory problem; 18 were killed by high-velocity bullets, while two were killed by bullets that may or may not have been of the high-velocity variety. The TRCT reports that 864 were injured on April 10; among them, at least 300 are

Thongchai Winichakul, Re: Request to Help Bring Justice to Victims of the 2010 Bloodshed in Thailand, May 24, 2012. http://www.scribd.com/doc/98322348/Letter-to-ICC-Prosecutor-Draft
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said to have been soldiers. 14 Despite the fact that the number of civilians killed is four times larger than the number of soldiers who died on April 10, the TRCTs analysis of the clashes places the entirely of the blame on the Red Shirts. The TRCT argues that the deaths resulted from the actions of a half-dozen or less armed militants (often referred to as men in black or black shirts), who attacked the troops at two locations where the military and protesters had been facing off for some time. The first attack took place at 20:00 hrs at the Khok Wua intersection (the intersection of Ratchadamnoen Klang Avenue and Tanao Rd.), killing one soldier; the other took place in front of the Satri Witthaya School on Dinso Rd. at 20:45 hrs, killing four soldiers including the operations commander, Col. Romklao Thuwatham. In both instances, the resulting chaos and panic is identified as the reason why soldiers opened fire indiscriminately on the crowds of unarmed protesters, killing many. Aside from rejecting the proposition that there was any criminal intent on the part of the soldiers, their commanders, and those who planned, authorized, and oversaw the operation on April 10, the TRCT makes two additional claims designed to criminalize the actions of Red Shirt protesters. First, the Commission argues that the men in black were affiliated with a wing of the Red Shirt movement led by the late Maj.-Gen. Khattiya Sawasdipol (aka Seh Daeng) and acted upon knowledge of plans and troop movements obtained through contacts inside CRES. Second, the Commission argues that the armed militants, and by implication at least parts of the Red Shirt leadership, intended to provoke the military into opening fire on protesters with the purpose of maximizing the number of casualties among demonstrators,15 presumably in an attempt to discredit the government. The TRCT does not provide any new evidence to substantiate the claim that the men in blackwho remain unidentifiedwere affiliated with either Maj.-Gen. Khattiya or the rest of the Red Shirt leadership, relying exclusively on assumptions and tenuous conjecture. The TRCT specifically points to one incident in which a white van dropped off two or three armed militants in the vicinity of the Democracy Monument. The militants are said to have been quickly surrounded by UDD guards, who escorted them to the area where soldiers were stationed while attempting to shield them from view. This claim is based on testimony of a single, anonymous observer of the protesters (phu sangket kan chumnum),16 an expression presumed to refer to a government agent deployed among protesters. The TRCT also reports two sightings of Maj.-Gen. Khattiya near the scene of the clashes on April 10 and one on April 11,17 but at no point was Maj.-Gen. Khattiya ever spotted in the actual company of the militants who attacked soldiers. While similarly assuming that the men in black acted in support of the Red Shirts, Human Rights Watchs 2011 report Descent into Chaos had previously concluded that no evidence existed to support the notion that the militants were linked to any part of the Red Shirt leadership,18 and explicitly rejected the idea that these men had links with Maj.-Gen. Khattiya.19 That conclusion was based on the same information

