Addendum on former Prime Minister Abhisit Vejjajiva’s criminal responsibility under the Rome...

7/30/2019 Addendum on former Prime Minister Abhisit Vejjajivas criminal responsibility under the Rome Statute of the ICC

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31 October 2012Honorable Fatou BensoudaProsecutorInternational Criminal CourtPO Box 195192500 CM

The HagueThe Netherlands

Re: OTP-297/10; National United Front for Democracy againstDictatorship, Application to the Prosecutor of the InternationalCriminal Court to Investigate the Situation of the Kingdom ofThailand with regard to the Commission of Crimes againstHumanity, filed January 31, 2011. Addendum on former PrimeMinister Abhisit Vejjajivas criminal responsibility under theRome Statute of the ICC.

Dear Madam Prosecutor:

This letter supplements the Application to Investigate the Situation of the Kingdom ofThailand with Regard to the Commission of Crimes Against Humanity, filed with theOffice of the Prosecutor (OTP) of the International Criminal Court (ICC) on 31January 2011 by Amsterdam & Partners LLP on behalf of the National United Front forDemocracy Against Dictatorship (UDD).

In previous communications with the OTP, the Applicant provided evidence that crimesagainst humanity were committed in Thailand in April and May 2010, substantiatingthat the crimes in question meet the legal criteria established by the ICC Statute and

clarified by OTP policies to warrant the opening of a Preliminary Examination. Whileprevious submissions addressed the admissibility of the crimes and the ICCs

jurisdiction ratione personae over former Prime Minister Abhisit Vejjajiva, this letterprovides a more comprehensive treatment of Mr. Abhisits criminal responsibility forthe crimes against humanity of murder, other inhumane acts, and imprisonment andother severe deprivation of physical liberty under Articles 25 and 28 of the RomeStatute.

As set out in this letter, recently released independent investigative reports, leakedgovernment documents, and news reports describing the contents of testimonies given

by officials involved in the crackdowns to Thai law enforcement authorities provideevidence substantiating the following:

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

The secret government document setting out the rules of engagement under whichthe military crackdowns of 10 April 2010 took place explicitly mentions that theorders contained therein were issued at the request of the Prime Minister. The rulesof engagement authorized security forces to use deadly force against civilians,


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whether armed or unarmed, to protect property in addition to the lives of theofficials or members of the general public.

After the first failed crackdown, modified rules of engagement were approved byCRES on 18 April 2010, which expanded the powers of officials to use lethal force inorder to protect other people, official property, and private citizens under their

guard. The modified rules of engagement authorized security forces to use liveammunition against: 1) Anyone seen carrying weapons who disregarded a notrespassing order, posed any danger to others, or prepared to use the weaponsagainst officials or the general public; 2) Unarmed civilians moving in a large crowdwho contravened a no trespassing order and were perceived to pose an unspecifieddanger; 3) Anyone who resisted arrest or refused to submit to a search. Themodified rules of engagement also approved the deployment of snipers who couldtarget armed persons mixed with crowds of innocent people and allowed theprovision of medical assistance to those injured, according to human rightsprinciples, only after officials have managed to bring the situation under control.Because the modified rules of engagement were approved almost one month inadvance of the crackdown of 13-19 May 2010, former Prime Minister Abhisit wasaware of the plan he was authorizing when he ordered the commencement ofmilitary operations on 12 May 2010.

The high casualty toll among unarmed civilians resulted directly from the policyauthorized by the Prime Minister, as opposed to actions taken by security forces ontheir own initiative. Particularly under the modified rules of engagement, securityforces were authorized to shoot civilians for merely throwing stones, handlingslingshots, destroying property, or otherwise resisting the Armys operations. As adirect result, by the Royal Thai Armys own admission, troops fired nearly twohundred 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 generalpublic, the rules of engagement approved by the government nonetheless madethem a legitimate target for the use of deadly force. Also responsible for the heavyloss of life during the second crackdown were the declaration of live fire zones(explicitly permitted under CRES secret orders), the enforcement of rules that onlyallowed the injured to receive medical treatment after the situation had already been

brought under control, and the governments failure to specify clear criteria todistinguish between legitimate and illegitimate targets of lethal force.

