Red Shirts Application To The International Criminal Court To Investigate Crimes Against Humanity in Thailand

APPLICATION TO INVESTIGATE THE SITUATION OF
THE KINGDOM OF THAILAND

WITH REGARD TO THE COMMISSION OF CRIMES AGAINST HUMANITY
A REPORT PRESENTED BY
AMSTERDAM & PEROFF LLP

ON BEHALF OF
photo: pedro ugarte/getty images
THE NATIONAL UNITED FRONT FOR DEMOCRACY AGAINST DICTATORSHIP
TO
THE OFFICE OF THE PROSECUTOR OF THE INTERNATIONAL CRIMINAL COURT
THE HAGUE, THE NETHERLANDS
31 JANUARY 2011
APPLICATION TO INVESTIGATE THE SITUATION OF
THE KINGDOM OF THAILAND

WITH REGARD TO THE COMMISSION OF CRIMES AGAINST HUMANITY
A REPORT PRESENTED BY
AMSTERDAM & PEROFF LLP
ON BEHALF OF
THE NATIONAL UNITED FRONT FOR DEMOCRACY AGAINST DICTATORSHIP
TO
THE OFFICE OF THE PROSECUTOR OF THE INTERNATIONAL CRIMINAL COURT
THE HAGUE, THE NETHERLANDS
31 JANUARY 2011
EXECUTIVE SUMMARY
Beginning in March 2010, the “Red Shirts” of the National United Front for Democracy
against Dictatorship (“UDD”) staged massive demonstrations in Bangkok, Thailand,
to protest the 2006 coup that had removed duly elected Prime Minister Thaksin
Shinawatra and disenfranchised millions of Thai citizens. For the next two months,
the Red Shirts remained holed up behind barricaded encampments built in locations
of strategic and symbolic significance in the heart of Bangkok, demanding new
elections and a dissolution of what they perceived to be the illegal, military-backed
government of Prime Minister Abhisit Vejjajiva.
In response to these demonstrations, the Royal Thai Army — under the direction
and approval of Prime Minister Abhisit and others in the Government — killed more
than eighty civilians and wounded two thousand others in April and May 2010,
including journalists documenting the events and medical volunteers assisting the
injured.
This Application is submitted to the Prosecutor of the International Criminal

Court (ICC) to request the launch of a preliminary investigation into the Situation
of the Kingdom of Thailand. The ICC has jurisdiction to investigate the situation
in Thailand pursuant to a referral by the United Nations Security Council under
Article 13(b) of the Rome Statute. Additionally, the ICC may exercise jurisdiction
ratione personae over Prime Minister Abhisit Vejjajiva, under Article 12.2.b of the
Rome Statute, by virtue of his citizenship in a State Party to the ICC, namely the
United Kingdom.
The Application contains evidence sufficient to demonstrate that a substantial basis

exists to believe that the following international crimes within the ambit of the ICC
were committed in connection with the suppression of the Red Shirt demonstrations:
(1) murder; (2) imprisonment and other severe deprivation of physical liberty; (3)
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other inhumane acts; and (4) persecution. The political and military leadership in
Thailand — including but not limited to Prime Minister Abhisit — is criminally
liable for said offenses.
The evidence presented in this Application includes a compilation of information

provided by a number of active-duty officers of the Royal Thai Army about the
planning and execution of the military response to the Red Shirts. They testify
collectively – under the designation Anonymous Witness No. 22 — that:
• The Thai Establishment, aware that the supporters of former Prime Minister
Thaksin would rise up in protest against the suppression of democratic
principles, adopted a policy to suppress any such protests through military
force, with the ultimate objective of destroying the movement for democracy.
• Part of this policy involved a high-stakes public relations strategy to create the
false impression that the Red Shirts were violent and should be suppressed
at all cost. This strategy included: (1) the destruction and/or manipulation
of evidence that incriminated the Army and the Thai Government; (2) the
planting of “evidence” to incriminate the Red Shirts; (3) the surreptitious
use of weaponry, including snipers and explosive devices, in such a way
as to create the false appearance that the Red Shirts were responsible for
violence; and (4) media propaganda designed to create the false appearance
that the Red Shirts were violent, dangerous and a threat to the Monarchy.
• Contrary to popular belief, the Army’s initial suppression operation on April

10 was not designed to disperse the Red Shirt crowd on Rachadamnoen
Avenue (Phan Fa Bride, Democracy Monument and Khok Wua Intersection),
but was designed to concentrate the demonstrators into a confined area
at the Phan Fa Bridge, create chaos, and assassinate the Red Shirt leaders
on the stage. As part of the operation, the Army deployed a group of more
than 150 professional snipers, drawn from the various branches of the Thai
military, who sporadically fired at demonstrators from rooftops with low-
caliber rounds in an attempt to provoke. This initial plan was unsuccessful
because the Ninth Cavalry Division stalled on Pinklao Bridge and was unable
to compress the crowd from the west.
• The Army regrouped and — with the express approval of Prime Minister
Abhisit — deployed Queen’s Guard troops from the Second Infantry Division,
under the command of General Prayuth Chan-ocha, to carry out a nighttime
suppression operation. Company-sized Army elements took up positions
directly facing the Red Shirt crowd at Democracy Monument and Khok Wua
Intersection, where a standoff ensued for more than an hour. Troops fired
live ammunition above the crowd — including a heavy .50 caliber machine
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gun — together with sporadic live fire directly into the crowd, attempting to
provoke the crowd, without success, to create a perceived need for the Army
to defend itself.
• At approximately 19:45 hours, two explosions near Democracy Monument

gave Army troops an excuse to open fire on the crowd without restraint.
Troops at the Khok Wua Intersection also opened fire without restraint,
although there had been no explosions in that area.
• After the military operations on Rachadamnoen Avenue on April 10

failed to end the Red Shirt demonstrations, the Army turned its attention
to suppressing the demonstrations that had now concentrated at the
Ratchaprasong Intersection. The Army’s plan called for establishing a
perimeter around the Ratchaprasong area to seal off ingress and egress,
followed by breaching the Red Shirt barricades and assassinating the leaders.
• During the period between May 13 and May 19, the Army deployed troops
from the Second Cavalry Division and the First Infantry Division to seal off
the Bon Kai area south of Ratchaprasong, and the Din Dang and Rajaprarop
areas north of Ratchaprasong. Although the official orders were to shoot
threatening targets only, the actual orders for the commanding officers,
which were unwritten, were to: (1) shoot all moving targets, regardless of
threat level; (2) prevent any photographic or video evidence; and (3) prevent
the removal of any bodies.
• These orders effectively required the troops to target journalists in the areas
of Bon Kai, Din Daeng and Rajaprarop. They also effectively required troops
to target medical personnel seeking to assist the wounded.
• The Royal Thai Army breached the Red Shirt barricades on May 19 under
orders to: (1) assassinate the Red Shirt leaders; (2) shoot any person suspected
of possessing weapons, without any requirement to determine whether
they were actually armed; (3) treat any person with a slingshot as armed
and dangerous; and (4) shoot any Red Shirt guard, even if unarmed. The
Red Shirt leaders were tipped off about these orders, and they surrendered
before the troops could kill them.
• These orders signified that troops were permitted to kill any person they
wished on May 19, which allowed for the shootings at the Wat Patumwanaram
temple that evening.
• The fires at the CentralWorld complex were set by arsonists hired by the
Army weeks in advance. The purpose of the operation was to cement in
the public mind the concept that the Red Shirt movement was violent and
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dangerous, and to create the impression that the Army’s actions were
justified. The Red Shirts were not responsible for the fires at the Central
World complex.
• After the demonstrations were over, elements of the Royal Thai Army
gathered a cache of AK-47 rifles and explosives and planted them in the Wat
Patumwanaram temple and in Lumpini Park in order to try to incriminate
the Red Shirts.
This Application includes an expert report by Joe Ray Witty, a Green Beret and
Master Sergeant (Retired) of the United States Army, Special Forces. Master Sergeant
(Ret.) Witty is a military-trained sniper and an explosives specialist, serving two
tours of duty in military combat operations in Afghanistan and Iraq. He is currently
employed by Los Angeles Police Department SWAT (Special Weapons and Tactics)
team, where he is a member of SWAT’s sniper and breaching cadres. He is also
an instructor for the Los Angeles Police Department in crowd control and crowd
management, where his responsibilities include the planning and execution of
law enforcement response to public demonstrations throughout the greater Los
Angeles area.
Master Sergeant (Ret.) Witty reviewed and evaluated the Royal Thai Army’s response
to the Red Shirt demonstrations in Bangkok in April and May 2010. Based on his
study of many hours of video and photographic evidence from the demonstrations,
together with a personal examination of the physical sites of the Royal Thai Army’s
response and numerous witness interviews, he prepared an Expert Report containing
the following conclusions, which are supported in detail in the body of his Expert
Report:
• On April 10, 2010, the Royal Thai Army did not engage in a rational or
reasonable crowd-management operation, which would necessarily have
involved a genuine attempt to disperse the demonstrators without inflicting
injury. Instead, the Royal Thai Army intentionally sealed off exit routes,
herded the crowd into a confined area, and engaged in various illegal acts
designed to provoke the crowd to violence so that the Army would appear
justified in its use of deadly force against demonstrators. These illegal acts
included, but are not necessarily limited to:
1. The use of highly trained military snipers to shoot unarmed

demonstrators with live rounds from elevated, concealed positions,
without provocation or justification;
2. The intentional, indiscriminate discharge of military weapons, including
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M-16 rifles and other automatic weapons firing live rounds, directly
into dense crowds of unarmed demonstrators, without provocation or
justification;
3. The intentional detonation of multiple military-grade explosive devices

within the immediate vicinity of Army troops, in a deadly form of
“friendly fire” designed to create the false impression that the Army
was under attack by demonstrators.
• The Royal Thai Army formally adopted rules of engagement that comport with
accepted crowd management standards in order to create the false impression
of reasonable conduct. However, the Thai Royal Army systematically violated
its stated rules of engagement in a manner constituting criminal conduct.
• The Royal Thai Army’s operation on April 10, 2010 was military in nature. Its
objective was to kill innocent civilians, without provocation or justification,
in order to suppress the Red Shirt demonstrations.
• The Royal Thai Army repeatedly targeted unarmed civilians during the
period April 10 through May 19, 2010, using deadly force in a manner that
was wholly inconsistent with reasonable law enforcement standards, but
rather was unprovoked, unjustified, intentional and criminal.
• The Royal Thai Army’s operations during the period May 13-18, 2010 were
military in nature. They did not comport with accepted standards of crowd
management or with the Royal Thai Army’s own stated ROE, and they were
criminal in nature.
• The Royal Thai Army’s operations on May 19, 2010 were military in nature.
They did not comport with accepted standards of crowd management or
with the Thai Royal Army’s own stated ROE, and they were criminal in
nature. They were designed to kill innocent civilians, without provocation
or justification, in order to suppress the Red Shirt demonstrations.
This Application also includes as evidence a compilation of information provided

by a number of law enforcement officials in Thailand with knowledge of the status
and progress of the official investigation by Thailand’s Department of Special
Investigations (“DSI”) into the killings during the Red Shirt demonstrations. They
testify collectively – under the designation Anonymous Witness No. 20 — that
there is absolutely no possibility that the DSI will voluntarily conduct a proper
investigation into the killings of the civilians and soldiers during the Red Shirt
demonstrations, based on the following:
amsterdam & peroff | on behalf of the national united front for democracy against dictatorship v
• It has been the official policy of the government of Thailand to conceal and/
or eliminate all evidence of criminal conduct by the government or the Army
leaders in connection with the Civilian Killings.
• After the April 10 killings, the Centre for Resolution of the Emergency
Situation (“CRES”) assigned the investigation to the DSI in order to control
the outcome. DSI Director Tharit hengdit was a member of CRES. The
assignment to the DSI was improper because CRES should itself have been a
target of criminal investigation.
• Director Tharit assigned the investigation into all of the April 10 killings to
Investigator Wirawat Dejboonpa, who is loyal to Director Tharit. Investigator
Wirawat intentionally did nothing to investigate the cases. Later, after the
additional killings in May, a total of eighty-nine deaths were assigned to
investigator Wirawat, who has failed to conduct any serious investigation into
the killings, but rather has tried to assign criminal responsibility to the Red
Shirt leaders currently incarcerated, in order to provide ostensible support
for the terrorism charges asserted against them by the Thai government.
• On August 30, 2010, public outcry forced Director Tharit to assign some
of the cases to other DSI investigators, many of whom are conducting
proper investigations. Many of those investigations have concluded, at least
preliminarily, that the killings were caused by certain soldiers of the Royal
Thai Army under orders from the Thai government and the CRES. Some
of the DSI investigators who have reached these conclusions have been
instructed by their superiors to change their conclusions.
• Other DSI investigators are doing nothing substantive to advance their

investigations. They are also hoping for special promotions that DSI Director
Tharit is seeking from the government on their behalf.
• DSI investigators have completed their initial reports regarding at least four
killings in May 2010, which conclude that soldiers of the Royal Thai Army,
under orders from the government, caused the deaths. At this stage, the DSI
would ordinarily consult with the District Attorney’s Office and request the
assignment of a District Attorney to interface with the DSI investigators to
begin assessing whether the killings were carried out with intent, or whether
they were in self-defense. However, DSI Director Tharit has taken no steps
to begin any investigation into the issue of intent. This is contrary to normal
DSI procedures and the requirements of Thai law, and is an attempt to delay
the cases.
• DSI Director Tharit has issued orders that the DSI investigators are prohibited
from summoning any soldier of the Royal Thai Army for interrogation. This
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position is inconsistent with ordinary practices of the DSI, which would have
long ago interrogated anyone the DSI had concluded had been the cause of
a killing.
• After certain DSI reports were leaked to the press, DSI Director Tharit was
summoned to a meeting with Deputy Prime Minister Suthep Thaugsuban, who
allowed Director Tharit to keep his position in exchange for an agreement
to suppress any potential prosecution of Army or government elements by
issuing a finding that there had been no criminal intent.
• Shortly after his meeting with Deputy Prime Minister Suthep, Director
Tharit issued an internal DSI edict expressing his sole authority over the
determination of whether there had been criminal intent in any of the killings.
Without a finding of criminal intent, there can be no criminal liability under
Thai law against Army leaders, CRES members or the Thai government.
• Additionally, following his meeting with Deputy Prime Minister Suthep, DSI
Director Tarit informed all of his investigators that if they are unable to
identify with specificity the names of the people who pulled the triggers
that led to killings during the Red Shirt demonstrations, they must conclude
that Red Shirts pulled the trigger.
This Application updates a preliminary report filed by Amsterdam & Peroff LLP with
the ICC Prosecutor on October 25, 2010, which itself presented evidence establishing
a reasonable basis to believe that the Royal Thai Government and the Royal Thai
Army were criminally liable under international law for crimes against humanity
under Article 5 of the Rome Statute (defined in Articles 6, 7, and 8). This Application
addresses the jurisdictional basis to launch an investigation and introduces newly
discovered evidence attesting to the commission of the above-mentioned crimes. It
further elaborates on the issues of individual criminal responsibility and superior
responsibility on the basis of the newly discovered evidence. Finally, while the initial
report merely requested that the ICC Prosecutor take notice of the information, with
a view to a potential future investigation, this Application concludes with specific
prayers for relief addressed to the ICC Prosecutor.
amsterdam & peroff | on behalf of the national united front for democracy against dictatorship vii
CONTENTS
1. Introduction 1
2. Road to the 2006 Coup 7

The Rise of Thaksin Shinawatra 7
The 2006 Coup 8
New Constitutional Order 9
Official Policy to Eradicate the Red Shirt Movement 10
3. The Bangkok Massacres 15

3.1 Abhisit’s Assault on Democracy 15
3.2 The Songkran Uprising 17
3.3 The 2010 Massacres 20
3.4 Abuse of Emergency Provisions 59
Internal Security Act 59
State of Emergency 61
3.5 A Strategy of Tension 64
4. Crimes against Humanity 75

4.1 General Requirements 76
Murder 77
Imprisonment and Other Severe Deprivation of Physical Liberty 81
Other Inhumane Acts 82
Persecution 84
4.2 Contextual Elements 92
An Attack “Directed Against a Civilian Population” 92
“State or Organizational Policy” 93
“Widespread or Systematic Nature” of the Attack 95
“A Nexus Between The Individual Acts and The Attack” 97
“Knowledge or Intent” 97
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4.3 Criminal Responsibility 99
Individual Criminal Responsibility 100
Superior Responsibility 102
Implications for the Thai Situation 104
5. Jurisdiction of the ICC 107

5.1 Referral by the Security Council 107
Rights of the Security Council in Relation to the ICC Statute 108
Requirements 109
Precedents 109
Implications for the Present Case 110
5.2 Personal Jurisdiction 111
Previous Situations 111
Rules on Immunity 112
Implications for the Present Case 113
5.3 Conclusion 113
6. Admissibility 115
6.1 Gravity 115
6.2 Complementarity 116
Unable and Unwilling 117
Ne Bis in Idem 119
6.3 Implications for the Thai Situation 119
A History of Impunity 120
Lack of Judicial Independence 124
The Department of Special Investigations 125
Prosecuting the Red Shirts 132
Obfuscation as “Reconciliation” 135
6.4 Conclusion 139
7. Relief Sought 141
Appendix 143
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1. INTRODUCTION
On March 12, 2010, more than a hundred thousand “Red Shirts” of the National
United Front for Democracy against Dictatorship (“UDD”) began to descend on
Bangkok from every province around the country, joining tens of thousands of
local residents in some of the most massive anti-government demonstrations ever
organized in the history of Thailand. The Red Shirts billed this “the final battle
against dictatorship,” vowing not to leave the streets of the capital until Prime
Minister Abhisit Vejjajiva would agree to “dissolve the House,” “return power
to the people,” and call new elections. For the next two months, the Red Shirts
remained holed up behind barricaded encampments built in locations of strategic
and symbolic significance in the heart of Bangkok. The massive show of political
force marked the high point in the Thai people’s ongoing attempt to fight back
against the unrelenting assault on their most fundamental right — the right to self-
determination through genuine elections based on the will of the people.
The latest assault on democracy was first launched with the planning and execution
of a military coup d’état in September 2006. In collaboration with members of the
Privy Council, Thai military generals overthrew the popularly elected government
of Prime Minister Thaksin Shinawatra, whose Thai Rak Thai party had won three
consecutive national elections in 2001, 2005 and 2006. The regime put in place
by the coup hijacked the institutions of government, dissolved Thai Rak Thai, and
banned its leaders from political participation for five years. When the successor
to Thai Rak Thai managed to win the next national election in late 2007, an ad hoc
court consisting of judges hand-picked by the coup-makers dissolved that party as
well and banned its leaders from politics for five years. Abhisit Vejjajiva currently
holds the office of Prime Minister only because the parties that won the last four
democratic elections were illegally dissolved.
amsterdam & peroff | on behalf of the national united front for democracy against dictatorship 1
The 2006 coup marked the beginning of an attempt to restore the hegemony of
Thailand’s old moneyed elites, military generals, high-ranking civil servants, and
royal advisors — groups this Application collectively refers to as the “Establishment.”
The restoration of Thailand’s ancien régime entailed first and foremost the
annihilation of Thai Rak Thai, an electoral force that had come to present a major,
historical challenge to the Establishment’s power. Subsequently, it took the form
of a concerted policy that called for nothing short of destroying the democratic
movement the Red Shirts now lead.
Indeed, as detailed below, almost immediately after the 2006 coup, key political and
military leaders within the Establishment came to a consensus that the Red Shirts
would inevitably rise up in protest against the military junta and the unelected
government it had imposed on the Thai people. In response, the Establishment
planned and implemented military countermeasures in preparation for the
movement’s violent suppression. Under the direction of General Prayuth Chan-
ocha — who has since been promoted to the rank of Commander-in-Chief — the
Royal Thai Army rehearsed operations modeled around the example of Tiananmen
Square. They assembled a team of specialists in covert operations, including a group
of 150 among the most skilled, best trained snipers and marksmen drawn from all
branches of the military. These men would become the so-called “third hand” and
the mysterious “men in black” whom the Prime Minister would repeatedly blame
for inciting the violence in 2010 — a story concocted by the government to justify
the military’s use of deadly force, and to create the false impression that the Red
Shirts were dangerous and represented a threat to the monarchy.
The Red Shirt rally was sixty-six days old on May 19, 2010, when armored vehicles
rolled over makeshift barricades surrounding Bangkok’s Ratchaprasong intersection
and penetrated the Red Shirts’ encampment. This was the second suppression
operation carried out by the Royal Thai Army. Weeks earlier, on April 10, 2010,
Army troops had botched an attempt to assassinate the Red Shirt leaders on stage
at the Phan Fa Bridge. The nighttime military operation that followed — led by the
Second Infantry Division (Queen’s Guard), under the command of General Prayuth
— killed twenty-seven people, including a handful of troops sacrificed by the
Army leadership as an excuse to open fire on the thousands of unarmed civilians
assembled at Democracy Monument and the nearby Khok Wua intersection.
At least fifty-five more people died in suppression operations around Ratchaprasong

between May 13 and May 19. South of Ratchaprasong, the Second Cavalry Division
— led by Maj. General Surasak Boonsiri under direct command of Army Commander
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Anupong Paochinda — set up a live fire zone along Rama IV Road, with unwritten
orders to shoot anything that moved. These troops were also ordered to prevent
photographs of the killings (which led to the targeting of journalists) and to prevent
the removal of any bodies (leading to the targeting of medical personnel). This order
was given in support of an Army “intelligence operation” in which soldiers posing
as ambulance drivers shuttled bodies to two colluding Bangkok hospitals, where
the incriminating evidence was to be destroyed by cremation. The First Infantry
Division, under the command of Maj. General Kampanat Rudjit, was given the same
set of orders for the Din Dang and Rajaprarop areas north of Ratchaprasong. On
May 13, one of the Army’s many covert snipers fired the notorious bullet that killed
Maj. General Khattiya Sawasdipol (known as Seh Daeng) while he was giving a live
interview to the New York Times. Sniper fire would take the lives of dozens more
over the following week.
On May 19, the Second Infantry Battalion of the Thirty-First Infantry Regiment
(King’s Guard), with support from the Third Special Forces Regiment, breached the
Red Shirt barricades with orders to assassinate the Red Shirt leaders. However,
well-placed sources inside the Army command tipped off the leaders in time for
them to surrender to police. At the announcement of their surrender, thousands
of demonstrators moved to the nearby Wat Pathumwanaram Temple, a designated
safe haven for protesters streaming out of Ratchaprasong, where six unarmed
civilians, including three nurses, were killed by snipers standing on elevated mass
transit rails in the evening hours of May 19. The Army leadership later planted a
cache of AK-47 automatic rifles and explosives inside the temple and in Lumpini
Park, displayed by Army spokesman Col. Sansern Keawhamnerd during a press
conference called to announce the “discovery.”
By the time Ratchaprasong was cleared, more than thirty major commercial buildings
stood smoldering. While these arsons are largely assumed to have been the work
of the Red Shirts, well-placed witnesses within the Royal Thai Government and the
Royal Thai Army report that the incidents were arranged by the Army several weeks
in advance, as a way to manufacture further “evidence” of the Red Shirts’ violent
tendencies and give credence to the charges of terrorism subsequently brought
against the Red Shirt leaders.
While hundreds of eyewitness accounts and thousands of video clips document the
use of live fire by the Royal Thai Army against unarmed civilians, journalists, and
emergency medical personnel, the Thai Government has systematically suppressed
the evidence of its crimes. Instead of upholding its duty under international law to
investigate the killings and subject those responsible to prosecution, the Royal Thai
Government has manipulated the investigations, intimidated witnesses who would
provide the truth, and falsely charged the Red Shirt leaders with “terrorism” to
distract from their own criminal conduct. Indeed, the judicial proceedings against
the Red Shirt leaders — which carry potential death sentences — have been fraught
with irregularities, including the improper exclusion of relevant evidence and the
judge’s refusal to allow the Red Shirt leaders to attend their own trials. Instead,
officers of the Royal Thai Army involved in the suppression operations as well as
investigators who manipulated their reports to suit the government’s needs have
either received or are expecting promotions.
Months since the dispersal operations, the Royal Thai Government’s attempt to
destroy the Red Shirt movement remains in full swing. The Abhisit administration
continues to rely on a “strategy of tension,” enlisting agents provocateurs to stage
incidents of violence and sabotage in an effort to taint a peaceful movement and
justify its ongoing suppression. Meanwhile, the crackdown on free expression
continues through strict censorship and the abuse of draconian legal provisions that
criminalize legitimate dissent. Hundreds of protesters remain arbitrarily detained
for violating the Internal Security Act and the Emergency Decree — according to
some reports, many among them have suffered torture at the hands of their jailers.
And a series of local Red Shirt activists have since turned up dead in the provinces
of Chonburi, Korat, Pathum Thani, and Chiang Mai.
In the aftermath of one of the worst episodes of state violence Thailand ever witnessed,
Prime Minister Abhisit publicly committed his administration to “reconciliation,”
promising investigations, renewed dedication to dialogue, and movement toward
an election that would eventually rectify the government’s absence of a legitimate
democratic mandate. In the months since, the Royal Thai Government has done
precisely the opposite, revealing a hegemonic, destructive agenda at odds with
its seemingly constructive rhetoric. The dereliction of its duty to investigate, the
violence, the censorship of all alternative media, and the continuing persecution
of the Red Shirt movement demonstrate that what the Thai Government means by
“reconciliation” is “impunity for state officials” as well as a return to “ideological
conformity” enforced through a mixture of propaganda and repression.
Whereas the amount of deadly force that the Thai Government has unleashed on
Red Shirt demonstrators, at the cost of dozens of civilian lives, should be considered
disproportionate, the systematic deprivation of individual political rights and civil
liberties of those opposed to the government, as well as the arbitrary detention
and harassment of hundreds among them, amounts in this situation to political
persecution. Given the scale and gravity of the abuses, as well as their protracted
nature, it is imperative that those responsible face full accountability. This is
unlikely to happen in Thailand, where the perpetrators of similar massacres in
1973, 1976, and 1992 have never been investigated, much less punished, for the
killings. Indeed, it is now clear that only incisive international involvement can
assure that the government-led investigation into the Bangkok Massacres is not
merely an exercise in obfuscation — one leading to the same kind of whitewash
that has shielded from justice those responsible for every major episode of state
violence in the history of Thailand.
To that end, this Application, filed with the International Criminal Court (“ICC”) in
The Hague, The Netherlands, respectfully requests that the ICC Prosecutor launch a
preliminary investigation into the situation of the Kingdom of Thailand with regard
to the potential crimes against humanity committed within its territory in the time
period since September 2006 up to the 2010 massacres and their aftermath. The
Applicant is minded that Thailand is not a ratifying State Party to the ICC Statute.
However, the Application will substantiate that:
(i) The situation can be brought within the jurisdictional ambit of

ICC through referral by the United Nations Security Council under
Article 13(b) of the Rome Statute;
(ii) At least with regard to Prime Minister Abhisit Vejjajiva — who

expressly authorized the killing of civilians pursuant to a policy
to destroy the Red Shirt movement — the ICC may exercise
jurisdiction ratione personae. There is evidence, in particular, that
Mr. Abhisit is a national of a State Party to the ICC, namely the
United Kingdom, sufficient to give the Prosecutor a reasonable
basis to examine the ICC’s jurisdiction under Article 12.2.b of the
Rome Statute;
(iii) The situation gives rise to international crimes within the

jurisdictional ambit of the ICC;
(iv) The political and military leadership of Thailand is deemed

criminally liable for these offences.
On 25th October 2010, a preliminary report was filed with the ICC Prosecutor on
behalf of the United Front for Democracy against Dictatorship (UDD). The initial
report presented evidence establishing a reasonable basis to believe that the Royal
Thai Government and the Royal Thai Army committed crimes against humanity
under Article 5 of the Rome Statute (defined in Articles 6, 7, and 8) — imprisonment
and other severe deprivation of physical liberty as well as political persecution and
murder — in April and May 2010, resulting in the death of almost ninety civilians
and the injury of two thousand more. According to the findings in the preliminary
report, these actions trigger criminal liabilities for government officials under
international criminal law.
This updated report addresses the jurisdictional basis to launch an investigation

and introduces newly discovered evidence attesting to the commission of the
above-mentioned crimes. It further elaborates on the issues of individual criminal
responsibility and superior responsibility on the basis of the newly discovered
evidence. Finally, while the initial report merely requested that the ICC Prosecutor
take notice of the information, with a view to a potential future investigation, this
petition concludes with specific prayers for relief addressed to the ICC Prosecutor.
2. ROAD TO THE 2006 COUP
While Thailand has long replaced its absolute monarchy with a constitutional
regime, it exhibits few of the characteristics of a true democracy. Since 1932, power
has most often changed hands not through constitutionally mandated procedures,
but rather through military coups. Exception made for three, short-lived interludes
of “real” democracy (1946-47, 1973-76, 1988-91), all of which were brought to a
close by military intervention, since 1932 Thailand has been ruled by regimes that
embodied different mixtures of democracy and authoritarianism. Common to all
these regimes, however, is the dominance exercised by the country’s unelected
“Establishment” — a network of officials in the civilian and military bureaucracy
as well as big business families and a small coterie of royal advisors — over the
country’s elected officials. This arrangement was severely disrupted in May 1992,
when historic, violent clashes between civilians and military forces (“Black May”)
set in motion a five-year process of reform that culminated in the adoption of a new
Constitution on October 11, 1997. The 1997 Constitution created unprecedented
political stability, finally placing Thailand on the path to consolidating a real
democracy.
THE RISE OF THAKSIN SHINAWATRA

Thaksin Shinawatra entered politics in 1994, serving a brief term as Foreign Minister
and then twice as Deputy Prime Minister under different governments. On July 14,
1998, Thaksin founded the political party Thai Rak Thai, which went on to win
the 2001 general elections in a landslide. After completing a full term in office
as Thailand’s Prime Minister, something unprecedented in the country’s history,
Thaksin further consolidated Thai Rak Thai’s dominance in the 2005 elections.
Running on the strength of its administration’s accomplishments, Thai Rak Thai won
three quarters of the seats in the House of Representatives, resulting in Thaksin’s
reappointment as Prime Minister.
In response to the elected administration’s attempt to assert its control over the policy-
making process and place the military under civilian control, domains traditionally
reserved for unelected institutions, portions of Thailand’s Establishment lent their
support to a campaign of street protests against the government, which called
on the King and the military to intervene to unseat Thai Rak Thai’s government.
Thaksin was accused of disloyalty to the monarchy, a charge habitually made in
Thailand to discredit those who pose a threat to Establishment interests.
Controversy also arose over the Shinawatra family’s sale of Shin Corp, by then one
of Thailand’s largest conglomerates. While Thaksin had divested his interest in
Shin Corp before the 2001 elections, by transferring his shares to his two eldest
children, in early 2006 the family sold its 49.6% stake in the company to Temasek
Holdings, Singapore’s sovereign fund. Critics complained that Thaksin had sold
national assets to a foreign country and alleged that the transaction had exploited
a loophole in the law that saved the family from paying capital gains taxes. The
timing of the sale was fortuitous for the opposition’s purposes, coming in advance
of planned anti-Thaksin demonstrations in Bangkok. On February 4-5, 2006, fifty
thousand protestors, led by activists who would later form the “People’s Alliance
for Democracy” (PAD), demanded Thaksin’s resignation. In response, Thaksin
dissolved the House of Representatives and called an election for April 2, 2006.
Boycotted by the opposition, the elections yielded another comfortable victory
by Thai Rak Thai, but the courts subsequently threw out the results on dubious
constitutional grounds. The Constitutional Court ordered a new round of voting,
which were scheduled for October. As reports of a possible coup began to emerge,
a car packed with seventy kilograms of explosives was discovered near Thaksin’s
residence.
THE 2006 COUP