TRCT, Final Report, p. 94. TRCT, Final Report, p. 111. 16 TRCT, Final Report, p. 98. 17 TRCT, Final Report, p. 106. 18 Human Rights Watch, Descent into Chaos: Thailands 2010 Red Shirt Protests and the Government Crackdown, May 2011, p. 44-46. 19 Human Rights Watch, Descent into Chaos, p. 79.
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presented by the TRCT. The recent report by the Peoples Information Center (PIC) also reiterates that no clear evidence exists about the identity and motives of the socalled men in black,20 while national security expert Wassana Nanuam recently reported military insiders as claiming that the men in black were motivated by factional rivalries within the military and had no association with the Red Shirts.21 Blaming the Red Shirt movement for the entirety of the violence that took place on April 10, 2010 also requires the TRCT to ignore evidence that soldiers had been firing live ammunition into the crowds of protesters since the mid-afternoon hours, as well as to gloss over the fact that at least six protesters were killed by government troops in incidents unrelated to the attacks staged by armed militants. The death of Mr. Kriangkrai Khamnoi, who was killed by high-velocity bullet at 15:00 hrs in front of Education Ministry near the Makkhawan Bridge, is described by the TRCT as unexplained on the grounds that while no protesters were seen carrying heavy weaponry in the area, no evidence was found to support the notion that troops fired live ammunition against the protesters.22 This description of the incident ignores the evidence provided by Human Rights Watch, whose report claims: video of the clashes [at the Makkhawan Bridge] that Human Rights Watch examined shows live ammunition being fired in semi-automatic mode, protesters collecting bullet casings and rounds from the ground, and many protesters apparently suffering from bullet wounds.23 Similarly, the TRCT omits to report that Red Shirt demonstrators had been killed at both the Khok Wua intersection and Dinso Rd. before soldiers came under attack from armed militants.24 The death of each of these protesters is acknowledged by the TRCT, but lumped together with those that took place owing to the confusion that prevailed in the armys ranks after the grenade attacks. At Khok Wua, the TRCT claims that soldiers only shot live ammunition into the crowd after 20:00 hrs. The report recently released by the Peoples Information Center (PIC), however, describes the death of at least three protesters killed prior to that incident: 1) Mr. Tawatanachai Klatsuk, 36, shot through the chest just before 19:00 hrs;25 2) Mr. Praison Tiplom, 37, shot through the head just before 19:00 hrs;26 3) Mr. Amphon Tottiyarat, 26, shot through the head just before 19:00 hrs.27 The latter, whose death was captured on video, was clearly shot from an elevated position at a time when no clashes were taking place. He had been holding a UDD flag at the time. At Dinso Rd., the TRCT claims that soldiers only shot live ammunition into the crowd after 20:45 hrs. However, the PIC reports that Mr. Bunjan Maiprasert, 55, died

Peoples Information Centre, Truth for Justice: The Circumstances and Consequences of the Rally Dispersal Operations, April-May B.E. 2553, September 2012. 21 Factions and Short Fuses, Bangkok Post, 21 May 2012. 22 TRCT, Final Report, p. 95. 23 Human Rights Watch, Descent into Chaos, p. 55. 24 Information about the timing and circumstances of each of the deaths is also provided at the Peoples Information Centers website: http://www.pic2010.org/death-footnote/. 25 PIC, Tawatanachai Klatsuk: http://www.pic2010.org/tawatanachai/ 26 PIC, Praison Tiplom: http://www.pic2010.org/prison 27 PIC, Amphon Tottiyarat: http://www.pic2010.org/ampon/
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as a result of a gun shot wounds sustained in front of Satri Witthaya School between 18:00-19:00 hrs.28 While the TRCT, moreover, acknowledges testimony given by protesters that soldiers had been firing live bullets from elevated positions for some time prior to 20:45 hrs, such claims are dismissed purely on the basis of testimony by government officials, who denied ever giving authorization for the deployment of troops on top of buildings.29 Finally, while the TRCT lists Mr. Mana Acharan, who was killed at around 23:00 hrs near the Dusit Zoo, as one of the casualties of the April 10 crackdown, it declines to provide any analysis of the circumstances of his death. In its analysis of the April 10 crackdown, the TRCT explicitly absolves the troops, their commanding officers, and government officials of any moral or legal responsibility for the killingsasserting, in contrast with the evidence described above, that all deaths among protesters were due to confusion among troops intentionally created by armed militants.30 Any death that clearly does not fit that narrative, as are the six incidents described above, is postdated, ignored, or labeled as unexplained. The only act for which the government, the military, and CRES are ever faulted by the TRCT is the use of helicopters to drop tear gas canisters into the crowds of protesters, a move that is described as ineffective and counterproductive.31 The entirety of the responsibility is thereby placed on armed militants, as well as the UDD guards and demonstrators alleged to have failed to take action to prevent the attacks.32 Again, this conclusion requires the TRCT to ignore the fact that Red Shirt guards, who were unarmed, had spent most of the day working to prevent more serious clashes from breaking out, as at least one foreign journalist present at the scene has documented.33 The Crackdown of May 13-19, 2010 While the incidents of April 10, 2010, have always been the subject of some controversy, the crackdown staged between May 13-19, 2010, in the areas surrounding the Ratchaprasong Intersection has been identified as criminal in nature and intent by virtually every independent organization that has ever investigated the incidents. By the TRCTs own count, the crackdown resulted in the death of 62 people, only two of them state officials. Some time after the rallies were dispersed, organizations like Reporters Without Borders (RSF)34 and the International Crisis Group (ICG)35 issued detailed reports that