Once confronted with reports of indiscriminate killings perpetrated by the armedforces, former Prime Minister Abhisit failed to exercise his authority as a superior toeither suspend the operations or reshape them in a way consistent with internationalstandards. As the second crackdown was unfolding, on 15 May 2010, Mr. Abhisitinformed the public that any losses resulting from the military operations in facthad to be accepted in the interest of justice. On that basis, he refused to halt theoperations. On 18 May 2010, moreover, Mr. Abhisit rejected a ceasefire proposed bya 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 sixgunned down by security forces at Wat Pathumwanaram, the temple designated bythe government as a safe zone.

Finally, former Prime Minister Abhisit is responsible for the crime against humanityof imprisonment and other severe deprivation of physical liberty, through his

knowledge and approval of the CRES policy that authorized the illegal detention andenforced disappearance of hundreds of protesters after the rallies were dispersed.


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Abhisit Vejjajivas Role in the Commission of Crimes against Humanity

Beginning on 12 March 2010, the Red Shirts of the National United Front forDemocracy against Dictatorship (UDD) staged massive demonstrations in Bangkok,Thailand. In response to the demonstrations, the Royal Thai Armyunder the directionand approval of Prime Minister Abhisit and others in the governmentkilled a total of

at least eighty-three civilians and wounded two thousand others in separatecrackdowns staged on 10 April 2010 and 13-19 May 2010. Victims included journalistsdocumenting the events and medical volunteers assisting the injured.

The initial Application sought to establish a reasonable basis to believe that severalcrimes against humanity defined in Article 7 of the ICC Statute were committed before,during, and after the crackdown launched by the formal Thai government and Thaiarmy on the Red Shirt rallies in April and May 2010. The present letter focuses on thecrimes against humanity of murder and other inhumane actsacts of violence bywhich officers of the Royal Thai Army killed at least eighty-three civilians and woundedsome two thousand others as part of a widespread and systematic attack on a civilianpopulation carried out under a state policy approved at the highest levels of Thailandsgovernmentas well as the crime against humanity of arbitrary imprisonment andother severe deprivation of physical liberty.

The use of force against civilians was effectuated by military forces of the Royal ThaiArmy at the direction of former Prime Minister Abhisit and officials in the Center forthe Resolution of the Emergency Situation (CRES), established by an order of the PrimeMinister pursuant to the declaration of a State of Emergency on 7 April 2010 for thepurposes of coordinating the governments response to the Red Shirt demonstrations.CRES included the leaders of all branches of Thailands military and law enforcementapparatus, and was led by Mr. Abhisits Deputy Prime Minister, Suthep Thaugsuban.Many of the written orders transmitted down the chain of command during the

crackdowns were signed by Mr. Suthep in his capacity as CRES Director.

As the Prime Minister, Mr. Abhisit is both legally and morally responsible for anyorders or directives issued by CRES. According to Section 6 of 2005 Emergency Decree,under whose provisions CRES was established, the powers and duties of CRES werelimited to monitoring and inspecting the emergency situation for the purposes ofadvising the Prime Minister on appropriate measures. While the Emergency Decreeallows the Prime Minister to delegate some powers in an emergency situation, nowheredoes it provide that the authority of the Prime Minister as the countrys chief executiveis in any way diminished in the context of a declared emergency.

CRES, therefore, only served at the pleasure of the Prime Minister, and only exercisedauthority granted to it by the Prime Minister. In addition, CRES met in the samebuilding, 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 inCRES meetings, both before and during the crackdowns. Evidence also shows that theformer Prime Minister was directly involved in the planning and approval of themilitary operations against the Red Shirt protesters. In November 2011, former CRESSpokesperson Col. Sansern testified to police that the military only drew its authorityto act from CRES, based on directives issued by the Prime Minister and the DeputyPrime Minister, who served as CRES Director.1

1 Col Sansern Testifies to Police on April-May Crackdown Last Year, Prachatai,November 18, 2011. http://prachatai.com/english/node/2897


