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Thailand and the ICC: Wrong reason, right idea

A red-shirt protester holds a Democracy Monument model during a demonstration at the Monument in Bangkok in June to commemorate the end of the absolute monarchy in Thailand 80 years ago.

A red-shirt protester holds a Democracy Monument model during a demonstration at the Monument in Bangkok in June to commemorate the end of the absolute monarchy in Thailand 80 years ago.

The intermittent talk over the past several years of having the International Criminal Court (ICC) investigate deadly events in Thailand's recent history, has taken an unintended if undeniable positive turn. While Foreign Minister Surapong Tovichakchaikul's meeting two weeks ago with the ICC's chief prosecutor was politics as usual in Thailand, for the first time in a decade it has placed the ICC and the Rome Statute that established it firmly on the Thai government's agenda.

Moreover, where Thailand took a regressive step in 2003 (deciding not only against ratifying the Rome Statute but to protect US officials from ICC jurisdiction in Thailand in exchange for major non-Nato ally status), in 2012 it could - and should - result in Thailand becoming a full-fledged state party.

The ICC debate in Thailand has occupied a small corner of its seven-year and ongoing political crisis, with both sides issuing ill-informed threats of the Court's involvement to exact political revenge for electoral, judicial and extra-legal defeats.

Surapong's latest move is no different, arguing that Thailand should grant the ICC jurisdiction to investigate the previous government's crackdown on red-shirt protesters, which resulted in 92 deaths. It comes after - and has spurred renewed - calls by that government's foreign minister, for the ICC to investigate the 2003 "war on drugs", orchestrated by the current prime minister's brother and resulting in at least 2,500 extrajudicial deaths.

In theory both sides' calls on the ICC are viable, despite Thailand's non-member status: a country that has not ratified the Rome Statute may still request the ICC to investigate events that took place on its territory for which one or more of its citizens is allegedly responsible. Hence Surapong's focus on former prime minister Abhisit Vejjajiva, and his predecessor's focus on former prime minister Thaksin Shinawatra.

It is worth noting that this has never happened in the ICC's ten-year history. All three countries that expressly requested the Court's involvement were state parties to the Rome Statute, and on the one occasion where the Court investigated a non-member state's situation, it did so on its own initiative and not at that state's request. Nonetheless, as the ICC's chief prosecutor reportedly assured Surapong, it is technically possible.

Even should the Court consider the cases however (noting that only the 2010 crackdown has been officially brought to its attention), two factors make the subjects of both foreign ministers' calls unlikely to be substantively investigated.

First, the ICC's substantive jurisdiction is currently limited to the crime of genocide, war crimes and crimes against humanity. Genocide and war crimes (Thaksin's "war" not being an armed conflict in the legal sense) clearly do not apply. Crimes against humanity include murder (such as alleged in both the 2010 crackdown and the 2003 drugs campaign) "committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack".

A cursory review of the facts suggests that Abhisit's crackdown almost certainly falls outside this definition, while Thaksin's war appears to check all of the boxes. Thailand's advocates for ICC investigations would be charged with convincing the Court's prosecutor(s) - whose expertise would also be brought to bear - that crimes against humanity took place. However, it is as doubtful in the case of the crackdown as it is likely in the situation of the drugs campaign, that the Court would actually deem itself to have substantive jurisdiction. On this factor, Thaksin fails, Abhisit passes.

The other factor militating against substantive ICC involvement is the principle of "complementarity", which provides that the Court can only investigate a situation if it has not been or is not being investigated or prosecuted by the country itself. An exception may be made where the country is unwilling or unable to genuinely to carry out the investigation or prosecution.

On the situation of Abhisit's 2010 crackdown on the red-shirt protesters, the Department of Special Investigation (DSI) has implicated soldiers in at least 36 of the 92 deaths, and has sent most cases to the Office of the Attorney-General for further consideration. In the case of Thaksin's 2003 "war on drugs", earlier this year Thailand's Criminal Court convicted five police officers for the extrajudicial execution of a 17-year-old "drug suspect" in July 2004 (widely considered a continuation of Thaksin's 2003 initiative).

How the ICC would consider these facts in the context of "complementarity" is difficult to say, much less whether it would deem the investigations and prosecutions "genuine". It might consider how frequently and drastically DSI has altered its conclusions on Thai soldiers' location and ballistics during the 2010 crackdown, particularly after public protest by the Army. It might also take into account (if officially requested) that the drugs case is the only such case after nine years, and that the convicted officers have been both granted bail by the court and awarded financial compensation by a regional police commander.

But it would also be made aware that the red-shirt protesters also used lethal force during the 2010 demonstrations, and that the tenure of DSI's director-general has straddled governments of both sides. In the drugs case, the police officers' convictions were considered a seminal decision in the fight against official impunity in Thailand - one that occurred with a Thaksin-friendly government in power - and other similar cases are in train. And that Abhisit and Thaksin themselves have not (yet?) been prosecuted does not on its face make the investigations and prosecution disingenuous. It is thus doubtful, on balance, that the ICC would undertake an investigation in either case. On this factor, Thaksin passes, Abhisit passes.

For one of these events to warrant a substantive ICC investigation, the individual(s) allegedly responsible must fail in relation to both factors: the event must constitute a crime against humanity, and Thailand must be unable or unwilling to genuinely investigate or prosecute those responsible (including, potentially, the prime minister). In all likelihood, this is not the reality in either case.

Still, Surapong's latest move presents an opportunity for Thailand to meaningfully advance the cause of justice. He and his predecessor should persist in their efforts, only by redirecting them away from politicised references and referrals to the ICC and toward a more principled commitment to combating impunity for grave international crimes. They should advocate for Thailand's ratification of the Rome Statute, and thus the country's full acceptance of ICC jurisdiction in the rare situations in which the criteria described above are met.

The high substantive bar prevents against frivolous or unwarranted cases, while "complementarity" assures that Thailand's sovereignty - in contrast to certain Thai MPs' recent claims - is not violated. Unlike Thai politics, genuine justice is colour-blind; it cannot distinguish between red and yellow. If both sides are as committed to justice and accountability as their rhetoric suggests, they should set politics aside and see that Thailand ratifies the Rome Statute.

Benjamin Zawacki is the Southeast Asia regional representative of the International Development Law Organisation.




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