PIC, Bunjan Maiprasert: http://www.pic2010.org/boonjun/ TRCT, Final Report, p. 103. 30 TRCT, Final Report, p. 113. 31 TRCT, Final Report, p. 97. 32 TRCT, Final Report, p. 112. 33 See Anthony Joh, Thai Army Clash with Red Protesters at Democracy Monument, April 18, 2010. Relevant portions are between 5:32 and 7:32 of this video report: http://www.youtube.com/watch?v=ypDPwpwr9G0&list=PL76C7CCDE06271998&feat ure=plcp 34 Reporters Without Borders, Thailand: Licence to Kill, July 2010. http://en.rsf.org/IMG/pdf/REPORT_RSF_THAILAND_Eng.pdf
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sharply condemned the indiscriminate killings committed by the Thai armed forces between May 13-19. A year later, in May 2011, Human Rights Watch Asia Director Brad Adams commented on the release of HRWs own investigation by pointing to the cold blooded acts of murder committed by the Thai military.36 At around the same time, the Marginalized Monsoon Group, an investigative team led by Ramkhamhaeng University professor Dr. Bandit Chanrojanakit, issued findings consistent with the existence of a policy to kill civilians and inflict heavy damage on the Red Shirt movement.37 The elements of that policy were confirmed in the report on the success of the operations that appeared in the military journal Senathipat. The report stated that the operation was designed as a battle plan for full scale urban warfare, not as a crowd control/dispersal operation.38 Most recently, the Peoples Information Center also pointed to the lack of any evidence supporting the notion that the troops only fired in self-defense. In case after case, those killed are shown by the PIC to have been utterly defenseless and to have posed no threat to the soldiers.39 Each of these reports concur on two contentions crucial to the notion that the crackdown of May 13-19 involved the commission of crimes against humanity. First, each report points to a clear intent to kill unarmed demonstrations by individual soldiers and attests to the widespread and systematic nature of the attack against a civilian population, involving the firing of up to 100,000 or more live rounds of ammunition. Second, each report draws a direct link between the policy formulated and approved at the highest levels of the Thai state and the killings that took place in the streets, variously faulting authorities for setting rules of engagement deliberately designed to give the Royal Thai Army a license to kill, as Reporters Without Borders described it, and/or for declining to take action once it became clear that the troops had interpreted the orders as a license to kill. Once again, the TRCT does not introduce significant new evidence compared to the above-mentioned reports, but rather provides a sweeping re-interpretation of the same evidence. In its treatment of the May 13-19 crackdowns, the TRCT concedes that troops made extensive use of live fire,40 killing many unarmed demonstrators, but explicitly attributes the violence to two factors alone. First, the TRCT claims that the resistance mounted by ordinary Red Shirts against the militarys operations, often with improvised weaponry, compelled the troops to fire on demonstrators out of concern for the danger that their actions presented to both property and the general public. At one point the report hastens to note that each time the soldiers opened fire, it was because someone in the general vicinity (though not necessarily those killed by soldiers) was trying to "disturb" or "obstruct" the operations. Second, the TRCT claims that the actions of heavily armed men in black made the troops