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In the case of the first crackdown of 10 April 2010, the leaked secret directive by whichCRES ordered the Royal Thai Army to reclaim the area (khuen phuen thi) where therallies were taking place around the Phan Fa Bridge, and set out the operations rules ofengagement, explicitly mentions that the orders were issued at the request of the PrimeMinister.2 In the case of the second crackdown of 13-19 May 2010, Mr. Abhisitpersonally 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 militaryjournal.3 The plan for the May crackdown, which included modified rules ofengagement and authorized the deployment of snipers, was approved by the CRESDirector on 18 April 20104almost one month in advance. When Prime Minister Abhisitgave the order to disperse the demonstrators on 12 May 2010, therefore, he was awareof the plan whose implementation he was authorizing. On May 11, 2010, Mr. Abhisitpublicly stated the following: at this point, the state has the legitimate authority to dowhat is necessary to restore security and normalcy.5

The leaked secret documents referenced above, which contain instructions and rules ofengagement for both crackdowns, demonstrate that the high casualty toll amongunarmed civilians resulted directly from the policy designed by CRES and approved byformer Prime Minister Abhisit. The rules of engagement issued by CRES in advance ofthe operations on 10 April 2010 specify the circumstances in which soldiers wereauthorized to use live fire as follows:

3.2 Use of weapons:

3.2.1 Officials are authorized to use weapons in self-defense and forthe purposes of protecting the lives and property of the general public.

3.2.2 The use of weapons under 3.2.1 should be carried out when:

3.2.2.1 Officials directly encounter wrongdoers and must defendthemselves and the civilians under their guard from danger.

3.2.2.2 Officials are faced with an imminent danger, whichthreatens the lives of the officials or civilians under their guard.

3.2.3 If officials find it necessary to use weapons, they should do so inthis order:

3.2.3.1 Step 1: Issue a verbal warning to cease the conductmentioned above;

3.2.3.2 Step 2: Shoot warning shots in the air, or shoot in anotherdirection where it is safe to do so;

2 The document is reproduced in Appendix 1 below, pp. 13-14. See para. 2, p. 11.3 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 guidelines on combating urban unrest.For a summary in English: http://robertamsterdam.com/thailand/?p=840.4 The document is reproduced in Appendix 2 below, pp. 15-20.5 See Peoples Information Centre, Truth for Justice: The Circumstances andConsequences of the Rally Dispersal Operations, April-May B.E. 2553 (Bangkok: PIC,2012), p. 572.


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3.2.3.3 Step 3: Use weapons according to standards of self-defenseconsistent with the law and appropriate to the situation.6

Modified rules of engagement that expanded the range of circumstances in whichofficials could use live fire were approved by CRES on 18 April 2010. The document

stated that the presence of armed elements within the demonstrators justified thebroadening of circumstances in which officials could use force to protect other people,official property, and private citizens under their guard and to allow the provision ofmedical assistance to the perpetrators according to human rights principles afterofficials have managed to bring the situation under control.7 Specifically, theregulations allowed officials to shoot anyone seen carrying weapons who disregarded ano trespassing order, posed any danger to others, or prepared to use the weaponsagainst officials or the general public. As a last resort, even unarmed civilians could beshot with shotguns and rifles in cases where a large group of demonstratorsadvanced towards the officials, disregarding a no trespassing order, to the point ofcreating a dangerous situation.8 Officials were also authorized to use live bulletsagainst suspects who resisted arrest or refused to submit to a search. 9 Finally, theorder approved the deployment of marksmen, or snipers, to elevated positions fromwhich they were authorized to use live ammunition against armed persons mixed withcrowds of innocent people, whom other officials were not allowed to target.10

These regulations are in clear violation of the standards specified in the UnitedNations Basic Principles on the Use of Force and Firearms by Law EnforcementOfficials. Even in the event of unlawful and violent assemblies, the Basic Principlesrequire governments to abide by conditions stipulated in Principle 9, which is asfollows:

9. Law enforcement officials shall not use firearms against persons except in

self-defense or defense of others against the imminent threat of death orserious injury, to prevent the perpetration of a particularly serious crimeinvolving grave threat to life, to arrest a person presenting such a dangerand resisting their authority, or to prevent his or her escape, and only whenless extreme means are insufficient to achieve these objectives. In any event,intentional lethal use of firearms may only be made when strictlyunavoidable in order to protect life.