On September 19, 2006, while Thaksin was attending a meeting of the United
Nations General Assembly in New York, military forces took control of Bangkok. The
junta, led by the Commander in Chief of the Army, General Sonthi Boonyaratglin,
came to be known in English as the Council for Democratic Reform (“CDR”). The
generals justified the illegal seizure of power by citing “disunity” among the Thai
people, “signs of rampant corruption and malfeasance,” and “interference” in the
activities of independent state agencies.1 General Sonthi took complete control of
the government and laid the groundwork for the restoration of the military’s long-
standing political role. He abrogated the 1997 Constitution and abolished the Senate,
the House of Representatives, the Council of Ministers and the Constitutional Court.
He vested the duties of the Prime Minister in the leader of the CDR (i.e. himself) and
announced that the scheduled general elections would be postponed for a year. The
CDR also imposed a strict ban on any political gathering of five or more people.
NEW CONSTITUTIONAL ORDER

On October 1, 2006, the junta, now renamed Council for National Security (“CNS”),
introduced an Interim Constitution, which declared all announcements and orders
issued by the CDR in the aftermath of the coup to be “legitimate and in accordance
with the Constitution.” The Interim Constitution ordered the drafting of a new
Permanent Constitution, a task over which the CNS exercised direct control. To
secure the adoption of the Draft Constitution, the junta mounted a large-scale
public relations campaign and imposed draconian restrictions designed to silence
the public’s opposition to the draft. Following a consultative referendum, the
Constitution was formally promulgated on August 24, 2007. In many ways, the
new charter marked a radical departure from the principles enshrined in the 1997
Constitution.
In the wake of the coup, the generals disbanded the Constitutional Court had replaced
it with a handpicked Constitutional Tribunal. On May 30, 2007, the Constitutional
Tribunal dissolved Thai Rak Thai and banned 111 Thai Rak Thai executives from
politics for five years, based on a retroactive statute the generals had introduced
a few months earlier. In August 2007, however, former Thai Rak Thai members
regrouped in the People Power Party (“PPP”). The PPP subsequently went on to
win the first and, to date, the only post-coup general elections, held in December
2007. The party was able to build a coalition government led by Prime Minister
Samak Sundaravej. Following the electoral success of political forces that remained
loyal to Thaksin, the PAD re-appeared on the streets of Bangkok. Largely peaceful
demonstrations were staged on Ratchadamnern Avenue beginning in late May 2008,
but as time wore on the PAD turned increasingly confrontational and violent. In
late August, armed PAD guards stormed a television station in Bangkok, assaulted
several ministries, and occupied the grounds of the Government House, physically
1. “Announcement on the Appointment of the Leader of the Council for Democratic

Reform,” September 20, 2006. http://www.mfa.go.th/internet/document/2826.pdf
preventing the government from working. At the same time, PAD supporters seized
airports in the cities of Phuket, Krabi and Hat Yai and blocked major roads and
highways. PAD renewed its pleas for another military coup.
On September 9, 2008, the Constitutional Court forced Prime Minister Samak to

resign, on the grounds that his role as the host of a television cooking show was
in breach of the Constitution. While Samak was replaced by Somchai Wongsawat, a
fellow leader of the PPP and Thaksin’s brother in law, the PAD refused to disperse.
Violent clashes with the police on October 7 were prelude to the PAD’s occupation
of Bangkok’s Suvarnabhumi International Airport and the old International Airport
at Don Muang beginning on November 25, 2008. As tens of thousands of travelers
were left stranded, the government imposed the Emergency Decree and called on the
country’s armed forces to restore order. The military, however, refused to comply.
Finally, on December 2, the Constitutional Court handed down a decision dissolving
the PPP as well as its coalition partners, disqualifying every member of the parties’
executive committees from politics for a period of five years. Within hours, the
PAD ended its siege of the airports and vacated the Government House. It was only
in the aftermath of the confrontation between the government and the PAD, the
airport occupations, and the Constitutional Court’s verdict that the Democrat Party
was able to form a coalition government and install Abhisit Vejjajiva as its Prime
Minister on December 18, 2008. The new coalition was brought into being thanks
to the defection of one of the PPP’s key factions, led by banned politician Newin
Chidchob, and former PPP coalition partners. The deal was concluded on December
6, at the home of Army Chief Anupong Paochinda, following intense lobbying by
the military and members of the Privy Council.
OFFICIAL POLICY TO ERADICATE THE RED SHIRT MOVEMENT

The Statement of Anonymous Witness No. 22 is an amalgamation of the testimony
provided by a number of high-ranking, active-duty officers in the Royal Thai Army,
who have provided information anonymously because they would be in grave
danger if the Thai military and/or government were to learn their identities. These
witnesses are known to Applicant’s counsel, and would be made available to the ICC
Prosecutor, provided acceptable measures were in place to ensure their safety and
the safety of their families. The statements were merged to render the individuals
who risked their lives and careers to provide testimonies more difficult to identify.
The Statement of Anonymous Witness No. 22 reveals that, just months since the
illegal seizure of power in September 2006, the military junta began developing a
policy designed to suppress at all cost any democratic movement that might emerge
as a result of the coup. While the Red Shirt movement was still in its infancy at the
time, the policy came about because the Royal Thai Government and the Royal
Thai Army fully anticipated that supporters of deposed Prime Minister Thaksin
Shinawatra would rise up to demand that their democratic rights be restored:
Almost immediately after the 2006 coup that deposed former

Prime Minister Thaksin Shinawatra, the highest levels of leadership
in the Royal Thai Army came to conclusion that the pro-democracy
movement in Thailand would almost certainly stage mass protests
in response to the military junta that had taken over control of the
country following the coup. This thinking was consistent with the
views of the military junta itself, the leadership of the Democrat
Party, and the elite ruling class within Thai Government.
Consequently, the leadership of the Royal Thai Army, with the full
knowledge and authorization of the Thai Government, began to
develop a military response plan. The overarching policy behind
the response plan was to react to any political demonstrations by
the Red Shirts with decisive military force in order to suppress
and ultimately destroy the Red Shirt movement in Thailand.
In addition to military force, one of the central strategies of

this suppression policy involved (and continues to involve) the
element of deception. The strategy has been to manufacture
the false public impression that neither the Army nor the Thai
Government are responsible for illegal, wrongful or unreasonable
conduct toward the Red Shirt movement but, rather, that the Red
Shirts are solely responsible for the use of military force against
them. This strategy is coordinated between the Army and the
Thai Government, and has taken a variety of forms including, as
described more fully below: (a) destruction and/or manipulation
of evidence that incriminates the Army and the Thai Government;
(b) planting of evidence designed to incriminate the Red Shirts; (c)
the surreptitious use of weaponry, including snipers and explosive
devices, in such a way as to create the false appearance that the
Red Shirts are responsible for violence; and (d) media propaganda
designed to create the false appearance that the Red Shirts are
violent, dangerous and threat to the monarchy.
The military leadership responsible for this policy included

General Prem Tinsulanonda, General Anupong Paochinda, General
Prawit Wongsuwan, General Prayuth Chan-ocha, General Kittipong
Ketkowit, General Songkitti Jaggabatara, Admiral Kamthon
Phumhiran, Air Chief Marshal Ithiporn Supawong, Police General
Patheep Tanprasert, General Piroon Paewpolsong, General Wit
Thephadsadin Na Ayutthaya, General Teerawat Boonyapradap,
and General Daopong Rattanasuwan.2
The Statement of Anonymous Witness No. 22 describes the preparations and

rehearsals made by the Royal Thai Army in advance of the anticipated mass
demonstrations:
Because of its historic political significance, the area of

Rachadamnoen Avenue was thought to be the likely focus of
any Red Shirt demonstrations. Therefore, as of approximately
February 2007, in furtherance of this Army/Thai Government
policy, the Army’s Eleventh Regiment King Guard — located at
Bangkhen, in the northern part of Bangkok — was designated
as the training grounds for the anticipated suppression of Red
Shirt demonstrations. The facilities of the Eleventh Regiment were
selected because of they were large enough to accommodate a
full-scale mock-up of Rachadamnoen Road, which was mapped
out in detail on the ground, beginning at the area of the Rama V
Monument, south to Phan Fa Bridge and curving west to Pinklao
Bridge on the Chaopraya River.
All of the roads in the vicinity of Rachadamnoen Avenue were

recreated for training of Army troops in anticipation of suppression
operations. Regular training took place at these mock-up facilities
continuously as of February 2007, at the insistence of General
Prayuth, with various component parts of the Armed Forces
rotating into the Eleventh Regiment compound for training.
In addition to the training activities at the Eleventh Regiment

facilities, Armed Forces snipers were trained for operations in the
Rachadamnoen Avenue area. They became intimately familiar with
building locations and elevations, along with strategic locations
for posting snipers. Their marksmanship training incorporated
hypothetical targets based upon these parameters. They
established killing zones, determined trajectories, and assigned
snipers to specific zones.
2. Statement of Anonymous Witness No. 22, at ¶¶ 4-7. Full text reproduced in the
Appendix.
Certain Army units were permitted to grow their hair and beard,
and they were ordered to attempt to infiltrate the UDD. Several
soldiers secured positions as drivers, guards and sound engineers
for various Red Shirt leaders, which enabled them to acquire
information about the Red Shirts, as well as to identify Red Shirt
targets for the Army.
The Army leadership began to examine and study the history of

political conflict in other countries, with particular attention paid
to the strategy and tactics of armed forces in other countries who
have put down civilian demonstrations by force.3
3. Statement of Anonymous Witness No. 22, at ¶¶ 8-12.

3. THE BANGKOK MASSACRES
On March 12 2010, members of the National United Front for Democracy against
Dictatorship began to descend on Bangkok from every province around the country,
vowing not to leave until Abhisit dissolved the House and called new elections.
Formed in the wake of the coup by supporters of ousted Prime Minister Thaksin
Shinawatra, in the intervening years the Red Shirts built an intricate organization
spanning much of the country’s territory. This democratic movement only went
from strength to strength as the judiciary and the military overturned the results
of the 2007 elections and made Abhisit the Prime Minister in late 2008.
3.1 ABHISIT’S ASSAULT ON DEMOCRACY

Immediately upon coming to power, the Abhisit administration has sought to silence
its opposition through repressive legislation such as the country’s draconian lèse
majesté laws and the Computer Crimes Act. In 2009 alone, the courts are reported
to have accepted charges of lèse majesté (a violation of Article 112 of Thailand’s
Criminal Code) for 164 cases. That exceeded the previous record of 126 cases set in
2007, in the wake of the coup, and more than doubled the number of cases (seventy-
seven) taken up by the judiciary during the People Power Party’s administration
in 2008. It should be noted that the highest number of cases prior to the coup
was recorded in 2005, when thirty-three were successfully submitted to the courts.
Owing to both legal restrictions and the unwillingness of major media outlets
to discuss information that might damage the image of the monarchy, the vast
majority of the cases have gone unreported by the local and international press.1
1. Marwaan Macan-Markar, “Thailand: Lese Majeste Cases Rise but Public in the
Dark,” Inter Press Service, May 14, 2010.
http://ipsnews.net/login.asp?redir=news.asp?idnews=51434
The year 2009 also marked the continued prosecution — and in some cases the
conviction and harsh sentencing — of activists who had been jailed for lèse majesté
the year before. Most disturbing is the case of Darunee Charnchoensilpakul (“Da
Torpedo”), sentenced to eighteen years in prison for three charges of lèse majesté
(one per offending comment) stemming from a speech she gave in July 2008. Her
trial was held in secret, ostensibly for reasons of “national security.” Contrary to
most defendants facing similar accusations and the routine denial of due process,
Da Torpedo refused to plead guilty to the charges. In return, she not only received
an extraordinarily severe sentence. Once convicted, she was placed in solitary
confinement and was forced to wear a nametag that identified the crime for which
she was convicted, exposing her to harassment.
The abuse of the Computer Crimes Act has complemented prosecutions of lèse
majesté. Police Colonel Suchart Wongananchai, Inspector of the Ministry of
Information and Communications Technology, recently admitted to blocking over
fifty thousand websites found by Ministry employees to have violated the Act. Some
estimates put the number of websites blocked by the authorities as high as four
hundred thousand.
The two highest profile prosecutions for violations of the Computer Crimes Act
are those mounted against Suwicha Thakor and Chiranuch Premchaiporn. Suwicha
Thakor was arrested in January 2009 for posting on the Internet a picture deemed
offensive of the King. While he was later sentenced to twenty years based on both
the Computer Crimes Act and Thailand’s lèse majesté statute, the sentence was
commuted to ten years on account of his guilty plea. After spending a year and a
half in prison, Suwicha eventually received a royal pardon on June 28, 2010.
Chiranuch Premchaiporn, the web manager of independent publication Prachatai,

was arrested in March 2009 and charged with ten counts of violating the Computer
Crimes Act. She is being prosecuted owing to her failure to promptly remove
comments on the Prachatai forum that the authorities had deemed injurious to
the monarchy. She currently faces a sentence of fifty years in prison at the end of
a criminal trial set to begin in February 2011. Meanwhile, the Prachatai website has
been blocked repeatedly by the authorities since the beginning of the latest Red
Shirts demonstrations.
Other arrests for supposed violations of the Computer Crimes Act include those
of Nat Sattayapornpisut (for transmitting anti-monarchy videos), Tantawut
Taweewarodomkul (for posting anti-monarchy content), Wipas Raksakulthai (for
posting an offensive comment on Facebook), and four people accused of spreading
“rumors” about the King’s health — at least two of them for merely translating into
Thai a Bloomberg article on the subject.
The systematic abuse of political crimes legislation has earned the Abhisit
administration harsh rebukes from the Committee to Protect Journalists and
Reporters Without Borders. More generally, by the end of 2009 Thailand had slipped
on virtually every available measure of freedom and democracy. In its “Freedom
in the World 2010” survey, for instance, Freedom House stated that Thailand is
not an “electoral democracy,” owing to the constant interference of the military in
the political process as well as the Democrat Party’s insistence on governing the
country in the absence of an electoral mandate. Freedom House further chastised
the Democrat-led administration for its “use of the country’s lèse majesté laws
to stifle freedom of expression,” particularly against “activists, scholars, students,
journalists, foreign authors, and politicians who were critical of the government.”2
In a report released in early 2010, similarly, Human Rights Watch lamented the
“serious backsliding” observed in Thailand’s human rights record over the course
of Abhisit’s first year in office, arguing that the Abhisit administration “continually
undermined respect for human rights and due process of law.”3 In presenting the
organization’s latest report, issued in 2011, Human Rights Watch Asia Director
stated that “human rights in Thailand suffered a sharp and broad reverse in 2010,”
citing “ill-treat[ment] of detainees” and “broad-based censorship.”4
3.2 THE SONGKRAN UPRISING, 2009

Of an altogether more serious nature is the campaign of violence to which members
of the UDD have been subjected by the Abhisit administration. On April 11, 2009,
hundreds of Red Shirts assembled outside the venue of an ASEAN Summit in
Pattaya to protest the undemocratic manner in which Abhisit had come into office.
2. Freedom House, “Freedom in the World, 2010 Edition,” http://www.freedomhouse.

org
3. Human Rights Watch: “Thailand Serious Backsliding on Human Rights,” January
20, 2010.
http://www.hrw.org/en/news/2010/01/20/thailand-serious-backsliding-human-
rights
4. Human Rights Watch, “Thailand: Serious Setbacks in Respecting Rights,” January
25, 2011.
http://www.hrw.org/en/news/2011/01/25/thailand-serious-setbacks-respecting-
rights
The summit was cancelled after Red Shirt protesters entered the premises of the
hotel where the talks were being held. Following the operation in Pattaya, the focus
of the protests shifted to Bangkok, where the Red Shirts staged traffic blockades
and demonstrations around the city. The government declared State of Emergency
in Bangkok and five surrounding provinces in preparation for a more incisive
crackdown. In the early morning of April 13, the military was sent in to disperse
the Red Shirts, now scattered across various locations in Bangkok.
In dispersing the April 2009 demonstrations, the Royal Thai Army did not employ
the crowd control measures prescribed by the United Nations. Instead — using
troops from the prestigious Second Division of the First Army Region, referred
to as the “Queen’s Guard” — they provoked physical confrontation with the Red
Shirts, firing live ammunition at unarmed civilians in pre-dawn darkness, injuring at
least 123 protesters. This excessive and overwhelming use of military force quickly
prompted Red Shirt leaders to surrender and induced the demonstrators to leave
the encircled Government House to avoid a bloody siege.
Although the government claimed at the time that the Army had acted in accordance
with international standards, and that no one had been killed during the crackdown,
witnesses reported that at least six Red Shirts were killed by the Army’s live
fire, but their bodies were loaded onto military trucks and quickly carried away,
preventing them from being identified. Days later, the bodies of two bound and
gagged Red Shirts were fished out of the Chaophraya River, showing evident signs
of torture. While three separate Parliamentary committees investigated these
events and concluded that the Army’s nighttime operations violated proper rules
of peacekeeping engagement, no Army personnel was ever investigated or charged
in connection with the events.
The Statement of Anonymous Witness No. 22 confirms that the events were part
of the official policy to annihilate the Red Shirt movement:
During the first part of 2009, the Army learned through its
intelligence assets that the Red Shirts were planning mass
demonstrations in April 2009, involving thousands of participants.
The first such demonstrations began on approximately March
26, 2009. As anticipated, the demonstrators assembled in the
area around the Government House on Rachadamnoen Road,
demanding the dissolution of the Parliament and fresh elections.
In response to these demonstrations, the Royal Thai Army’s Second

Infantry Division (also known as the Queen’s Guard or the Eastern
Tigers), under the command of General Prayuth Chan-ocha and
Maj. Gen. Walit Rojanapakdi, was charged with responsibility for
suppressing the demonstrations. On April 9, 2009, the Second
Infantry Division left their headquarters in Chonburi Province,
Sakaew Province and Prachinburi Province and arrived for staging
at the Eleventh Regiment compound in Bangkhen.
At approximately midnight on April 12, The Army withdrew troops

of the First and Ninth Infantry Divisions who had been occupying
the Ding Dang area east of the Government House, and replaced
them with troops of the Second Infantry Division under direct
control of Maj. General Walit Rojanapakdi, who was to carry out
the suppression operation.
General Walit was given four basic orders in connection with

the operation: (a) to complete the suppression before daylight
on April 13; (b) to leave no bodies or injured behind; (c) to leave
no traces of blood or other incriminating evidence; and (d) to
prevent any reporters from witnessing the operations. These
orders came from General Prayuth Chan-ocha, with the approval
of Prime Minister Abhisit. It was clear to me from these orders
that the purpose and intent of the military operation was to kill
civilians, and that General Prayuth, his superiors in the Royal
Thai Army, and the decision-makers within the Thai Government,
including Prime Minister Abhisit, were aware that the operation
would involve killing innocent civilians as a part of implementing
their overarching policy to suppress and eliminate the Red Shirt
movement.
Additionally, General Prem Tinsulanonda ordered General Prayuth

to assassinate some of the Red Shirt leaders in retaliation for the
fact that Red Shirt demonstrators had staged protests in front of
General Prem’s home.
General Prayuth assigned Colonel Romklao Thuwatham to lead the

Second Infantry Division’s suppression operation on the ground.
A unit from the Army’s First Infantry Division was assigned the
task of retrieving any bodies and removing them from the area.
They were also assigned the task of taking prisoners. These troops,
with assistance from the Bangkok Metropolitan Administration
used water trucks to hose down the area to remove any traces of
blood. The First Infantry Division removed at least six bodies of
Red Shirt demonstrators.
Following the events of April 2009, officials within the Army and
the Thai Government falsely reported to the media in Thailand that
no Red shirt demonstrators had been killed by the Army. Similar
statements were made by Colonel Romklao and others to official
parliamentary investigative commissions held later in 2009. These
statements, however, were false. The Second Infantry Division
was responsible for killing at least six and wounding more than a
hundred people during the suppression operation in April 2009.
The Royal Thai Army and the Thai Government repeated this
pattern of unprovoked killing and public deception on a much
larger scale in response to the Red Shirt demonstrations in 2010.
Indeed, the fact that the international press had failed to question
the use of military weaponry in 2009 encouraged the Army
Leadership to use them even more liberally in 2010.5
3.3 THE 2010 MASSACRES

In the early part of 2010, in what promised to be the culmination of their campaign
against Abhisit’s military-backed administration, the Red Shirts organized some of
the most massive pro-democracy demonstration in the history of Thailand. Over
the course of two-and-a-half months, Prime Minister Abhisit directed a response
that was consistent with the methodology employed in 2009, but exponentially
more brutal. The operation focused on assassinating the Red Shirt leadership, and
it was marked by the intentional use of military force — both covert and overt —
against an unarmed citizenry. The campaign was supported by a carefully planned
strategy to destroy incriminating physical evidence and frame the Red Shirts.
The Statement of Anonymous Witness No. 22 describes the strategy as follows:
In early 2010, the Army learned from its intelligence assets that
the Red Shirts would hold mass demonstrations in Bangkok, as
of March 12, along Rachadamnoen Avenue and in the area of the
Ratchaprasong intersection. Key leaders in the Thai Government
and the Army immediately began to confer on a regular basis
at the Army’s Eleventh Regiment facilities in Bangkhen to plan
suppression operations. Regular participants from the Thai
Government included Prime Minster Abhisit, Deputy Prime
Minister Suthep Thaugsuban and DSI Director Tharit Pengdit
(collectively referred to as the “Government Leadership”). Regular

participants from the Armed Forces included General Anupong
Paochinda, General Prawit Wongsuwan, General Prayuth Chan-
ocha, General Kittipong Ketkowit, General Songkitti Jaggabatara,
Admiral Kamthon Phumhiran, Air Chief Marshal Ithiporn, Police
General Patheep Tanprasert, General Piroon Paewpolsong, General
Wit Thephadsadin Na Ayutthaya, General Teerawat Boonyapradap,
and General Daopong Rattanasuwan (collectively referred to as
the “Army Leadership”). Just as in 2009, the objective of these
meetings was to develop and implement a plan to suppress the
Red Shirt demonstrations, consistent with the overarching policy
to eliminate the Red Shirt movement in its entirety.
An Army Task Force was established — under the command of

Lt. General Daophong Ratanasuwan, General Anupong Paochinda
and General Prayuth Chan-ocha — to implement the military
aspects of the suppression operations.6
On March 8, 2010, Nattawut Saikua — a well-known Red Shirt leader — issued

a public announcement that the Red Shirts would attend a great demonstration
in Bangkok, beginning on March 14. Although Mr. Nattawut had emphasized the
peaceful nature of the demonstrations, Abhisit immediately invoked the Internal
Security Act:
On about March 8, 2010, Prime Minister Abhisit moved his

personal residence to a building at the Eleventh Regiment facilities
in Bangkhen so that he could be physically removed from the
Red Shirt demonstrations while remaining directly involved,
together with the rest of the Government Leadership and the
Army Leadership, in the management of the response to the
demonstrations. Prime Minister Abhisit was personally present at
every meeting involving the Government Leadership, the Military
Leadership and, later, the Centre for Resolution of the Emergency
Situation (CRES) concerning the Red Shirt demonstrations, and
he expressly approved each and every order given to the Army
through the Army Leadership.
The Army Leadership and the Government Leadership determined

to carry out an initial military suppression operation on April
10 in the area of Rachadamnoen Road. The operation was
patterned largely upon the Chinese Army’s putdown of student
demonstrations in Tiananmen Square in 1989, and there was never

any question that it would involve killing numerous civilians. The
Army estimated that the operation would result in approximately
five hundred civilian deaths, and based on those parameters,
the operation was approved by all members of the Government
Leadership, including Prime Minister Abhisit, and the Army
Leadership.
The specific objectives of the operation were to terrorize the

demonstrators, assassinate the Red Shirt leaders, and suppress the
Red Shirt movement. Contrary to common perception, the strategy
was not to disperse the demonstrators. Rather, the operational
strategy was to concentrate the demonstrators in a confined area,
provoke the crowd to violence in order to create a perceived need
for self-defense, and open fire.
As early as March 12, the Army task force had assembled a group of
professional snipers, drawn from the various branches of the Thai
military (every division in Operation Area). The Royal Thai Army
sent its Third Special Forces Regiment (Red Beret); the Royal Thai
Air Force contributed a unit from its Special Force. The Thai Navy
provided a Seal unit, and the Royal Thai Police sent a unit from
their elite Arintharaj, Border Patrol Airborne and commandos.
Roughly forty-fifty troops were sent from each division. These
snipers were trained to operate in hiding, using special weapons.
Following initial training for the suppression operation, they were
assigned their weapons and instructed to zero their sights to a
range of three hundred meters.7
On March 13, thousands of Red Shirts began to arrive in Bangkok from rural
provinces. They gathered at Phan Fa Bridge and along Rachadamnoen Avenue,
near the Parliament and other government buildings, where past pro-democracy
movements had assembled many times before, setting up tents and preparing
for a long stay. Two weeks into the demonstrations, the Red Shirts also occupied
and barricaded the Ratchaprasong intersection in the heart of Bangkok’s high-end
shopping district.
During this time, the Red Shirts organized massive rallies involving huge convoys
of vehicles and hundreds of thousands of demonstrators — with some estimates
of more than a half-million people gathered along Rachadamnoen Avenue —
demanding that the government agree to hold elections. The demonstrators, while
7. Statement of Anonymous Witness No. 22, at ¶ 27-30.

vocal, were unarmed and peaceful. No significant incidents of violence took place
at any of the sites of the Red Shirt demonstrations during this period.
Nevertheless, on April 7, Abhisit declared State of Emergency for Bangkok as well as

five surrounding provinces in preparation for a violent crackdown. Under the decree,
the government also instituted the Center for the Resolution of the Emergency
Situation (“CRES”), headed by Deputy Prime Minister Suthep Thaugsuban.8 The
CRES headquarters were set up at the Army’s Eleventh Regiment facilities.
Then, on April 8, the Army silenced the public voice of the Red Shirts by taking the
People’s Channel (PTV) television station off the air. In response, thousands of Red
Shirts flocked to the Thaicom satellite station in Pathum Thani in attempt to restore
the channel’s transmission signal. The Army dropped tear gas canisters intended
for the Red Shirts, but the wind blew the gas back into the Army ranks, causing
most of them to drop their weapons and retreat to an open field, whereupon the
Red Shirts gathered up the weapons and provided first aid treatment to the troops.
Negotiations ensued between Army and Red Shirt leaders, which led to a brief
restoration of the People’s Channel broadcast signal, and a return of all weapons
seized by the Red Shirts. However, as soon as the standoff had ended and the Red
Shirts had dispersed, Army troops hidden on the rooftop of the Thaicom station
8. The Prime Minister’s special directive No. 1/2553 Re: The Establishment of the
Center for the Resolution of the Emergency Situation, issued on 7 April B.E. 2553
(2010).
building blocked the broadcast signal once again.
On April 10, the government carried the long-awaited, violent crackdown in the
Phan Fa Bridge area, which would eventually result in the death of numerous
unarmed civilians and the injury of hundreds more. That morning, CRES spokesman
Sansern Kaewkamnerd announced that the Army would use internationally
accepted procedures to disperse the crowd, in seven incremental steps. Abhisit also
appeared on television to announce that, unlike the assembly in the Ratchaprasong
area, gatherings in the Phan Fa Bridge area on Rachadamnoen Avenue would be
permitted. Despite these statements, however, the Army commenced the dispersal
operation on Rachadamnoen Avenue.
Once again, The Statement of Anonymous Witness No. 22 provides a behind-the-

scenes look of the April 10 crackdown:
During the morning of April 10, the professional snipers previously

assembled from the various branches of the Thai Armed Forces,
and others, were deployed to strategic locations. In the Phan Fa
Bridge area, they were posted on the Bangkok Bank building and
atop the Pokklao Museum, with line of sight to the stage used by
the Red Shirt leaders to give speeches. In the area of Democracy
Monument, they were posted on the roof of the Satri Witthaya
School on Dinso Road. Near the Khok Wua intersection, they were
deployed on the roofs of the connected buildings in that area.
They also stationed observers atop these buildings assigned the
task, among other things, of identifying potential targets.
At approximately 13:00 hours on April 10, the visible part of the

suppression operation began. At this time, the Red Shirt crowds
filled Outer Rachadamnoen Avenue southward for approximately
two kilometers to Phan Fa Bridge, where the street turns west and
becomes Central Rachadamnoen Avenue, leading to Democracy
Monument, then further west to the Khok Wua intersection with
Tanao Road, stopping just short of where Central Rachadamnoen
Avenue crosses the Chaopraya River at Pinklao Bridge.9
The Statement of Anonymous Witness No. 22 continues:
Troops from the First Infantry Division — under the command

of General Prayuth — were deployed from the First Region Army
Headquarters on Outer Rachadamnoen Avenue at the Makkawan

Bridge. The orders for the First Infantry Division were to drive
the demonstrators south on Outer Rachadamnoen Avenue. Later,
troops from the Ninth Infantry Division would be deployed at the
Pinklao Bridge and drive the demonstrators east along Central
Rachadamnoen Avenue. In this manner, the demonstrators
would be pinched into the middle area around Phan Fa Bridge.
This concentration and density of people would enable armed
soldiers disguised as Red Shirts, who had infiltrated the crowd,
to create chaos and assassinate the Red Shirt leaders on the stage
in a manner that could subsequently be blamed on something
other than the Army. The objective was to complete the entire
suppression operation by 18:00 hours, during daylight hours. By
approximately 14:30 hours, the Army had exhausted its supply of
rubber bullets and had begun to use live ammunition.
Using methods designed to intimidate rather than disperse —

including beating on shields with batons, shooting rubber bullets
directly at demonstrators, and firing live rounds into the air —
the troops of the First Infantry Division succeeded in driving
the demonstrators south to where Outer Rachadamnoen Avenue
intersects Wisut Kasat Road, at an area called Jorporror.10
Joe Ray Witty — a Green Beret and Master Sergeant (Retired) of the United States
Army, Special Forces — is an instructor in crowd control and management as a
member of the Los Angeles Police Department SWAT (Special Weapons and Tactics)
Team. He has traveled to Bangkok and evaluated the Royal Thai Army’s response to
the Red Shirt demonstrations in April and May. Master Sergeant (Ret.) Witty’s expert
report is reproduced in the Appendix.
Master Sergeant Witty’s report is based not only on his expertise in crowd control
and crowd management, but also on his qualifications as a military scout sniper
and his training as an explosives specialist, together with his two tours of duty in
military combat operations in Afghanistan and Iraq. Prior to writing his report,
Master Sergeant (Ret.) Witty reviewed extensive video and photographic evidence,
interviewed witnesses, personally examined the demonstration sites and military
positions, and reviewed numerous witness statements describing the events.
Master Sergeant (Ret.) Witty explains why the First Infantry Division’s methods
during the daylight hours of April 10 did not comport with accepted standards for
crowd management, or with the Royal Thai Army’s own stated Rules of Engagement:

On April 10, 2010, several platoons of Royal Thai Army soldiers
were equipped with riot protective gear designed for crowd
management situations. This equipment included: Kevlar ballistic
helmets with clear acrylic, non-ballistic face shields; padded chest,
shoulder, upper arm, forearm, elbow, hand and shin protectors
covered with hard non-ballistic plastic; limited blood borne
pathogen protection; abrasion protection; batons; and acrylic
riot shields. This is standard crowd management protective gear
used by many law enforcement organizations to protect officers
from various forms of assault and/or projectiles during crowd
management operations. Some Royal Thai Army soldiers were
also equipped with gas masks, indicating anticipated tear gas
deployment. Documenting video can be viewed at http://www.
thaiaccountability.org/media/witty-video-1.
The Royal Thai Army’s stated Rules Of Engagement (ROE)

involved the following seven steps, which should always be taken
incrementally, only as necessary, and with clearly announced
advance warning prior to escalation between steps: (1) show of
force by lining up the security officers holding riot shields and
batons; (2) informing and warning the protesters that the officers
are about to use force; (3) use of shields; (4) use of water cannon
or high-powered amplifiers; (5) use of throw-type tear gas; (6) use
of batons; and (7) use of rubber bullets.11
Many elements of the Royal Thai Army were equipped with

both M-16 rifles and crowd management protective gear. This
combination serves no valid crowd management purpose. In my
opinion, troops were equipped in this manner to intimidate and/
or because their command planned to re-task them in a combat
capacity. Documenting video can be viewed at http://www.
Numerous soldiers carried pump action or single shot shotguns.

