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June 29, 2010

3

Letter to Thai Authorities Demanding Investigation and Access to Evidence

The following letter was delivered by email and fax to Prime Minister of Thailand Abhisit Vejjajiva and a number of other officials at CRES and DSI.  Click here to download a PDF document with full footnotes.

Re:         Investigation Into Deaths during Red Shirt Protests (April/May 2010)

Gentlemen:

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 protests in Bangkok in April and May 2010.  We understand that each of you represents at least one Thai governmental entity charged to some degree with investigating the criminal charges against our clients.

The purpose of this letter is to assert our clients’ rights to fair treatment under international law in the investigation and prosecution of criminal charges stemming from their relationship to the Red Shirt protests.  These basic international rights include – among other things – a full, fair and complete investigation into all of the relevant facts surrounding the criminal charges against our clients, including a complete analysis of the proportionality of the use of force by the Thai Authorities in response to the protests.

The International Covenant on Civil and Political Rights (ICCPR), to which Thailand has acceded, guarantees to our clients the basic right to fair treatment in the conduct of their defense.[1]  Among other things, the ICCPR gives them the right to be represented freely by counsel of their choosing.  It also entitles them to examine and test – through their attorneys and experts – all of the evidence relating to the charges against them.[2]

For some of our clients, these rights to examine the evidence extend to the facts surrounding the 90 deaths that occurred during the Red Shirt protests.  At least thirteen of our clients are charged with, among other things, criminal responsibility for the violence, and therefore the facts and circumstances surrounding civilian and military deaths are relevant.  Among other things, the evidence will establish whether the Thai Authorities reacted to the Red Shirt protests in a proportional manner, and whether the killing of civilians by the Thai Authorities constituted Human Rights violations that may have exacerbated or even generated the violence.  These matters bear directly upon the guilt and innocence of at least thirteen of our clients, all of whom face death sentences if convicted.

Thailand, of course, has an independent obligation to investigate all potential international crimes, and to prosecute fully where applicable.  This duty flows from the legal principle of aut dedere aut judicare (duty to prosecute or extradite) contained in the Geneva Convention of 1949 and similar provisions in the European Terrorism Convention of 1977, the Hostages Convention of 1979, the Anti-Torture Convention of 1984, and the New York Convention of Crimes against Internationally Protected Persons of 1973.[3]

Thai Authorities’ violation of treaty guarantees against extrajudicial killing and arbitrary detention might give rise to international crimes, even if the Thai Authorities were acting in the exercise of emergency powers or other exceptional circumstances.[4]  Thus, Thailand is under multiple treaty obligations to conduct a full, fair and complete investigation into the killing of more than 80 civilians by Thai Authorities in the exercise of their executive power in response to the Red Shirt protests, and to prosecute where applicable any person within the chain of command responsible for those deaths.

Further, in these circumstances, the Thai Authorities must use independent and impartial bodies to carry out their investigation:

Administrative mechanisms are particularly required to give effect to the general obligation to investigate allegations of violations promptly, thoroughly and effectively through independent and impartial bodies.[5]

It is equally clear that when the investigations reveal a violation of Covenant rights, the State must bring those responsible to justice.  Failure to do so:

. . . could in and of itself give rise to a separate breach of the Covenant. . . ..  These obligations arise notably in respect of those violations recognized as criminal under either domestic or international law, such as torture and similar cruel, inhuman and degrading treatment (article 7), [and] summary and arbitrary killing (article 6).[6]

According to the Human Rights Committee of the United Nations:

There may be circumstances in which a failure to ensure Covenant rights as required by article 2 would give rise to violations by States Parties of those rights, as a result of States Parties’ permitting or failing to take appropriate measures or to exercise due diligence to prevent, punish, investigate or redress the harm caused by such acts.[7]

From these international legal principles it follows that our clients and their defense team are entitled to request, and hereby do request, the following:

  1. That you conduct – through independent and impartial bodies – a full, fair and complete investigation into the use of lethal force by Thai Authorities in connection with their response to the UDD protests in April and May 2010 in Bangkok (the “Protests”).
  2. That you preserve all physical, forensic, documentary and audio/video evidence in possession of the Thai authorities relating to the Protests.  This request includes but is not limited to evidence concerning the preparation, planning and conduct of the Thai authorities in connection with the Protests, as well as evidence concerning any purported criminal violations by Prime Minister Thaksin or members of the UDD in connection with the Protests;
  3. That you immediately disclose to our clients’ defense team all evidence falling within the category described in Paragraph 2, above.  This request includes but is not limited to any statements from police and/or military officials, as well as any statements by governmental officials in the chain of command concerning the Thai Authorities’ response to the Protests.
  4. That you permit our clients, through their defense team, to examine:  all physical evidence, and to conduct independent forensic studies and analysis, including post mortem autopsies, military studies and ballistic analyses relating to the deaths that occurred during the protests; all other  evidence relating to the charges against our clients, including interrogations, interviews, witness statements, ballistic and other forensic studies, expert reports and other evidence in the possession of the Thai authorities, including statements made from police, military and/or government officials within the chain of command regarding the use of military force in response to the Red Shirt protests; all experts and other witnesses relied upon by the Thai Authorities to prosecute their charges; and all military, intelligence, investigative or other expert reports used by the Thai Authorities to prepare for the Red Shirt protests.
  5. That you permit our clients, through their defense team, to be present during all interviews, interrogations or examinations of individuals by the Thai Authorities in connection with their investigations, including by the DSI, the CRES, the Independent Committee to Investigate Violence, or any other governmental investigatory body, in connection with the Protests;
  6. That you provide our clients’ defense team with immediate access to the following items concerning the Thai Authorities’ response to the Red Shirt protests: All governmental or military documents relating to the Thai government’s overarching strategy (commonly referred to as a “master plan”) for addressing the Protests and the unrest that led to them; All governmental or military documents relating to the military strategy for addressing the Protests, in support of the goals set forth in any overarching strategy or master plan; All governmental or military documents relating to the operational strategy for addressing the Protests, in support of the goals set forth in any military strategy; All government or military documents relating to the tactical strategy for addressing the Protests, in support of the goals set forth in any operational strategy; All reports or analyses that might be used by the military as a basis for its operational orders in addressing the Protests, including but not limited to intelligence reports and threat analyses; All operational orders for any Thai military units involved in addressing the Protests; All information relating to written or oral instructions given to any Thai military units concerning the use of force in addressing the Protests; All governmental or military documents reflecting the chain of command within the Thai military in connection with addressing the Protests; All governmental or military documents reflecting the briefings provided to all military units, including front-line units – involved in addressing the Protests; All governmental or military documents reflecting the specific military units involved in addressing the Protests, together with their roles; All governmental or military documents reflecting Standard Operational Procedures of the Thai armed forces for addressing political protests, including but not limited to first impression reports or after action reports issued thereunder; and All governmental or military documents falling within the categories described in Paragraphs 6(a)-(k), above, relating to other incidents similar to the Protests.
  7. That you provide our clients’ defense team with immediate access to the following forensic and evidentiary materials: All medical records of any military casualties; All medical records of any civilian casualties; All ballistics tests and studies; All video and audio material relating to the Protests, including but not limited to actions of the Thai authorities in addressing the Protests; All information concerning instructions given to military units concerning access to medical aid for civilians during the Protests; All post-mortem reports issued by any governmental body or official relating to the Protests, including but not limited to reports issued by forensic scientists; and All statements taken by the DSI, the CRES, the Independent Committee to Investigate Violence, or any other governmental investigatory body, relating to the Protests.
  8. That you immediately commit to facilitate interviews by our clients’ legal counsel of: All military commanders and sublevel commanders that took part in any operations relating to the Protests; All political leaders within the military chain of command relating to its addressing the Protests; and All expert witnesses relied upon by the Thai Authorities, including but not limited to forensic experts.

We trust that the Thai government will fully comply with its obligations under international law, and we, therefore, look forward to hearing from you within the next 10 days.

Sincerely,

Robert R. Amsterdam
AMSTERDAM & PEROFF LLP
LONDON, UNITED KINGDOM

cc:           Madam Navi Pillay
United Nations High Commissioner for Human Rights
Geneva, Switzerland
(By email)

cc:           Mr. Geert-Jan Alexander Knoops
Knoops & Partners Advocaten
Amsterdam, The Netherlands


3 Comments
  1. David Brown
    Jul 1 2010

    Excellent, this pressure on the Thai government is overdue and I wish all success in campaigning for international access, monitoring and prosecution of Thai government and military behaviour.

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