CRES regulations for both crackdowns go well beyond authorizing the lethal use offirearms when strictly unavoidable to protect life. Perhaps most significantly, in bothcrackdowns officials were authorized to use live ammunition to protect property. Inpractice, what that meant is that anyone seen burning tires, hurling stones and otherobjects, handling slingshots, and engaging in any kind of property destruction was alegitimate target for the use of lethal force. In the case of the crackdown of 13-19 May,moreover, unarmed civilians moving in a large crowd who contravened a no trespassingorder and were perceived to pose an unspecified danger were also a legitimate targetfor the use of live ammunition. While the rules of engagement required the troops notto aim their weapons at vital organs, that is of no consequence to either the

6 See Appendix 1 below, p. 14.7 See Appendix 2 below, para. 2.1, p. 15.8 See Appendix 2 below, para. 2.2, p. 16.9 See Appendix 2 below, para. 2.3, p. 16.10 See Appendix 2 below, para. 2.5, p. 16.


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lawfulness of the policy or likelihood that the policy would result in heavy casualtiesamong the unarmed demonstrators it had made into a legitimate target for the use oflive ammunition.

The CRES directive in question confirms the Statement of Anonymous Witness No.22, a composite of testimonies collected by the Applicant from a number of high-

ranking officers in the Royal Thai Army, which was included in the Application toInvestigate the Situation of the Kingdom of Thailand submitted to the OTP on 31January 2011. Over a year before the secret orders were leaked to the press,Anonymous Witness No. 22 stated as follows with regard to the official policy issued byCRES and approved by former Prime Minister Abhisit in advance of the crackdown of13-19 May:

59. Their orders were to shoot any person suspected of having weapons, andthey were not required to determine whether anyone actually had weapons.Their pre-deployment orders expressly stated that any individual carrying aslingshot was to be considered armed and dangerous. The troops were alsoordered to shoot any Red Shirt guard on sight, whether armed or not. Thus,the troops were, in effect, permitted to shoot anyone they wished.

Anonymous Witness No. 22 also testified to the existence of an unwritten policy, inboth crackdowns, that called for the assassination of the Red Shirt leaders and for thedeployment of military snipers, who would seek to provoke the crowds into committingacts of violence, providing in turn a pretext for the troops to open fire ondemonstrators. With regard to the crackdown of 13-19 May, moreover, AnonymousWitness No. 22 stated that the troops were under unwritten orders to shoot everymoving target in the so-called live fire zones as well as to impede the removal of

bodies from the scene and prevent journalists from documenting criminal activity on

the part of the security forces. According to Anonymous Witness No. 22, former PrimeMinister Abhisit approved every element of this policy. While the existence and exactnature of the unwritten, unofficial policy remains to be ascertained by a fullinvestigation, the accuracy of the witness with regard to the governments officialpolicy, as revealed in the rules of engagement issued by CRES, lends additionalcredibility to the statements made with regard to the unofficial policy.

Indeed, not only did the rules of engagement devised for both crackdowns provide thetroops with a license to kill demonstrators, even for destroying property; thegovernment in fact took actions that appear to have been designed to inflict evenheavier losses among demonstrators. With regard to the crackdown of 10 April, theindependent Peoples Information Center (PIC) faults the government for stagingdispersal operations at nighttime as well as for failing to properly inform the publicabout the rules of engagement that had been adopted. In contrast with the secretdocument cited above, CRES public announcements emphasized that the soldiers hadonly been authorized to shoot live ammunition in the air to frighten demonstrators.11With regard to the crackdown of 13-19 May, the PIC points out that the rules ofengagement adopted by CRES resulted in heavy loss of life, especially given thedeclaration of live fire zones (explicitly permitted under CRES secret order) as well asthe enforcement of rules that only allowed the injured to receive medical treatmentafter the situation had already been brought under control.12 The PIC further faults therules of engagement for providing no real standards to distinguish between legitimate

11 See Peoples Information Centre, Truth for Justice, p. 558.12 See Peoples Information Centre, Truth for Justice, pp. 577-578, pp. 589-591.


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targets (terrorists) and regular demonstrators, arguing that the result of thisomission was that only unarmed civilians, journalists, and medics were shot dead.13

Aside from the fact that the troops, by the Royal Thai Armys own admission, firednearly two hundred thousand rounds of live ammunition in the April and Maycrackdowns, including five hundred sniper rounds,14 no evidence has ever emerged that

any of those killed by the authorities were in possession of any weapons or posed anythreat to the life of either the officials or members of the general public.