Based on witness statements, video evidence and physical evidence,
the soldiers fired less-than-lethal munitions (i.e., rubber bullets)
using these weapons. However, video evidence demonstrates
that in some cases the soldiers fired less-than-lethal munitions
directly at demonstrators who presented no threat, without any
11. Ministry of Foreign Affairs, “Backgrounder: Current Political Situation in Thai-

land,” June 15, 2010, note 2.
http://www.thaiembassy.sg/announcements/backgrounder-current-political-
situation-in-thailand
announced warning, in a manner likely to cause serious bodily
injury. Such use of less-than-lethal munitions does not comport
with accepted crowd management protocols or with the Royal Thai
Army’s own stated ROE, and suggests criminal intent to inflict
bodily injury. Documenting video can be viewed at http://www.
Further, my examination of 12-gauge shotgun shell casing recovered

from the scene of the Red Shirt demonstrations reveals that at
least some soldiers loaded and fired live buckshot rounds. As
detailed below, it is my opinion that the circumstances presented
during the Red Shirt demonstrations at no time warranted the use
of live ammunition by the Royal Thai Army.
The vast majority of soldiers deployed in combat gear were

equipped with either Tarov-21 or M-16 automatic assault rifles.
This suggests that their command expected to task them in a
combat capacity rather than a strictly crowd management capacity.
Documenting video can be viewed at www.thaiaccountability.org/
media/witty-video-1.
The Royal Thai Army used automatic weapons during the daytime
hours of April 10. I was able to discern from media clips the clear
sound of at least one weapon fired on full automatic, in a three
round burst. Several soldiers fired their weapons at an upward
angle above the crowd. There is no question that these soldiers
used live ammunition, based on several factors. First, none of
the assault rifles fired into the air was fitted with a “Blank Firing
Adaptor” (BFA), which prevents gases from escaping and allows
the rifle to retain enough energy from the discharged blank to
force the bolt to retract, ejecting the spent blank shell and loading
a new blank round. Without a BFA, the operator of an assault
rifle firing blanks must manually operate the weapon’s charging
handle to chamber another blank round. However, none of the
soldiers I observed was forced to recharge his weapon manually,
despite firing repeated shots. Further, BFAs are always painted
a bright color for safety reasons, to ensure that live ammunition
is not introduced into a training environment, yet no such BFA
was visible on any of the weapons fired by the Royal Thai Army.
media/witty-video-1.
Second, I examined numerous spent brass casings recovered from
the demonstration areas, all of which were from expended live
ammunition. None of these casings had the distinctive crimping
around the crown of the cartridge, found on all blank rounds.
Shooting live rounds into the air is inherently dangerous. Every

live round fired on an upward trajectory propels a bullet that
eventually comes back down. According to US Army manual FM
3-22.9 (M16/A2 Rifle), the maximum range of the M16A2 rifle
is 3600 meters. A live round fired randomly into the air poses
risk to any person within that range. Indeed, a report published
in December 1994 in Journal of Trauma states that doctors at
the King/Drew Medical Center, at the time a major Los Angeles
Trauma Center, treated 118 people between 1985 and 1992 for
injuries caused by falling bullets discharged during New Years and
Independence Day celebrations, with thirty-eight of those victims
perishing.12
Live rounds fired into the air by Royal Thai Army soldiers posed a
grave risk to all civilians in the area. The use of live ammunition by
the Royal Thai Army under non-threatening circumstances, even
when directed over the heads of demonstrators, clearly violated
accepted crowd management protocols and, in my opinion,
constituted — at minimum — criminal negligence.
Based on my review of extensive video evidence, it is clear to

me that the Thai government acted inappropriately in deploying
the Royal Thai Army in a crowd management capacity. Many of
the soldiers were obviously untrained in crowd management
tactics and protocols, and were ill‑equipped to enter any crowd
management environment. This lack of proper training was
exacerbated by the fact that many soldiers were issued crowd
management protective gear together with assault rifles, which
sent a contradictory and confusing message to these troops. In
my opinion, the very deployment of military troops to perform a
function that should always be limited to trained law enforcement
personnel demonstrated a callous disregard for public safety.
The standard for crowd management in a similar situation is to

establish a plan and brief all key leaders. Leaders should in turn
brief and supervise at all levels of command to ensure that the
12. Gary J. Ordog, Peter Dornhoffer, Greg Ackroyd, Jonathan Wasserberger, Micheal
Bishop, William Shoemaker, and Subramanium Balasubramanium, “Spent Bullets
and Their Injuries: the Result of Firing Weapons Into the Sky,” The Journal of
Trauma Injury, Infection, and Critical Care, December 1994.
ROE are understood and followed. Decisions should be made to
encourage the direction of the crowd, for a natural dispersal.
Blocking positions should identified and occupied. At least one
major avenue should always remain open to permit natural egress
of the crowd. Supervisors should use public address systems to
broadcast dispersal orders and communicate exit routes. Crowds
should be given reasonable time to comply. Squads should form
in a line, walking slowly toward the crowd, while supervisors
instruct the crowd. Water cannons might be used to encourage
dispersal, and less-than-lethal munitions might be used against
specific unruly elements. Persons involved in criminal acts should
be arrested, using only such force as is reasonably necessary.
Perpetrators who escape into the crowd should be located and
prosecuted subsequently, based on video evidence from cameras
deployed by law enforcement.
It is obvious that these measures were not employed on April 10.

There is no question that the Royal Thai Army failed to comply
with accepted standards of crowd management and with their
own stated ROE.
I have read the Statement of Anonymous Witness No. 22, at ¶35,

which states that the methods employed by the First Infantry
Division were “designed to intimidate rather than disperse.” Based
on the evidence I have examined, I agree fully with that statement.13
According to the Statement of Anonymous Witness No. 22:
At approximately 16:00 hours, the First Infantry was ordered to

hold its ground at Jorporror because the Ninth Infantry Division
had encountered problems and was unable to advance beyond
the Pinklao Bridge. These circumstances arose because Red Shirt
demonstrators had rushed to meet the Ninth Infantry Division
at the Pinklao Bridge, and the soldiers leading the advance in
armored personnel carriers (APCs) had been unwilling to drive
over the civilians with their vehicles. When support trucks failed
to advance, demonstrators removed their wheels, completely
blocking Pinklao Bridge and stalling the advance of the Ninth
Infantry Division.
At approximately 16:00 hours, as it became apparent that the

Army would be unable to complete its operation before sundown,
13. Expert Report of Joe Ray Witty, at ¶¶ 23-37.

a meeting of the Army Task Force ensued at the temporary
command center inside the First Region Army Headquarters during
this period. There, General Prayuth argued that the operation
should be completed immediately, regardless of daylight. He was
opposed by the other generals on the Army Task Force but, on
direct instructions from Prime Minister Abhisit, Prayuth prevailed
and he was left in charge of the operation. There were no written
orders for this nighttime operation. 14
Prime Minister Abhisit authorized General Prayuth to proceed, despite having

earlier announced to the public that the dispersal would be carried out strictly
during daylight hours. The Statement of Anonymous Witness No. 22 continues:
At approximately 17:00 hours, the professional snipers posted on

the buildings in the area of the Khok Wua intersection began to
fire live .22 caliber rounds at the demonstrators assembled in that
area in an unsuccessful attempt to provoke them into attacking
the troops.
Prayuth added to the troops that had taken up positions at the

top of Dinso Road and Tanao Road by deploying his own loyal
troops on the front lines. He deployed troops from the Second
Infantry Division at both locations, with the troops on Dinso Road
supported by six APCs, led by Colonel Romklao. These troops
advanced down Dinso Road and Tanao Road until their front lines
were directly in front of the demonstrators. At 18:00 hours, the
professional snipers posted atop the Satri Witthaya School began
to fire live .22 caliber rounds into the legs of some of the protesters
in the Democracy Monument area in an attempt to provoke them
to make some form of threatening move against the Army troops
on the ground. Additionally, soldiers began shooting rubber
bullets directly into the crowd, and firing live ammunition over
their heads. Soldiers of the Second Division fired live .50 caliber
rounds into the Democracy Monument structure from a machine
gun fixed atop one of the APCs. Some of the soldiers began to fire
live rounds directly into the crowd. One of these live rounds hit
Japanese journalist Hiroyuki Muramoto, killing him.
All of this activity was designed to provoke the crowd to violence

so that the troops would have an excuse to open fire. The
crowd, however, did not take any threatening action, and only lit


firecrackers and threw plastic water bottles at the Army troops.
This continued for more than an hour.15
Master Sergeant (Ret.) Witty makes the following observations and conclusions
about the deployment and conduct of the Second Infantry Division of the Royal
Thai Army on the evening of April 10:
Based on witness statements, interviews and video evidence,

the Royal Thai Army’s Second Infantry Division (Queen’s Guard)
deployed company-sized elements in the late afternoon of April 10
from the rear gate of the First Army Region Headquarters, located
on Outer Ratchadamneon Avenue near the Makhawan Bridge.
Units moved by military vehicle south and occupied Tanao Road.
They established and fortified a Command Post (CP) on Tanao
Road north of the Khok Wua intersection west of the Democracy
Monument, occupying the Sib Sarm Hang Roundabout. Troops
moved on foot to occupy and heavily fortify a blocking position
on the north side of the Khok Wua intersection where Tanao Road
meets Ratchadamnoen Klang Avenue.
On Dinso Road, elements of the Second Infantry Division occupied

a blocking position on the southern end of the road, where it meets
Ratchadamnoen Klang Avenue at Democracy Monument Square.
These troops were supported by three armored personnel carriers
(APCs) with heavy machine guns mounted and manned on each
vehicle. The machine guns were locked and loaded with belts of
live .50 caliber ammunition.
The Second Infantry Division established its positions with the

military precision of units deployed under the threat of combat in
a combat theater. On Dinso Road, they deployed a platoon-sized
15.. Statement of Anonymous Witness No. 22, at ¶¶ 38-41.

THE ARMY’S OPERATIONS ON APRIL 10, 2010
13:00| Crackdown begins 16:00| Army advance stalls
17:00| Sporadic military sniper fire 18:00| Queen’s Guard Deploys
19:15| M-67 grenades explode 19:30| Unrestrained army fire
element in front of the APCs, equipped with crowd management

protective gear and, in some cases, assault rifles, in violation of
crowd management protocols. I estimate that this element was
comprised of more than eighty soldiers. Immediately behind,
a company-sized element of approximately a hundred troops
was deployed in combat gear, suggesting that the true intent of
the Second Infantry Division was not to manage and disperse a
demonstration that had been declared unlawful, but to treat the
unarmed crowd as a hostile combat force. I observed tear gas
canisters thrown into the protest crowd.
I have examined photographic evidence of shooters firing rifles

from the third floor balcony on the white office building located
on the corner of Tanao Road and Rachadamnoen Avenue (The
Government Lottery Office). In my opinion, this photograph depicts
an urban sniper hide, established by trained military snipers. I have
read testimony that the Thai military leaders deployed trained
snipers in the area of the Khok Wua intersection, which shot into
the crowd beginning at approximately 17:00 hours on April 10,
with the intent to provoked the crowd to violence. (See Statement
of Anonymous Witness No. 22, at ¶¶ 32 and 38.) In my opinion,
the photographic evidence I examined supports that testimony.
As darkness fell, the soldiers of the Second Infantry Division

exercised little if any restraint in the discharge of their M-16 assault
weapons. While some soldiers on Dinso Road fired their weapons
at an upward angle, over the heads of the crowd assembled at
Democracy Monument, several fired at a level angle, directly into
the crowd. None of these weapons was fitted with a BFA, indicating
that the soldiers were firing live ammunition. Documenting video
can be viewed at: www.thaiaccountability.org/media/witty-video-2
and www.thaiaccountability.org/media/witty-video-3.
I also observed a heavy machine gun (.50 caliber) mounted on one

of the APCs firing in full automatic mode with its barrel level to
the horizon, with no BFA attached, indicating that the weapon was
firing live rounds. I also observed several soldiers seated calmly
atop APCs during the same timeframe, indicating that they felt
no genuine threat from the crowd. This type of heavy .50 caliber
machine gun is often employed in the combat theater to disable
military vehicles by firing large caliber bullets into engine blocks,
and it is sometimes deployed in an anti-aircraft role. It possesses
devastating destructive capability, and its use in the context of
crowd management — particularly, like here, in the absence of
any genuine threat to troops — is shocking and unconscionable.
Documenting video can be viewed at: www.thaiaccountability.
org/media/witty-video-2 and www.thaiaccountability.org/media/
witty-video-3.
Based on witness statements and photographic evidence, this

heavy machine gun was being fired primarily into the Democracy
Monument structure itself. The number of demonstrators in the
Democracy Monument Square clearly numbered in the thousands,
many of whom were directly in front of the soldiers, standing
on parts of the monument at the same elevation as the top of
the APCs. There is no question that the gunner on the APC was
creating grave risk of injury from possible direct hits, falling and/
or ricocheting bullets, and from concrete particles thrown off
at high velocity by .50 caliber bullets impacting the monument
structure.
Based on witness statements, interviews and video evidence, it is
my opinion that the behavior of the crowd on April 10 at no time
presented any genuine threat of significant injury to the troops.
The use of live fire over the heads of the protesters did not comport
with accepted crowd management standards, violated the Army’s
own ROE, and constituted — at minimum — criminal negligence.
Live fire directly into the crowd was beyond question criminal.
A few minutes prior of 19:15 hours, the troops on Dinso Road

significantly increased the rate at which they were discharging
their weapons. I observed the silhouette of a soldier repeatedly
gesturing upward with his arm, apparently ordering the troops to
increase their rate of fire, which in fact occurred in conjunction
with the gesture. In response to this increase, some protesters
threw water bottles, bricks, sticks and fireworks at the troops,
which may have caused some minor injury, but in my opinion
would almost certainly have been largely deflected by the riot
shields, particularly considering that the Royal Thai Army’s use
of tear gas had created substantial separation between the troops
and the demonstrators. The separation between the troops and
the crowd is also confirmed by the wide arc of the flying water
bottles. The separation between the troops and the crowd is also
confirmed by the wide arc of the flying water bottles. Documenting
video can be viewed at: www.thaiaccountability.org/media/witty-
video-2 and www.thaiaccountability.org/media/witty-video-3.
I also observed a soldier standing atop an APC, holding a semi-

automatic pistol in his hand, which indicates to me that he was an
officer and held a leadership position. In response to the plastic
water bottles thrown by the demonstrators, he fired his pistol
repeatedly into the air. There is no doubt that he was firing live
rounds because a blank fired from a semi-automatic pistol does not
generate sufficient back pressure to cause the weapon to complete
its reloading cycle. The fact that this officer was discharging live
rounds from a hand gun, in plain view of the troops and in the
absence of any legitimate threat, further confirms that the troops
were being ordered to fire their weapons, and it also suggests that
the Army’s intent was to provoke the crowd. Documenting video
can be viewed at www.thaiaccountability.org/media/witty-video-4.
Based on witness statements regarding concurrent military

sniper fire in the area of Democracy Monument (see Statement
of Anonymous Witness No. 22), it is plausible that the troops on
Dinso Road were ordered to increase their rate of fire to cover the
sounds of sniper fire into the crowd. Additionally, given that the
rate of fire increased shortly before 19:15 hours, it is also plausible
that the increase was timed to coincide with the two explosions
that would come at approximately 19:15 hours, in response to
which the troops on Dinso Road opened fire without restraint into
the crowd, killing many and injury hundreds.
Indeed, during this same timeframe, the streetlights in the

Democracy Monument Square were fired upon and shattered,
greatly reducing the ambient light in the area. Not only was this
action unwise in that it hampered the soldiers’ ability to react
appropriately to the actions of the crowd, its timing moments
before the explosions suggests to me that it was part of a larger
plan to cause confusion and/or conceal.19
I have read the Statement of Anonymous Witness No. 22 at ¶

41, which states that “this activity was designed to provoke the
crowd to violence so that the troops would have an excuse to open
fire.” In my opinion, the events are entirely consistent with that
statement.16
According to the Statement of Anonymous Witness No. 22, professional military

snipers had been shooting at civilians in the area of the Khok Wua intersection
since approximately 17:00 hours, and in the Democracy Monument area since 18:00
hours, without accomplishing their objective of provoking a violent reaction from
the demonstrators. Most of the soldiers on the ground at Tanao Road and Dinso
Road were firing their weapons over the heads of the crowd, although some had
already begun to shoot directly at the demonstrators. A few minutes before 19.45,
the troops of the Second Infantry Division at the Khok Wua intersection on Tanao
Road began to shoot into the crowd without restraint.17
At approximately 19:15, two explosions detonated within the ranks of the Second
Infantry Division on Dinso Road, killing at least six soldiers and wounding several
more. Immediately after the first of these explosions (the blasts came thirty-four
seconds apart), the troops on Dinso Road also commenced firing without restraint
into the crowd, injuring hundreds and killing numerous other demonstrators. The
Statement of Anonymous Witness No. 22 explains:
At approximately 19:15, two separate grenades exploded behind

16. Expert Statement of Joe Ray Witty, at ¶¶ 38-50.
17. See Statement of Anonymous Witness No. 22, at ¶ 44.
the front lines of the Second Infantry Division on Dinso Road,
killing several soldiers, including Colonel Romklao. I do not know
who threw these grenades, although I suspect that they came from
someone in the First Infantry Division (the King’s Guard), which
has been involved for some time in a bitter rivalry with the Second
Infantry Division (the Queen’s Guard) over which division would
be considered the preferred path for advancement to the position
of Army Commander, which has historically belonged to the King’
Guard but has in recent years moved to the Queens’ Guard. Neither
would it surprise me if I were to learn that elements under General
Prayuth’s command had thrown the grenades to provide an excuse
for the troops to open fire on the crowds.
Regardless of who threw these grenades, the Second Infantry

Division took advantage and, in fact, opened fire on the crowd.
Hundreds of civilians were wounded and many were killed. A
gunner atop one of the Second Infantry Division’s APC, armed
with a .50 caliber machine gun, was ordered to open fire on the
civilians, but fortunately he refused.
Earlier, the troops from the Second Infantry Division deployed

on Tanao Road at the Khok Wua intersection had also opened
fire, shooting thousands of rounds of live ammunition into the
unarmed civilian crowd, although there had been no explosion on
Tanao Road.18
While the source of the explosions has never been definitively ascertained, Master
Sergeant (Ret.) Witty’s opinion is that it was almost certainly caused by a military
M-67 grenade of the type often used by the Royal Thai Army, and that it could not
possibly have been thrown from the Red Shirt crowd:
I have closely examined video of the explosions that killed several

Royal Thai Army soldiers on Dinso Road at approximately 19:15
hours on April 10. I was able to pause one such video clip at
the precise moment of the first explosion, and it is clear to me
that it was caused by military-grade explosives, almost certainly
a grenade. The shrapnel pattern generated by this device was
highly symmetrical, indicating that the explosive material burned
at a consistent rate. By contrast, the explosive pattern from an
improvised device is almost always erratic because the seal is never
perfect, owing to the fact that improvised devices are not created

in an industry-grade manufacturing environment. Consequently,
humidity will access the explosive material in an improvised device
wherever there is even a minor breach in the seal, compromising
the explosive material and reducing its burn rate in that area,
leading to erratic shrapnel patterns. The first explosion on Dinso
Road, however, was much too symmetrical to have been caused by
an improvised device, leading me to conclude that it was almost
certainly caused by a military-grade device.
Additionally, what appear to be sparks emanating from the

explosion are fragments of molten metal of the type military
grenades are designed to project. This was a high-order detonation,
and the pattern of falling soldiers coincides with the effects of a
grenade. In my opinion, the explosion was wholly consistent with
the M-67 hand grenades widely used by the Royal Thai Army.
media/witty-video-5a.
Thirty-four seconds after the first explosion, a second explosion

can be heard on Dinso Road. Although this explosion is not visible
on the video I examined, I was unable to discern any significant
difference in tone or timbre between the sounds made by the
two explosions. Because varying types of explosive devices differ
significantly in the sound they produce, it is reasonable to conclude
that the second explosion was also caused by a military grenade.
Following these explosions, the Army troops immediately react by

firing directly into the crowd of demonstrators. The troops retreat
north up Dinso Road, away from Democracy Monument, but as they
do so, they continue to fire into the crowd. My understanding is that
dozens of civilians were killed and thousands injured as a result.
media/witty-video-5b.
The video evidence and my personal examination of the site lead

me to conclude that the first grenade could not possibly have come
from the Red Shirt crowd. First, had the grenade come from the
crowd, it would necessarily have been thrown a distance of at least
seventy yards. The average soldier is able to throw a fourteen-
ounce hand grenade less than half that distance, only about thirty
yards.
Second, taking into consideration the trajectory of the water bottles

being thrown from the crowd in the direction of the soldiers, it is
inconceivable to me that an incoming fourteen-ounce grenade on
the same or similar flight trajectory would not have been noticed
in advance by the troops, given their numerical concentration in
the area of the explosion. All soldiers — including those in the
Royal Thai Army, with whom I have trained — are trained to react
to any hazardous object thrown into their vicinity. In the case of
an incoming grenade, or any object that even remotely resembles
a grenade, all soldiers are specifically trained to yell a “grenade”
warning and immediately seek cover or go prone. However, it is
clear from the video evidence that the troops did not react in any
way to the grenade in advance of the explosion. Documenting
video can be viewed at www.thaiaccountability.org/media/witty-
video-5c.
Third, proper law enforcement practice under the circumstances

would have called for extensive deployment of video cameras in
the area, monitoring the crowd for unruly elements for real-time
interdiction and, if appropriate, subsequent prosecution. It is
my understanding that the Thai government has been unable to
produce any video of anyone from the Red Shirt crowd throwing
a hand grenade into the ranks of the First Infantry Division on
Dinso Road.
It is clear to me, therefore, that the grenade was either dropped

or rolled along the ground by someone within the ranks of
the troops in the immediate vicinity of the explosion. An M-67
grenade has a timed fuse of five seconds, ample time for someone
to surreptitiously drop a grenade in the area of the explosion and
walk behind the adjacent APC, visible in the video evidence, in
time to avoid injury. In my opinion, this is the only plausible
deduction, based on the evidence I have examined.19
Although the Thai government has attributed the grenade explosions to “men in
black” implicitly affiliated with the Red Shirts, the Thai military has a long history
of employing agents provocateurs to justify its use of deadly force against unarmed
civilians. Master Sergeant (Ret.) Witty’s opinion is that the grenade was most likely
detonated by a soldier within the ranks of the Royal Thai Army:
I have heard that the Thai government claims that certain “men in
black” or other unknown elements affiliated in some way with the
Red Shirts carried out the grenade attacks on Dinso Road on April

10. In my opinion, this is an unreasonable deduction. The Second
Infantry Division was deployed on Dinso Road with military
precision, indicating that they were following military strategies
and protocols designed to secure their perimeter and prevent
access by undesirable elements. In my opinion, these protocols
would have prevented any “man in black” or, indeed, anyone not
affiliated with the Royal Thai Army from gaining access to the
area near the explosion.
I have read the Statement of Anonymous Witness No. 22, which

suggests that the grenade attack on Dinso Road may be been
carried out by soldiers of the rival First Infantry Division (King’s
Guard) or, alternatively, by elements working under the direction
of General Prayuth Chan-ocha, Commander of the Second Infantry
Division. In my opinion, either deduction is plausible, based on
the evidence I have examined.
I have read the Statement of Anonymous Witness No. 22, which

states that the Army’s strategy on April 10 “was not to disperse
the demonstrators. Rather, the operational strategy was to
concentrate the demonstrators in a confined area, provoke the
crowd to violence in order to create a perceived need for self-
defense, and open fire.” (Statement of Anonymous Witness No.
22, at ¶ 29.) In my opinion, based on all of the evidence I have
examined, the events prior to the grenade explosions on April 10
were entirely consistent with that statement.
Further, this statement provides a rational motivation, in my

opinion, for the grenade attacks themselves. This is particularly
true given the troop reaction following the explosions, which was
to open fire on the crowd.20
In response to the grenade explosions, the Second Infantry Division withdrew north
up Dinso Road to a position approximately two hundred meters north of Central
Rachadamnoen Avenue.
From this new position, the troops continued to fire live ammunition south toward
Central Rachadamnoen Avenue into the crowds of unarmed civilians, although
there was no threat to the troops. In Master Sergeant (Ret.) Witty’s opinion, the
conduct of the Royal Thai Army was clearly criminal in nature:
In my opinion, even if the grenades on April 10 had been thrown

from the Red Shirt crowd — which, as explained above, is not
a reasonable deduction — the Army’s reaction following the
explosions was criminal in nature. The proper reaction to the
grenade explosions would have been for the troops to hold fire,
retreat, and deploy snipers with spotters to identify elements
in the crowd who might be prepared to throw another grenade.
Lethal sniper fire would be appropriate under such a scenario only
if an individual were spotted preparing to throw another grenade.
Instead, as indicated above, the troops immediately began to fire
without restraint into the crowd, and they continued to fire into
the crowd as they retreated north up Dinso Road. In my opinion,
this is clearly criminal behavior.
Further, long after the troops retreated and reestablished

blocking positions approximately 150 meters north of Democracy
Monument Square on Dinso Road, the Army continued to shoot at
unarmed civilians without provocation. This is abundantly clear
from video evidence I examined. One notable example shows a
young Thai man carrying a pole, to which a Red Shirt banner was
attached, walking slowly across Dinso Road, from west to east,
at least 150 yards from where the Second Infantry Division had
taken up a position upon retreat after the grenade explosions.
He was not approaching the troops, nor was he exhibiting any
kind of threatening behavior, and he does not appear to be armed.
Notwithstanding, he was struck in the head by a bullet, and, as
he collapsed to the ground, his entire brain mass spilled from his
cranium onto Dinso Road. This event was captured on videotape,
and the victim’s wound was subsequently photographed at close
range, shown below. The video evidence can be viewed at www.
In my opinion, this young man’s head injury was not caused by a

5.56 mm bullet from an ordinary M-16 rifle. This kind of gaping
wound was unquestionably created by a .50 caliber round or, at
the very least, a 7.62 mm round. In my opinion, this man was
shot by a military sniper equipped with either a Remington M-24
sniper rifle firing a 7.62 mm round, or a .50 caliber Barrett sniper
rifle, both of which are available in the Thai military arsenal. Given
the non-threatening behavior of the victim immediately prior
to his death, it is my opinion that shooting him in this manner
constituted criminal conduct.
Another example of the unprovoked shooting that continued well

after the Army troops had retreated on Dinso Road can be seen in
a video clip that shows a wounded soldier lying on the curb a few
yards north of where Dinso Road meets Democracy Monument
Square. It is not clear from the video evidence how his injury
was caused, but it is plausible that it resulted from one of the
grenade explosions or perhaps from the indiscriminate rifle fire
of the troops as they retreated north on Dinso road. The wounded
soldier calls out in Thai, and I understand from an interpreter that
he was requesting assistance. There is audible gunfire nearby. Two
shots ring out immediately, and the medic is wounded in the foot.
media/witty-video-7.21
Some 255 witnesses have provided their names with affidavits regarding the events
of April 10, 2010. The vast majority attest to the fact that the crowd was peaceful,
and that the Army shot indiscriminately into the crowd.
Various other witnesses have testified in detail about the treatment of the Red Shirt
demonstrators on April 10. Although several of their statements are included in
this Application as anonymous witnesses, their identity and details are known to
the Applicant and could be made available to the ICC Prosecutor if the necessary
procedural safeguards are provided to ensure the protection and safety of their
lives and their families.
Anonymous Witness No. 14 arrived at Tanao Rd. at approximately 18:30. There

were at least a thousand Red Shirts gathered in that area. A wall of soldiers carrying
shields had set up across Tanao Rd., to the north of the Red Shirts. They started to
advance south along Tanao Rd., pushing the Red Shirts back. Without any warning,
the troops began to shoot straight into the Red Shirt crowd, using live ammunition.
21. Expert Report of Joe Ray Witty, at ¶¶ 63-66. The Statement of Anonymous
Witness No. 15 is reproduced in the Appendix.
Also, there were many bullet holes in the walls all around, at eye level or below. The
witness heard a gunshot and the sound of a bullet whizzing by; the bullet hit a man
in the face. Later, the witness noticed that the place where the man had fallen had
been roped off by Red Shirt guards, blood on the ground and a piece of paper that
stated his name, age and that he had been killed. He saw two other pools of blood
nearby, with similar identifying pieces of paper, indicating that two other people
had been killed in the area.22
Anonymous Witness No. 2 confirmed that tear gas was dropped from helicopters
somewhere between 19:00 and 20:00 hours. Without any warning, the troops began
to open fire on the crowd of demonstrators. He saw at least five people injured by
gunfire.23
Anonymous Witness No. 5 is a journalist who testified to being near the Democracy
Monument on April 10 at approximately 19:00 hours. The witness saw soldiers
shooting their M16 magazines into the air. He picked up the casings and took
pictures. As the convoy of soldiers drove away, an explosion went off near him. The
witness stated that a Red Shirt with a stick came running in the street shouting:
“You killed my friend, you killed my friend.” At this point, the convoy’s last truck
was at a distance of about 150 meters from the man. Without warning, about five
shots were fired at him from the direction of the convoy. The man was hit, fell to
the ground and was later taken away by a civilian assistance foundation.24
Bordin Vajropala states that, at approximately 19:00 hours, there were more than
a thousand Red Shirts around the Democracy Monument. Without warning, the
Army soldiers began firing their weapons into the air. As the troops retreated up to
Dinso Rd., they began to shoot live fire directly at the Red Shirts. None of the Red
Shirts had any weapons. The witness saw a man who was shot in the head. He saw
the brains fall out of the man’s skull and took a photograph. Shortly thereafter, he
came across a wounded soldier on Dinso Rd. He videotaped a Red Shirt who tried
to help that soldier, while troops continued to fire at him and the man who was
helping. They kept shooting. The Red Shirt who was helping was hit in the foot;
Bordin was hit by a bullet in the stomach.25
Anonymous Witness No. 15, a certified volunteer medic present at Democracy

Monument during these shootings, testified that he was called to assist a soldier
22. The Statement of Anonymous Witness No. 15 is reproduced in the Appendix.

