Understanding the ICC Application: FAQ
Thailand’s Minister of Foreign Affairs, Surapong Tovichakchaikul is to meet with the chief prosecutor of the International Criminal Court (ICC), Fatou Bensouda, today to discuss the possibility of opening an investigation into the protests of April-May 2010.
Below are answers to frequently asked questions about the possibility of Thailand extending jurisdiction to the ICC.
Frequently Asked Questions:
Question: What is the ICC and why is the prosecutor in Thailand?
Answer: The ICC is located in The Hague. The ICC is established by a treaty known as the Rome Statute of the ICC. One hundred twenty-one countries have joined the treaty. Thailand has signed, but not ratified the Rome Statute. Thailand is therefore not a party to the treaty.
UDD lawyer Robert Amsterdam filed an application with the Prosecutor of the ICC on January 30 2011, requesting a preliminary investigation into the protests that occurred in Thailand between April-May 2010, where 98 civilians were killed and thousands injured.
The application alleges that crimes against humanity were committed against civilian protesters. Although the ICC has jurisdiction over genocide, war crimes and crimes against humanity, only crimes against humanity are alleged in the application relating to Thailand. There is no basis to allege genocide or war crimes.
Question: Since Thailand is not a party to the ICC treaty, how could the ICC investigate alleged crimes against humanity in Thailand?
Answer: In this case, the ICC’s jurisdiction can be established in two ways:
First, the ICC can exercise its jurisdiction ratione personae over Prime Minister Abhisit Vejjajiva, under Article 12. 2(b) of the Rome Statute, as he is a citizen of the United Kingdom, which is a state party to the ICC.
Second, Article 12.3 allows a State not party to the treaty, such as Thailand, to accept ICC jurisdiction over a particular situation on an ad hoc basis, by depositing a Declaration with the ICC. The Thai Government is currently considering whether to make a Declaration accepting ICC jurisdiction over the crimes against humanity allegedly committed in 2010.
Question: Would such a Declaration accuse anyone of committing a crime?
Answer: No. It would merely permit the ICC to consider whether crimes against humanity were committed by any person or by any party on or after January 1, 2010.
Question: Would such a Declaration turn over responsibility for investigating crimes against humanity to the ICC?
Answer: No. Thailand would continue to have primary responsibility to investigate and, if appropriate, to prosecute any crimes against humanity. The ICC could investigate or prosecute only if Thai authorities are unable or unwilling to do so.
Question: Then why accept ICC jurisdiction over the alleged crimes against humanity?
Answer: The Declaration would enable the ICC Prosecutor to open a Preliminary Examination. In such an Examination she could engage in a process of dialogue with Thai authorities over the progress of investigations and prosecutions in Thailand. If she concludes that justice is not being done in Thailand, she could act.
Question: Could she then investigate and prosecute the alleged crimes against humanity?
Answer: She could open a full investigation only if two conditions are met.
First, she would have to notify Thailand of her intention to open a full investigation. Thailand would then have one month to respond. Thailand could choose to accept her investigation. Alternatively, Thailand could object and assert the right of Thai authorities to investigate the case instead. The ICC Prosecutor could not then open a full investigation, unless she obtains permission from three ICC judges. She would have to prove to them that the Thai investigation does not genuinely pursue justice. Thailand would have an opportunity to be heard before the three judges and to present its objection. If the judges ruled in favor of the ICC Prosecutor, Thailand could appeal to a panel of five ICC appeals judges.
Second, even if Thailand has no objection, the ICC Prosecutor could not open a full investigation unless she first obtained approval from a panel of three ICC judges. Without such approval, she could open only a Preliminary Examination.
In sum, a Government Declaration under Article 12.3 would merely open the door to a process of ongoing dialogue between Thailand and the ICC. It would be only a beginning, not an end.
Question: What is a Preliminary Examination?
Answer: A Preliminary Examination is a first step, designed to determine whether the ICC Prosecutor should ask the ICC judges for permission to open a full investigation. In a Preliminary Examination the ICC Prosecutor could consider the progress of investigations and prosecutions in Thailand. She could also conduct a limited inquiry into whether crimes against humanity were committed. A Preliminary Examination would not interfere with criminal investigations or prosecutions in Thailand. The Thai proceedings could go forward at the same time.
