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November 20, 2012

Letter to the Nation on Benjamin Zawacki and the ICC

My letter in response to Benjamin Zawacki’s misinformed dismissal of the ICC to investigate the massacres of more than 90 protesters in Bangkok in 2010 has been published by The Nation.

Commenting in The Nation last week, American lawyer Benjamin Zawacki opposes a Thai declaration accepting the jurisdiction of the International Criminal Court (ICC) over the killings and wounding of civilian demonstrators in 2010. Instead he argues that Thailand should ratify the ICC Statute. Unfortunately, Zawacki is ill-informed on the purpose, procedure, precedent and policy of accepting ICC jurisdiction.

On one point he is correct: Thailand should indeed join the other 121 nations that are now States Parties to the ICC. But ratifying the ICC Statute would grant the ICC jurisdiction only over future crimes. The only way to grant the ICC jurisdiction over past crimes is for Thailand to make a declaration of ad hoc acceptance of ICC jurisdiction, under Article 12.3 of the ICC Statute.

Zawacki writes as if the purpose of an Article 12.3 declaration is to turn over the responsibility to investigate crimes to the ICC. It is not. The purpose of accepting ICC jurisdiction is to open an ongoing, constructive dialogue between the ICC and Thailand, in which the ICC will encourage Thailand to conduct genuine investigations and, where warranted, to prosecute those “most responsible” for crimes against humanity.

The way the ICC works is illustrated by its long-standing dialogue with Colombia. The ICC formally opened a preliminary examination of alleged crimes in Colombia in 2004. Ever since, the ICC has engaged in dialogue with Colombian authorities, encouraging their pursuit of justice. In a status report this month, ICC Prosecutor Fatou Bensouda notes that, although Colombia’s progress “has been slower than might have been expected”, she “does not at this stage consider that the delays in reaching a conclusion to criminal proceedings necessarily indicate a lack of willingness or ability”. She will therefore continue to pursue her “exchange of communications” with Colombia.

Once Thailand makes an Article 12.3 declaration accepting ICC jurisdiction, a similar process will follow. If Thai police and courts genuinely investigate and prosecute those most responsible for past crimes, the ICC’s role in Thailand, as in Colombia, will be to engage in continuing dialogue and monitoring of progress. Only if Thai authorities do not genuinely pursue those most responsible for the crimes, would the ICC step in.

Zawacki is also not clear on the procedure to be followed. Once a 12.3 declaration is made, the ICC would not proceed directly to open an investigation. Rather, as in Colombia, the ICC would open only a preliminary examination – the purpose of which is to determine whether a full ICC investigation is warranted. If Thai authorities genuinely pursue justice, there will be never be a need for the ICC to open a full investigation.

Zawacki is also misinformed on precedent. Acceptance of ICC jurisdiction by a non-party state, he writes, “has never happened”. In fact, it has happened not once, but three times: all by Cote D’Ivoire [Ivory Coast], which made Article 12.3 declarations accepting ICC jurisdiction in 2003, 2010 and 2011.

Finally, Zawacki misconstrues the policy of accepting ICC jurisdiction. The point is not to launch a political vendetta against [former prime minister] Abhisit Vejjajiva, [former prime minister] Thaksin shinawatra or anyone else. Rather the goal is to pursue justice wherever it may lead. Strong evidence has been presented to the ICC that the killing and wounding of civilian demonstrators in 2010 was systematically planned by Thai authorities. If so, they were crimes against humanity. In contrast, no such evidence concerning the 2003 anti-drug campaign has been presented to the ICC.

If Zawacki wishes to dismiss genuine investigations of the well-documented allegations of crimes against humanity in Bangkok in 2010 as a mere political ploy, then he has not heard the pleas of the families of the victims. Their tears cry out for justice. Not only justice for their loved ones, but justice so that the Thai cycle of recurrent massacres, followed by impunity, will finally be brought to an end.

Robert Amsterdam is counsel to the United Front for Democracy Against Dictatorship.

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