25. The Statement of Mr. Bordin Vajropala is reproduced in the Appendix.
who had been wounded on Dinso Road. When the medic arrived at the soldier’s
side, approximately sixty meters north of Democracy Monument, he found a Red
Shirt tending to his wounds. However, troops from the Second Cavalry Division
continued to shoot at them from their position about 140 meters north on Dinso
Road — ignoring the red cross displayed prominently on the medic’s supply kit —
wounding the medic in the foot.26
Master Sergeant (Ret.) Witty summarized his conclusions and opinions regarding
the events of April 10, 2010 as follows:
1. It is my opinion that the Royal Thai Army did not engage in a

rational or reasonable crowd-management operation, which
would necessarily have involved a genuine attempt to disperse
the demonstrators without inflicting injury. Instead, the Royal
Thai Army intentionally sealed off exit routes, herded the crowd
into a confined area, and engaged in various illegal acts designed
to provoke the crowd to violence so that the Army would appear
justified in its use of deadly force against demonstrators. These
illegal acts included, but are not necessarily limited to:
(a) The use of highly trained military snipers to shoot unarmed

demonstrators with live rounds from elevated, concealed
positions, without provocation or justification;
(b) The intentional, indiscriminate discharge of military

weapons, including M-16 rifles and other automatic weapons
firing live rounds, directly into dense crowds of unarmed
demonstrators, without provocation or justification; and
(c) The intentional detonation of multiple military-grade

explosive devices within the immediate vicinity of Army
troops, in a deadly form of “friendly fire” designed to create
the false impression that the Army was under attack by
demonstrators.
2. The Royal Thai Army formally adopted rules of engagement that

comport with accepted crowd management standards in order to
create the false impression of reasonable conduct. However, the
Thai Royal Army systematically violated accepted standards of
crowd management and its own stated rules of engagement in a
manner constituting criminal conduct.
3. The Royal Thai Army’s operations on April 10, 2010 were military

in nature. Their objective was to kill innocent civilians, without
provocation or justification, in order to suppress the Red Shirt
demonstrations.
Sometime after 20:15 on April 10, government authorities contacted the Red Shirt
leaders by mobile phone. To avoid further bloodshed, the Red Shirt leaders quickly
agreed to encourage the crowd to retreat from the sites of the clashes. By then,
however, the Army had killed twenty-one civilians and wounded more than six
hundred.
The failed dispersal operation gave way to a tense standoff. The government re-
grouped, looking for alternative means to resolve the crisis. The Red Shirts hunkered
down, concentrating their forces at Ratchaprasong. The Statement of Anonymous
Witness No. 22 comments as follows with regard to the failure of the April 10
operation:
As a consequence of how the suppression operation developed,
the Army was not able to assassinate the Red Shirt leaders on the
stage at Phan Fa Bridge because the troops could not compress
the demonstrators into the area with sufficient density to create
the required chaos. Further, the Army Leadership and the
Government Leadership fully expected that assassinating the Red
Shirt leaders at Phan Fa Bridge would lead to a collapse of the
Red Shirt demonstrations at Ratchaprasong. Instead, most of the
demonstrators who had assembled along Rachadamnoen Avenue
moved to the Ratchaprasong area, adding to its strength.
During the weeks immediately following April 10, the Government

Leadership and Army Leadership turned their attention to
suppressing the Red Shirt demonstrations at Ratchaprasong. Their
plan called for establishing a perimeter around the Ratchaprasong
area and sealing off all ingress and egress. The Army would then
breach the Red Shirt barricades and assassinate the leaders27
On May 3, the Prime Minister unilaterally announced a plan for reconciliation that
among other things included the possibility of an early, November election —
provided that the Red Shirts agreed to voluntarily disperse. But Abhisit’s offer to
dissolve the House of Representatives did not come with genuine guarantees. The
government did nothing to suggest that the censorship it had imposed during the
demonstrations would be relaxed in advance of the election, nor did it commit to

a proper independent investigation into the violence that had taken place on April
10. The Red Shirts embraced the Prime Minister’s call for reconciliation but refused
to disperse absent these basic guarantees.
On May 13, one day after the government withdrew its offer to hold early elections,
Major-General Khattiya Sawasdipol, a renegade Army officer better known as Seh
Daeng — the purported leader of the movement’s extreme faction — was shot in the
head by a sniper while he stood before cameras and microphones, right before the
eyes of a Western reporter, at the southwestern edge of Lumphini Park. According
to the Statement of Anonymous Witness No. 22, the soldier who pulled the trigger
was one of the professional snipers assembled by the Thai government pursuant to
its policy to destroy the Red Shirt movement:
During the period between May 13 and May 19, the First Infantry
Division and the Second Cavalry Division used the King Power
Duty Free Shop in the Ratchaprarop area as a command post. The
same professional snipers used on April 10 were also deployed
in strategic areas, and they were responsible for the death of Maj.
General Khataya Sawasdipol (known as Seh Daeng), who was fatally
shot in the head on May 13 while giving an interview to the press.28
The shot that took Seh Daeng’s life (he died a few days later) was only a precursor
to the thousands of live rounds that the military would fire on unarmed protesters,
innocent by-standers, emergency medical workers, and journalists over the ensuing
28. Statement of Anonymous Witness No. 22, at ¶ 53.

week. While the Red Shirts repeatedly called for international assistance to establish
a dialogue that might lead to a political solution to the crisis, the government
had opted to crush them militarily, dispatching armored personnel carriers and
thousands of soldiers to the streets of Bangkok.
Officially, the Abhisit government amended the Rules of Engagement to permit

the Army to “retaliate” against the Red Shirts, which it now branded as “terrorist”
following the events on April 10:
Following the incidents on 10 April 2010, during which use of

weapons by armed elements among the protesters cost the lives
of not just unarmed demonstrators but also a number of security
officers, this rule has been revised for the operations to cordon
off the Ratchaprasong Area in May to permit use of live bullets in
one additional case, namely: to retaliate against clearly identified
elements armed with weapons. Also, with a view to preventing
casualties due to close confrontation as happened on 10 April,
shotguns may be used against armed groups and terrorist elements
approaching security units to prevent them from causing harm to
others, and in this case, security forces would only aim below the
knee level. The use of tear-gas launcher is also permitted in order
to maintain distance between the officers and armed protesters.
As a principle, security units would not use lethal weapons against
unarmed demonstrators and in no circumstances would they be
used against women and children.29
Master Sergeant (Ret.) Witty’s opinion is that these amended Rules of Engagement
provide some insight into the intent of the Abhisit government:
In my opinion, these amended ROE are inappropriate because

they establish an official policy to use deadly force “to retaliate.”
Retaliation has no place in reasonable and accepted standards
of crowd management. In my opinion, the phrase “to retaliate”
suggests an intent by the Thai government to engage in further
criminal conduct through the use of unprovoked deadly force
against the Red Shirt demonstrators.30
29. Ministry of Foreign Affairs, “Backgrounder: Current Political Situation in

Thailand,” June 15, 2010, note 3.
http://www.thaiembassy.sg/announcements/backgrounder-current-political-
situation-in-thailand
30. Expert Statement of Joe Ray Witty, at ¶ 73.
LIVE FIRE ZONES

Indeed, although these amended Rules of Engagement purported to require at least

some level of threat directed against the Army before lethal force was employed,
the Statement of Anonymous Witness No. 22 confirms what has been widely
documented by others, which is that unwritten orders were given for the Army to
shoot at anything that moved in the live fire zones:
In early May, the Second Cavalry Division, under the command

of Maj. General Surasak Boonsiri, was ordered to secure Rama IV
Road, from its intersection with Payathai Road (in the Samyan area)
to its intersection with Wireless Road (Bonkai area). Maj. General
Surasak’s immediate superior was Army Commander Anupong
Paochinda.
Officially, Maj. General Surasak’s orders were to shoot threatening

targets only. However, his actual orders, which were unwritten,
was to shoot any moving target in the Bonkai area, regardless of
whether it represented a threat. […]
Also in early May, the First Infantry Division, under the command
of Maj. Gen Kampanat Rujdit, was ordered to secure the Din Dang
and Rajaprarop areas north of Ratchaprasong. The First Infantry
Division was given the same basic orders in the north as the Second
Cavalry Division had been given in the south.31
In the days that followed Seh Daeng’s assassination — the government denies any
involvement in the incident, even though it had earlier promised it would shoot
“terrorists” and had previously identified Seh Daeng as a “terrorist” — the massacre
unfolded to the north and south of the Ratchaprasong encampment, in the Din
Daeng and Lumphini area, as the army moved in to seal off the site of the Red Shirt
protests.
Some locations like Ratchaprarop Road to the north and Rama IV Road to the south
were declared by the military to be “live fire zones.” There, the military was given
the authority to shoot the mostly unarmed demonstrators on sight, as documented
in a wealth of detailed eyewitness accounts like the one written by photojournalist
Nick Nostitz.32 A number of passers-by were injured or killed by military fire, among
them a ten-year old boy shot in the stomach near the Makkasan Airport Link station
and later pronounced dead at the hospital.
Master Sergeant (Ret.) Witty’s opinion is that the orders given to the troops enforcing
the live fire zones can easily be deduced from the video evidence. His opinion of
“live fire zones” is predictable:
It is my understanding that, beginning in early May 2010, the

Second Cavalry Division was assigned to secure Rama IV Road in
the Bonkai area south of Ratchaprasong, while the First Infantry
Division was assigned to secure the Ding Dang and Rajaprarop
areas north of Ratchaprasong. It is my further understanding that
the commanding officers of these divisions were given unwritten
orders for their troops to shoot any moving target in their
31. Statement of Anonymous Witness No. 22, at ¶¶ 47-48, 52.

32. Nick Nostitz, “Nick Nostitz in the Killing Zone,” New Mandala, May 16, 2010.
http://asiapacific.anu.edu.au/newmandala/2010/05/16/nick-nostitz-in-the-
killing-zone/
For an update on the fate of some of the Red Shirt protesters who were at the scene
described in the report, see “Daughter of a Slain Red Shirt Hears Story of Father
from Nick Nostitz,” Prachatai, June 21, 2010.
http://www.prachatai.com/english/node/1899
respective designated areas, regardless of whether such targets
represented a threat. (See Statement of Anonymous Witness No.
22, at ¶¶ 48 and 52.) Such orders would unquestionably violate any
reasonable standard of crowd management, and would constitute
criminal conduct.33
[B]ased on witness statements, interviews and video evidence,

it is my conclusion that the Royal Thai Army indeed set up live
fire zones in the Bonkai, Din Daeng and Rajaprarop areas near
Ratchaprasong. Although there is ample video evidence of
unarmed civilians being fired upon, injured and killed by bullets
coming from the direction of Army blocking positions in these
areas during the period between May 13-19, one video clip in
particular, taken from directly behind Army soldiers deployed in
elevated positions, clearly demonstrates that the soldiers were
acting under orders to shoot any moving target, without regard
to whether they represented a threat. This documenting video
evidence can be viewed at: www.thaiaccountability.org/media/
witty-video-8.
In my opinion, the persons shown running across the alley

represented no threat whatsoever to the troops, which are clearly
deployed in an elevated position, armed with weapons that are
not fitted with BFAs. The troops immediately opened fire upon
seeing the civilians, in a clear attempt to use deadly force without
provocation or justification. In my opinion, this is criminal conduct,
as is any order to engage in such conduct.34
Once again, a number of witness statements testified to the behavior of the Royal
Thai Army during the May 13-19 crackdown. Of the 180 witnesses who have provided
their names and affidavits to the Applicant’s counsel regarding the events during,
133 testified to having witnessing somebody either injured or killed by shooting
soldiers. In the majority of those cases, the soldiers were shooting from elevated
positions.
On May 14, 2010 Krittapoj Buadee, a Red Shirt, went to Lumphini Park to investigate
a report that soldiers were assembling there and planning an attack on the Red
Shirts. He was unarmed. Mr. Krittapoj saw numerous soldiers outside the park fence,
aiming their rifles into the park, and soldiers inside the park, carrying shotguns. As
33. Expert Report of Joe Ray Witty, at ¶74

soon as he saw the soldiers, he stopped. At that point Mr. Krittapoj heard a single
shot that hit him in the foot and then saw another soldier, holding an M-16 rifle
with a scope, shooting at him. He was hit in the right lower leg. The witness drove
off, but the soldiers continued to shoot after him, thirty or forty times. Right calf
and ankle were completely shattered.35
Nattapon Tongkoun described a similar scene, which he witnessed on May 14 at

Lumphini Park. As he entered the park, he noticed fifty or sixty soldiers lined up
outside the fence surrounding the park, aiming their rifles through the fence. One
of the soldiers opened fire with a shotgun, hitting him in the left shoulder. Mr.
Nattapon ran towards a tree, while the shooting continued. The soldiers fired at
him at least a hundred times. He was hit again, with a rifle bullet. Mr. Nattapon
jumped into a pond to hide and swam underwater. Upon re-emerging, he saw three
soldiers standing in the pond, looking for him, shooting into the water, trying to hit
him. He jumped out of the pond, ran away, and got hit a third time, in his left thigh,
by a rifle bullet. After being treated in a hospital, he was placed in a jail cell and
chained to his bed, under arrest for violating the emergency decree. He was chained
to the bed twenty-four hours a day, and released to a regular room after a month.36
Meanwhile, to the north of Ratchaprasong, at the corner of Ratchatewi Rd. near the
Din Daeng triangle, Anonymous Witness No. 8 testified to have seen soldiers shoot
with live ammunition, without any warning, towards a crowd which he was part.
People started running to flee the gunfire. He got shot himself in his right upper
arm.37
Mr. Kangsadal is a member of Red Ayutthaya. On May 14, he was in the Ratchaprarop
Rd. area, where he witnessed soldiers getting ready to crack down on protesters.
The soldiers blocked the area and tried to put up a fence. They seemed very well
prepared, as if they had been practicing this before. They started to fire into the
crowd. Mr. Kangsadal ran around the corner near the Century Hotel, but got shot
himself during the escape.38
Anonymous Witness 12 is a volunteer police officer in Bangkok. On May 14, in the

Ratchaprarop area in front of the Indra Hotel, he and his wife were forced to stop
because soldiers were preventing people from crossing the road. This was at 18:30.
In total, thirty people had gathered in that location; none carried weapons. Across
35. The Statement of Krittipoj Buadee is reproduced in the Appendix.

36. The Statement of Nattapon Tongkoun is reproduced in the Appendix.
38. The Statement of Mr. Kangsadal is reproduced in the Appendix.
the street there was a pedestrian bridge crossing Ratchaprarop Rd., guarded by eight
soldiers. The soldiers were shooting at anything that moved, in any direction. He
saw them shoot at least fifty times. Soldiers also shot towards the hotel, preventing
the group from leaving. At approximately 19:00 hours, a woman tried to cross
Ratchaprarop Rd., but before she could get onto the road she was shot by one of
the soldiers, falling to the ground. At approximately 20:00 hrs, the witness saw two
motorcycles, each with a single driver. The soldiers on the pedestrian bridge shot
at these motorcycles and both riders fell. Minutes later, there was an explosion in
front of the Indra Hotel. Prior to the explosion, the witness saw a red laser pointed
in their area, moving around apparently at random. Then it stopped, but a green
laser appeared next to it. Immediately thereafter, the blast occurred. Moments later
he saw the red and green laser lights again and there was a second explosion, three
meters away from him. Three people were injured, including him. He suffered a
shrapnel wound in his back.39
Between May 15 and May 18, Mr. Pratak Nutsathit joined the protest at Din Daeng.
In this area, he witnessed soldiers shooting a woman in the head on May 18. She
was a trash collector carrying a white bag. The shooting was probably a mistake, as
she was not protesting. The soldiers were very young and shot at everyone in that
area, including motorcycle drivers and local people.40
It is clear that the Royal Thai Army and the Abhisit government were aware that
setting up and enforcing these live fire zones constituted criminal conduct, because
they instituted a concurrent campaign to hide the evidence of their wrongdoing:
Additionally, Maj. General Surasak was ordered to prevent anyone

from taking photographs of the Army killing unarmed civilians,
which effectively required the Second Cavalry Division to target
any member of the media that entered the area. This order was
prompted by the fact that there was abundant incriminating video
and photographic evidence of the Army’s suppression operation
on April 10, and the Army Leadership considered the April 10
operation a failure in part because of the public outcry that
followed.
Maj. General Surasak was also ordered to prevent anybody from

removing the bodies of civilians killed in the Bonkai area by his
troops. This order effectively required soldiers of the Second
Cavalry Division to shoot at anyone trying to remove a body,

40. The Statement of Pratak Nutsathit is reproduced in the Appendix.
TARGETING EMERGENCY WORKERS
Paramedic Boonthink Pansila, age 25, shot dead on May 15, 2010.
including medical personnel. […]
The First Infantry Division was given the same basic orders in the
north as the Second Cavalry Division had been given in the south:
(a) shoot all moving targets, regardless of threat level; (b) prevent
any photographic or video evidence; and (c) prevent the removal
of any bodies. […]
The orders to the First Infantry Division and the Second Cavalry
Division to shoot anyone attempting to remove a body from their
respective areas of assignment was given in order to assist the
implementation of an Army “intelligence” operation to destroy
the evidence of any Army killings.
Specifically, the Army Leadership implemented a policy of

evidence destruction, in collusion with the certain state hospitals
in Bangkok. Discreet units of the First Infantry Division and the
Second Cavalry Division posed as ambulance drivers, and they
would appear at shooting scenes in order to retrieve the bodies,
ostensibly to take them to the hospital for proper treatment. In
reality, however, these ambulances took numerous bodies to the
Din Daeng’s Veteran’s Hospital and Chulalongkorn University
THE KILLING OF FABIO POLENGHI
Top-left: Man clothed in army-issue takes Mr. Polenghi’s camera, May 19, 2010

Other: Maps with sniper positions found in Mr. Polenghi’s personal effects
Hospital for concealment and subsequent cremation. The objective

was to destroy any evidence of criminal conduct by the Army.41
Consistent with their orders to prevent the removal of bodies, the Army closed
off the live fire zones to emergency medical staff42 and repeatedly opened fire on
medics as they attempted to assist injured demonstrators,43 complicating rescue
operations for the scores of wounded protesters.
Journalists also appear to have been intentionally targeted. France 24 reporter

Nelson Rand was shot three times on May 14, on the southeastern edge of Lumphini

42. “Medics Banned from Entering ‘Red Zones’,” The Nation, May 16, 2010.
http://www.nationmultimedia.com/home/2010/05/16/national/Medics-banned-
from-entering-red-zones-30129456.html
43. Bill Schiller, “Why Did So Many Civilians Die in Bangkok Violence?,” The Star,
May 23, 2010.
http://www.thestar.com/news/world/article/813547--why-did-so-many-civilians-
die-in-bangkok-violence
Park, while Italian photographer Fabio Polenghi died from a bullet wound to the
chest on May 19, after he documented the location of Army snipers. Mr. Polenghi’s
camera was removed from his body by someone who appears to be wearing Army-
issue. However, Mr. Polenghi managed to conceal in his backpack three crude maps
he had drawn of sniper positions. The maps would later be found by Mr. Polenghi’s
sister as she went through his personal effects.
Master Sergeant (Ret.) Witty’s comments regarding this conduct is as follows:
I also understand that the Second Cavalry and the First Infantry
Divisions were given orders to prevent any photographic evidence
of Army troops killing civilians, and that these orders resulted
in the intentional targeting of journalists. I also understand that
these same Divisions were ordered to prevent the bodies of any
persons killed by Army troops from being removed, which resulted
in the intentional targeting of medical personnel. (See Statement
of Anonymous Witness No, 22, at ¶¶ 48-50 and 52.) Such orders,
to the extent that they call for troops to use deadly force against
a person merely because they are taking photographs or assisting
the wounded — rather than presenting an immediate threat of
severe bodily injury — would violate accepted standards of crowd
management, and would constitute criminal conduct, as would
the carrying out of such orders.
Further, such orders would seem to represent a concerted and

organized effort to suppress evidence. As an active law enforcement
officer, it is clear to me that the intentional suppression, destruction
and/or fabrication of evidence would constitute criminal conduct,
as would any orders to engage in such conduct.44
Days of fierce battles fatally weakened the Red Shirt defenses, manned for the
most part by civilians burning tires in a vain attempt to stave off the advance of
the Army. Even a last-ditch diplomatic effort, which was still on the table as of May
18, was snubbed by the Abhisit government. Finally, on May 19 the Army broke
through the Red Shirts barricades. The Statement of Anonymous Witness No. 22
explains the nature of the May 19 operation at Ratchaprasong:
On May 19, the Army breached the Red Shirt barricades around
Ratchaprasong. The troops involved where from the On May
19, the troops involved were the Second Infantry Battalion of
the Thirty-First Infantry Regiment (King’s Guard), led by Lt. Col.

Puengpak Yodarwut, deployed on the ground and on the BTS
rails. These were joined on the BTS rails by troops from the Third
Special Forces Regiment.
Their orders were to shoot any person suspected of having weapons,

and they were not required to determine whether anyone actually
had weapons. Their pre-deployment orders expressly stated that
any individual carrying a slingshot was to be considered armed
and dangerous. The troops were also ordered to shoot any Red
Shirt guard on sight, whether armed or not. Thus, the troops were,
in effect, permitted to shoot anyone they wished. It was this set of
orders that led to the shootings at the Watpatumwanaram Temple
in the late afternoon of May 19.
The troops deployed on the BTS railing had specific orders to

identify and shoot the Red Shirt leaders. However, the Red Shirt
leaders were tipped off about these orders, and they quickly
surrendered to the Police before the soldiers were able to kill
them.45
Master Sergeant (Ret.) Witty’s observations regarding the orders given to the troops
who breached the Red Shirt barricades on May 19 are as follows:
I understand that troops from the Second Infantry Battalion of

the Thirty-First Infantry Regiment, with support from the Third
Special Forces Regiment, breached the Red Shirt barricades around
Ratchaprasong on May 19, 2010. I also understand that their
orders were to shoot any person suspected of having weapons,
although they were not required to make a determination about
whether such persons were actually armed. Further, their orders
expressly stated that any individual carrying a slingshot was to be
considered armed and dangerous. (See Statement of Anonymous
Witness No. 22, at ¶¶ 56-57.)
In my opinion, such orders do not comport with accepted standards

of crowd control or law enforcement. No law enforcement officer
should use deadly force except where there is an imminent threat
of severe injury to the officer or to other persons. Absent such a
threat, actual possession of a deadly weapon does not constitute
a justification to employ deadly force. Further, mere suspicion
that someone might possess a deadly weapon is never a sufficient
justification to use deadly force. In my opinion, these orders

THE KILLINGS AT WAT PATHUMWANARAM

Left: A soldier aims his weapon into Wat Pathumwanaram on May 19, 2010.
Right: Nurse Kate lies dead inside the temple complex on May 19, 2010
effectively gave the Army troops carte blanche to employ deadly

force without provocation or justification.46
While May 19, 2010 already marks one of the darkest days in the history of
Thailand — the culmination of the country’s worst-ever massacre of pro-democracy
demonstrators — the death toll would likely have been far greater were it not for
the UDD leaders’ eleventh-hour surrender.
The surrender of Red Shirt leaders, however, failed to halt the carnage. Hours after
the Red Shirts were dispersed, six more people died in an assault staged on Wat
Pathumwanaram, the spot designated as a safe haven for Red Shirt demonstrators
who wished to escape the violence. A foreign journalist injured at the scene describes
military snipers firing from elevated train rails into groups of unarmed civilians
claiming sanctuary in the Buddhist temple. Three nurses were among the civilians
shot to death.47

47. Andrew Buncombe, “Eyewitness: Under Fire in Thailand,” The Independent, May
20, 2010.
http://www.independent.co.uk/news/world/asia/eyewitness-under-fire-in-
thailand-1977647.html
See also: Bangkok Pundit (pseud.), “What Happened at Wat Pathum Wanaram?,”
Bangkok Pundit, May 31, 2010.
http://asiancorrespondent.com/bangkok-pundit-blog/what-happened-at-wat-
pathum-wanaram
Some eighty-eight witnesses have provided their names and affidavits to the
Applicant’s counsel regarding the events at the Wat Pathumwanaram temple on
May 19. Of those, seventy-four attest to having witnessed somebody either killed
or injured by soldiers shooting from the elevated mass transit BTS railway into the
temple.
Anonymous Witness No. 4 was present in the temple after the Red Shirt leaders
surrendered. At approximately 19:00 on May 19, 2010, with approximately two
thousand people located inside the temple area, he realized that shots were coming
directly into the temple area. He took cover inside a concrete security guard
enclosure, inside the temple area. He could see through the window in the guard
station that there were at least three soldiers positioned above him, half-way across
the street, on the walkway connected to the BTS Siam station. He could see them
shooting into the temple area, and could hear that they were firing two kinds of
shots, some repeating, like machine guns, and others were single shots. One of the
witness’ acquaintances was a volunteer nurse, whom he knew as Ked, although later
he learned that her full name was Kamonked Aukhak. When the shooting started
into the temple, she was located at the nurse’s tent inside the temple area, slightly
behind the witness’ position. As the soldiers were firing from above, the witness
saw the nurse shot, and she fell backwards.48
Anonymous Witness 6 and Anonymous Witness 9 were present at the

demonstration near the Ratchaprasong intersection on May 19. At approximately
13:00 hours, the Red Shirt leaders surrendered and advised everyone to go to the
Pathumwanaran temple complex for safe refuge. In the temple, the witnesses report
everyone was peaceful. Between 16:00 and 17:00, witnesses reported seeing five
soldiers on the lower train track of the BTS platform in front of the entrance. Inside
the temple, the first aid tent was clearly marked with a red cross. At about 18:30 the
soldiers started to shoot into the temple area, without warning. At that time, the
first aid tent and medical volunteers also came under fire. Three nurses were shot,
Kamibked Akhard, Mongkol Kemthong, and Akkharadej Khankaew, who slowly
died in pain (see also statement by Dr. Nattathida Meewungpla). The soldiers shot
at everything that moved, preventing anyone to reach the first aid tent to help. At
19:00 hours, a group of soldiers came shouting obscenities at the people assembled
inside the temple. When some tried to drag the bodies of the nurses to safer area
into the temple ground, the soldiers targeted them again. The shooting stopped at
approximately 20:00 hours. The next morning, six dead bodies were lined up in the

rear garden of the temple area. Several other witnesses that provided statements
corroborate this account.49
Officially, an additional sixty civilians died during the weeklong crackdown that
resulted in the Red Shirts’ dispersal on May 19. Despite repeated accusations of
“terrorism” leveled at the UDD, no security forces died during the operations, while
none of the people gunned down by the authorities proved to have been carrying
weapons.
3. 4 ABUSE OF EMERGENCY PROVISIONS

Whereas ninety people have been killed and around two thousand injured in the
six weeks leading up to May 19, an additional casualty of the crackdown was the
pretense of “democratic rule” and of “the respect for the rule of law” that Abhisit’s
administration had sought to protect throughout its tenure in office. Confronted
with a massive, well-organized, and largely peaceful challenge to its legitimacy,
Abhisit demonstrated his inability to govern in accordance with the protections that
even the post-coup 2007 Constitution formally affords the people of Thailand. Even
before the demonstrations began, the government suspended many constitutional
protections by invoking the Internal Security Act in an attempt to restrict the Red
Shirts’ activities. On the eve of the first crackdown, moreover, the government
claimed dictatorial powers and declared the State of Emergency.
INTERNAL SECURITY ACT

Enacted in 2008, the Internal Security Act provides for an all-encompassing definition
of “the maintenance of internal security,” which includes “operations to prevent,
control, resolve, and restore any situation which is or may be a threat arising from
persons or groups of persons creating disorder, destruction, or loss of life, limb, or
property of the people or the state.”50 Whereas the Act allows these extraordinary,
extra-constitutional measures only “in order to restore normalcy for the sake of
the peace and order of the people, or the security of the nation,” upon the junta’s
completion of the draft legislation in late 2007 Human Rights Watch condemned it
as “aimed at perpetuating military rule” and as leaving Thailand “in an environment
prone to abuses and the arbitrary use of power.”51 The junta-appointed National
49. The Statements of Anonymous Witnesses No. 6 and No. 9 appear in the Appendix.
50. Internal Security Act, B.E. 2551 (2008), s. 3.
51. Human Rights Watch, “Thailand: Internal Security Act Threatens Democracy
Legislative Assembly approved the draft legislation on December 20, 2007— only
three days before the last legislative elections.
The Act situates the power of the state in the office of the Prime Minister. Under
the Act, “In the event of an occurrence which affects internal security but which
does not yet require the declaration of a state of emergency [...] the Cabinet shall
pass a resolution to have the Internal Security Operations Command (“ISOC”) take
responsibility for prevention, suppression, and eradication or mitigation of this
occurrence which affects internal security, within an assigned area and time-period.”
ISOC, the branch of the military tasked with defending the country’s security from
internal threats,52 operates under the direct command of the Prime Minister, who is
defined by the Act the “Director of Internal Security.”53
Once the resolution is issued, the state’s administrators are no longer the National
Assembly, the Cabinet, the Courts, but rather the Prime Minister as Director, the
Commander-in-Chief of the Army as Deputy Director, and the Chief of Staff of the
Army as the Secretary.54 The only mediating influence is the Cabinet, although that
influence is weak as it is limited to approving the Prime Minister to exercise the
power to “issue regulations as follows:”
(1) To have relevant state officials implement any action, or suspend

any action;
(2) To prohibit entry or exit at a locality, building, or designated

area during its operating hours, except with the permission of a
competent official or being an exempted person;
(3) To prohibit exit from dwelling places within a designated time;
(4) To prohibit the carrying of weapons outside dwelling places;
(5) To prohibit the use of routes or vehicles or to prescribe conditions

on the use of routes or vehicles;
(6) To order persons to perform or suspend any action in connection

with electronic equipment in order to guard against danger to life,
and Human Rights,” November 5, 2007.
http://www.hrw.org/en/news/2007/11/04/thailand-internal-security-act-
threatens-democracy-and-human-rights
52. For a brief account of ISOC’s disturbing human rights record, see Paul Busbarat,
“Thailand, International Human Rights and ISOC,” New Mandala, January 27, 2009.
http://asiapacific.anu.edu.au/newmandala/2009/01/27/thailand-international-
human-rights-and-isoc/
53. Internal Security Act, B.E. 2551 (2008), ss. 4-5.
54. Internal Security Act, B.E. 2551 (2008), ss. 5.
limb, or property of the people.55
Item (2) to (6) are provided only for greater certainty, as the scope of the powers
of the Prime Minister is captured by item (1): the power “to have relevant state
officials implement any action, or suspend any action.” This power is exercised by
Prime Ministerial “regulation,” not by Act of the legislature. There is no democratic
oversight; there is no parliamentary review. Only the Prime Minister, his Cabinet,
and the Army are made responsible to rule.
Even prior to its latest imposition of the Internal Security Act, the International
Commission of Jurists expressed grave concern about the Abhisit administration’s
repeated recourse to the Act as “a violation of the rights to freedom of expression
and association guaranteed under the ICCPR.”56 At the time of writing, the Internal
Security Act remains in force in Bangkok and surrounding provinces.
STATE OF EMERGENCY
Undeterred by the imposition of the Internal Security Act and the corresponding
restriction of their movements, thousands of Red Shirts from all walks of life
descended on Bangkok to protest the current government and call for elections.
In response to the mounting opposition, Prime Minister Abhisit and his family
retreated from their Bangkok residence to a military barrack, providing yet another
indication of Abhisit’s dependence on the generals’ support. On April 7, following
weeks of speculation, the government doubled down on the imposition of the
Internal Security Act and declared the State of Emergency for Bangkok and part or
all of five surrounding provinces.
Pursuant to Section 9 of the Emergency Decree on Public Administration in

Emergency Situation B.E. 2548 (2005), the government proscribed any “assembly or
gathering to conspire of five persons or more” as well as “any act to incite unrest”
taking the form of:
(1) Obstructing the traffic in such a way that prevents normal

commuting;
(2) Blocking the entry or exit of buildings or compounds in such a

way that obstructs the carrying out of work, business or daily life
55. Internal Security Act, B.E. 2551 (2008), s. 18.

