Answering The Call Of History In Thailand – OpEd

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Foreign Minister Surapong Tovichakchaikul is on the verge of signing a document that might change the course of Thai history. Following a visit to Bangkok by officials from the International Criminal Court (ICC), the government is now considering whether to issue a declaration that would give the ICC jurisdiction over crimes against humanity committed in Thailand in April and May 2010 (see herefor an explanation of the process). This could be a major turning point in Thailand’s eighty-year struggle for democracy.

As the Foreign Minister has stated, giving the ICC jurisdiction over the abuses committed in 2010 can help ensure that the victims, having already been deprived of their lives, their rights, their freedoms, or their family members, will not be denied justice, as the victims of state violence always have in the past. Unlike the massacres of 1973, 1976, and 1992, there is now a real possibility that the deadly government crackdowns of April and May 2010 will be properly investigated, and that those responsible for committing crimes will be held to account.

Thailand

Thailand

There is, however, more at stake for Thailand as a nation. As Prof. Thongchai Winichakul explained in a letter to the ICC a few months ago, massacres of civilians have been committed regularly, over decades, and always for the same purpose: to deny the Thai people their basic right to self-determination. The cover-up of the crimes committed by the state in 1973, 1976, and 1992, in turn, has not only deprived the Thai people of their right to know the truth, but has virtually guaranteed that the same heinous crimes would be committed again.

Impunity has given those who refuse to acknowledge the legitimacy of the democratic process the power to bully elected governments, stage military coups, and, whenever faced with popular opposition, murder scores of demonstrators. Not all crackdowns have produced the intended results, causing in some instances the collapse of governments that authorized the army to fire on its citizens. The fact, however, that state officials have always gotten away with killing civilians has kept Thailand trapped in its vicious cycle of elections, coups, and massacres for the last forty years.

There are troubling signs that Thailand could be headed for another iteration of the same cycle. After leading an anti-government demonstration, retired General Boonlert Kaewprasit was quoted in the press not simply demanding that the military stage another coup, but suggesting that any opposition could be dealt with by “closing the country” for a few years, presumably until those who stand in the way have been thoroughly cowered or eliminated. These comments underscore the fact that it is only by ending impunity that future episodes of state violence can be prevented.

The involvement of the ICC offers the best chance Thailand has had in decades to break free of its vicious cycle. Not only would an ICC investigation finally impress upon local authorities that they can no longer take for granted the impunity they have historically enjoyed. By focusing the eyes of the entire world on the situation in Thailand, the ICC’s involvement is likely to forestall attempts to topple democracy, which have been staged in the past with the expectation that the military could violently suppress those brave enough to rise up in its defense. In turn, the Thai establishment’s hold on the democratic process might finally be broken, as its capacity to impose its will on popularly elected governments has always relied on the implicit threat of military force.

Granting the ICC jurisdiction over the events of April and May 2010 is not a partisan act, for the ICC will investigate those responsible for committing crimes irrespective of whether they were members of the government, the opposition, or a possible “third hand.” Far from bringing “dishonor to Thailand,” as the Chairman of the failed Truth for Reconciliation Commission recently suggested, taking this unprecedented step to end impunity would re-affirm Thailand’s commitment to its international obligations, the rights of its citizens, and a struggle for democracy eighty years in the making. Under the circumstances, nothing could be more patriotic than answering the call of history.


About the author:

Robert Amsterdam

Robert Amsterdam is an international lawyer and founding partner of the law firm Amsterdam & Peroff. The articles originally appeared at the Robert Amsterdam: Perspectives on Global Politics and Business website.

Visit Robert Amsterdam's website

6 thoughts on “Answering The Call Of History In Thailand – OpEd”

  1. I am really disappointed that Eurasia Review would run an article on this subject written by Robert Amsterdam, the lawyer and apologist for serial human rights abuser and mass murderer Thaksin Shinawatra and the radical and violent Red Shirt movement. It’s utterly shameful that Eurasia review has not included this very pertinent information in its “About the Author” blurb. By omitting this, Eurasia Review has just let me know that it can not be trusted as a source of informtion.