International Crisis Group, Bridging Thailands Deep Divide, ICG Asia Report 192, July 5, 2010, p. 18. http://www.crisisgroup.org/~/media/Files/asia/south-eastasia/thailand/192_Bridging%20Thailands%20Deep%20Divide.ashx 36 Rights Group Says Thai Troops Murdered Civilians, Straits Times, May 3, 2011. 37 Marginalized Monsoon Group, Preliminary Fact Finding Report on the Political Violence of May 13-19, 2011, May 2011, pp. -8 - -10. 38 The report was commissioned by a Lt. General in the Royal Thai Army to provide a set of guidelines on combating urban unrest. See Hua Na Kuang (pseudonym), Lessons from the Military Operations in the Siege of Ratchaprasong, May 14-19, 2010, Senathipat Vol. 59, No. 3 (2010), 57-68, p. 62. 39 Peoples Information Centre, Truth for Justice, Chapter 3. 40 TRCT, Final Report, pp. 183-184.
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nervous/worried (witok kangwon) and stressed (khriat), provoking them to respond by firing live bullets on the crowds, injuring or killing unarmed protesters and simple by-standers. 41 In no instance does the TRCT describe the killing of protesters as an act of murder. In fact, the general reference to the worry and stress of the troops is enough for the TRCT to absolve all soldiers involved of any criminal intent. With the exception of the assassination of Maj.-Gen. Khattiya Sawasdipol, who was shot by a sniper while being interviewed by foreign reporters on the evening of May 13, 2010, the discussion of each instance in which protesters were shot dead by government troops is preceded by a much longer disquisition on "armed elements" present in the area. Aside from the fact that the presence of heavily armed elements among demonstrators is often based on the testimony of military officers, which the TRCT typically accepts as fact without seeking corroboration, there is not a single instance in which the TRCTs report even attempts to show a direct nexus between the shots fired by the troops and the threat posed to either those who fired the shots or other officials in the area. No concern whatsoever is shown by the TRCT for whether any of the unarmed demonstrators who were shot in the head by snipers firing from elevated positions a considerable distance away42 themselves posed any danger to officials and the general public. The fact that no demonstrator killed was ever shown to have been armed or to have presented any threat to anyone is entirely incidental to the TRCTs analysis. Contrary to all other reports on the subject, the TRCT actually praises the policies designed by CRES and approved by the government of former Prime Minister Abhisit, which are accepted as consistent with the law and as reflecting appropriate concern for the safety of demonstrators and the general public.43 Once again, to the extent that bloodshed occurred, the TRCT attributes it to individual soldiers who deviated from the policy out of confusion and fear, albeit always as a result of actions taken by the Red Shirts and the armed militants presumably in their midst. With regard to the crackdown of May 13-19, the TRCT only faults CRES for its at times inadequate monitoring of the officials activities and for providing information to the troops that often exaggerated the threats they faced.44 Even that criticism, however, evidences the TRCTs exculpatory purposes, for while poor monitoring absolves government officials of any criminal intent for letting the violence continue over an entire weekmaking them at worst guilty of negligence the bad information at the troops disposal provides further rationalization for the conduct of individual soldiers.

5. THE NEED FOR ACCOUNTABILITY

The day after the TRCT issued its report, the Office of the High Commissioner for Human Rights (OHCHR) released a statement that applauded its findings and urged the Thai government to act on the TRCT's recommendations, both in holding state officials to account and addressing the institutional weaknesses identified in the

41 42 43 44

TRCT, Final Report, p. 170. See Human Rights Watch, Descent into Chaos, pp. 82-83. TRCT, Final Report, p. 188-193. TRCT, Final Report, p. 193.

report."45 Perhaps because the report is only available in the Thai language, the OHCHR missed the fact that the TRCT offers no basis upon which to hold state officials to account, but rather seeks to exonerate them entirely for their conduct in the crackdowns of April-May 2010. The TRCT report finds no intent to commit any crime on the part of soldiers or government officials on April 10, 2010, or May 13-19, 2010. Each of the killings of protesters the TRCT does not explicitly find to be justifiable is described as unresolved, accidental, or at worst negligent. The TRCT itself is highly ambiguous with regard to the issue of accountability. On the one hand, section 5.2.2 of the report states with regard to prosecutions: 5.2.2 TRCT believes that those who violated the laws must be held to appropriate legal account. If there is criminal act, then principally, there must be criminal liability and this must legally be brought to justice system. TRCT believes that peace and calmness cant occur in the society if there is no justice because the wrongdoers are not prosecuted. TRCT, therefore, demands the government to inquire, investigate and bring the wrongdoers from both sides to face the justice. The government must ensure the prosecution of the wrongdoers will be done fairly and equally without discrimination. The rights and freedom of the suspect, defendant and victim must strictly be respected and all the cases will be reviewed by the effective, independent and impartial judges. 46 Read in isolation, section 5.2.2 seems to call for criminal prosecutions, though the contents of the report suggest that the only prosecutions the TRCT envisions would be initiated against protesters. Even this possibility, however, is apparently negated by the following section, which argues that criminal prosecutions for past political violence are not suitable to Thai society. Section 5.2.3 states in its entirety: 5.2.3 TRCT, however, believes that the criminal acts committed during the violent incident or highly conflicted political situation in the past, are not normal behavior that happens in normal circumstance in the society because the actions were motivated by different political ideology and people were incited to be enraged as (they felt) there was no justice. The wrongdoers related to political conflict are not bad people or criminals by nature therefore to punish violent behavior might cause more anger and obstruct the reconciliation process. TRCT believes that to use criminal justice method that only aim to criminally punish people violated law due to political conflict can't solve conflicts and is not suitable to Thai society that is not in transitional period. TRCT stresses that it is necessary to apply transitional justice principle to this case. 47 This seeming rejection of criminal prosecutions was also expressly advocated by a TRCT spokesperson in their September 17 press conference. As reported by the