56. International Commission of Jurists, “Thailand’s Internal Security Act: Risking
the Rule of Law?” February 2010 (http://icj.org/IMG/REPORT-ISA-THAILAND.pdf)
of the general public;
(3) Attacking or using force in such a way that causes disruption,

harm, fear and anxiety over the safety of life, body and property
among the public;
(4) Disobeying directives of the competent officials pertaining to

the demonstrations aiming at maintaining peace and preventing
disruption to the daily life of the public.
The penalty for violators was decreed to consist of “imprisonment for a term not
exceeding two years or a fine of no more than forty-thousand baht.”57 Furthermore,
the government prohibited “the release of news, distribution or dissemination of
newspapers, publications or any means of communications containing content
which may cause fear amongst the public or is intended to distort information
leading to misunderstanding of the emergency situation to the extent of affecting
the security of the state or public order or the good morals of the people throughout
the Kingdom.”58
Pursuant to Section 11 of the Emergency Decree, the government further issued

regulations that conferred upon the administration extraordinarily expansive
powers. Among other things, the government would now be empowered to “arrest
and detain a person suspected in taking part in instigating the emergency situation
or a person who advertises or supports the commission of such act,” “summon an
individual to report to the officers or to give statements or hand in documents or
evidence pertaining to the emergency situation,” and “prohibit or order any action
in so far as necessary to ensure national security or public safety.”59
The imposition of the Emergency Decree provided the government with the legal
foundation upon which it based the crackdown of the Red Shirts on April 10 and May
13-19. Pursuant to Section 9 of the Emergency Decree on Public Administration in
Emergency Situation, the government proscribed any assembly or gathering of five
or more persons as well as any act that could incite unrest. Pursuant to Section 11,
the government further issued regulations that conferred upon the administration
extraordinarily expansive powers, as the government would now be empowered to
57. “Announcement of the Centre for the Resolution of the Emergency Situation Re:
Prohibition of Assembly or Gathering to Conspire, April 8 B.E. 2553 (2010).”
58. “Regulation pursuant to Section 9 of the Emergency Decree on Public
Administration on Emergency Situation, B.E. 2548 (2005).”
59. “Announcement pursuant to Section 9 of the Emergency Decree on Public
Administration on Emergency, Situation B.E. 2548 (2005).”
“arrest and detain a person suspected in taking part in instigating the emergency
situation or a person who advertises or supports the commission of such act,”
“summon an individual to report to the officers or give evidence pertaining to the
emergency situation.”60
On May 13, 2010, it the State of Emergency was expanded to include fifteen provinces
in northern, northeastern and central Thailand. By late May, it was expanded to
twenty-four provinces across the country. On July 7, 2010, the government renewed
the decree in nineteen provinces for an additional three months. The size of
the territory covered by the decree was gradually scaled back until the State of
Emergency was lifted on December 21, 2010.
Aside from the UDD’s core leaders, who remain in custody and face a possible
death sentence stemming from the trumped up charges of terrorism, as of June 10
the government had arrested 417 people associated with the Red Shirts, mostly for
violations of the Emergency Decree. Several were tried and convicted within hours
of their arrest. On June 26, activist Sombat Boonngarmanong was apprehended for
violating the Emergency Decree while attempting to tie a red ribbon at Ratchaprasong
in remembrance of those killed by the state a month earlier.
The government’s harshness in the application of the Emergency Decree to the Red
Shirts stands in sharp contrast to the more lenient posture adopted with regard
to similar violations of the Emergency Decree that PAD/Multicolor protesters and
their organizers have engaged in at the same time. Nobody was arrested among
the thousands of pro-government activists who staged rallies at Royal Plaza and
Silom Road — in contravention of emergency rules banning political gatherings —
while the Red Shirts were demonstrating at Ratchaprasong. On April 22, groups of
“Multicolor” shirts pursued by the police after repeatedly attacking the Red Shirt
encampment were given safe haven behind army lines. Video evidence shows a
military officer pointing a gun at the head of a policeman who was in the midst of
arresting a pro-government militant.
It is now clear that the Emergency Decree was never invoked for the purposes
of confronting an emergency, but rather to give the government the dictatorial
powers it needed to stamp out its opposition and attempt to consolidate its hold
on political power. As such, the prolonged enforcement of the Emergency Decree
itself constitutes a violation of the International Covenant on Civil and Political
Rights (ICCPR). Article 4 permits the suspension of certain ICCPR rights, such as
60. “Announcement pursuant to Section 11 of the Emergency Decree on Public

Administration on Emergency Situation B.E. 2548 (2005).”
the right to demonstrate, only in instances where a public emergency “threatens
the life of the nation” and only “to the extent strictly required by the exigencies of
the situation” — in any event, under no circumstances can a State of Emergency be
used to “undermine the rule of law or democratic institutions.” According to the
International Commission of Jurists, Human Rights Watch, the International Crisis
Group, Amnesty International, and virtually every other human rights organization
around the world, the Thai government’s recourse to emergency powers failed this
crucial test.
In a submission to the Human Rights Council, the Asian Legal Resource Centre
(“ALRC”) described the systematic human rights violations that have taken place
under the cover of the Emergency Decree.61 The ALRC called upon the Human Rights
Council to condemn the application of the Emergency Decree as a breach of the State
party’s obligations under the International Covenant on Civil and Political Rights,
and as a cause for further violations under international law. In its report, the ALRC
draws the attention to the one case of arbitrary detention and one of harassment
of a minor, who was forced to undergo psychiatric evaluation and treatment for
protesting against the government in the northern province of Chiang Rai.
3.5 A STRATEGY OF TENSION

The announcement that the Red Shirts were planning large demonstrations
beginning in mid-March 2010 quickly ushered in what historian Chris Baker called
Thailand’s season of “fear and folly” — a campaign of bombings and sabotage as
enigmatic as it was frightening.62 The campaign began on January 15, 2010 with a
suspicious grenade attack targeting the offices of army commander in chief Anupong
Paochinda. It continued with a pair of mysterious bombings in mid-February as well
as a series of coordinated attacks on four branches of Bangkok Bank on February
27, just a day after the Supreme Court seized the assets of former Prime Minister
Thaksin Shinawatra. The campaign would last for the entire duration of the Red
Shirt rallies and several months thereafter. All told, it would come to encompass a
61. Asian Legal Resource Centre, “Thailand: Arbitrary Detention and Harassment
under the Emergency Decree,” August 31, 2010.
http://www.ahrchk.net/statements/mainfile.php/2010statements/2791/
62. Chris Baker, “From Smoke and Mirrors to Fear and Folly,” The Nation, February
21, 2010.
http://www.nationmultimedia.com/home/2010/02/22/opinion/From-smoke-and-
mirrors-to-fear-and-folly-30123119.html
string of grenade attacks on some seventy locations in Bangkok and other provinces,
the actions of the so-called “men-in-black” on April 10, resulting in the death of a
handful of soldiers, and the arson of more than three dozen buildings on May 19.
The government of Prime Minister Abhisit Vejjajiva has given the Thai people an
easy outlet for their angers and their fears over the attacks: the Red Shirts. Indeed,
the violence figured prominently in the government’s depiction of the Red Shirts
as “terrorists” —a charge that was subsequently used to justify the suspension of
civil liberties, the brutal crackdowns of April/May, and the imprisonment of two-
dozen Red Shirt leaders. Because the Emergency Decree on Public Administration
in Emergency Situation, B.E. 2548 (2005) is meant to apply to instances “where an
emergency situation involves terrorism, use of force, harm to life, body or property,
or there are reasonable grounds to believe that there exists a severe act which
affects the security of state, the safety of life or property of the state or person,”
justifying the extraordinary use of dictatorial powers has required the government to
mount a relentless media campaign aimed at defining the Red Shirts as a subversive
movement threatening the integrity and the security of the Thai state.
Whereas the Abhisit government is especially quick to label its opponents “terrorists,”
it has done a poor job of substantiating these claims. Considering, moreover, the
degree to which the charge of “terrorism” was instrumental to the government’s ability
to censor all alternative sources of information, suspend constitutional rights, and
crack down on the Red Shirts without triggering an angry backlash by the citizens
of Bangkok, there is strong circumstantial evidence that Thailand’s armed forces
staged many of these attacks for the purpose of cooking up a damaging public case
against the Red Shirts. In other words, the episodes of violence are consistent with
a “strategy of tension” designed to justify the government’s continued recourse to
draconian restrictions on the rights of the opposition.63
It would not be the first time that a government with this track record of violence,
abuse of power, and misinformation could have staged a few incidents to justify
(or divert attention from) its track record of violence, abuse of power, and
misinformation. Moreover, it would not be the first time this happens in Thailand.
“Third hands” are known to have been at play during both the 1973 and 1992
protests, when organized agents provocateurs sparked riots that provided the
authorities with the pretext to crack down. More recently, it is well known that pro-
government “Blue Shirts” attempted to precipitate a confrontation by ambushing
Red Shirts who were demonstrating in Pattaya in April 2009.
According to The Statement of Anonymous Witness No. 22, the same strategy was
at play in 2010, beginning weeks prior to April 10, 2010:
Part of the [Thai government’s] plan involved conditioning the

public to accept the notion that the Red Shirts were violent and
dangerous. Consequently, beginning in early February 2010,
provocateur groups working in coordination with the Army Task
Force and the Abhisit administration set out to terrorize the
public and lay the blame on the Red Shirts. They carried out their
63. “Strategy of tension” is an expression originally coined to describe a campaign

of terrorism that extreme right wing groups carried out in Italy beginning with the
bombings at Piazza Fontana in the late 1960s. The purpose of the campaign, which
was blamed on left wing extra-parliamentary groups, was to prompt the Italian
state to impose the State of Emergency and manipulate public opinion to support
the state’s recourse to authoritarian measures.
work principally in Bangkok, and their primary method was to
plant and detonate a variety of explosive devices. Although this
activity abated after the Red Shirt demonstrations were finally
put down on May 19, they were allowed to continue at a reduced
rate thereafter in order to provide ostensible justification for the
Thai Government to maintain in effect the Emergency Decree in
Bangkok.
Another example of this high-stakes form of negative public

relations strategy involved the evacuation of Chulalongkorn
Hospital in Bangkok on April 30, 2010. It was widely reported
that the evacuation was prompted by an invasion of Red Shirt
demonstrators searching for snipers. In fact, the incident was
planned in advance by the Government Leadership and the Army
Leadership, in collusion with certain members of the Thai media
and certain members of the board of Chulalongkorn Hospital. After
members of the press challenged Red Shirt leaders to back up their
claims that Army snipers had fired shots from atop the hospital,
hospital management immediately ordered the evacuation. There
was never any genuine belief that the Red Shirt leaders presented a
threat, and the orders to evacuate were given in order to heighten
tensions and reinforce the false impression that the Red Shirts
were violent and a threat to the Monarchy.
The Government Leadership’s postponement of the beginning of

the school year in May 2010 was also part of this anti-Red Shirt
public relations strategy. The decision was not based on any
actual or perceived threat from the Red Shirts, but was designed
to create the illusion that they were dangerous.64
The timing of the attacks that have occurred throughout 2010 is revealing.
Victimless explosions at four Bangkok Bank branches on the night of February 27
led to vague but stern warnings issued by the government that more “sabotage”
was planned in the lead-up to March 14, thereby justifying the imposition of the
Internal Security Act.65 The surge in attacks observed during the last week of March
was highly instrumental to the imposition of the Emergency Decree on April 8, in
anticipation of the April 10 crackdown. Then, the explosions that rocked Bangkok
in late April set the stage for the assassination of Seh Daeng and the bloodshed that

65. “Sabotage Threat: PM,” The Nation, March 7, 2010.
http://www.nationmultimedia.com/home/2010/03/07/politics/Sabotage-threat-
PM-30124083.html
accompanied the weeklong push to disperse the Red Shirt rallies, while the fires
on May 19 gave the government enough cover to sweep the dead bodies of ninety
Red Shirts under the rug. More than a month later, the bomb at the Bhum Jai Thai
headquarters muted the intensifying calls to lift the Emergency Decree, leading to
the three-month extension handed down on July 6. Then, on July 25, just hours
after Abhisit announced to the press that the government would urgently consider
lifting the emergency decree,66 a bomb went off at Big C Rajadamri department
store, killing one man and putting any plans to restore the people’s constitutional
rights on hold for some more time to come. The last spike in the violence took
place in the lead-up to the last extension of the Emergency Decree on October 6, but
virtually ceased immediately thereupon.
The incidents have invariably occurred at convenient times for the government’s
purposes. It is also interesting that “terrorists” have always found a way to confirm
what the government wanted the public to believe. At first, it was that the Red Shirt
rallies could not be properly contained without the Internal Security Act. Then it
was to show that the Internal Security Act was itself not enough. Then it was that the
Red Shirts needed to be put down whatever the cost. And then it was to point out
that those who ended up dead essentially got what they deserved. Considering that
the Red Shirts were desperate to earn the support of Bangkok residents, more than
any others these “terrorists” helped the government show that the UDD deserved
none of that public support. Were it not for the “terrorists,” it is quite likely that
Mr. Abhisit’s administration would no longer be in office. Indeed, “terrorists” have
rescued Abhisit enough times to make one wonder whether that was in fact their
objective.
One salient example of this “terrorist” activity came in the wake of the Red Shirt
leaders’ surrender to police authorities in the afternoon of May 19. As reporters
described the official end of the Red Shirt demonstrations, scenes were broadcast
around the world of billowing black clouds of smoke rising from buildings in the
CentralWorld complex at Ratchaprasong. The blame for the arson seemed to fall
naturally to the Red Shirts, but the The Statement of Anonymous Witness No. 22
provides an insider’s account of what really happened during the afternoon of May
19, 2010:
After the Second Infantry Battalion breached the Red Shirt

barricades, they secured the entire Ratchaprasong area. By 17:00
66. “PM Vows to Mull Lifting Decree Urgently,” Bangkok Post, July 25, 2010.
http://www.bangkokpost.com/breakingnews/187820/pm-vows-to-mull-lifting-
decree-urgently
hours, the Army had fully secured all of the CentralWorld buildings.
All civilians were removed from the buildings, including numerous
security guards who worked at CentralWorld. After the civilians
were removed, soldiers of the Second Infantry Battalion were
posted outside CentralWorld to prevent anyone from approaching
or entering. The purpose of this exercise was to permit a team
of arsonists contracted by the Army to plant incendiary devices
inside CentralWorld. These devices were intentionally ignited at
approximately 17:45 hours, destroying the Zen store building. The
operation was planned by the Army Leadership, with the consent
and approval of the Government Leadership, several weeks in
advance of May 19. The purpose of the operation was to cement
in the public mind the concept that the Red Shirt movement was
violent and dangerous, which the Government Leadership and the
Army Leadership believed would create the impression that the
Army’s actions in suppressing the Red Shirts were justified. In
fact, the Red Shirts had nothing to do with the fires that destroyed
part of the CentralWorld complex.67
This account is consistent with what a resident of Ratchaprasong witnessed from a

high-rise apartment building overlooking Central World:
I am a resident of Bangkok, Thailand. I live in the area of the

Ratchaprasong Intersection. I was an eyewitness to the Red Shirt
demonstrations in my neighborhood every day from April 3 through
May 19, 2010. I am not a member of the Red Shirt movement, nor
am I a native Thai. My background is central European. I have lived
in Thailand since 2000.
I have military training. I also have firearms and personal protection

training, and I am familiar with the sound of automatic weapons
fire and grenade fire. I am a biochemical engineer by training,
and I have experience with biochemical weaponry, including
enforcement of the limitations on biological weapons imposed by
the Geneva Convention biological weapons protocols.
I witnessed the development of the fire at CentralWorld on May

19, 2010 from my bedroom window, from where I had a direct
view of the center.
On May 19, 2010, after the Red Shirt protesters gave up, I witnessed
smoke from minor debris fires outside the CentralWorld building,
67. Statement of Anonymous Witness No. 22, at ¶ 59.

including some minor tire fires. I witnessed smoke, which was
clearly mixed with steam. These fires were on the outside of
the CentralWorld building. Although there may have been some
minor fires on the ground floor of the CentralWorld building
until approximately 16:30 on May 19, I understand that there
was flooding on Rama I Rd. in front of ZEN from the building’s
sprinklers. I conclude from this that the minor fires set outside
the CentralWorld building and any minor fires on the first floor
were promptly extinguished by the sprinkler systems.
At this time, I witnessed no Army troops outside of the Centralworld

building.
There were at least four fire trucks stationed in the immediate

vicinity of CentralWorld, within one or two blocks. These trucks
had been in that location since early May, and they were present
throughout the demonstration period. None of these fire trucks
made any effort to answer the tire fires or minor fires on ground
floor level of the CentralWorld building on May 19, 2010, although
the Red Shirts had surrendered hours earlier.
Beginning at approximately 17:00 on May 19, 2010, I witnessed

numerous Army troops in front of the CentralWorld building on
Rajdamri Rd. Their demeanor was casual. They were on foot, not
supported by vehicles, nor were they taking cover from any threat.
They were carrying a full range of weaponry, including the Israeli
Tavor 21, several Remington 12 gauge shotguns, together with
Barretta 9mm handguns. At this time, the status of the minor fire
was relatively light. I did not observe any open flames, and the
smoke was light in density and color, still apparently mixed with
steam, indicating the presence of water.
At approximately 17:30 on May 19, 2010, I noticed a dramatic

increase in the amount of smoke coming from the CentralWorld
building. It became more dense, and much darker.
The most dramatic moment came at approximately 17:40, at

which time I heard several massive explosions. I was able to
determine, based on the muffled sound of the explosions, that
they came from the inside of the CentralWorld building. At that
time, approximately 17:42, the smoke intensified dramatically,
indicating a massive amount of fuel. I captured this moment in
the following photograph time-stamped 17:42:01 [BELOW, LEFT]:
This was the first time that open fire was visible on ground floor
of the southeast front of the CentralWorld building. Within forty-
six seconds, the smoke thinned somewhat, as the initial fuel from
the explosions was exhausted, and I noticed for the first time
that open flames were also projecting from the mezzanine level
on the eighth floor of the ZEN store, on the southeast corner of
the CentralWorld building. I documented this in the following
photograph time-stamped 17:43:36 [ABOVE, RIGHT].
I was also able witness that open flames had engulfed the entire
first and second floors of the southeast front of the CentralWorld
building. The flames had broken through the windows, which are
safety glass, indicating that the breakage was caused by powerful
explosion from the inside of the building. I documented this in the
following photograph time-stamped 17:46:49:
In the following photographs time-stamped 19:01:27 and 19:02:54,
I documented the fact that the fire on the mezzanine level of the
ZEN store was drawing the flames on the first two ground floors
upward in a chimney effect, as there are several meters of open
area between the exterior shell of the building and the actual
floor/roofing structure of the building. It was clear to me from
these facts that this fire was deliberately set from the inside by
someone with knowledge of incendiary devices and fire dynamics,
intending to inflict maximum damage to the building structure:
By approximately 21:00, the entire ZEN store was engulfed in

flames, which I documented in the following photograph time-
stamped 20:57:28 [BELOW, LEFT].
At approximately 21:40, the ZEN store collapsed, which I

documented in the following photograph time-stamped 21:40:44
[BELOW, RIGHT]:
The collapse of the ZEN building occurred almost exactly four

hours after the initial explosions that caused that fire. At no time
between 17:40 and 21:40 on May 19, 2010, did I witness any of the
fire vehicles stationed in the immediate area respond to the fire.
On May 20, 2010, I walked to the area where the fire had occurred
and witnessed at that time several fire trucks present, spraying
water on the smoldering building. I noticed that the flames had
burned only the ZEN building, while the neighboring building was
spared. The firefighters seemed intent on preventing any damage
to the neighboring building, which is also part of CentralWorld.68
68. Statement of Anonymous Witness No. 1, reproduced in the Appendix.

4. CRIMES AGAINST HUMANITY
The “reasonable basis to believe” that a crime within the jurisdiction of the court
has been or is being committed is one of the most important standards considered
by the Prosecutor when deciding whether to undertake a preliminary investigation.
There are two requirements that need to be fulfilled in this regard. First, the
Prosecutor will decide whether there is a reasonable basis to believe that a crime
has been committed; second, it must be determined whether the crime in question
falls within the jurisdiction of the court.
In the Kenyan situation, the Pre-Trial Chamber recognized that the “reasonable
basis to believe” test as set out in Article 53(1) of the Statute is subsumed under the
“reasonable basis to proceed” standard referred to in the opening clause of Article
53(1) of the Statute.”1 Jurisprudence shows that the standard should be construed
and applied against the underlying purpose of the procedure in Article 15(4) of the
Statute, which is to prevent the court from proceeding with unwarranted, frivolous,
or politically motivated investigations that could have a negative effect on its
credibility.2 The Appeals Chamber previously ruled that this standard be read in
the context of Article 58 of the Statute; in other words, it is sufficient at this stage
to show that a reasonable conclusion that a crime has been committed may be
supported on the basis of the evidence and information available.3
For a crime to fall within the jurisdiction of the court, it must satisfy three conditions:
1. Prosecutor v. Kenya, ICC-01/09-19, Decision Pursuant to Article 15 of the Rome

Statute on the Authorization of an Investigation into the Situation in the Republic
of Kenya, March 31, 2010.
2. Kenyan Decision on Article 15, para. 32.
3. Appeals Chamber, Judgment on the Appeal of the Prosecutor against the “Decision
on the Prosecution’s Application for a Warrant of Arrest against Omar, Hassan
Ahmad Al Bashir,” February 3, 2010, para. 33.
(i) The crime must fall within the category of crimes referred to
in Article 5 and defined in Articles 6, 7, and 8 of the Statute
(jurisdiction ratione materiae);
(ii) The crime must fulfill the temporal requirements specified in

Article 11 of the Statute (jurisdiction ratione temporis)
(iii) The crime must meet one of the two alternative requirements
contained in Article 12 of the Statute (jurisdiction rationae loci or
ratione personae).4 The latter entails either that the crimes have
occurred within the territory of a State Party to the Statute or a
state that has lodged a declaration on the basis of Article 12(3) of
the Statute, or to have been committed by a national of such state.5
In the Thai situation, the evidence points to the fact that there is, indeed, a
reasonable basis to believe that a crime within the jurisdiction of the court has been
committed. In this instance the issue of ratione temporis is uncontroversial. Article
11 of the ICC Statute provides that the Court has jurisdiction only with respect to
crimes committed after its entry into force, which of course includes the events
that happened in April and May 2010 as well as any crimes committed since the
2006 coup. While the issues of ratione loci and ratione personae are addressed later
in this Application, the remainder of this section discusses the jurisdiction ratione
materiae with specific reference to its application to the Thai situation.
4.1 GENERAL REQUIREMENTS

Crimes Against Humanity are defined in Article 7(1) of the ICC Statute. Four
potential Crimes Against Humanity stand out from the events described in
this Application:
- Article 7(1)(a) Crime Against Humanity of “murder;”
- Article 7(1)(e) Crime Against Humanity of “imprisonment and

other severe deprivation of physical liberty;”
- Article 7(1)(k) Crime Against Humanity of “other inhumane acts;”
- Article 7(1)(h) Crime Against Humanity of “persecution.”
4. Pre Trial Chamber I, Decision on the Prosecutor’s Application for a Warrant of

Arrest against Omar Hassan Ahmad Al Bashir, ICC-02/05/01/09-3, para. 36.
This Application describes the repression of Red Shirt demonstrators carried out by
the military — civilians belonging to the group of Red Shirt protesters were shot by
men in military uniforms, leading to more than eighty dead civilians and at least two
thousand injured. Furthermore, it described the imposition of new rules, regulations
and decrees allowing for the arrest and incarceration of civilians attempting to
disseminate alternative political viewpoints, protesting, or participating in a small
gatherings and demonstrations. These rules specifically target the broad “Red Shirt
movement,” as the administration has made no attempt to enforce the rules on pro-
government groups.
MURDER
According to the Elements of Crimes, in order to establish that the crime of murder
has been committed, the Trial Chamber must be satisfied that that a “perpetrator
killed one or more persons.”6 In the Case of JP Pierre Bemba Gomba, the Trial
Chamber recalled that for a crime to be committed, two essential and distinct
elements must be established: the actus reus element (material or objective element)
and the mens rea element (mental or subjective element).7
As recognized by the Court’s jurisprudence, for the act of murder

to be committed the victim has to be dead and the death must
result from the act of murder.8 The act itself may be committed
through action or omission.9 The Chamber stresses that the death
of the victim can be inferred from factual circumstances,10 and
that the Prosecutor must prove the causal link between the act of
murder and the victim’s death.11
6. See Elements of Crimes, Article 7(1)(a)(1). the term ‘killed’ is interchangeable with
the expression “caused death.”
7. JP Bemba Gomba Decision, para.134.
8. Pre-Trial Chamber I, Katanga decision, ICC-01/04-01/07-717, para. 421; see also
ICTR, The Prosecutor v. Akayesu, Case No. ICTR-96-4-T, “Judgment”, September
2 1998, para. 589; ICTR, The Prosecutor v Rutaganda, Case No. ICTR-96-3-T,
“Judgment,” December 6, 1999, para. 80; ICTY, Prosecutor v. Blaskic, Case No. IT-
35-14, “Judgment,” March 3, 2000, paras 216-217; ICTY, Prosecutor v Delalic, et al,
Case No. IT-96-21, “Judgment,” November 16, 1998, para. 424.
9. See also for the same finding in Pre-Trial Chamber I, Katanga decision, 1CC-
01/04-01/07-717, para. 287.
10. See also ICTY, Prosecutor v Knojelac, Case No. IT-97-25, “Judgment,” March 15,
2002, paras 326-327.
11. P. Currat, Les crimes contre l’humanité dans le Statut de la Cour pénale
internationale, (Bruylant, 2006), p. 146; ICTY, Prosecutor v Krnojelac, Case No. IT-
97-25, “Judgment,” March 15, 2002, para. 329.
In this respect, it is not necessary for the Prosecutor to demonstrate, for each
individual killing, the identity of the victim and the direct perpetrator. Nor is it
necessary that the precise number of victims be known.12 This allows the Chamber
to consider evidence referring to “many” killings or “hundreds” of killings without
identifying a specific number.13
As to the element of mens rea, the “existence of intent and

knowledge can be inferred from relevant facts and circumstances.”
Taking into account that no mental element is specified in Article
7(l)(a) of the Statute, the Chamber applies Article 30 of the Statute.14
The Prosecutor must demonstrate the nexus existing between the
acts of murder and the attack.15
As detailed in this application, the dispersal of the Red Shirt rallies resulted in the
death of more than eighty civilians. On April 10, 2010, units had carried out a failed
attempt to disperse a Red Shirt gathering at the Phan Fa Bridge, resulting in the
death of twenty-seven people. In addition, at least fifty-five more people died in the
dispersal of the Ratchaprasong rally between May 13 and May 19. It is submitted
that the loss of more than eighty civilians at the hands of the Thai Army during
April-May 2010 was a result of the act of murder, an act where the intention of the
alleged perpetrators was “to cause the victim serious injury with reckless disregard
for human life.”
When set against other recent conflicts, the casualty figures for the 2010 Bangkok
Massacre are on a par with episodes of full-scale warfare. While the ninety-one
deaths is an extraordinarily high number for what was, essentially, a civil policing
12. For a similar approach, see ICTY, Prosecutor v. Stokte, Case No. IT-97-24-T,
“Judgment,” July 31, 2003, para. 201.
13. This approach was also taken in ICTR, The Prosecutor v. Akayesu, Case No. ICTR-
96-40-T, “Judgment,” September 2, 1998, para. 282: Pursuant to a question from the
Chamber as to the killing of teachers, witness K stated she was unsure how many
were killed, but that she knew the names of some of them; ICTR, The Prosecutor
v Kamuhanda, Case No. ICTR-95-54A-T, “Judgment,” January 22, 2004, para. 345:
“Prosecution Witness GEA testified that he could not say how many people had died
at that location, because ‘that day there were very many.’;” ICTR, The Prosecutor
v Ntakirutimana, Case No. ICTR-96-10 & TCTR-96-17-T, “Judgment and Sentence,”
February 21, 2003, para. 631: the witness specified that “many people were killed
as a result of this attack.”
14. ICC, Situation in the Democratic Republic of the Congo in the Case of the Prosecutor
v. Germain Katanga and Mattieu Ngudjolo Chui, ICC-01/04-01/07 Decision on the
Confirmation of the Charges, September 30, 2008, (Pre-Trial Chamber I, Katanga
decision, ICC-01/04-01/07-717), para. 423.
15. Elements of Crimes, Article 7(l)(a) of the Statute, para. 2.
operation, the estimated two thousand injuries are an equally damning statement
of the Royal Thai Government’s brutal use of force.
When one compares the casualties suffered by United States and Coalition forces
during the first year of the Iraq War (from March 2003), the full scope Mr. Abhisit’s
declaration of war against its own citizens is fully revealed. In the 347 days from the
start of the invasion of Iraq on March 20, 2003 to February 29, 2004, 655 Coalition
troops died, averaging 1.89 deaths a day.16 Over the forty-one days from the April
10, 2010 attack staged by the Royal Thai Army in the vicinity of the Phan Fa Bridge
until Thai troops reasserted control over the Ratchaprasong protest area on May
19, Thai citizens died at a rate of 2.22 a day, a death rate almost 17.5% higher than
that suffered by the invading Coalition army, comprising of several nations, during
the full-scale Iraq War.
The comparative wounded figures are even more staggering if we take the estimate
of approximately two thousand injured between April 10, 2010 and May 19, 2010.
Using the same first 347 days of the Iraq War, 2756 US military personnel were
wounded or injured in total, at a rate of roughly 7.95 a day. The wounded and
injured rate for the forty-one days of violence witnessed during the 2010 Bangkok
Massacre is 48.8 a day — over six hundred percent higher. In fact, during the US
military’s worst year for injuries in the entire Iraq War (the twelve months from
April 2004), when 8624 personnel were wounded, the daily rate of 23.63 is still less
than half that of the 2010 Bangkok Massacres.
Given these figures, little doubt remains that the Thai regime turned central Bangkok
into a charnel house in April and May 2010, unleashing levels of violence typically
seen in major episodes of large-scale modern warfare. Based on both the aggregate
casualty toll and first-hand testimonies describing how the crackdown unfolded in
various parts of the city, it is clear that the killings were committed with the intent
“to cause the victims serious injury with reckless disregard for human life.” In
fact, witness testimonies support the notion that the crackdown was planned and
implemented for the specific purpose of inflicting maximum damage on the Red
Shirt movement, through both the murder of its leaders and the decimation of its
supporters in the streets of Bangkok.
In crushing the Red Shirts, the Abhisit administration and Royal Thai Army ignored
crowd control principles altogether. Contrary to the standards set in the “United
Nations Basic Principles on the Use of Force and Fire Arms by Law Enforcement
16. Figures about Iraq war casualties are from the website “Iraq Coalition Casualty
Count,” http://icasualties.org/Iraq/USCasualtiesByState.aspx.
Officials,” the dispersal operations made little use of “non-lethal incapacitating
weapons.” No care whatsoever appears to have been taken to “minimize the risk
of endangering uninvolved persons” and to “preserve human life.” The shoot-to-
kill policy for demonstrators burning tires and setting off firecrackers does not
appear to constitute a response undertaken “in proportion to the seriousness of the
offense.” Attacks on medical workers were not ordered in the interest of ensuring
that “assistance and medical aid are rendered to any injured or affected persons
at the earliest possible moment.” Even if the Red Shirts demonstrations could be
regarded as “violent” and “unlawful” — if only because the State of Emergency
declared them to be illegal — expert testimony and the wealth of eyewitness accounts
that emerged from the government’s live fire zones strongly suggests that the use
of force was not limited to the “minimum extent necessary.” Indeed, the testimony
suggests that many of the victims were murdered solely as part of a campaign to
suppress evidence that might incriminate the Army and the Thai Government.
Major international human rights organizations concur with the assessment of the
crackdown offered in this Application. On May 15, 2010, Human Rights Watch called
on the government to revoke the “live fire zones” and slammed the administration
for failing to abide by the “United Nations Basic Principles on the Use of Force
and Fire Arms by Law Enforcement Officials.”17 A few days thereafter, Amnesty
International, an organization whose Thailand chapter has long been criticized for
its cozy relationship with the country’s ultra-conservative Establishment, called on
the government to “halt the reckless use of lethal force.”18 Some time after the
rallies were dispersed, organizations like Reporters Without Borders (RSF) 19 and the
International Crisis Group (ICG)20 issued detailed reports that sharply condemned
the indiscriminate killings committed by the Thai armed forces. Reporters Without
Borders denounced the government for giving the Royal Thai Army a “license to kill”
Red Shirt demonstrators, and accused the Royal Thai Army of “taking advantage of
17. Human Rights Watch, “Thailand: Revoke ‘Live Fire Zones’ in Bangkok,” May 15,
2010.
http://www.hrw.org/en/news/2010/05/15/thailand-revoke-live-fire-zones-
bangkok
18. Amnesty International, “Thai Military Must Halt Reckless Use of Lethal Force,”
May 18, 2010.
http://www.amnestyusa.org/document.php?id=ENGNAU2010051816851&lang=e
19. Reporters Without Borders, “Thailand: Licence to Kill,” July 2010.
http://en.rsf.org/IMG/pdf/REPORT_RSF_THAILAND_Eng.pdf
20. International Crisis Group, “Bridging Thailand’s Deep Divide,” ICG Asia Report
192, July 5, 2010, p. 18.
http://www.crisisgroup.org/~/media/Files/asia/south-east-asia/thailand/192_
Bridging%20Thailands%20Deep%20Divide.ashx
the state of emergency to run roughshod over international law and Thai legislation
protecting civilians.”
IMPRISONMENT AND OTHER SEVERE DEPRIVATION OF PHYSICAL LIBERTY