    Not only is Amsterdam biased in the extreme, his view that Foreign Minister Surapong will sign this document is clearly wrong. The Foreign Minister will face impeachment if he does, because by Thailand’s constitution he does not have the authority to unilaterally sign over the sovereignty of Thailand’s judicial system to the ICC. Parliament must debate and approve this, and it is unlikely that even the Thaksin-controlled parliament will approve this.

  2. James

    Hate to say this but if Amsterdam wasn’t “biased” he wouldn’t be doing his job. That’s how legal representatives work.

    Secondly the ICC themselves have made it clear the 12.3 article the Thai government might sign up to isn’t a treaty but just permission to conduct a preliminary examination. It doesn’t even give them a right to make a full investigation.

    If you want to debunk the ICC, Amsterdam and others please do so but you’ll end up looking silly if you just lie about it.

    Finally the ICC will examine every bit of evidence from 2010 if this goes ahead. Contact the ICC and ask them directly. Why would anyone fear such an examination?

  3. @James Gleason

    Extremists and mass murderers are in Thailand the people who have made the 18 coups. The ones who have kicked the Thai democracy always underfoot.
    Who were responsible for the Thammasat massacre, who hunts the communist, who had been responsible for 1992, 2009 and finally 2010, etc.

    Thaksin was an elected PM and the only one who had managed to get through more than one legislature and won the second election with an majority, too.
    the persons who are responsibility for the war on drugs and thakbai must be found – but it hadn´t been thaksin alone….the thai “democrat party” applauded them and the one with the invisible hand too.
    I can express myself as skeptical as Giles Je Unparkon but I still hope that the red shirts achive their goal – truth and justice and a Democratic country!

  4. robert amsterdam´s Understanding the ICC Application: FAQ

    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.

  5. In Thailand anti goverment protesters are shot, unless of course they are the royalest PAD. This is something the Red Shirts knew very well in 2010. This is why some of them said if the RTA open fire again they will not just stand there and be shot they will fight back the best way they can. Unfortunaty this played into the governments hand and gave them the excuse they needed for the bloody crackdown.
    Thai courts are governed by the same people that led the crack down, thats why there will never be a proper investgation into the events of 2010 in Thailand.
    Dont let history repeat itself again. We need the ICC.

  6. @Spooner: as many here in Thailand know, you are on Amsterdam’s payroll, so it’s not surprising you showed up to defend him. Your credibility is zero.

    @weber: as there was no ‘massacre’ in 2009, obviously you don’t know what you’re talking about. I notice you left out Thaksin’s war on drugs, in which 2,500 Thais were murdered by his security forces, of which at least 1,400 had nothing to do with drugs according to Thailand’s own Human Rights Commission. That far outnumbers the fatalities in all the other incidents you’ve cited combined. Why don’t you want the ICC to look into that if you are really concerned with justice? Why aren’t you demanding they investigate Tak Bai and Krue Sae? The fact that Thaksin was elected does not exempt him from responsibility for his murders.

    And, Amsterdam’s understanding of the Thai constitution is irrelevant. Senators will launch an impeachment motion against the Foreign Minister if he attempts to follow through with this folly. The publicity over the double standards of prosecuting those involved in 2010 and not the other cases I’ve cited will only further stain Thailand’s reputation on the world stage. I bet the PM’s inner circle knows that, and so this will never reach fruition. It’s just publicity for Robert Amsterdam, who is irrelevant in Thailand.

    @Jones: what the Red Shirt leaders knew very well in 2010 was that if they shot at soldiers, then soldiers would shoot back and they would get the massacre they so badly wanted and needed. They were more than willing to get some of their Phrai killed so they could get power and a cut of Thaksin’s money.

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