OHCHR, Thailand: UN Human Rights Chief Welcomes Release of National Report on 2010 Political Violence, September 18, 2012. http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=12535&La ngID=E 46 TRCT, Final Report, p. 243. 47 TRCT, Final Report, p. 243.
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Thai newspaper The Nation, Commissioner Somchai Homla-or said the TRCT did not intend to prosecute anyone. TRCT has no intention to bring anyone to justice or to blame anybody. Let us look ahead. Offered an opportunity to recant or to clarify this advocacy of impunity, the TRCT commissioners stood mute. As reported by The Nation: Asked if the Commission truly believed that nobody should be prosecuted as suggested by Somchai, there was no response from either Somchai or commission chairman Kanit na Nakorn.48 In other words, the point the TRCT seems to be making, if only implicitly, is that while high-level state officials who planned, ordered, and oversaw the crackdown are entirely free of either criminal or moral responsibility for the killings, even those who were identified as responsible for the violence (the protesters) and anyone who acted out of negligence should not be subjected to criminal prosecution. As expected, the TRCT wants a complete whitewash of the incidents of April and May 2010. As detailed in the letter sent by Prof. Thongchai Winichakul to the Office of the Prosecutor of the ICC on May 24, 2012,49 this is the same stance that Thai authorities adopted after each of the massacres of demonstrators that took place in 1973, 1976, and 1992. The TRCTs report, however, does far more than simply perpetuate Thailands culture of impunity. It rather provides a template based on which future massacres of demonstrators can be justified. Based on the TRCTs findings, it would appear that attacks staged by a dozen armed militants on hundreds or even thousands of heavily armed soldiers excuse the firing of some 100,000 live bullets and the killing of any number of protesters, irrespective of whether such killings happened before, during, or after said attacks, and without any concern for demonstrating a causal linkage between the attacks and the killings that supposedly took place during the confused response. In a country like Thailand, where state violence has invariably been justified by the authorities with reference to third hands and agents provocateurs, this amounts to giving future governments a license to kill. Once again, the findings of the TRCT not only provide further evidence for the admissibility of the case before the ICC, on the basis that Thailand remains unable and unwilling to prosecute crimes against humanity, but underscore the urgency of taking action to end impunity in order to prevent the reoccurrence of similar incidents. As it happens, while the TRCTs explanation for the weakness of the rule of law in Thailand is highly selective and partial, the implication that must be drawn from its admission that the Thai justice system is broken is that only the ICC can ensure that justice can be done with regard to the events of April and May 2010. Tellingly, TRCT Chairman Khanit na Nakhon is reported in the press as stating that any involvement by the ICC would bring dishonor to Thailand.50 Perhaps more distressing still to members of the TRCT is the dishonor that an investigation by the ICC would visit upon the efforts made in the past two years to excuse the crimes committed by the state.

Pravit Rojanaphruk, Panel Not Seeking Prosecutions, The Nation, September 18, 2012. 49 Thongchai Winichakul, Re: Request to Help Bring Justice to Victims of the 2010 Bloodshed in Thailand, May 24, 2012. http://www.scribd.com/doc/98322348/Letter-to-ICC-Prosecutor-Draft 50 Prot an ik khrang kham sang san-raingan kho.o.po arai kan nae kham, Matichon, September 20, 2012. http://www.matichon.co.th/news_detail.php?newsid=1348112514&grpid=01&catid= &subcatid=
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