Question: If the Thai Government makes a Declaration accepting ICC jurisdiction, will the Prosecutor open a Preliminary Examination?
Answer: That will be her decision. However, if Thailand accepts ICC jurisdiction, we understand that she will open a Preliminary Examination into the crimes against humanity allegedly committed in 2010.
Question: What could the ICC Prosecutor do in a Preliminary Examination?
Answer: She could analyze information voluntarily sent to her. She could also seek additional information, on a voluntary basis, from the Thai Government or other governments, from the United Nations, and from non-governmental or inter-governmental organizations. In addition, she could receive testimony offered on a voluntary basis in The Hague. Based on all this information, she could determine whether there is a reasonable basis to open a full investigation.
Question: What could she not do in a Preliminary Examination?
Answer: In a Preliminary Examination, the ICC Prosecutor could not require the Thai Government to make witnesses available. Nor could she interview witnesses or conduct investigations in Thailand. If she believes those further steps are needed, she would have to notify Thailand and request permission from the ICC judges to open a full investigation, in the manner described above.
Question: How long could a Preliminary Examination take?
Answer: There is no precise time limit. It could take months. If the ICC Prosecutor decides to allow Thai criminal proceedings to run their course, it could take years.
Question: Is it possible that the ICC Prosecutor might never seek to open a full investigation?
Answer: Yes. If justice is genuinely pursued in Thailand, there will be no need for the ICC Prosecutor ever to open a full investigation.
Question: If she eventually opens a full investigation, and she concludes that someone committed a crime against humanity, can she bring criminal charges against that person?
Answer: No, not on her own. She would first have to obtain the approval of three ICC judges. Both the accused person and the Thai Government would have an opportunity to be heard and to object to any charges. If the three judges ruled against their objections, they could appeal to five ICC appeals judges.
Question: If the ICC judges allow the Prosecutor to bring charges, could she order the arrest of the person?
Answer: No. Only the ICC judges can order the arrest of an accused person.
Question: If the ICC judges issue an arrest warrant, would Thailand be required to arrest and turn over the accused person to the ICC?
Answer: Yes, subject to judicial approval. By making the Declaration accepting ICC jurisdiction over the alleged crimes against humanity, Thailand would agree to cooperate with the ICC. However, any arrested person would have the right to challenge the legality of his arrest, first before Thai courts, and then again, if he is transferred to The Hague, before the ICC judges.
Question: Would a trial before the ICC be fair?
Answer: Yes. ICC judges are independent experts in criminal law and international law, elected by the governments of the more than 120 States Parties to the ICC. An accused person is entitled to be defended by a lawyer of his choice before the ICC and to have all the fair trial rights recognized by international law. All accused persons are presumed innocent. They cannot be convicted unless they are proved guilty beyond a reasonable doubt. If convicted, the accused has the right to appeal to a panel of five ICC appeals judges.
Question: Does the Thai Government require royal or parliamentary approval in order to make a Declaration accepting ICC jurisdiction over the alleged crimes against humanity in 2010?
Answer: No. Under Section 190 of the 2007 Thai Constitution, royal approval is required for all treaties, and parliamentary approval is required for certain treaties. However, a Declaration by the Thai Government, accepting ICC jurisdiction on an ad hoc basis under Article 12.3 of the Rome Statute, is not a treaty. By definition, a treaty involves a bilateral or multilateral agreement between Thailand and another party or parties. A treaty becomes legally effective only after at least two parties agree to accept it as legally binding.
In contrast, a Declaration under Article 12.3 is a unilateral act by Thailand. The Declaration is legally effective as soon as Thailand deposits it with the ICC. No agreement by the ICC is needed to make it legally effective. The Declaration is not an agreement, but a sovereign act by Thailand. Because it is not a treaty, it is not subject to Section 190 of the 2007 Thai Constitution, and does not require royal or parliamentary approval.
Question: Would a Declaration under Article 12.3 require any changes to Thai law?
Answer: Not at this stage, and perhaps never. The Government can make an Article 12.3 Declaration with no new legislation. If the ICC Prosecutor decides to open a Preliminary Examination, as we believe she will, no new legislation would be required at that stage. Only if a full ICC investigation is eventually opened – at least months and possibly years from now – might amendments to current Thai law be required.
Question: Could ICC jurisdiction pose any risk to the King?
Answer: No. There is absolutely no prospect of any ICC proceeding against the King.