According to the Elements of Crimes, in order to establish that the crime of
imprisonment or severe deprivation of physical liberty has been committed, the
Trial Chamber must be satisfied that the perpetrator unlawfully deprived one or
more persons of physical liberty.
Months since the dispersal of the rallies, hundreds of protesters remain in prolonged,
arbitrary detention, often in harsh conditions, for violating the Internal Security Act
and the Emergency Decree, which the Thai authorities wield in an effort to criminalize
legitimate political protest. Just how many Red Shirts have been detained since the
crackdown remains “shrouded in secrecy,” as an investigative article put it back in
August 2010, but independent estimates range from 470 upwards.21 Furthermore,
there are indications that opponents of the government have been subjected to
forced disappearance after the end of the demonstrations. As of its latest report, of
the eighty-eight people the “Mirror Foundation” had initially listed as missing, fifty-
one turned out to have been detained, while twenty-seven remain unaccounted for.
Human Rights Watch further reported the following:
Since at least May 12, the CRES has ordered use of additional military
camps in Saraburi (Adisorn Camp), Ratchaburi (Panurangsi Camp)
and Chantaburi (Panasbodisriuthai Camp), as well as Border Patrol
Police facilities in Prachinburi (Naresuarn Camp) and Pathumthani
(1st Region Border Patrol Police Command) to detain people
accused of violating the Emergency Decree. It remains unclear
what has happened to them or where they are now.22
It is therefore submitted that an indefinite number of people are being subjected to

prolonged arbitrary detention and severe deprivation of physical liberty.
Additionally, nineteen Red Shirt leaders who have been formally charged with
terrorism in connection with the demonstrations have been denied bail. These
21. Marwaan Macar-Markan, “Jails Fill Up with Political Prisoners, Critics,” Inter-
Press Service, August 23, 2010.
http://ipsnews.net/news.asp?idnews=52571
22. Human Rights Watch, “Thailand: Repeal the Emergency Decree,” November 24,
2010.
http://www.hrw.org/en/news/2010/11/24/thailand-repeal-emergency-decree
defendants are being held criminally responsible for all of the deaths that occurred
during April and May, making them the scapegoats for the murderous acts of the
Abhisit government. Incarcerating and prosecuting these political demonstrators
for crimes actually committed by the government is clearly unlawful. Indeed, in
light of the fact that the Abhisit government attempted twice to assassinate the Red
Shirt leaders during the course of the demonstrations, these criminal charges —
which carry potential capital sentences — seem to represent the “legal” culmination
of those plans.
OTHER INHUMANE ACTS

According to the Elements of Crimes, in order to establish that other inhumane
acts have been committed, it must be satisfied that a “perpetrator inflicted great
suffering, or serious injury to body or to mental or physical health by means of an
inhumane act.”23 It is not clear what exactly falls under the scope of an “inhumane
act” according to the ICC.
The ICC Pre-Trial Chamber noted that the Statute has given to “other inhumane
acts” a different scope than its antecedents like the Nuremberg Charter and the
ICTR and ICTY Statutes. The latter conceived “other inhumane acts” as a “catch-all
provision,”24 leaving a broad margin for the jurisprudence to determine its limits.
In contrast, the Rome Statute contains certain limitations, as regards to the action
constituting an inhumane act and the consequence required as a result of that
action.25 According to Article 7(l)(k)(2) of the Elements of Crimes, “other inhumane
acts” must be of a similar character to any other act referred to in Article 7(1) of
the Statute. Footnote 30 of the Elements of Crimes states that “character” shall be
understood as referring to the nature and gravity of the act.26
Although this similarity is required, Article 7(l)(k) of the Statute defines the conduct
as “other” inhumane acts, which indicates that none of the acts constituting
crimes against humanity according to Article 7(1)(a) to (j) can be simultaneously
considered as other inhumane act under Article 7(l)(k) of the Statute.27 For example,
23. See Elements of Crimes, Article 7(1)(k)(1).

24. Boot, M. revised by C.K. Hall, C. K., “Article 7 - Crimes against Humanity”, in
O. Triffener (ed.), Commentary on the Rome Statute of the International Criminal
Court, 2nd Edition (München: C.H. Beck, 2008), p.230.
25. Pre-Trial Chamber I, Katanga decision, ICC-01/04-01/07-717, para. 450.
to establish bodily injury as a crime against humanity, the ICTY Appeals Chamber
in The Prosecutor v. Kordic and Cerkez found that the following conditions should
be met:
(a) The victim must have suffered serious bodily or mental harm; the
degree of severity must be assessed on a case-by-case basis with
due regard for the individual circumstances;
(b) The suffering must be the result of an act or omission of the

accused or his subordinate; and
(c) When the offence was committed, the accused or his subordinate
must have been motivated by the intent to inflict serious bodily or
mental harm upon the victim.28
With respect to the subjective element, the Chamber notes that in addition to
the requirement that the objective elements were committed with intent and
knowledge pursuant to Article 30 of the Statute, Article 7(l)(k)(3) of the Elements of
Crimes establishes that the “perpetrator must also [have been] aware of the factual
circumstances that established the character of the act.” This offense encompasses,
first and foremost, cases of dolus directus in the first and second degree.29
The evidence presented above with regard to the crime of murder further
substantiates the claim that the injury of approximately two thousand people
during the crackdowns of April and May 2010 amounts to a crime against humanity
of the kind subsumed in the ICC Statute under the rubric of “other inhumane acts.”
If, in particular, acts of “murder” are defined as killings committed with the intent
“to cause the victims serious injury with reckless disregard for human life,” acts
that resulted in bodily harm committed as part of the same attack and with the
same intent or knowledge qualify as “other inhumane acts.”
In addition to the injuries suffered by Red Shirt demonstrators, emergency

medical personnel, journalists, and onlookers during the Royal Thai Army’s brutal
crackdown, “other inhumane acts” were also perpetrated against at least some of
the people detained by the government while in state custody. Since the end of
the demonstrations, multiple reports have emerged attesting to the Royal Thai
Government’s habitual recourse to the torture of detainees — both as a punitive
measure and as an instrument to coerce prisoners into furnishing confessions. The
28. ICTY The Prosecutor y Kordic and Cerkez, Case No. IT-95-14/2-A, Appeals
Judgment, December 17, 2004, para. 117.
group “Social Move” described the plight of at least four men who claim to have
been severely beaten upon their arrest and while in custody; two testified to having
been doused in lighter fluid as soldiers of the Royal Thai Army threatened to burn
them alive.30 Even the National Human Rights Commission, a governmental body
frequently criticized for its pro-Establishment bias, has issued a report denouncing
that “Red Shirt detainees are being tortured, forced to confess to crimes and jailed
without any chance to defend themselves.”31
The manner in which the Abhisit government is prosecuting the Red Shirt leaders
on capital charges of terrorism should also be viewed as an inhumane act. As set out
above, these defendants are being held responsible for the murders committed by the
Abhisit government. Further, as detailed below, the court is systematically denying
them due process guarantees by excluding key witnesses and by denying them the
right to attend their own proceedings. The Red Shirt leaders are being subject to
nothing less than a “show trial” in the old Soviet style, under the supervision of
the same judge who participated in the post-coup criminal proceedings against
former Prime Minister Thaksin. These show trials should be treated as separate and
independent crimes against humanity.
PERSECUTION
According to the Elements of Crimes, in order to establish that the crime of
persecution has been committed, the Trial Chamber must be satisfied that in the
act of persecution, the perpetrator severely deprived, contrary to international law,
one or more persons of their fundamental rights.32 In the ICTY case Prosecutor v.
Kupreskic, the Trial Chamber held that the Crime Against Humanity of Persecution
“derives its unique character from the requirement of its specific discriminatory
intent.”33 Moreover, the Trial Chamber held that persecution is “an act or omission
that discriminates in fact that and that denies or infringes on a fundamental right
30. For English translations and summaries of the original Thai reports, see Andrew
Spooner, “Thai Style Human Rights,” Siam Voices, October 3, 2010.
http://asiancorrespondent.com/41045/thai-style-human-rights/ )
See also Andrew Spooner, “Thai Army Brutality— An Account,” Siam Voices,
November 16, 2010 (http://asiancorrespondent.com/42679/thai-army-brutality-
an-account/)
31. See “Panel Claims Red Shirt Inmates Tortured,” Bangkok Post, December 7, 2010.
http://www.bangkokpost.com/news/politics/210009/panel-claims-red-shirt-
inmates-tortured
32. See Elements of Crimes, Article 7 (1) (h) (1).
33. ICTY, Krnojelac, Case No. IT-95-16-T, Judgment, March 15, 2002, para.436.
laid down in international customary law or treaty law.”34
By the time the Red Shirts began setting up their encampments in Bangkok on
March 13, 2010, the campaign of political persecution against the opponents of the
current regime had been underway for years.
As noted, the campaign started with the 2006 coup, when Thai generals seized the
state and overthrew the country’s Constitution for the sole purpose of obliterating
the country’s ruling political party, dissolving the party through retroactive
legislation, denying Thai Rak Thai politicians their individual right to seek and
hold elected office, subjecting its leaders to selective criminal prosecutions, taking
control of the courts, seizing Thaksin Shinawatra’s assets, and changing the rules
of the game in an effort to hamper to reconstitution of the former ruling party.
Throughout the time the generals were in power (September 2006-December 2007),
they dedicated themselves to rooting out Thaksin’s supporters by having recourse
to almost every available form of political persecution — the subversion of the
rule of law, the deprivation of freedom, the denial of citizens’ basic right to free
speech and assembly, the revocation of a citizen’s right to stand for election, the
suppression of freedom of association, legal harassment, the seizure of property,
and the introduction of laws ad personam. Based on the generals’ statements at the
time, which referred openly to the need to eradicate Thaksin’s “regime,” there can
be no question that the attempt to stamp out Thai Rak Thai was a campaign that
aimed explicitly to discriminate on account of political affiliation.
Having taken the reins of power by force, the military junta immediately set out to
dismantle Thai Rak Thai’s organization and to diminish its popular appeal. In January
2007, the junta allocated a secret twelve million baht budget to a public relations
campaign to discredit Thaksin’s administration and its policies.35 Reportedly, the
junta-approved, taxpayer-funded campaign — coordinated by the media company
owned by the cousin of CNS deputy secretary-general Saprang Kalayanamitr —
availed itself of the services of prominent Democratic Party officials, including
Korn Chatikavanij and Korbsak Sabavasu.36
While the Constitutional Court was disbanded immediately after the 2006 coup,
34. ICTY, Krnojelac, Case No. IT-95-16-T, Judgment, March 15, 2002, para.436.
35. “CNS’s Anti-Thaksin Campaign,” Bangkok Post, April 8, 2007.
http://pages.citebite.com/i1t5f0u5a3yao
36. “Saprang’s Cousin Given PR Work ‘Because of Experience’,” The Nation, Apr. 11,
2007.
http://www.nationmultimedia.com/2007/04/11/politics/politics_30031650.php
the Interim Constitution imposed shortly thereafter established a nine-member
Constitutional Tribunal, comprised entirely of members of the judiciary, appointed
by the junta.37 On May 30, 2007, the handpicked Constitutional Tribunal dissolved
Thai Rak Thai. The decision was ostensibly based upon a finding that Thai Rak Thai
had bribed smaller opposition parties to participate in the April 2006 elections.
The Democrat Party — the main parliamentary opposition to Thai Rak Thai —
was accused of similar offenses, but was absolved by the Tribunal. In addition
to dissolving the former governing party, the Tribunal’s ruling banned 111 Thai
Rak Thai executives from politics for five years, in accordance with the retroactive
policy imposed by the CDR pursuant to its Announcement No. 27. This insured that
once the party was disbanded, its leaders could not be re-elected under a different
label, notwithstanding the fact that the alleged misconduct occurred months before
Announcement No. 27 was issued. Most Thai Rak Thai leaders were denied an
opportunity to speak for themselves in court.38
The Asian Human Rights Commission described the Constitutional Tribunal’s

decision as follows:
Thus, we have the spectacle of a group of judges appointed by an

unelected and antidemocratic military regime making a decision
on the actions of an elected political party that is alleged to have
undermined democratic process.39
For the new regime, elections could only take place after Thai Rak Thai was disbanded,
its leaders disqualified, its image tarnished, and its electoral organization scattered
to pieces.
Undaunted by the dissolution of Thai Rak Thai, its former members regrouped in
August 2007 under the banner of the People Power Party (“PPP”), to be led by long-
time Bangkok politician Samak Sundaravej. Shortly after the PPP was established, the
CNS issued an order to suppress its activities, which led the PPP to file a complaint
against the CNS before the Election Commission. The Election Commission, however,
dismissed the complaint on the grounds that the CNS had granted itself immunity
37. “Nine Constitution Tribunal Members,” The Nation, October 7, 2006.

http://nationmultimedia.com/breakingnews/read.php?newsid=30015571;
See also “Thailand’s Struggle for Constitutional Survival,” Article 2 of the International
Covenant on Civil and Political Rights (Special Edition), 6(2007), p. 4.
38. Vorajet Pakirat et al., “Decision of the Constitutional Tribunal to Dissolve Thai
Rak Thai — A Legal Analysis,” Faculty of Law, Thammasat University.
39. Asian Human Rights Commission, “THAILAND: The Judiciary is the Real Loser,”
May 31, 2007.
http://www.ahrchk.net/statements/mainfile.php/2007statements/1041/
when it replaced the 1997 Constitution with a new one.40
On December 23, 2007, Thailand held the first and to date the only post-coup general
elections. Despite overwhelming opposition and suppressive tactics employed by
the CNS, the PPP achieved a plurality of seats in the House of Representatives,
winning 233 out of 480 seats. Although the Election Commission disqualified a
significant number of elected members, primarily those who ran under the PPP’s
banner,41 the party was able to build a coalition government and seat Prime Minister
Samak Sundaravej on January 29, 2008.
The campaign of persecution continued during administrations of Samak Sundaravej

and his successor Somchai Wongsawat (January 2008-December 2008), albeit in a
different form. The 2007 Constitution enshrined into law the right of the Courts
to intervene in the country’s politics for the purposes of subverting the results of
competitive elections, altering the composition of the House of Representatives,
ordering the disbandment of lawfully registered political parties, and stripping the
executives of such parties (even those who were not found guilty of any offenses)
of their right to hold public office.
On September 9, 2008, in response to charges brought forth by rival politicians and

the Election Commission, the Constitutional Court forced Prime Minister Samak
to resign, owing to the fact that Samak had hosted a cooking class on television
and had therefore violated the prohibition against elected officials receiving
compensation from other sources. Samak argued that he was not actually employed
by the television station and that, although the programs had aired during his
tenure as Prime Minister, they had been recorded before he became premier. Those
arguments, however, did not prevail before the Constitutional Court, which voted
unanimously to remove him. On September 18, 2008, Samak was replaced by PPP
leader Somchai Wongsawat, Thaksin’s brother-in-law.
On December 2, 2008, as the occupations of Suvarnabhumi and Don Muang airports

by the People’s Alliance for Democracy entered the second week, the Constitutional
Court handed down its decision dissolving the People Power Party as well as
coalition partners Chart Thai and Matchima Thippathai — disqualifying every
member of the three parties’ executive committees from politics for five years.
40. “Junta ‘Never Harmed PPP’,” Bangkok Post, December 13, 2007.
http://thailandpost.blogspot.com/2007/12/junta-never-harmed-ppp.html
41. “Thai Election Agency Disqualifies More Winning Candidates,” People’s Daily,
January 7, 2008.
http://english.people.com.cn/90001/90777/90851/6333842.html
Among the politicians banned as a result was Prime Minister Somchai Wongsawat,
who was automatically stripped of his office. It was only in the aftermath of the
Constitutional Court’s verdict that the Democrat Party was able to form a coalition
government and install Abhisit Vejjajiva as its Prime Minister on December 18,
2008.
It should be noted that the provisions on party dissolution, upon which the
Constitutional Court based its decision, were written into the 2007 Constitution at
the junta’s insistence. Outwardly aimed at strengthening the judiciary in its fight
against corruption, the statute offered the military-appointed Constitutional Court
vast powers to overturn the choices of the electorate. Much like the Interim Charter
promulgated in the wake of the coup, Section 237 of the 2007 Constitution gives
the Court the option to dissolve any party whose executive committee includes at
least one politician found guilty of fraud by the Election Commission of Thailand.
Concurrent with the dissolution of a political party, the Constitutional Court may
also ban the party’s entire executive committee from voting and holding elected
office for a period of five years.
In the specific instance, the Constitutional Court dissolved the People Power Party
and disqualified its executive committee exclusively on the basis of violations
that former House Speaker Yongyuth Tiyaparat was alleged to have committed
in the run-up to the 2007 general election. Of the 215 former party executives
who were stripped of their right to vote and stand for elected office as a result
of the court-ordered dissolution of Thai Rak Thai, the People Power Party, Chart
Thai, and Matchima Thippathai, only a tiny fraction were ever even accused of any
wrongdoing. More than two hundred among them were deprived of their civil and
political rights just by virtue of their association with the parties in question. In a
democracy, the notion of “collective guilt” cannot be the basis for the dissolution
of an entire political party that represents millions of members and in some
instances the electoral choices of more than ten million voters. Nor should a sitting
parliamentarian (or indeed any citizen) be deprived of his/her political rights
based on infractions committed by others without his/her knowledge, much less
complicity.
In and of themselves, these rules represent violations of several among the individual
rights sanctioned in the International Covenant on Civil and Political Rights (ICCPR)
— the right to “take part in the conduct of public affairs, directly or through freely
chosen representatives” (Article 25) and the right to “to freedom of association
with others” (Article 22). It matters little that a military junta managed to write
these provisions into the Constitution. These provisions stand in direct contrast to
the treaty obligations Thailand has freely contracted. Moreover, as Chulalongkorn
University legal scholar Narongdech Srukhosit has pointed out, these provisions
stand in direct conflict with the principle of freedom of association enshrined in
Section 65 of Thailand’s own Constitution.42
Certainly, many countries give the courts the power to dissolve or revoke the
registration of political parties found to be inactive or responsible for systemic
financial irregularities, association with paramilitary groups, and engagement in
violent subversive activities. However, no democratic country allows the courts,
as Thailand does, to order the disbandment of parties based on individual acts
misconduct, especially when responsibility for the alleged misconduct is only
determined by an administrative decision (such as the decisions rendered by the
Election Commission) and not “independent judicial procedures.” Nor does any
democratic country allow the Courts to strip the right of sitting parliamentarians
or party executives to vote or hold elected office based on the infractions of others.
Moreover, of the seven countries where the courts may dissolve political parties
that fail to submit proper financial reports (Argentina, Bulgaria, the Czech Republic,
Kenya, Portugal, Papua New Guinea, and Thailand), only in Thailand and the Czech
Republic can such decision be handed down based on a single instance in which the
party fails to submit the documentation in time.
While the Election Commission has referred to the Constitutional Court similar party
dissolution cases against the ruling Democrat Party, the courts have thus far found
a way to avoid ordering its dissolution. Between late November and early December
2010, the Constitutional Court dismissed on a technicality two dissolution cases
filed by the Election Commission of Thailand against the Democrat Party for taking
in millions of baht in illegal donations. After spending six months questioning
witnesses, examining evidence, and hearing closing arguments from both sides, the
Court ruled that the cases had been inadmissible all along, based on the timing of
the ECT’s referral of the cases to the Court.43 In the wake of the verdicts, political
scientist Thitinan Pongsudhirak wrote the following:
The dissolution of political parties and ban on politicians on one
42. Narongdech Srukhosit, “Some Reflections on the Dissolution of Political Parties

in Thailand,” International Association of Law Schools, September 11-12, 2009.
http://www.ialsnet.org/meetings/constit/papers/SrukhositNarongdech(Thailand).
pdf
43. “EC Hits Back at Critics of Its Actions,” Bangkok Post, December 2, 2010.
http://m.bangkokpost.com/topstories/209253
side of Thailand’s deepening divide while letting off those on the
other side is indicative of the so-called “judicialization” of Thai
politics. It is designed for the judiciary to set political directions
and untie the complicated knot of Thailand’s crisis. But instead
of achieving reconciliation and a way forward, judicialization has
exacerbated matters.44
Not only does Thailand’s legislation on party dissolution represent an unacceptable

restriction on freedoms guaranteed in the ICCPR that has no place in a democracy
and no equivalent in any free country. Its selective, discriminatory, entirely one-
sided application/enforcement is evidence of the fact that this legislation is just
another instrument that Thailand’s politicized judiciary has to alter the composition
of the parliament, overturn the choices made by the voters, and take opposition
politicians out of contention.
None of the politicians that were disqualified from politics since the 2006 coup will
be able to participate in the next elections, which are due by the end of 2011. The
111 Thai Rak Thai executives, who already had to sit out the 2007 elections, will
only recover their political rights in mid-2012, while the executives of the People
Power Party, Chart Thai, and Matchima Thippathai will have to wait until late 2013
before their rights are restored under the current rules. In light of the fact that the
parties that have won the last four elections were dissolved, and that the number
of potential candidates disqualified from holding elected office is almost half the
size of the House of Representatives, the cumulative effects of these decisions has
been to stack the deck in favor of the Democrats and to deprive the Thai people of
a real electoral choice.
The situation of these 215 men and women, most of whom are former parliamentarians,
closely resembles the case of Leopoldo Lopez Mendoza, a Venezuelan opposition
politician who was disqualified from holding public office in 2004 in spite of the
fact that he was never convicted of any wrongdoing. In 2009, the Inter-American
Commission on Human Rights, an organ of the Organization of American States,
referred the case to the Inter-American Court for Human Rights, requesting not only
that the Court order Venezuela immediately to restore Leopoldo Lopez Mendoza’s
political rights and adequately compensate him for the injustice he had suffered,
but also that Venezuela be compelled to change its domestic legislation.45 In the case
44. Thitinan Pongsudhirak, “Thailand’s Growing Political Abyss,” OpinionAsia,
December 22, 2010.
http://opinionasia.com/node/850
45. Inter-American Commission on Human Rights, “Application to the Inter-
of Thailand, to date no international organization has taken up the case of the more
than two hundred politicians (many among them former members of parliament)
who were similarly denied their right to hold public office in the absence of any
alleged wrongdoing.
Perhaps the strongest evidence of political persecution, however, are the massive
restrictions that have been placed upon freedom of expression, both in emergency
and non-emergency situations, through the imposition of the strictest censorship
regime Thailand has witnessed in thirty years, as well as the prosecution of an
unprecedented number of people for crimes of conscience. In and of themselves,
the Computer Crimes Act and Article 112 of the Criminal Code (sanctioning the
crime of lèse-majesté) unduly restrict the Thai people’s right to free expression
and the freedom to “seek, receive, and impart information and ideas of all kinds”
under the ICCPR. Even though government officials have justified the arrests made
under the laws with the need to protect “national security,” the freedom to criticize
the institutions of the state is precisely what the ICCPR is designed to protect.
A measure of the erosion observed in the rights of the Thai opposition over the
past several years is offered by Reporters Without Borders, whose “World Press
Freedom” index now ranks Thailand in 153rd place (sixty-sixth in 2006).
More recently, the imposition of the Internal Security Act (still in force at the time
of writing) and the Emergency Decree (revoked in late December 2010) have served
the purpose of restricting the Thai people’s constitutionally sanctioned right to
free assembly. Only anti-government demonstrators, however, have been subjected
to prosecution, indefinite detention, and the denial of due process for violating
regulations issued pursuant to the Emergency Decree. Meanwhile, pro-government
demonstrators have been repeatedly allowed to stage demonstrations without
incurring any such penalty. This constitutes an unacceptable double standard.
In conclusion, it is submitted that supporters of Thaksin Shinawatra and opponents

of Thailand’s Establishment have been subjected to a campaign political persecution
since the 2006 coup. While the acts describe in this Application clearly amount to
political persecution, the systematic and targeted enforcement of these restrictions
against citizens who remain loyal to Dr. Thaksin, citizens who stood in opposition
to the coup, and/or citizens who call for a reduction in the extra-constitutional
authority of the Royal Thai Army constitutes discrimination on the basis of political
affiliation.
American Court of Human Rights in the case of Leopoldo Lopez Mendoza (Caso
12.668) against Venezuela,” December 14, 2009.
4.2 CONTEXTUAL ELEMENTS
Crimes Against Humanity are specified in greater detail in another important
document of the ICC — the Elements of Crimes. Those criteria are:
(i) The attack had to be directed against a civilian population;
(ii) A State or Organizational policy;
(iii) The specific conduct was part of either a widespread or systematic

nature of the attack;
(iv) A nexus between the individual act and the Attack;
(v) The perpetrator had to have at the least knowledge or intent that
the conduct was part of such a widespread or systematic attack.46
AN ATTACK “DIRECTED AGAINST A CIVILIAN POPULATION”

The meaning of the term “attack,” although not addressed in the Statute, is clarified
by the Elements of Crimes, which states that for the purposes of Article 7(1) of the
Statute, an attack is not restricted to “a military attack.”47 Moreover, the Pre-Trial
Chamber, in the case of Jean Pierre Bemba Gomba, held that: “ [a]n attack consists
of a course of conduct involving the multiple commission of acts referred to in
Article 7(1).”48
In the Kenyan situation, the Pre-Trial Chamber considered that “[t]he potential
civilian victims of a crime under Article 7 of the Statute are groups distinguished
by nationality, ethnicity, or other distinguishing features.”49 The Prosecutor will
need to demonstrate that the attack was “[d]irected against civilian population as
a whole and not merely against randomly selected individuals.”50 In addition, the
civilian population must be the primary object of the attack in question and cannot
merely be an incidental victim.”51 The term “civilian population” refers to persons
46. See Article 7 (2) Rome Statute and Kenyan Decision on Article 15, para. 79.
47. Kenyan Decision on Article 15, para. 80 and Elements of Crimes, Introduction
to Article 7 of the Statute, para. 3.
48. Pre-Trial Chamber II, ICC-01/05-01/08-424, Decision Pursuant to Article 61 (7)
(a) and (b) of the Rome Statute on the Charges of the Prosecutor on against Jean
Pierre Bemba Gomba, June 15, 2009, para 75.
49. Kenyan Decision on Article 15, para. 81 and JP Bemba Gomba Decision, para. 76.
50. Kenyan Decision on Article 15, para. 81and JP Bemba Gomba Decision, para. 76.
51. Kenyan Decision on Article 15, para 82.
who are civilians, as opposed to members of armed forces and other legitimate
combatants.
The extreme violence unleashed on Red Shirt demonstrators in April and May 2010
must be considered an attack that took place at the direction of the Royal Thai
Government. Although the government claims it has only applied deadly force
against violent elements among the Red Shirts, there is no evidence suggesting that
any of those killed on April 10, 2010 or during the weeklong crackdown between
May 13-19, 2010 posed any threat to security forces. In fact, dozens of video clips,
photographs, and eyewitness accounts point to several instances in which those
killed manifestly did not pose any danger, but were rather shot through the head
while holding slingshots, flags, cameras, or medical equipment.
The government has chosen to explain the danger posed by each of the persons
killed or injured as a result of the Royal Thai Army’s actions collectively as opposed
to individually — specifically, based on the victims’ participation in the activities of
a group the government has described as a “terrorist” organization. Whether or not
there is any factual basis to conclude that either the UDD or the broader Red Shirt
movement could be characterized as “terrorist,” the government’s actions amount
to targeting a “civilian population” based on “distinguishing features” (such as red
clothing) that identified them as members of a particular civilian group regardless
of whether the individuals themselves actually committed any acts of violence
or intimidation against the security forces. In conclusion, it can be said that the
civilian population identified on the basis of “distinguishing features” connoting
opposition to the government was the primary object of the attack. Once again,
witness testimonies presented earlier in this Application corroborate the claim that
the Red Shirt movement as a whole had been identified well in advance as the target
of a well-planned attack aimed at its thorough destruction.
“STATE OR ORGANIZATIONAL POLICY”

