Thailand’s Duty to Investigate Bangkok Killings under International Law

In the wake of the April and May violence in Bangkok, several announcements by the Thai authorities appear to mean one thing, but in fact conceal another truth. The investigatory panel proposed by the authorities earlier this month leaves a lot of open questions regarding its legal basis: What powers would the panel have, where will the budget and resources for this work come from, and how will independence be guaranteed? Then things became clearer when Kanit Nanakorn, who was nominated to head the probe by Abhisit and is well respected among very different political factions, announced that his panel would not determine responsibility for the deaths. Kanit stated that the probe “‘is not aimed at finding who should be held responsible and to punish, but to establish the facts and educate Thai society.” We fully support the honorable work and sincere intentions of Kanit in working toward greater understanding among Thai people, but the effort may more appropriately be termed “reconciliation commission” rather than “investigatory panel.”

International observers have noted that the investigation effort has fallen short. Amnesty International has stated that the probe must work toward “initiating prosecutions against alleged perpetrators of human rights abuses.” The Committee to Protect Journalists has also criticized the lack of progress of the investigations of journalist deaths, and condemned the refusal on behalf of Thai authorities to cooperate with international observers.Under its obligations as a signatory to the UN International Covenant on Civil and Political Rights (ICCPR), Thailand is required to observe “the duty to investigate” in the wake of these killings, and determine whether or not disproportionate and/or indiscriminate force was used by the military and police in dispersing the protesters, along with other alleged crimes against humanity and human rights violations.The conditions to fulfill the duty to investigate are also elaborated in greater detail in UN Resolution 60/147 on the Basic Principles on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law. The Resolution states that violations must be investigated “effectively, promptly, thoroughly and impartially and, where appropriate, take action against those allegedly responsible in accordance with domestic and international law.” The government should also “Provide those who claim to be victims of a human rights or humanitarian law violation with equal and effective access to justice (…) irrespective of who may ultimately be the bearer of responsibility for the violation.“There is no excuse for the excessively long delay in opening an independent investigation. The duty to investigate is a fundamental principle of rule of law, and this willful obstruction by the Thai authorities puts the quality of evidence and witness testimony at risk, while standing in stark contrast to their statements of willingness and openness to hold individuals accountable for the violence against protesters. Coupled with the undue haste in labeling many of their political opponents as “terrorists,” many will conclude that any process initiated by the government is unlikely to be impartial or effective, requiring international participation.It is with disappointment that we note that the international community has raised so few objections not only to the wildly disproportionate and extra-legal violence used against protesters, but also the fact that the Thai authorities have continued to exercise emergency powers which violate constitutional restrictions demanding extraordinary circumstances and the shortest duration as possible. A credible argument can be made that Thailand’s failure to investigate these recent killings is an even further step away from democracy, rule of law, and basic legitimacy of the state.The present circumstances reveal two fundamental contradictions. Firstly, there is no true intent to reconcile on behalf of the authorities so long as the protesters are labeled as terrorists and the emergency powers remain in effect. Secondly, the refusal to launch an independent investigation under international auspices is not consistent with good faith and public trust, and actually causes damage to future prospects for reconciliation.Until these questions are adequately addressed and the duty to investigate is fulfilled, the Thai authorities deserve to be judged by their actions, not their empty promises and soothing rhetoric.