Once confronted with reports of killings perpetrated by the armed forces, former PrimeMinister Abhisit failed to either suspend the operations or reshape them in a wayconsistent with international standards. At 20:15 hours on 15 May 2010, after morethan two dozen people had already been killed in the crackdown authorized daysearlier, Mr. Abhisit publicly announced on television that he had no plan to put a stopto it:

I would like to reiterate to our brothers and sisters in the population that itwas necessary for the government to use weapons. Because the state cannotallow the country to be in a situation where outlaws can come and holdBangkok hostage and cannot allow groups who are not satisfied with thegovernment to set up a force that harms officials, the people, and variousinstitutions. We must press ahead, without retreat, to restore the rule of lawto the country. Therefore, whenever there are losses, they must be accepted,as this is the only way that justice can be achieved.15

On that basis, Mr. Abhisit failed to halt the operations or order modified rules ofengagement even when confronted with reports of a high death toll among civiliansand the targeting of both journalists and emergency workers. On 18 May 2010, Mr.

Abhisit rejected a ceasefire proposed by a group of Senators who sought to mediate anagreement with the Red Shirt leaders. As a result, twelve more people were killed on 19May as the troops stormed the protest site and then opened fire on civilians who hadtaken shelter at Wat Pathumwanaram, which had been designated by the governmentas a safe zone.

Former Prime Minister Abhisit Vejjajiva was also involved in the commission of thecrime against humanity of imprisonment and other severe deprivation of physicalliberty in the aftermath of the May 2010 crackdown, when hundreds of people wererounded up on the basis of the sweeping powers the Royal Thai Government granteditself by invoking the emergency decree. A major report issued by Human Rights Watchin 2011 contains evidence that the persons detained in the wake of the Red Shirt rallieswere unlawfully deprived of their liberty, as the declaration of a state of emergencydoes not exempt a government from the obligation to guarantee basic rights containedin the ICCPR. Human Rights Watch denounces the hundreds of episodes of arbitrarydetention in repurposed military facilities in the provinces of Prachinburi,Kanchanaburi, Saraburi, Ratchaburi, Chantaburi, and Pathum Thani, describing theepisodes as enforced disappearances that violate international law:

13 See Peoples Information Centre, Truth for Justice, pp. 593.14 Army Ammo Count Differs from TRC's, Bangkok Post, 21 September 2012.http://www.bangkokpost.com/news/politics/313300/army-ammo-count-differs-from-trc15 Quoted in People Information Center, Truth for Justice, p. 585.


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Apart from the cases of key leaders who surrendered to the authorities afterthe dispersal of the UDD protests on May 19, the CRES has withheldinformation for months about other rank-and-file protesters detained bothwith and without charge. The CRES did not provide information to familymembers regarding the whereabouts of most detainees during the entireperiod of detention in military facilities. This violated section 12 of the

Emergency Decree, which requires that officials file a report on the arrestand detention of suspects for submission to the court and deposit the reportat their office so that detainees relatives have access to it for the entireduration of detention.

When authorities deny holding a detained individual or fail to provideinformation on a persons fate or whereabouts, the government iscommitting an enforced disappearance in violation of international law.16

The Human Rights Watch report also contains several witness testimonies from

detained Red Shirt protesters. The witness statements confirm that the authoritiesbarred the detainees from contacting their families. The report concludes:

Human Rights Watchs previous research in Thailand has found the risk ofabuse significantly increases when individuals are held in full or virtualincommunicado detention in unofficial locations, under the control ofmilitary personnel (who lack training and experience in civilian lawenforcement), and without access to legal counsel or other effective judicialand administrative safeguards against torture and ill-treatment. Theseconcerns have been greatest in Thailand's southern border provinces, wherean Emergency Decree has been enforced since 2005 to quell separatistinsurgents. Human Rights Watch's extensive investigations in the south

uncovered many cases of serious abuses committed by security personnelagainst detainees, including custodial deaths, torture, and enforceddisappearances.17

The use of unofficial locations where demonstrators were held was approved by anorder of CRES. Former Prime Minister Abhisit was fully aware of the existence of thispolicy, as the illegal detentions documented by Human Rights Watch continued formonths after the dispersal of the Red Shirt rallies.18 It would have been well within thepowers of the Prime Minister to order the rectification of the policy that resulted in theillegal detentions; the fact that he did not implies Mr. Abhisits agreement with the

policy, or at a minimum his unwillingness to do anything put a stop to the crimes.