In Paragraph 3 of the Elements of Crimes, it is stated that a “policy to commit such
an attack” requires the existence of a state or organizational policy that actively
promoted or encouraged the attack against a civilian population. Besides, it is
stated that: “[a] policy which has a civilian population as the object of the attack
would be implemented by State or organizational action. Such a policy may, in
exceptional circumstances, be implemented by a deliberate failure to take action,
which is consciously aimed at encouraging such attack. The existence of such a
policy cannot be inferred solely from the absence of governmental or organizational
action.”
The Statute does not provide definitions of the terms “policy” and “State or
organizational.” The Pre-Trial Chamber in the Kenyan situation and in the case
against Katanga and Ngudjolo Chui found that this requirement: “[...]must still be
thoroughly organized and follow a regular pattern. It must also be conducted in
furtherance of a common policy involving public or private resources. Such a policy
may be made either by groups of persons who govern a specific territory or by any
organization with the capability to commit a widespread or systematic attack against
a civilian population. The policy need not be explicitly defined by the organizational
group. Indeed, an attack which is planned, directed or organized — as opposed to
spontaneous or isolated acts of violence — will satisfy this criterion.”52
With regard to the term State or organizational policy, the Trial Chamber in the
Blaskic case held that: “This policy does not necessarily need to have been conceived
at the highest level of the State Machinery.” In the Kenyan decision, the Pre-trial
Chamber referred to this decision and noted: “a policy adopted by a regional or
even local organs of the State could satisfy the requirement of a State policy.”53
With regard to the term “organizational,” the Statute is unclear. In the Kenyan
decision, the Trial Chamber referred to the International Law Commission, which
held that: “The article does not rule out the possibility that private individuals
with de facto power or organized in criminal gangs or groups might also commit
the kind of systematic or mass violations of human rights.”54 The Trial Chamber
held that “the determination of whether a given organization group qualifies as an
organization under the statute must be made on a case by case basis.”55 It set out
six considerations:
(i) Whether the group is under a responsible command, or has an

established hierarchy;
(ii) Whether the group possesses, in fact, the means to carry out a
widespread or systematic attack against the civilian population;
(iii) Whether the group exercises control over part of the territory of
the state;
52. Pre-Trial Chamber II, ICC-01/04-01/07-717, Decision on the Confirmation of the

Charges, para 396.
(iv) Whether the group has criminal activities against the civilian
population as a primary purpose;
(v) Whether the group articulates, explicitly or implicitly an intention

to attack a civilian population;
(vi) Whether the group is part of a larger group, which fulfills some or
all of the abovementioned criteria.
The Trial Chamber noted that these considerations may assist, but need not be
exhaustively fulfilled.56
The killings of April-May 2010 were not isolated or sporadic incidents, but were
rather the result of coordinated plans in response to the Red Shirts demonstrations.
Security forces were repeatedly mobilized and the instructions were conveyed along
a chain of command, including Mr. Abhisit’s civilian administration. Ultimately, the
Royal Thai Army was given what Reporters Without Borders calls “a license to kill”
— that is, carte blanche to use whatever force was deemed necessary to destroy the
Red Shirt movement. As the witness testimonies reported above show, operations
designed to inflict heavy losses among the Red Shirts were planned and rehearsed
by the Royal Thai Army well in advance of the their actual implementation, while
Master Sergeant (Ret.) Witty’s expert report and video evidence highlight the
intentional, indiscriminate discharge of military weapons. Abhisit Vejjajiva’s civilian
government, moreover, approved the operations without regard for the likelihood
that they would result in unnecessary loss of human life.
In conclusion, it is safe to say that the Royal Thai Army carried out an attack against
the Red Shirt civilian population according to a “state or organizational policy”
devised and approved at the highest levels of the country’s civilian and military
leadership.
“WIDESPREAD OR SYSTEMATIC NATURE” OF THE ATTACK

An act constitutes a crime against humanity when committed as part of a widespread
or systematic attack directed against any civilian population. The Trial Chamber
recently held that “the alleged acts must be either widespread or systematic to
warrant classification as crimes against humanity.57 In addition, a widespread attack

57. Kenyan Decision on Art. 15, para. 94, See also Pre-Trial Chamber I, Decision on
the confirmation of charges, ICC-01/04-01/07-717, para. 412; ICTY, Prosecutor v.
Kunarac et al. Case No. IT-96-23 & IT-96-23/1-A, Appeal Judgement, June 12, 2002,
may be the “cumulative effect of a series of inhumane acts or the singular effect of
an inhumane act of extraordinary magnitude.”58
The term systematic refers to the “organized nature of the acts of violence and
the improbability of their random occurrence.”59 In the Kenyan Decision, the Trial
Chamber referred to ICTY and held that the “systematic” element could be defined
as follows:
(i) being thoroughly organized;
(ii) following a regular pattern;
(iii) on the basis of a common policy;
(iv) and involving substantial public or private resources.60
In the Thai case, the scale and the duration of the killings, together with manner in
which they were conducted, suggests that the attacks against the civilian population
were both “widespread” and “systematic.” On the one hand, an aggregate casualty
toll of ninety civilians killed and approximately two thousand injured over a forty-
day period attests to the “widespread” nature of the attack. On the other hand, the
repeated occurrence of similar incidents across time and space demonstrates the
“systematic,” non-random nature of the offenses. In fact, the evidence presented
in this Application shows that the security forces were following precise rules of
engagement based on a common (if often unwritten) policy; the attack, which had
been thoroughly planned, involved substantial public resources of the government.
para. 97.
58. Kenyan Decision on Article 15, para. 95, ICTY, Prosecutor v. Blagojevic and
Jokic, Case No. IT-02-60-T, Judgment, January 17, 2005, para. 545. See also Pre-Trial
Chamber II, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the
Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05- 01/08-
424, para. 83, ICTY, Prosecutor v. Blaskic, Case No. IT-95-14-T, Judgement, March
3, 2000, para. 206; ICTY, Prosecutor v. Kordic and Cerkez, Case No. IT-95-14/2-A,
Appeal Judgement, December 17, 2004, para. 94; ICTY, Prosecutor v. Blaskic, Case
No. IT-95-14-A, Appeal Judgment, July 29, 2004, para. 101.
59. ICTY, Prosecutor v. Blagojevic and Jokic, Case No. IT-02-60-T, Judgement, January
17, 2005, para. 545. See also Pre-Trial Chamber II, JP Bemba Gomba Decision, para.
83, ICTY, Prosecutor v. Blaskic, Case No. IT-95-14-T, Judgement, March 3, 2000,
para. 206; ICTY, Prosecutor v. Kordic and Cerkez, Case No. IT-95-14/2-A, Appeal
Judgement, December 17, 2004, para. 94; ICTY, Prosecutor v. Blaskic, Case No. IT-
95-14-A, Appeal Judgment, July 29, 2004 , para. 101; R. Dixon, C. K. Hall, “Article 7,”
in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal
Court.
60. ICTR, Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgement, September 2,
1998, para. 580.
“A NEXUS BETWEEN THE INDIVIDUAL ACTS AND THE ATTACK”
It can be derived from previous case law that “the nexus between such acts and the
attack against a civilian population is one of the requirements that must be satisfied
in order for the commission of crimes against humanity to be established.”61 In
addition, when determining whether an act falling within the scope of Article (7)(1)
of the ICC Statute forms part of an attack, the Chamber must consider the nature,
aims and consequences of such act.62
While the Royal Thai Government has repeatedly denied requests put forth by defense
counsel for access to evidence pertaining to troop movements, rules of engagement,
as well as orders conveyed along the civilian and military chain of command during
the crackdown of April and May 2010, the evidence produced in this Application
demonstrates the existence of a nexus between the attack against the broader Red
Shirt movement and the specific acts of murder, imprisonment and other severe
deprivation of physical liberty, and other inhumane acts committed since the start
of the Red Shirt demonstrations. The same goes for the acts of political persecution
that have taken place since the 2006 as integral part of a campaign to eradicate
any active, organized opposition to the Establishment from Thailand’s political
landscape. On the one hand, publicly available information about the nature, aims,
and consequences of the acts in question provides overwhelming circumstantial
evidence of the nexus between such acts and the broader, coordinated attack. On the
other hand, information provided by high-placed insiders in the Royal Thai Army
and other government agencies not only speaks conclusively as to the existence
of such an attack, but also to the manner the attack was conceived, the tactics it
entailed, and the state officials involved in the its formulation and execution.
“KNOWLEDGE OR INTENT”
All crimes require mens rea, or criminal intent, which is defined in Article 30 of the
Statute.63 According to ICC jurisprudence, Article 30 of the Statute encompasses
two forms of dolus, namely dolus directus (direct intent) in the first degree (the act
61. See Elements of Crimes, Article 7(l)(a)(2); 7(l)(d)(4); 7(1) (g)-l (3); (2), 7 (l)(g)-6 (4);
7(1) (k)(4); JP Bemba Gomba Decision, para. 85.
62. JP Bemba Gomba Decision, para. 86. See also ICTR, Prosecutor v. Kalelijeli,
Case No. ICTR-98-44A-T, Judgement, December 1, 2003, para. 866; Prosecutor v.
Semanza, Case No. ICTR-97-20-T, Judgement, May 15, 2003, para. 326.
63. The general objective (material) elements of a crime are referred to in article
30(2) and (3) of the Statute as conduct, consequence and circumstance.
in question was committed for the purpose of causing the result that occurred) and
dolus directus in the second degree (the act is committed with knowledge that the
result that subsequently occurred is at least a very probable consequence of the
act).64 As stated in Article 30, unless otherwise provided, a person shall be held
criminally responsible and liable for punishment for a crime within the jurisdiction
of the Court only if the material elements are committed with intent and knowledge.
The ICTY Appeals Chamber in Prosecutor v. Tadic held that: “a perpetrator needs to
know that an attack occurs on the civil population and that his acts are part of this
attack, besides knowing being aware of the risk that his/her actions comport and
willfully taking this risk.”65 However, it is not required that the perpetrator know all
the details of the attack.66
At least with regard to the crimes of murder and other inhumane acts, different
degrees of dolus directus apply at different levels of the chain of command.
Based on the evidence described in support of this Application, those involved in

the planning of an attack that was specifically designed to inflict death and serious
bodily harm — that is, Thailand’s top military leadership — demonstrated dolus
directus in the first degree.
As for the country’s civilian leadership, approval of the operations and knowledge
of the attack imply at a minimum dolus directus in the second degree. On May
17, 2010, for instance, the Thai-language daily Matichon reported that officials in
the “war room” set up by the Democrat Party were satisfied with the fact that
“only” thirty-five people had died up to that point — much lower than the two
to five hundred casualties they had expected.67 That number itself is consistent
with the evidence described earlier in this Application as well as a leaked internal
government report that UDD leader Jatuporn Prompan revealed to the press on
April 19, 2010, indicating that the military planned to carry out the crackdown
over a one-week period, setting the acceptable death toll of the operations at
five hundred.68 While statements like those given by Democrat Party officials to
64. JP Bemba Gomba Decision, See the elaboration on the forms of dolus in part VI
of the decision, paragraphs 357 to 359.
65. ICTY, Prosecutor v. Blaskic, Judgement, March 3, 2000, Case No. IT-95-14-T, at
247, 251.
66. ICTY, Prosecutor v. Kunarac and others, Judgement, February 2001, Case No.
IT-96-23-T, at 434.
67.
Matichon, May 17, 2010.
http://www.matichon.co.th/news_detail.php?newsid=1274104360&catid=01.
68. “Sansern: 500 Terrorists Infiltrating Reds,” Bangkok Post, May 14, 2010.
Matichon do not demonstrate any particular desire to kill or injure protesters, such
statements do speak to at least knowledge of the attack, an understanding of the
consequences of the attack, and a willingness to risk bringing those consequences
about if necessary to the attack’s success. A similar reasoning may apply to mid-
level commanders who either conveyed the orders to the troops on the ground or
led the units into battle.
It is further submitted that the security forces who materially perpetrated murder
and other inhumane acts (i.e., fired their weapons) over the course of the 2010
crackdowns committed the acts with the intent to cause serious injury or at least
with a disregard for human life and dignity. In addition, while it is not realistic to
conclude that the troops involved had knowledge of all the details of the attack
against the civilian population, the intensive training some of the elite forces (like
snipers) are known to have received would have provided them with knowledge of
the attack’s existence and an understanding of its broad contours. More generally,
the fact that at least the May crackdown spanned an entire week, and unfolded in
a similar manner in different parts of the city assigned to different units, indicates
that the troops involved in the operations acted under precise rules of engagement
that would have given them knowledge of the intended target of the attack and the
manner in which the attack was to be carried out. As a result, at a minimum dolus
directus in the second degree obtains.
Taken together, there is strong indication that those involved in suppressing the
Red Shirt demonstrations at various levels of the military and civilian chain of
command acted with knowledge of the attack as well as either the intent to kill and/
or cause serious bodily harm or the knowledge that death and/or serious bodily
harm were highly probable consequences of their actions. This, in other words,
demonstrates mens rea in the commission of potential crimes against humanity.
4.3 CRIMINAL RESPONSIBILITY

According to the Elements of Crimes, Crimes Against Humanity warrant and entail
criminal responsibility and require conduct which is impermissible under generally
applicable international law, as recognized by the principal legal systems of the
world.69
http://www.bangkokpost.com/breakingnews/177896/500-terrorists-blending-
with-reds-sansern
69. Elements of Crimes Introduction under (1).
INDIVIDUAL CRIMINAL RESPONSIBILITY
Article 25(3) of the Rome Statute sets out the general principles of individual criminal
responsibility, distinguishing between various modes of individual responsibility:
In accordance with this Statute, a person shall be criminally

responsible and liable for punishment for a crime within the
jurisdiction of the Court if that person:
(a) Commits such a crime, whether as an individual, jointly with

another or through another person, regardless of whether that
other person is criminally responsible;
(b) Orders, solicits or induces the commission of such a crime which

in fact occurs or is attempted;
(c) For the purpose of facilitating the commission of such a crime,

aids, abets or otherwise assists in its commission or its attempted
commission, including providing the means for its commission;
(d) In any other way contributes to the commission or attempted

commission of such a crime by a group of persons acting with a
common purpose. Such contribution shall be intentional and shall
either:
(i) Be made with the aim of furthering the criminal activity or

criminal purpose of the group, where such activity or purpose
involves the commission of a crime within the jurisdiction of
the Court; or
(ii) Be made in the knowledge of the intention of the group to

commit the crime;
(e) In respect of the crime of genocide, directly and publicly incites

others to commit genocide;
(f) Attempts to commit such a crime by taking action that commences

its execution by means of a substantial step, but the crime does
not occur because of circumstances independent of the person’s
intentions. However, a person who abandons the effort to commit
the crime or otherwise prevents the completion of the crime shall
not be liable for punishment under this Statute for the attempt to
commit that crime if that person completely and voluntarily gave
up the criminal purpose.
Although in this stage of the ICC proceedings it is not required to specifically
identify the specific perpetrators, the evidence submitted through this Application
is particular relevant in view of the interpretations by the various Pre-Trial Chambers
of the ICC of Article 25(3)(a) of the Rome Statute.
The first alternative mentioned in this provision is the liability of an individual

as a principal under international criminal law. The second alternative mentioned
by Article (25)(3)(a) of the Statute is the joint commission of a crime. Each one
within this “joint perpetration” is individually responsible for the crime. According
to the ICC Pre-Trial Chamber in the Lubanga case, the essential distinction between
principals, as mentioned in Article 25(3)(a) of the Statute, and accessories, is that
the former have control over the crime.70 In the Lubanga case the Pre-Trial Chamber
held that co-perpetration entails two objective and three subjective elements.
The Pre-Trial Chamber II in the Bemba case introduced the two objective elements:
(i) the suspect must be part of a common plan or an agreement with one or more
persons; and (ii) the suspect and the other co-perpetrator must carry out essential
contributions in a coordinated manner which result in the fulfillment of the material
elements of the crime.71
As to the subjective elements, there are three cumulative elements that must be
satisfied. In particular, the suspect must (a) fulfill the subjective elements of the
crimes charged, namely intent and knowledge as required under Article 30 of the
Statute; (b) be aware and accept that implementing the common plan will result
in the fulfillment of the material elements of the crimes; and (c) be aware of the
factual circumstances enabling him to control the crimes jointly with the other co-
perpetrator.72 The evidence in this Application provides for a prima facie basis that
all these elements have been fulfilled.
The third alternative under Article 25(23)(a) is perpetration by means. In this case,
the principal (the “perpetrator-by-means”) uses the executor (the direct perpetrator)
as an instrument for the commission of the crime.
The Pre-Trial Chamber I in the Lubanga case defined a doctrine on perpetration

that served to make clearer the distinction between principal and accessorial
liabilities within the context of the collective and multi-level commission of crimes.
In the Katanga and Chui case the Chamber decided that this form of participation
70. Lubanga Confirmation of Charges, paras. 326-339.

71. Prosecutor v. Jean-Pierre Bemba Gombo, ICC 01/05–01/08, Decision Pursuant
to Article 61(7)(a) and (b) on the Charges against Jean-Pierre Bemba Gomba, June
15, 2009 (hereafter Bemba confirmation decision), para. 350.
72. Bemba Confirmation Decision, para. 351.
is particularly relevant when the ‘perpetrator behind the perpetrator’ commits an
international crime through another by means of his ‘control over an organized
apparatus of power.73 The Pre-Trial Chamber I has identified in the Lubanga
and in the Katanga and Chui case four elements which characterize the concept
of perpetrations by means, which will be dealt with below.74 In the decision on
the Confirmation of Charges against Katanga and Chui, the Chamber added that
the requirements of indirect perpetration include the existence of an organized
apparatus of power, within which the direct and indirect perpetrators operate, and
which enables the indirect perpetrator to secure the commission of the crimes.
First, the organization must be based on hierarchical relations between superiors

and subordinates. The organisation must also be composed of sufficient
subordinates to guarantee that superiors’ orders will be carried out, if not by
one subordinate, then by another. These criteria ensure that orders given by the
recognized leadership will generally be complied with by their subordinates.75 In
addition, any subordinate who does not comply may simply be replaced by another
who will produce the criminal result “automatically.”76 Another element stressed
by the Chamber in the Lubanga case is that the chief, or leader, exercises authority
and control over the apparatus and that his authority and control are manifest in
the subordinates’ compliance with his orders. The means for exercising control
may include the capacity to hire, train, impose discipline, and provide resources
to subordinates. It must be established that the leader did use his control over the
apparatus to execute crimes, which means that he, as the perpetrator behind the
perpetrator, mobilizes his authority and power within the organization to secure
compliance with his orders. Compliance must include the commission of any of the
crimes under the jurisdiction of this Court77
Based on the testimonies supporting this Application, the requirements set forth by
the ICC judges are on its face fulfilled.
SUPERIOR RESPONSIBILITY
Aside from any individual criminal liabilities, superior responsibility arises in this
73. Katanga and Chui Confirmation of Charges, paras. 500-510.

74. Lubanga Confirmation of Charges, paras 94-96; Katanga and Chui
Confirmation of Charges, paras. 511-518.
75. Katanga and Chui Confirmation of Charges, para. 512.
76. Katanga and Chui Confirmation of Charges, para. 512.
77. Katanga and Chui Confirmation of Charges.
instance. “Superior responsibility” sanctions the omission to act: a superior may be
held criminally responsible under that doctrine where, despite his awareness of the
crimes of subordinates, he culpably fails to fulfill his duties to prevent and punish
these crimes. On the one hand, this principle establishes direct liability for lack of
supervision. On the other hand, it establishes indirect liability for the criminal acts
of their subordinates.
“Superior responsibility” is codified in Article 28 of the Rome Statute:
In addition to other grounds of criminal responsibility under this

Statute for crimes within the jurisdiction of the Court:
(a) A military commander or person effectively acting as a military

commander shall be criminally responsible for crimes within the
jurisdiction of the Court committed by forces under his or her
effective command and control, or effective authority and control
as the case may be, as a result of his or her failure to exercise
control properly over such forces, where:
(i) That military commander or person either knew or, owing to

the circumstances at the time, should have known that the
forces were committing or about to commit such crimes; and
(ii) That military commander or person failed to take all necessary

and reasonable measures within his or her power to prevent
or repress their commission or to submit the matter to the
competent authorities for investigation and prosecution.
(b) With respect to superior and subordinate relationships not described

in paragraph (a), a superior shall be criminally responsible for crimes
within the jurisdiction of the Court committed by subordinates under
his or her effective authority and control, as a result of his or her
failure to exercise control properly over such subordinates, where:
(i) The superior either knew, or consciously disregarded

information which clearly indicated, that the subordinates
were committing or about to commit such crimes;
(ii) The crimes concerned activities that were within the effective
responsibility and control of the superior; and
(iii) The superior failed to take all necessary and reasonable

measures within his or her power to prevent or repress
their commission or to submit the matter to the competent
authorities for investigation and prosecution.
Article 28 of the Rome Statute is drafted in a manner that distinguishes between
two main categories of superiors and their relationships — namely, a military or
military-like commander and civilians occupying de jure or de facto positions of
authority.
The evidence submitted in this Application should be seen in the context of the
mens rea threshold for both individual and superior responsibility — i.e. that of
dolus eventualis, where the level of intent seems sufficient to bring a case before
the ICC, at the least from the perspective of some of the Pre-Trial Judges of the
ICC. With respect to dolus eventualis as the third form of dolus, recklessness or any
lower form of culpability, the ICC Pre-Trial Chamber in the Lubanga case, did accept
dolus eventualis.78 In the Thai situation, at the least dolus eventualis on the part of
its officials emerges quite clearly from the evidence contained in video recordings
as well as the witness statements and Master Sergeant (Ret.) Witty’s expert report
presented in support of this Application.
IMPLICATIONS FOR THE THAI SITUATION

Although it is not a requirement at this stage of the proceedings that the Applicant
already identify perpetrators or other individuals responsible for the crimes
set out in the Application, it is reasonable to conclude that potential individual
criminal responsibility under Article 25 and Article 28 of the ICC Statute extend
to the highest levels of both the civilian and military leadership of the Royal Thai
Government. The use of force against civilians was effectuated by military forces
of the Royal Thai Army at the direction of officials in the Center for the Resolution
of the Emergency Situation (CRES), which was established concurrently with the
imposition of the State of Emergency on April 7, 2010 and served as a command
and control center for the state’s response to the Red Shirt protests. A preliminary
list of key government officials and military officers, most of them high-ranking
members of CRES, who are known to have participated in the formulation of the
policy under which the crimes described in this document took place includes:
1. Abhisit Vejjajiva, Prime Minister.
2. Suthep Thaugsuban, Deputy Prime Minister and former Director

of CRES.
3. General Anupong Paochinda, former Commander in Chief of
78. See Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04–01/06, Decision on the

Confirmation of Charges, January 29, 2007, paras. 349 ff. (352).
the Royal Thai Army and former “chief officer in charge of the
emergency situation.”
4. General Prawit Wongsuwan, Minister of Defense and former

Assistant Director and Director of CRES.
5. General Prayuth Chan-ocha, current Commander in Chief of

the Royal Thai Army and former “chief officer in charge of the
emergency situation” (served as Deputy Chief of the Army during
the crackdowns).
6. General Kittipong Ketkowit, Permanent Secretary of Defense and

former Assistant Director of CRES.
7. General Songkitti Jaggabatara, Supreme Commander of the Royal

Thai Armed Forces and former Assistant Director of CRES.
8. Admiral Kamthon Phumhiran, Commander of the Royal Thai Navy

and former Assistant Director of CRES.
9. Air Chief Marshal Chalit Pookpasuk, Commander of the Royal Thai

Air Force and former Assistant Director of CRES.
10. Police General Patheep Tanprasert, Acting National Police Chief and
former Assistant Director of CRES at the time of the crackdowns.
11. Tharit Pengdit, Director-General of the Department of Special

Investigations and former member of CRES.
12. General Piroon Paewpolsong, former Chief of Staff of the Royal

Thai Army.
13. General Wit Thephadsadin Na Ayutthaya, Assistant Commander-

in-Chief of the Royal Thai Army at the time of the crackdowns.
14. General Teerawat Boonyapradap, Assistant Commander-in-Chief

of the Royal Thai Army at the time of the crackdowns.
15. General Daopong Rattanasuwan, Deputy Chief of Staff of the Royal

Thai Army at the time of the crackdowns.
5. JURISDICTION OF THE ICC
In matters of genocide, war crimes, and crimes against humanity, the ICC operates
“parallel” to the national justice systems that are positioned to prosecute the
offenses in question.1 The rationale behind this premise is that whenever the national
justice system fails, the ICC may step in as “last resort.”2 This chapter discusses two
mechanisms that may bring the instant case under the jurisdictional ambit of the
ICC: 1) Referral by the United Nations Security Council; and 2) Personal jurisdiction
(jurisdiction ratione personae). The request for the initiation of a procedure by
a State Party according to Article 14 of the ICC Statute is not the subject of this
Application, as Thailand did not sign and ratify the ICC Statute.
5.1 REFERRAL BY THE UN SECURITY COUNCIL

The first jurisdictional mechanism relevant to the Application at hand relates to the
possibility of a Security Council referral, governed by Article 13(b). This provision
authorizes the Court to exercise its jurisdiction, in accordance with Article 5,
in instances where the Security Council, acting under Chapter VII of the United
Nations’ Charter, refers to the Prosecutor a situation in which one or more crimes
appear to have been committed. Article 2 of the Relationship Agreement between
the United Nations and the ICC points out that the cooperative relationship may
be governed only on the basis of respect for the principles directing the activity of
both organizations. Article 17 of the Relationship Agreement specifically provides
for cooperation in the event of a Security Council referral.3
1. See W. A. Schabas, An Introduction to the International Criminal Court (Cambridge:

Cambridge University Press, 2008), p. 78.
2. Schabas, An Introduction to the International Criminal Court, pp. 79-80.
3. Negotiated Agreement Between the International Criminal Court and the United
RIGHTS OF THE SECURITY COUNCIL IN RELATION TO THE ICC STATUTE
Article 53 (1), (3) and (4) of the ICC Statute and Rules 104 to 110 of the Rules of
Procedure and Evidence further define the Security Council’s right to access to the
Court. This includes the right of the Security Council to Request that the Prosecutor
of the ICC initiate an investigation over a particular situation.4 In addition, it
is possible for the Security Council to transmit to the Office of the Prosecutor
information in support of the activation request.5 Once the Prosecution accepts to
carry out a preliminary examination, the Security Council has the right to gather
the information necessary to access the merits of the activation request.6 Besides,
the Security Council has the right to obtain, within a reasonable period of time, a
decision by the Office of the Prosecutor on the merits of the activation request.7
Once the Office of the Prosecutor has made a decision not to initiate an investigation
(Rule 105(1) of the RPE)8 or has made the decision not to prosecute (Rule 106(1) of
the RPE), the Security Council has the right to be notified. In addition, the Security
Council may ask the Pre-Trial Chamber to review the Prosecution’s Decision not to
initiate an investigation (Rule 107(4) RPE).9 Furthermore, the Security Council shall
be notified of the Pre-Trial Chamber’s decision on the review request (Rule 109 (2)
RPE).10 The Security Council may also ask the Appeals Chamber to reverse the Pre-
Trial Chamber’s decision not to ask the Prosecution to reconsider the decision to
reject the activation request in whole or in part11 and has the right to be notified of
the Appeals Chamber decision.12 The Security Council is permitted to submit a new
activation request to the Prosecution regarding the same situation on the basis of
new facts or information.
The broad scope of the right to access to the Court vested in the Security Council
reflects its status as petitioner or requesting party in triggering procedures. This
mechanism should also ensure that “The subject matter and scope of the ICC’s
Nations, Article 17.
4. Article 1 (1) UN Charter.
5. Article 1 (3) UN Charter.
6. Article 1 (4) UN Charter .
7. Paras 3, 4, 5 and 9 of the preamble of the Rome Statute.
8. Security Council Resolution 1422 (2002), U.N. Doc. S/ Res/1422 (2002), July 12,
2002.
9. Security Council Resolution 1487 (2003) U.N. Doc S/RES/1487 (2003), June 13,
2003.
10. Security Council Resolution 1422 U.N. Doc. S/ Res/1422 (2002), July 12, 2002.
11. Para. 6 of the preambles to Security Council Resolutions 1422 and 1487.
12. Para 7 of the preambles to Security Council Resolutions 1422 and 1487.
jurisdiction [be] limited to those crimes that are likely to undermine international
peace and security.”13
REQUIREMENTS
The ICC Statute and the RPE provide that two formal requirements must be met for
a Security Council referral. First, Rule 45 of the RPE requires that a referral be made
in writing.14 Second, Article 13 (b) Rome Statute requires that the referral be based
on a Security Council Resolution under Chapter VII of the UN Charter.
In addition, there are two material requirements that must be met for the act of
referral to constitute said activation. First, although not expressly provided by the
Rome Statute, the referral must predetermine the personal, territorial and temporal
parameters of the situation being referred. Subsequently, the Security Council’s
referral will have to contain the reasons for the activation request, namely that
the activation prerequisites have been met with regard to the situation at hand.15
Neither the Rome Statute nor the RPE contain provisions for the formal and material
requirements of the Prosecutor’s decision on the merits of the Security Council’s
activation request.16
PRECEDENTS
For the case at hand, it is illustrative to look into relevant legal precedents. On
September 18, 2004, the Security Council adopted Resolution 1564 in relation
to the situation in Darfur–Western Sudan. In the resolution, the Security Council
requested that an international commission of inquiry be established in order to
“immediately investigate reports of international humanitarian law and human
rights law in Darfur.” In addition, the Security Council requested that the commission
determine whether acts of genocide had occurred and identify the perpetrators of
such violations.17
13. Héctor Olásolo, The Triggering Procedure of the International Criminal Court
(Leiden: Martinus Nijhoff, 2005), p. 91.
14. See also article 17 Negotiated Agreement Between the International Criminal
Court and the United Nations.
15. Olasolo, The Triggering Procedure of the International Criminal Court, p. 92.
16. Olasolo, The Triggering Procedure of the International Criminal Court, p. 93.
17. Report of the International Commission of Inquiry on Darfur to the United
Nations Secretary- General, Pursuant to Security Council Resolution 1564 of
September 18, 2004, Geneva, 25 January 2005.
In its January 2005 report, the International Commission of Inquiry requested a
Security Council referral to the Internal Criminal Court in relation to the situation
in Darfur. The Commission provided for six major merits. The Commission argued
that: “[...] The Court was established, with an eye to crimes likely to threaten peace
and security.” This was “the main reason why the Security Council may trigger the
Courts jurisdiction under Article 13(b) ICC Statute.”18 Subsequently, the Security
Council adopted Resolution 1593, in which it referred the situation to the Court.19
IMPLICATIONS FOR THE PRESENT CASE

Thailand has been a member state of the United Nations since 1946. Therefore,
the Security Council, acting under Chapter VII of the United Nations Charter,
is authorized to adopt a resolution that refers the case of Thailand to the ICC
Prosecutor.
The UN General Assembly may discuss any questions relating to the maintenance
of international peace and security brought before it by any member of the United
Nations, or by the Security Council, or by a state that is not a member of the United
Nations in accordance with Article 35, paragraph 2 of the UN Charter.20 In addition,
the General Assembly may make recommendations to the Security Council with
regard to any such questions.21 Moreover, it may call the attention of the Security
Council to situations that are likely to endanger international peace and security.22
While the Security Council is exercising, with respect to any dispute or situation,
the functions assigned to it in the Charter, the General Assembly shall not make
any recommendation with regard to that dispute or situation unless the Security
Council so requests.23
The General Assembly consists of many committees and working groups that report
to the Assembly on several issues. It is possible for member states or an NGO to
submit issues to these committees and working groups, with the objective of seeing
the issue debated in a general meeting of the General Assembly.
18. Report of the International Commission of Inquiry on Darfur to the United

