Open Letter to PM Abhisit on Unwillingness to Investigate Killings
Hon. Abhisit Vejjajiva
Prime Minister of Thailand
(By email: Abhisit@abhisit.org)
Re: Thailand’s Violations of International Law
Dear Prime Minister:
As you now know, this law firm acts as counsel to former Prime Minister Thaksin Shinawatra and as advisors to Thai counsel for members of the United Front for Democracy against Dictatorship (UDD) charged criminally in connection with the so-called Red Shirt demonstrations in Bangkok in April and May 2010 (referred to here as the “Demonstrations”). We are writing to you in your official capacity as prime minister, and in your individual capacity as an individual of interest under international criminal law standards.
We have written you twice – first on June 29, 2010 and subsequently on August 6, 2010 – to notify you of Thailand’s obligations under the International Covenant on Civil and Political Rights (ICCPR) to perform a genuinely independent and impartial investigation into the deaths of more than 80 civilians killed during the Demonstrations. We also notified you of your duty under the ICCPR to provide defense counsel for the charged UDD members with the opportunity to review all evidence, and we requested access to same. You have not responded to either of our communications.
It is increasingly apparent that your government does not intend to comply with its obligations under international law, but is instead engaged in a cover-up of crimes against humanity perpetrated by the Thai Royal Army against unarmed civilians during and after the Demonstrations.
On April 20, 2010, you divested the police of its legal authority to investigate the killings, placing that authority instead in the Department of Special Investigations (“DSI”). For more than four months, the DSI conducted no investigation into the killings. It made no effort to comply with the Thai Code of Criminal Procedure, requiring a presentation of all available evidence – including evidence regarding the identity of the perpetrators, and evidence to justify the use of deadly force – to the Courts, which are in turn required to issue findings regarding the identity of perpetrators of the killings. (See Code of Criminal Procedure of Thailand, Division II, Section 148, et seq.)
Nevertheless, your government arrested and formally charged UDD leadership with responsibility for the civilian deaths – having conducted no investigation into the cause of the deaths – in violation of these defendants’ due process rights. As of this date, nineteen UDD leaders remain arbitrarily detained.
On August 28, 2010 – more than four months after the first killings during the Demonstrations, apparently in response to public outcry – you finally instructed the DSI to form committees to investigate the facts. In this regard, we note that the DSI is neither independent nor impartial, in that it answers to the Center for Resolution of Emergency Decree (“CRES”), created under the authority of the Emergency Decree dated April 7, 2010. The CRES has repeatedly accused the Red Shirt leadership of conspiring to overthrow the monarchy, while the Emergency Decree remains in effect even though conditions in Thailand have largely returned to normal. These circumstances are fundamentally inconsistent with any notion of investigative independence and impartiality.
Your refusal to dissolve the Emergency Decree and return investigative authority to the police is a strong indication of a cover-up, in the face of numerous eyewitnesses and video evidence indicating that members of the Thai military are responsible for the more than 80 civilian deaths. The CRES transfer of investigative authority away from the police department on April 20, 2010 put an immediate stop to the investigations by the Royal Thai Police, which were in progress. The DSI is in possession of autopsy reports for all civilians, but none have been provided to the defense team for our clients or to the relatives of the victims, nor has the DSI provided the defense team with any close circuit video footage of the Demonstrations and their dispersal. No member of the Thai Royal Army has been arrested or even interrogated, despite extensive photographic and video evidence clearly identifying soldiers who appear to be discharging their weapons into civilian crowds. The DSI has never summoned other witnesses, including, for example, management personnel at buildings used by Army snipers to inquire into how troops obtained access to tactical positions atop those buildings, or authorities of the Bangkok Transit System to ascertain the identity of Army personnel who were videotaped atop the Sky Train on May 19. Indeed, the DSI’s months of delay have resulted in stale evidence and a general difficulty identifying witnesses.
Indeed, the government has created an ongoing atmosphere of intimidation in Thailand, which discourages witnesses from speaking openly about the events. The continuation of the Emergency Decree itself – which permits authorities to exercise extraordinary measures against suspects – creates an improper chilling effect. At least three UDD guards have died of unnatural causes since the end of the Demonstrations. CRES continues to use its powers to freeze assets of individuals associated with the Red Shirt movement, leading to fears of financial investigations in retaliation for unwelcome opposition. Various incidents involving M79 and rocket-propelled grenade have been blamed on the Red Shirt movement by the state-controlled media, without evidentiary support. The DSI recently dismissed credible allegations of financial wrongdoing involving funding to high-ranking members of the Democrat Party, signaling a continuation of the double standard employed by Thai authorities to the detriment of the Red Shirt movement. All of these circumstances contribute to the reasonable appearance that your government cannot be entrusted to conduct an independent or impartial investigation into the civilian killings, while it holds the UDD leaders criminally responsible for the deaths.
We again remind you that failure to ensure a remedy for the victims of serious crimes such as extrajudicial and/or arbitrary killing can itself constitute a violation of the ICCPR. Additionally, the Rome Statute that created the International Criminal Court imposes criminal responsibility against military and civilian superiors who fail to submit crimes against humanity for investigation and prosecution if they knowingly or consciously disregard information that clearly indicates the commission of such crimes by subordinates within their responsibility or control. See Rome Statute, Art. 28(b)(III). This doctrine is also a matter of customary international law, applicable to Thailand.
Given the conduct described above, it is apparent that there is a resolute unwillingness and inability on behalf of the Government of Thailand to conduct a thorough and independent investigation into these crimes against humanity.
We suggest that you govern yourself accordingly.
Robert R. Amsterdam
AMSTERDAM & PEROFF LLP
LONDON, UNITED KINGDOM
cc: Madam Navi Pillay (by email)
United Nations High Commissioner for Human Rights
cc: Mr. Geert-Jan Alexander Knoops (by email)
Knoops & Partners Advocaten
Amsterdam, The Netherlands