The Statement of Anonymous Witness No. 20 and the Statement of AnonymousWitness No. 22, which were included in the initial Application to Investigatesubmitted to the OTP on 31 January 2011, provide additional evidence with regard toMr. Abhisits approval of an unwritten policy that resulted in the illegal detention ofhundreds of protesters and their leaders. According to Anonymous Witness No. 20, acomposite of a number of law enforcement officials with knowledge of the facts, thegovernment had an unofficial policy to destroy evidence of criminal acts committed by

16 Human Rights Watch, Descent Into Chaos: Thailands 2010 Red Shirt Protests and theGovernment Crackdown, May 2011, p.121.17 Human Rights Watch, Descent Into Chaos, pp. 125-126.18 Human Rights Watch, Descent Into Chaos, p. 121.


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security forces, while fabricating evidence against the Red Shirt leaders, many of whomwere put on trial on politically motivated charges of terrorism and held in custodywithout bail for up to nine months after the rallies dispersal. Anonymous Witness No.22 similarly testified to the existence of a government policy, authorized by formerPrime Minister Abhisit, to plant evidence designed to incriminate the Red Shirts andcreate the false appearance that the Red Shirts are responsible for the violence.

According to Anonymous Witness No. 22, the policy included the staging of bombingsand other acts of violence throughout the city of Bangkok, which provided a

justification for the government to keep the emergency decree in place for monthsafter the violence, thereby giving it the power to prolong the illegal detentions.

Mr. Abhisits Criminal Responsibility under the Rome Statute of the ICC

The evidence presented above demonstrates that former Prime Minister AbhisitVejjajiva is criminally responsible for the commission of the crimes against humanityof murder, other inhumane acts, and imprisonment and other severe deprivation ofphysical liberty under provisions of the Rome Statute of the ICC that set out theprinciples of individual criminal responsibility (Article 25) and superior responsibility(Article 28).

Article 25(3) of the Rome Statute specifies the circumstances in which a person shallbe criminally responsible and liable for punishment for a crime within the jurisdictionof the Court. Four such provisions are relevant in this case, speaking to former PrimeMinister Abhisits criminal responsibility as a principal perpetrator (Article 25(3)(a) and(b)) and as an accessory (Article 25(3)(c) and (d)).

Given the direct causal nexus between the policies issued by CRES and the acts of

violence committed by security forces as part of an attack against the civilianpopulationas well as former Prime Minister Abhisits knowledge of the policy andauthorization of military operations based on such a policyMr. Abhisit is responsibleas a principal perpetrator for the crimes of murder and other inhumane acts. Theofficial government policy authorized by Mr. Abhisit, as attested in the secret CRESdocuments described above, expressly permitted security forces to open fire oncivilians, whether armed or unarmed, who threatened property or disregarded a notrespassing order. Mr. Abhisit is also responsible as a principal perpetrator for thecrime of imprisonment and other severe deprivation of physical liberty. The evidencepresented above, in particular, shows that Mr. Abhisit was a perpetrator-by-meansaprincipal who used an executor (the direct perpetrator) as an instrument for thecommission of the crimes, and hence committed the crimes through another personunder Article 25(3)(a) of the Rome Statute. Mr. Abhisit is also responsible as a principalperpetrator under Article 25(3)(b) of the Rome Statute, in that he used his powers asthe countrys chief executive to order the commission of crimes that in fact occurred.

Further, former Prime Minister Abhisit Vejjajiva is responsible for the crimes ofmurder, other inhumane acts, and imprisonment and other severe deprivation ofphysical liberty committed in April and May 2010 as an accessory, under Article25(3)(c) and (d) of the Rome Statute. By providing substantial support to the crimesthrough his orders, authorizations, and public statements, in the knowledge that hisactions would contribute to the commission of the crimes, Mr. Abhisit is responsible asone 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 thecriminal activity or purpose of the group of government and military commanders overwhich he presided, or with knowledge of the intention of the group, acting with a


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common purpose, to violently and criminally suppress unarmed civilian protesters,and to unlawfully deprive hundreds of protesters of their physical liberty, he isresponsible under Article 25(3)(d).

