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December 13, 2012

Letter to the Prosecutor of the International Criminal Court (ICC) Concerning Abhisit’s Criminal Liability

Social media is abuzz with reactions to an interview that former Prime Minister Abhisit Vejjajiva gave to the BBC. Looking flustered in answering the uncomfortable questions posed by interviewer Mishal Husain, Mr. Abhisit described the charges of pre-meditated murder recently filed against him as “far fetched.”

In light of the coverage generated by the BBC interview, we are releasing to the public the content of a letter my firm submitted to the Prosecutor of the International Criminal Court (ICC) on 31 October 2012. The letter focuses exclusively on Mr. Abhisit’s criminal liability, providing a comprehensive treatment of Mr. Abhisit’s involvement and individual responsibility for the commission of crimes against humanity in April and May 2010.

In brief, the evidence presented to the ICC substantiates the following claims:

· Former Prime Minister Abhisit was directly involved in the planning and approval of the military operations against the Red Shirt protesters. The former spokesperson of the Center for the Resolution of the Emergency Situation (CRES) testified that everything CRES did was based on instructions received from the government, which set the policy that CRES was tasked to implement. Because Mr. Abhisit had knowledge of the orders that had been transmitted down the chain of command when he authorized military operations against Red Shirt protesters, he is responsible for crimes committed by the security forces pursuant to such orders.

· The secret government document setting out the rules of engagement under which the military crackdowns of 10 April 2010 took place explicitly mentions that the orders contained therein were issued at the request of the Prime Minister. The rules of engagement authorized security forces to use deadly force against civilians, whether armed or unarmed, “to protect property” in addition to the lives of the officials or members of the general public.

· These regulations are in clear violation of the international standards specified in the United Nations’ “Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.” Even in the event of unlawful and violent assemblies, the Basic Principles only authorize the lethal use of firearms “when strictly unavoidable to protect life” (Principle 9).

· After the first failed crackdown, modified rules of engagement were approved by CRES on 18 April 2010, which expanded the powers of officials to use lethal force in order to protect “other people, official property, and private citizens under their guard.” The modified rules of engagement authorized security forces to use live ammunition against: 1) Anyone seen carrying weapons who disregarded a no trespassing order, posed any danger to others, or prepared to use the weapons against officials or the general public; 2) Unarmed civilians moving in a large crowd who contravened a no trespassing order and were perceived to pose an unspecified “danger;” 3) Anyone who resisted arrest or refused to submit to a search. The modified rules of engagement also approved the deployment of snipers who could target armed persons mixed with crowds of “innocent people” and allowed the provision of medical assistance to those injured, “according to human rights principles,” only “after officials have managed to bring the situation under control.” Because the modified rules of engagement were approved almost one month in advance of the crackdown of 13-19 May 2010, former Prime Minister Abhisit was aware of the plan he was authorizing when he ordered the commencement of military operations on 12 May 2010.

· The high casualty toll among unarmed civilians resulted directly from the policy authorized by the Prime Minister, as opposed to actions taken by security forces on their own initiative. Particularly under the modified rules of engagement, security forces were authorized to shoot civilians for merely throwing stones, handling slingshots, destroying property, or otherwise resisting the Army’s operations. As a direct result, by the Royal Thai Army’s own admission, troops fired nearly two hundred thousand rounds of live ammunition in the April and May crackdowns, including five hundred sniper rounds. While none of those killed or injured were ever shown to have posed any danger to the lives of the officials or the general public, the rules of engagement approved by the government nonetheless made them a legitimate target for the use of deadly force. Also responsible for the heavy loss of life during the second crackdown were the declaration of live fire zones (explicitly permitted under CRES’ secret orders), the enforcement of rules that only allowed the injured to receive medical treatment after the situation had already been brought under control, and the government’s failure to specify clear criteria to distinguish between legitimate and illegitimate targets of lethal force.

· Once confronted with reports of indiscriminate killings perpetrated by the armed forces, former Prime Minister Abhisit failed to exercise his authority as a superior to either suspend the operations or reshape them in a way consistent with international standards. As the second crackdown was unfolding, on 15 May 2010, Mr. Abhisit informed the public that any losses resulting from the military operations in fact had to be accepted in the interest of justice. On that basis, he refused to halt the operations. On 18 May 2010, moreover, Mr. Abhisit rejected a ceasefire proposed by a group of Senators who sought to broker an agreement with the Red Shirt leaders. As a result, twelve more people were killed on 19 May 2010, including the six gunned down by security forces at Wat Pathumwanaram, the temple designated by the government as a safe zone.

· Finally, former Prime Minister Abhisit is responsible for the crime against humanity of imprisonment and other severe deprivation of physical liberty, through his knowledge and approval of the CRES policy that authorized the illegal detention and enforced disappearance of hundreds of protesters after the rallies were dispersed.

Our position remains that Mr. Abhisit deserves a fair trial conducted under no presumption of guilt. Nonetheless, given the evidence of Mr. Abhisit’s involvement in serious crimes, it is not possible to describe the charges against him as “far fetched.” Increasingly far-fetched are rather the excuses Mr. Abhisit offers for why, in his words, “unfortunately some people died” as a result of his actions.

Below is the full document.

 Addendum on former Prime Minister Abhisit Vejjajiva’s criminal responsibility under the Rome Statute of the…

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