Thai Ministry of Foreign Affairs Responds to Statement on War Crimes Investigation

The Ministry of Foreign Affairs in Thailand has published a statement on their web site which makes reference to a press release from our law firm.  In the interest of free and open debate, we are reproducing the statement in full below without additional comment.

MFA responds to media enquiries about Amsterdam & Peroff’s statement

June 4, 2010

In response to media enquiries about Amsterdam & Peroff’s press statement issued on 31 May 2010, entitled “War Crimes Expert Joins Investigation of Bangkok Deaths“, the Ministry of Foreign Affairs wishes to provide the following clarification.

Regardingoperations by security forces, the Royal Thai Government had givenstrict orders that all operations regarding the protests by the UnitedFront for Democracy against Dictatorship (UDD) be undertaken inaccordance with the seven-step rules of engagement in line with theprinciple of proportionality and international standards, including theUnited Nations Basic Principles on the Use of Firearms by LawEnforcement Officials.  They were also subject to strict instruction onthe use of live ammunition, namely: as warning shots, in self-defenceand to prevent harm on the lives of members of the public.

Basedon evidence and video footage taken by the media during the clashesbetween the protesters and the security forces, it is clear that therewere armed elements infiltrating among the demonstrators.  Theseindividuals – not bound by similar rules – had used lethal weapons,including automatic assault rifles and grenade launchers, withindiscriminate effect and utter disregard for human lives, leading toloss of lives and injuries among demonstrators, bystanders and securityofficers.

As for those suspects under the Emergency Decree, theirfundamental human rights have been fully respected and accorded inaccordance with the Thai Constitution and within the perimeters of theInternational Covenant on Civil and Political Rights (ICCPR).  It shouldbe noted in this context that Article 4.1 of the ICCPR allows for theright of derogation of certain rights guaranteed thereunder in times ofpublic emergencies.  Moreover, Thailand has been transparent in itsexercise of such right of derogation under the Covenant in light of thedeclaration of a severe emergency situation in certain parts of thecountry, having notified the other States Parties to the ICCPR throughthe intermediary of the United Nations Secretary General of itsinvocation of the Emergency Decree. 

Concerning the detention ofsome suspects in accordance to the Emergency Decree to prevent furtherviolation of such Decree, various safeguards are provided to ensure thattheir right to be promptly notified of charges is notdisproportionately affected by limiting the custody period of thosesuspects to a maximum of thirty days, during which a court-approvedextension is required for every seven-day period. Upon the expiration ofsuch period, if such detention is further required, the competentauthorities are required to proceed in accordance with the CriminalProcedure Code.  In the context of a public emergency situation, suchlimited and judicially-supervised period of detention is alsopermissible under the provisions of the ICCPR.

Regarding theright to counsel, under the Emergency Decree, lawyers may visit thesesuspects.  Those detained have, therefore, not been denied their rightto counsel.  Section 12 of the Emergency Decree explicitly provides thatthose detained suspects shall not be treated as an accused person, andshall be detained in a designated place which is not a police station,detention centre, penal institution or prisons. The locations of alldetainees is also a matter of public record as the competent officialshave made known the designated locations used for detaining suspectsunder the Emergency Decree.  Copies of custody reports filed with thecourts are also kept at the office of the competent officials. 

Asfor those who have been charged and sentenced for violating theEmergency Decree, they have been accorded due process of law inaccordance with Thai criminal law and procedures.  Since the chargesagainst them were criminal offences punishable with imprisonment for aterm not exceeding two years or fine not more than 40,000 baht, thecases have been brought to the District Courts which have jurisdictionwith respect to such offences. The alleged offender will be triedaccording to the proceeding stipulated in the Act establishing theDistrict Courts and Criminal Procedure in such Courts B.E. 2499 (1956)(amended in B.E. 2539 (1996). This is to give the alleged offender theright to fair and expeditious trial in accordance with Section 40 of theThai Constitution and with the objective of restoring peace and publicorder.

The Thai Government regrets the losses that occurred andhas made it clear that it is open to scrutiny and ready to be heldaccountable in accordance with the law.  In this connection, anindependent commission is in the process of being set up to ascertainthe circumstances surrounding the casualties and incidents that occurredduring the protests.  In addition, the National Human Rights Commissionand the National Anti-Corruption Commission which are independentconstitutional bodies are conducting their own investigations into theincidents.  The Government stands ready to cooperate with theseindependent bodies as well as with parliamentary scrutiny.