Aside from individual criminal liabilities, superior responsibility arises in this instance.Superior responsibility sanctions the omission to act: a superior may be held

criminally responsible under that doctrine where, despite his awareness of the crimesof subordinates, he culpably fails to fulfill his duties to prevent and punish thesecrimes. Article 28 of the Rome Statute distinguishes between two main categories ofsuperiors and their relationshipsnamely, a military or military-like commander andcivilians occupying de jure or de factopositions of authority.

As demonstrated in public statements he issued as the May 2010 military crackdownwas unfolding, in which he informed the public that any losses resulting from themilitary operations had to be accepted in the interest of justice, Former PrimeMinister Abhisit knew or had reason to know of the acts of murder and other inhumaneacts that were taking place or were about to take place, particularly given hisknowledge of the operations rules of engagement. Because Mr. Abhisit failed to takereasonable measures within his effective responsibility and control to prevent orrepress the commission of the crimeseither by halting the operations or by modifyingthe rules of engagementhe is responsible as a superior under Article 28. Whether heeffectively acted as a military commander under Article 28(a), or as a civilian superiorunder Article 28(b), or both, are matters to be clarified by the Preliminary Examinationor by a full investigation. In addition, Mr. Abhisit is responsible as a superior underArticle 28 for the crime of imprisonment and other severe deprivation of physicalliberty, having failed to take measures within his responsibility to bring the hundredsof illegal detentions to an end in a timely fashion.

All crimes require mens rea, or criminal intent, which is defined in Article 30 of the

Statute. According to ICC jurisprudence, Article 30 of the Statute encompasses twoforms of dolus, namely dolus directus (direct intent) in the first degree (the act inquestion was committed for the purpose of causing the result that occurred) and dolusdirectusin the second degree (the act is committed with knowledge that the result thatsubsequently occurred is at least a very probable consequence of the act).

Based on the evidence described in this letter, former Prime Minister Abhisits approvalof the military operations and knowledge of the attack on the civilian populationauthorized by the policies under which the crackdowns took place imply at a minimumdolus directusin the second degreethat is, the act of authorizing the crackdown wasundertaken with the knowledge that the crimes of murder and other inhumane actssubsequently committed by the armed forces were a very probable consequence of theact. Furthermore, Mr. Abhisits failure to exercise his authority as a superior to halt theoperations or modify the policy under which crimes against humanity had beencommitted was also the result of a conscious decision made with the knowledge thatfurther crimes would likely be committed as a consequence. Mr. Abhisits publicstatements on 15 May 2010 indicate that the former Prime Minister actually believedthe commission of those crimes to be justifiable in order to uphold his peculiarconcept of justice and the rule of law. A similar argument was used by formerPrime Minister Abhisit to justify the illegal detentions and enforced disappearances ofhundreds of protesters after the rallies dispersal.


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Mr. Abhisits Denial of Criminal Responsibility

Since the dispersal of the Red Shirt rallies on 19 May 2010, former Prime Minister

Abhisit has adopted a different position on the loss of life that took place as a result ofthe crackdowns. As the military operations were unfolding, Mr. Abhisit had argued, inessence, that the government had the legitimacy to do whatever it took to restorenormalcy and that any loss of life, while regrettable, had to be accepted as thenecessary cost of enforcing the law. Since the crackdowns, Mr. Abhisit has abandonedthat stance, and has resorted to making two different arguments when pressed byinvestigators or members of the media. First, Mr. Abhisit has taken to arguing that thedispersal operations were carried out on the basis of a policy consistent withinternational standards, and that the troops who carried out the crackdown faithfullyexecuted the policy. Second, Mr. Abhisit has denied involvement in the activities ofCRES;19 while defending CRES orders as lawful and appropriate, the former PrimeMinister has maintained he was not responsible for either developing or approving itsdirectives, and at times claimed ignorance of their content.

Both such claims are invalidated by the evidence presented in this letter. The formerPrime Minister, in particular, may not have been physically present at all CRES meetingswhere the details of the military operations were being discussed. However, theevidence shows that he was involved in setting the general contours of the policy andwas aware of the rules of engagement that had been designed in fulfillment of thatpolicy when he authorized the commencement of military operations. As PrimeMinister, moreover, Mr. Abhisit had the authority to suspend ongoing militaryoperations, particularly once confronted with evidence of widespread andindiscriminate killings of unarmed civilians, as well as order CRES to modify its rules of

engagement. Under Thai law, in fact, CRES only served at the pleasure of the PrimeMinister, to whom it merely served as an advisory body in dealing with an emergency,and only exercised powers delegated to it by the Prime Minister. Consequently, asidefrom the existence of evidence attesting to Mr. Abhisits involvement in CRES andknowledge of its proceedings, the distinction between activities undertaken by CRESand the Prime Ministers is for both legal and moral purposes entirely artificial.

In and of itself, moreover, the high casualty toll among unarmed demonstrators isinconsistent with the assertion that soldiers acted in accordance with a lawful policy incompliance of international standards as spelled out in the International Covenant onCivil and Political Rights (ICCPR) and the United Nations Basic Principles on the Use ofForce and Firearms by Law Enforcement Officials. Indeed, as documented in this letter,

CRES own rules of engagement authorized Thai security forces to use deadly force in arange of circumstances far wider than the requirement in UNs Basic Principles, whichpermit the use of lethal force only when strictly unavoidable to protect life. The rulesof engagement were in fact so broad as to authorize the commission of acts of violenceagainst a civilian population that meet the material elements of the crimes againsthumanity of murder and other inhumane acts. Given Mr. Abhisits involvement in thepolicy under which the crimes were committed, his knowledge of the rules ofengagement, and his authorization of military operations on that basisas well hisfailure to exercise his authority as a superior to prevent or halt the killings ofcivilianshe is criminally responsible and liable for punishment before the ICC.

19 Thai Ex-PM Grilled over Deadly Army Crackdown, AFP, 9 December 2011.


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Conclusion

Previous submissions to the ICC have provided evidence supporting the contentionsthat: 1) Crimes against humanity under Article 7 of the Rome Statute were committedin Thailand in April and May 2010; 2) The crimes in question meet the requirements foradmissibility before the ICC under Article 17, based on the principle ofcomplementarity and the gravity of the crimes, in reference to the scale, nature,manner of commission, and impact of the crimes; 3) The crimes in question fall underthe jurisdiction of the court, as they satisfy the principles of jurisdiction rationemateriae (the crimes must fall within the category of crimes referred to in Article 5 anddefined in Articles 6, 7, and 8 of the Statute), jurisdiction ratione temporis (he crimefulfill the temporal requirements specified in Article 11 of the Statute), and jurisdictionratione personae (the crimes were committed by a national of a state party to thestatute under Article 12 of the Statute). With regard to the latter point, ample evidencewas provided attesting to the fact that former Prime Minister Abhisit Vejjajiva is anational of the United Kingdom and was a national of the United Kingdom at the timethe crimes were committed, rendering Mr. Abhisit liable for prosecution andpunishment by the ICC. On that basis, the Applicant requested the OTP to open aPreliminary Examination into the crimes against humanity committed in Thailand byformer Prime Minister Abhisit in April and May 2010.

In this submission, the Applicant has provided further evidence that speaks to formerPrime Minister Abhisits criminal responsibility under Articles 25 and 28 of the RomeStatute. On the basis of leaked secret orders issued by CRES at the time, it is possible toconclude that the crimes of murder and other inhumane acts committed during the

2010 crackdowns, as well as the crime ofimprisonment and other severe deprivation ofphysical liberty, resulted directly from a state policy approved at the highest levels ofthe Thai government. Mr. Abhisit had knowledge of such policy and its likelyconsequences when he authorized the military operations and then refused to halt theoperations upon being confronted with evidence of widespread killings. Indeed, Mr.Abhisit at the time publicly characterized the killings and woundings resulting fromthe policy as acceptable. On that basis, Mr. Abhisit is criminally responsible for thecrimes under provisions of the Rome Statute spelling out the criteria for individualcriminal responsibilityboth as a principal perpetrator and an accessoryand superiorresponsibility. The Applicant therefore respectfully reiterates the request that the OTPopen, and announce publicly, a Preliminary Examination into the crimes against

humanity committed in Thailand in 2010.


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APPENDIX 1: CRES RULES OF ENGAGEMENT, 10 APRIL 2010


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APPENDIX 2: CRES RULES OF ENGAGEMENT APPROVED ON 18 APRIL 2010


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