States, Secretary General, Pursuant to SC resolution 1564 of 18 September 2004,
Geneva, January 25, 2005. See also Schabas, An Introduction to the International
Criminal Court, p. 153.
19. Resolution 1593 of the United Nations Security Council.
20. Article 11 (1) Charter of the United Nations.
With respect to the instant case, the Thai situation can also be brought within
the jurisdictional remit of the ICC by forwarding this Application to the General
Assembly, which might subsequently refer it to the Security Council. To this end,
the office of the Prosecutor can forward this Application to the First or Third
Committee of the General Assembly of the United Nations.
In turn, this (prospective) jurisdictional mechanism creates a legal foundation for

the ICC Prosecutor to launch an investigation against a non-Party State, with a view
to subsequently seeking a Security Council resolution referring the situation in
Thailand to the ICC. Article 53 of the Rome Statute provides the statutory basis for
such an investigation, as the expression “within the jurisdiction of the Court” does
not exclude the possibility that the ICC Prosecutor might launch an investigation in
preparation for referral by the Security Council.
5.2 PERSONAL JURISDICTION

The second jurisdictional mechanism discussed in this Application is based on
personal jurisdiction. Specifically, while the ICC has the authority to prosecute
nationals of states not parties to the Rome Statute (like Thailand) only in the event
that the state in question accepts the jurisdiction of the ICC on an ad hoc basis or
pursuant to a decision of the UN Security Council,24 the ICC does exercise jurisdiction
over nationals of a State Party who are accused of a crime, regardless of where the
acts are perpetrated, according to Article 12(2)(b) of the Rome Statute.
As noted, in the recent Kenya case, aside from the conditions of jurisdiction ratione
materiae and jurisdiction ratione temporis, the ICC Pre-Trial Chamber ruled that
for a crime to fall within the jurisdiction of the Court, it must meet one of the two
alternative requirements mentioned in Article 12 of the Statute (jurisdiction ratione
loci or ratione personae). Jurisdiction ratione loci applies to situations where the
crime occurred on the territory of a state that is party to the Statute or a state
which has lodged a declaration by virtue of Article 12(3) of the Statute. Jurisdiction
ratione personae applies to situations where the crime was committed by a national
of any state that signed and ratified the Statute.
PREVIOUS SITUATIONS
To date, the ICC has never exercised its jurisdiction ratione personae, but solely
based its jurisdiction on the principle that crimes have been committed on the
24. Schabas, An Introduction to the International Criminal Court, p. 71.

territory of a state party or upon UN Security Council referral. With regard to the Iraq-
related prosecutions, however, the ICC Prosecutor indicated in its 2006 report that
inquiries had been made concerning nationals of the United Kingdom with respect
to acts perpetrated on the territory of Iraq, which is not party to the ICC Statute.25
In the Kenya case, moreover, the Pre-Trial Chamber noted the following with regard
to the jurisdiction ratione personae: “if the territoriality requirement was not met,
the Chamber would still be obliged under Article 53(l)(a) of the Statute to examine
personal jurisdiction, albeit limited only to whether the potential perpetrators are
nationals of States Parties, in order to verify that it could open an investigation.”26
RULES ON IMMUNITY
The Rome Statute excludes the possibility that any type of criminal immunity be
granted to governmental officials. Article 27, the pivotal provision of the Rome
Statute with regard to immunity before the Court, states:
(1) This Statute shall apply equally to all persons without any distinction
based on official capacity. In particular, official capacity as a Head
of State or Government, a member of a Government or parliament,
an elected representative or a government official shall in no case
exempt a person from criminal responsibility under this Statute,
nor shall it, in and of itself, constitute a ground for reduction of
sentence.
(2) Immunities or special procedural rules which may attach to the

official capacity of a person, whether under national or international
law, shall not bar the Court from exercising its jurisdiction over
such a person.
Article 27 of the Rome Statute therefore makes is perfectly clear that the Statute
operates to remove all immunities that any individual might claim before the ICC.
On the basis of Article 27, the ICC exercises jurisdiction ratione personae over
individuals who are nationals of party states irrespective of their position —
including heads of state and heads of government.27
25. “Letter of the Prosecutor dated 9 February 2006” (Iraq). Cited in Schabas, An
Introduction to the International Criminal Cour, p. 72.
26. Pre-Trial Chamber II, Decision Pursuant to Article 15 of the Rome Statute on the
Authorization of an Investigation into the Situation in the Republic of Kenya, ICC-
01/09, 31 March 2010, para. 65.
27. Von Michiel Blommestijn and Cedric Ryngaert, “Exploring the Obligations for
States to Act upon the ICC’s Arrest Warrant for Omar Al-Bashir, A Legal Conflict
between the Duty to Arrest and the Customary Status of Head of State Immunity,”
IMPLICATIONS FOR THE PRESENT CASE
At least with regard to one person mentioned in this Application as responsible
for potential crimes against humanity, the ICC does have jurisdiction ratione
personae over the Thai situation. There is evidence, in particular, that Mr. Abhisit
is a national of a State Party to the ICC, namely the United Kingdom, sufficient
to give the Prosecutor a reasonable basis to examine the ICC’s jurisdiction under
Article 12(2)(b) of the ICC Statute. Prime Minister Abhisit was born in the United
Kingdom on August 3, 1964. Under the laws of the United Kingdom, anyone born
in the United Kingdom prior to 1983 “shall be a citizen of the United Kingdom and
Colonies by birth” unless the child of diplomats or enemy aliens.28 Citizenship is
acquired automatically and in perpetuity, regardless of residency status. Unless
Prime Minister Abhisit formally renounced his citizenship by making a declaration
of “renunciation of citizenship of the United Kingdom and Colonies,”29 he is a
citizen of the United Kingdom and was a citizen of the United Kingdom at the
time of the crimes in question. The applicant is informed and believes that Prime
Minister Abhisit has made no such renunciation and that, indeed, he holds current
United Kingdom citizenship.
5.3 CONCLUSION
From the above, it can be concluded that the ICC has jurisdiction over the instant
case in two ways. First, the ICC Prosecutor may open a preliminary investigation
in preparation for jurisdictional referral by the United Nations Security Council
according to Article 13(b) of the ICC Statute. Second, because the United Kingdom is
a ratifying state party to the ICC, it is well within the Court’s authority (even in the
absence of a Security Council resolution) to assert its jurisdiction ratione personae
over Prime Minister Abhisit Vejjajiva, based on the Prime Minister’s presumed
British nationality.
available at: http://www.zis-online.com/dat/artikel/2010_6_461.pdf (last accessed

January 6, 2011), p. 432.
28. “British Nationality Act, 1948,” Section 4. The 1948 Act is superseded by the
1981 Nationality Act, which however does not apply retroactively, to those born
before its entry into force in 1983.
29. “British Nationality Act, 1948,” Section 19.
6. ADMISSIBILITY
The requirement to consider after the establishment of the ICC’s jurisdiction is
the question of admissibility. The issue of admissibility relates to the question
of whether matters over which the ICC has jurisdiction should be litigated before
the ICC. The admissibility procedure applies to all cases that come before the ICC,
even those resulting from a referral by the Security Council. The Trial Chamber
has ruled that in relation to admissibility, Article 53(1)(b) of the ICC Statute must
be construed in its context, and accordingly an assessment on admissibility during
the Article 53(1) stage should in principle be related to “a situation” (instead of
referring to a full case).1
In relation to the determination of admissibility, there are two conditions which

need to be satisfied:
(1) The “gravity” threshold must be met.
(2) An assessment must be made about whether the national justice

system has “remained inactive” or is “unwilling or unable to
prosecute.” This is the issue of “complementarity” mentioned in
the preamble of the Statute.
6.1 GRAVITY
The threshold of gravity is described in Article 17(1)(d) of the Rome Statute. In
the Lubanga case, the Pre-Trial Chamber held that the gravity threshold was in
addition to the drafters’ careful selection of the crimes included in Articles 6-8
of the Statute, a selection based on gravity and directed at confining the material

jurisdiction of the Court to “the most serious crimes of international concern.”2
As a result, “the relevant conduct must present particular features which render
it especially grave.”3 The Pre-Trial Chamber held that there are four elements that
must be considered:
(i) The conduct which is the subject of the case must be either
systematic (patterns of incidents) or large–scale;
(ii) The nature of the unlawful behavior of the crimes (i.e. the manner
of their commission);
(iii) The employed means for the execution of the crimes;
(iv) The impact of the crimes and the harm caused to victims and
their families. In this respect the victims’ representations will be
of significant guidance for the Chamber’s Assessment.4
The Chamber reiterated that all crimes falling within the jurisdiction of the ICC
are serious. Therefore, reference to insufficient gravity represents an additional
safeguard put in place to prevent the Court from investigating, prosecuting, and
trying peripheral cases.5
6.2 COMPLEMENTARITY
At the heart of the functioning of the ICC is the principle of complementarity. The
ICC monitors the primary jurisdiction of national courts. This means that the ICC is
a Court “of last resort” that will only intervene, according to Article 17 of the Rome
Statute, when no effort was made to launch any domestic investigation/prosecution
or when the investigative/legal proceedings are vitiated by the unwillingness or
inability to genuinely carry out the investigation or prosecution.
The first three investigations of the ICC prosecutor, namely — the situations in
The Democratic Republic of the Congo, The Central African Republic, and Uganda
— have been triggered by referrals made by those states pursuant to Article 14 of
2. Schabas, An Introduction to the International Criminal Court, p. 186.

3. Schabas, An Introduction to the International Criminal Court, p. 187 see also
Prosecutor v. Lubanga (ICC-01/04-01/06-8), Decision on the Prosecutor’s Application
for a Warrant of Arrest, 10 February 2006, para. 45.
4. Kenyan Decision on Article 15, para. 62. See also Rule 145 (10 and 2(b) (iv) of the
RPE ICC.
the ICC Statute.6 These so-called self-referrals appear to have been solicited by the
ICC prosecutor, “when he proclaimed in respect of the Congo that a referral and
active support from the DRC would assist his work.”7 Nothing in the Rome Statute
prohibits these waivers of complementarity.
In the situation of Darfur, the case was referred by the United Nations Security
Council. In this case, it was accepted by the Pre-trial Chamber that the Sudanese
justice system was unwilling and unable to address the crimes. The absence of
effective criminal proceedings was a reason for the ICC prosecutor to find the
case admissible. The subjects of genuine national investigations or prosecutions
are important for the assessment of admissibility. Any independent and impartial
(national) proceedings that meet the standards required by the Rome Statute must
be respected by the ICC.8
UNABLE AND UNWILLING

The issue of unwillingness arises whenever a national justice system is starting
an investigation but lacks the will to see the proceedings through, or there are
indications that it may perform a “sham trial.” The Statute requires the Court to
consider these issues with regard to the principles of due process recognized by
international law.
According to the Appeals Chamber in the Katanga case, the initial questions to ask
when considering whether a case is inadmissible under Article 17(1)(a) and (b) of
the Statute are the following:
(1) Whether there are ongoing investigations or prosecutions;
(2) Whether there have been investigations in the past and the State
having jurisdiction has decided not to prosecute the persons
concerned.
6. Article 14 reads: (1) “A State Party may refer to the Prosecutor a situation in
which one or more crimes within the jurisdiction of the Court appear to have been
committed requesting the Prosecutor to investigate the situation for the purpose
of determining whether one or more specific persons should be charged with
the commission of such crimes. (2) As far as possible, a referral shall specify the
relevant circumstances and be accompanied by such supporting documentation as
is available to the State referring the situation.”
7. Press release of 23 June 2004, available at www.icc-cpi.int. Cited in Alexander
Zahar and Goran Sluiter, International Criminal Law: A Critical Introduction (Oxford:
Oxford University Press, 2008), p. 455-456.
8. Report of the Prosecutor of the International Criminal Court, Mr. Luis Moreno
Ocampo, to the Security Council pursuant to UNSCR 1593 (2005), p. 5.
The issues of unwillingness and inability only arise in the event that the answer
to either of these questions is affirmative. If the state is inactive, questions of
unwillingness and/or inability do not arise. The state’s decision not to investigate
and/or prosecute, in fact, renders a case admissible before the Court subject to
Article 17(1)(d) of the Statute.9
While precise standards of review were formulated by the jurisprudence of the ICC,
Article 17 of the Rome Statute offers some guidance as to what is to be understood
by “unwillingness” and “inability” to prosecute.
With regard to the “unwillingness” to prosecute, Article 17(2) of the Rome Statute
provides:
In order to determine unwillingness in a particular case, the Court

shall consider, having regard to the principles of due process
recognized by international law, whether one or more of the
following exist, as applicable:
(a) The proceedings were or are being undertaken or the national

decision was made for the purpose of shielding the person
concerned from criminal responsibility for crimes within the
jurisdiction of the Court referred to in Article 5;
(b) There has been an unjustified delay in the proceedings which

in the circumstances is inconsistent with an intent to bring the
person concerned to justice;
(c) The proceedings were not or are not being conducted independently
or impartially, and they were or are being conducted in a manner
which, in the circumstances, is inconsistent with the intent to
bring the person concerned to justice.
With regard to the “inability” to prosecute, Article 17(3) of the Rome Statute provides:
In order to determine inability in a particular case, the Court

shall consider whether, due to a total or substantial collapse or
unavailability of its national judicial system, the State is unable
to obtain the accused or the necessary evidence and testimony or
otherwise unable to carry out its proceedings.”
If the ICC finds that any of these above-mentioned scenarios applies, it may declare
the particular case admissible and exercise its jurisdiction despite the existence

of current or past investigations or prosecutions in relation to the same case at
national level.10
NE BIS IN IDEM
In the event that a case has already been tried by a domestic justice system, the
admissibility provision in the Statute points to Article 20. If a domestic trial has
already been completed, the judgment bars prosecution by the Court except in
the case of “sham proceedings.” These are defined as trials designed to shield
an offender from criminal responsibility as well as trials that were otherwise not
conducted independently or impartially, or were held in a manner inconsistent with
the intent to bring the person to justice.
6.3 IMPLICATIONS FOR THE THAI SITUATION

In relation to the requirement of gravity, this Application has described a pattern
of incidents on a substantive scale. Most of the extra-judicial killings were carried
out not in the “heat of battle,” but rather by snipers who targeted unarmed civilians
from a distance. Moreover, the power to arrest and detain hundreds of opposition
supporters, as well as restrict a host of other rights sanctioned in the ICCPR,
was conferred upon the government by an Emergency Decree that was imposed
arbitrarily and for the sole purpose of providing the government a pseudo-legal basis
to violate the constitutional rights of its citizens. As stressed in this Application,
there is no justification for any of the crimes committed. Moreover, it is clear that
the harm caused to the victims, their families, and society as a whole was severe.
It might also be submitted that the situation is rendered all the more grave by the
serial occurrence of similar incidents over the past four decades. While hundreds
of people were massacred by the Royal Thai Army in 1973, 1976, and 1992, the
impunity that security forces and civilian officials have invariably enjoyed for these
abuses continues to make it safe for Thailand’s unelected “Establishment” to resist
calls for democracy by turning its guns on its own people.
With regard to the issue of complementarity, nothing in the history of Thailand or

in the steps that the Royal Thai Government has taken since the dispersal of the Red
10. Enrique Carnero Rojo, “The Role of Fair Trial Considerations in the
Complementarity Regime of the International Criminal Court: From ‘No Peace
without Justice’ to ‘No Peace with Victor’s Justice’?” Leiden Journal of International
Law, 18(2005), p. 833.
Shirt rallies suggests that any serious, independent inquiry is forthcoming. While the
Abhisit administration has outwardly acknowledged the need for an investigation
into the abuses committed in April and May 2010, the measures it has taken in the
months since the carnage are rather more indicative of an incipient cover-up. As in
the scenario specified in Article 17(2) of the Rome Statute, the inquiries launched by
the Royal Thai Government are plagued by unjustifiable delay as well as a complete
lack of independence and impartiality. Rather than having been undertaken in the
interest of bringing the persons responsible to justice, the evidence demonstrates
that the proceedings initiated by the Thai authorities are aimed at shielding those
involved from criminal responsibility. Several factors demonstrate that the Thai
government is both “unwilling” and “unable” to genuinely carry out investigations
into the Bangkok massacres.
A HISTORY OF IMPUNITY
The 2010 Bangkok Massacres bear strong similarities with well-known incidents
that have taken place over the past four decades, when the Royal Thai Army
violently suppressed large demonstrations calling for establishment (or restoration)
of democracy in Thailand. In none of these previous instances — October 1973,
October 1976, and May 1992 — has anyone responsible for the deaths of dozens of
demonstrators faced any form of accountability. Based on the fact that each of these
four events have followed very similar dynamics, and involved many of the same
players, it would be unreasonable to expect that a fair and complete investigation
into the most recent killings would ever be allowed to take place in Thailand.
Aside from the casualty figures, there are at least three major similarities between
the 2010 massacres and the military crackdowns of 1973, 1976, and 1992.
First, much like previous pro-democracy demonstrators, the Red Shirts have been the
subject of a virulent media campaign that portrayed them as “terrorists” and enemies
of the monarchy. The systematic demonization of pro-democracy demonstrators as
an instrument to build public support for state violence is a technique with a long
track record in Thailand. As they have over the course of the most recent incidents,
for instance, throughout the events of Black May 1992 the demonstrators had been
portrayed as violent “revolutionaries” aiming to overthrow Thailand’s monarchy,11
while the military had earlier characterized the 1973 protesters as communist
agents.
11. Tan Lian Choo, “Clashes Provoked by Group Bent on Revolt: Suchinda,” The
Straits Times, May 20, 1992.
The government’s portrayal of the Red Shirts is even more reminiscent of the
manner in which the military justified to the public the murder of several dozen
pro-democracy students that took place at Thammasat University on October 6,
1976. Much like the Red Shirts, the students who barricaded themselves in the
Thammasat University campus were falsely accused of having stockpiled large
amounts of weapons. Much like the Red Shirts, the students had been dehumanized
through genocidal language that referred to them as beastly, un-Thai and, as a famous
1970s propaganda song did at the time, “the scum of the earth” (nak paendin).12
Much like the Red Shirts, the students had been accused of posing a threat to the
institution of the monarchy, of having been infiltrated by foreign agents, and of
harboring radical ideals. In 1976, the students were labeled “communists;” in 2010,
the government updated its terminology to the changed geo-political context and
branded the Red Shirts “terrorists.”
Second, as it has throughout the Red Shirt rallies in 2010, in all previous incidents
the Royal Thai Government has repeatedly enlisted agent provocateurs to cause
disorder and provide the pretext for a violent crackdown. In 1973 and 1992,
agents of the state successfully sparked the riots that led to soldiers firing into
crowds of unarmed demonstrators. On October 14, 1973, security forces encircled
demonstrators who had assembled outside Chitrlada Palace to request the King’s
intervention against the military government of Thanom Kittikachorn and Praphas
Charusatien. Once the protesters agreed with a palace representative to disperse,
the police forced tens of thousands of demonstrators to stream out of the courtyard
where they were essentially trapped from a single, narrow exit. The chaos that
ensued provided the military with the excuse to fire on the protesters.13 Similarly, on
May 17, 1992, the military’s violent repression was sparked by incidents of rioting
and arson that took place in the vicinity of the Phan Fa Bridge, widely believed to
have been the work of an unidentified “third hand.”14
The most important historical precedent for the protracted strategy of tension and
12. It is noteworthy that the song has been recently dusted off for use in
demonstrations by the People’s Alliance for Democracy and for playing on radios
controlled by the Royal Thai Army. For reports of the former, see “Fierce PAD
Nationalism on Stage,” Prachatai, November 17, 2009 (http://www.prachatai.com/
english/node/1495). For reports of the latter, see Andrew Walker, “Scum of the
Earth,” New Mandala, September 11, 2007
(http://asiapacific.anu.edu.au/newmandala/2007/09/11/scum-of-the-earth/).
13. See Alan Klima, The Funeral Casino: Meditation, Massacre, and Exchange with
the Dead in Thailand (Princeton, NJ: Princeton University Press, 2004), p. 61-62.
14. Klima, The Funeral Casino, pp. 117-119.
sabotage observed in 2010, however, is the campaign of violence systematically
carried out by the state and state-sanctioned civilian vigilantes in an attempt
to undermine the elected governments of the mid-1970s. In the build-up to the
1976 elections, officially endorsed, state-funded groups like the Village Scouts,
Nawaphon, and the Red Gaurs are known to have engaged in a campaign of extra-
judicial executions against purported socialists, provincial politicians, and rural
activists. The same groups were also responsible for violent clashes with students
and workers, for inciting ethnic riots against the Vietnamese community in the
Northeast, and for violent bombings that killed scores of people at campaign rallies
all over the country. The violence created a climate of instability and fear that set
the stage for the carnage of October 6, 1976, when hordes of civilian vigilantes,
rallied to the capital city to defend Thailand from “communists” (who, among other
things, were accused of planning to burn down Wat Boworniwet), surrounded the
campus of Thammasat University and carried out a horrific massacre.15
Third, the aftermath of all previous massacres has been characterized by the
government’s attempt to blame the victim. Before the ousting of Thanom and
Praphas, and their forced departure from Thailand, the two generals had sought
to justify the deaths of October 14, 1973, by asserting that the protesters had
been responsible for the violence — and that some among them were armed with
machine guns.16 Similarly, in the wake of the violence on May 17-18, 1992, the
military claimed that the soldiers had only shot in self-defense,17 while television
stations repeated the groundless accusation that armed protesters had prompted
the crackdown by attempting to stage an attack on the King’s residence at Chitrlada
Palace.18
Once again, on this count the events of 1976 are those that bear the closest
resemblance to the 2010 massacres. In the aftermath of the horrible carnage,
hundreds of student protesters were arrested by the authorities, while hundreds
more went into hiding. Much like the UDD leaders today, moreover, leaders of the
1976 student/labor movement — known as the “Bangkok Eighteen” — were subjected
to prosecution in military courts for a variety of charges including lèse majesté
15. For an overview, see Katherine Bowie, Rituals of National Loyalty: An Anthropology
of the State and Village Scout Movement in Thailand (New York: Columbia University
Press, 1997), pp. 21-33 and pp. 105-110.
16. See Ross Prizzia, Thailand In Transition: The Role of Oppositional Forces
(Honolulu: Hawaii University Press, 1985), p. 69.
17. “Shootings Were in Self-Defence, Says Spokesman,” The Nation, May 20, 1992.
18. See Paul M. Handley, The King Never Smiles: A Biography of Thailand’s Bhumibol
Adulyadej (New Haven: Yale University Press, 2006), p. 353.
against the Crown Prince, armed insurrection, communist conspiracy, murder and
attempted murder of state officials.19 They were freed only after an amnesty was
granted in 1978, which conveniently shielded the state officials, state agents, and
civilian vigilantes responsible for the massacre from any legal proceeding.
These historical parallels point to the fact that the most recent wave of demonstrations
and violence played out according to the same script followed by the events of 1973,
1976, and 1992. Just as in all those instances, the Red Shirts’ calls for “democracy”
were described by the government as a façade for an ideology threatening the
security of the Thai state. Just as in all previous instances, the Red Shirts did
engage in some violence, looting, and property destruction — mostly in situations
when they were themselves under fire — but were not the armed “terrorists” the
government had made them out to be. Just as in all previous instances, however,
dubious accusations of ideological extremism and violent tendencies were highly
instrumental to the case made by the military to justify the imposition of repressive
measures and shoot scores of unarmed demonstrators with the utmost impunity.
Now as ever, the Thai establishment answered the calls for democracy with the
dehumanization of their opponents, the subversion of the rule of law, and human
rights violations on a massive scale.
Another element that all previous massacres have in common is that none of the
perpetrators have ever been brought to justice or faced any form of accountability
over the killings. None of those involved in the 1973 massacre were prosecuted,
while both the 1976 and 1992 incidents were whitewashed by royal decrees granting
amnesty to everyone involved. The only one among these prior episodes of state
violence to ever be seriously investigated is Black May 1992. Even here, however,
the report issued in 2000 answered few questions — sixty percent of the report,
including all information pertaining to military officers, units, orders, and actions,
was redacted on the grounds that the privacy of those responsible would have
otherwise been violated.
It should be added that the current government has a poor record of “independent
investigations.” Its failure to investigate human rights abuses perpetrated over its
tenure in office, such as the death of five hundred Rohingya refugees the Royal
Thai Navy towed out to the high seas in January 2009, does not augur well for the
investigations into the events of April and May 2010.
19. See David Streckfuss, The Truth on Trial in Thailand: Defamation, Treason, and
Lèse-Majesté (London: Routledge, 2010), Ch. 10.
LACK OF JUDICIAL INDEPENDENCE
It is widely recognized among academics and observers that the past several years
have witnessed, on the one hand, the increased “judicialization” of Thailand’s
political system and, on the other, the increased politicization of the country’s
judicial branch.
Since 2006, the courts have intervened repeatedly in the country’s politics, in a
series of highly dubious decisions that annulled an election (April 2006), dissolved
the Thai Rak Thai party (May 2007), removed Prime Minister Samak over a cooking
show (September 2008), and then gutted the House of Representatives by dissolving
three governing parties (December 2008), allowing Abhisit Vejjajiva to become
Prime Minister. Conversely, the courts have spared the current government a similar
treatment. Much like the proceedings before the Constitutional Court, criminal cases
have also been prosecuted and judged in an entirely one-sided manner. Contrary
to the Red Shirt protesters, whom the judiciary has thus far dealt with harshly, no
sanction has yet been imposed on leaders of the People’s Alliance for Democracy
responsible for a string of violent incidents and other illegal acts in 2008, above
all the occupation of Suvarnabhumi International Airport. As Human Rights Watch
put it in early 2010, “Long delays in prosecuting PAD leaders are fuelling a growing
public perception that they are immune to legal accountability.”20 In the year
since the release of HRW’s report, the judiciary has done nothing to change that
perception.
Aside from suffering from the same lack of credibility and corruption that plagues
most government institutions in Thailand, time and time again the courts have
shown themselves highly susceptible to external pressure from Establishment
figures. In April 2006, Constitutional Court judges were caught on tape in a
telephone conversation where the decision to annul the election was described in
entirely political terms.21 More recently, in a series of videos posted on YouTube
in mid-October 2010, Democrat Party officials are seen lobbying Constitutional
Court judges to render a favorable decision on the party’s own dissolution cases.
In these tapes, the judges can not only be heard discussing the possibility that
clearing the Democrat Party might reinforce the Red Shirts’ claims about “double
standards;” the justices themselves consistently refer to opposition politicians by
20. Human Rights Watch, “Thailand: Serious Backsliding on Human Rights,” January
20, 2010.
http://www.hrw.org/en/news/2010/01/20/thailand-serious-backsliding-human-rights
21. Pasuk Phongpaichit and Chris Baker, Thaksin (Chiang Mai: Silkworm, 2009), p.
276.
using the pronoun “mun” (it), which generally refers to animals. In the same tapes,
the Constitutional Court judges can also be heard discussing how they managed
to rig a judicial entry exam to favor their own relatives and cronies. While criminal
proceedings were initiated against the persons believed to have shot and leaked the
videos,22 the Constitutional Court justices have not faced any legal or disciplinary
sanction for their corrupt conduct.23
Given the politicization of Thailand’s judicial branch, it is virtually certain that

the judiciary will neither investigate the abuses committed by the state nor treat
the Red Shirt leaders accused of serious crimes with the appropriate measure of
fairness.
THE DEPARTMENT OF SPECIAL INVESTIGATIONS

On April 20, 2010, CRES placed the authority to investigate the killings in the
Department of Special Investigations (“DSI”), which is headed by Tharit Pengdit.
This transfer of investigative authority away from the police department put
an immediate stop to the investigations by the Royal Thai Police, which were in
progress. Given Tharit’s membership in CRES, the choice of DSI to investigate the
facts demonstrates the Thai government’s lack of interest in conducting independent
and impartial investigations.
In late August 2010, after having announced that it would update the public about
the progress of the investigations and disclose the results of autopsies conducted
on the bodies of ninety-one people,24 the Department of Special Investigations
held a press conference where officials steadfastly refused to provide any new
information. While DSI Director-General Tharit Pengdit had previously stated that
all autopsies had been completed, Thai authorities reversed themselves, claiming to
have performed only forty-two autopsies up to that point. While he announced that
no disclosure would be made until the entire investigation was completed, the DSI
spokesman hastened to add that the reports whose contents he could not disclose
22. “Arrest Warrants for 2 in Court Scandal,” Bangkok Post, November 16, 2010.
http://www.bangkokpost.com/breakingnews/206665/warrants-for-2-in-court-
scandal-approved
23. “Court Scandals in Thailand: Judges in the Dock,” The Economist, November 11,
2010.
http://www.economist.com/node/17472738
24. “Red Shirt Autopsy Results Tomorrow,” The Nation, August 22, 2010.
http://www.nationmultimedia.com/home/Red-shirt-autopsy-results-
tomorrow-30136337.html
confirm that “not all” ninety-one people were shot by the authorities.25
In the months since, while the DSI continued to keep the results of the autopsies
from the public, law enforcement insiders disillusioned with the government’s
determination to suppress the evidence of its abuses leaked to the press a series
of documents including autopsy reports, witness statements, and the results of
investigations into the circumstances surrounding the deaths of more than a dozen
people killed in the demonstrations. In each case, the investigative authorities
concluded that the victims had been killed by state agents.26
DSI Special Case No. 61/2553, relating to Mr. Muramoto, is an investigation into a
violation of Sections 288 and 289 of the Thai Criminal Code (killing with intent).
The investigation was performed by a team of two DSI officers, Police Lt. Colonel
Weerawatch Dejboonpa and Police Lt. Col. Bantoon Chimgra (the “DSI Investigators”).
The Investigators interviewed seven witnesses who were present on April 10, 2010
on Dinso Rd. in Bangkok, where Mr. Muramoto, on assignment for Reuters, was
filming the Red Shirt Demonstrations at Democracy Monument. Included among the
witnesses was a plain-clothes police officer who was been standing about one meter
from Mr. Muramoto when he was shot, catching and holding him while summoning
for medical help.
Based on their interviews, the investigators issued the following findings: (1) Mr.
Muramoto was killed by a high-velocity bullet that pierced the left side of his chest,
exiting through his right upper arm; (2) The rifle shot came from a soldier of the
Second Infantry Division (Queen’s Guard), under the command of Colonel Thamnoon
Withee, who had earlier witnessed Mr. Muramoto filming the demonstrations; and
(3) Mr. Muramoto was positioned sideways, with his flank facing the Royal Thai
25. Pongphon Sarnsamak “Anger over Riot Autopsy Report,” The Nation, August
24, 2010.
http://www.nationmultimedia.com/home/Anger-over-riot-autopsy-
reports-30136447.html
26. Pravit Rojanaphruk, “‘Leaked’ Reports Blame Military for Some Crackdown
Deaths,” Prachatai, December 24, 2010.
Pravit Rojanaphruk, “Leaked DSI Report Reveals Shooting of Teenager,” Prachatai,
December 25, 2010.
Pravit Rojanaphruk, “Leaked Reports Tie Soldiers to Two Shootings,” Prachatai,
December 27, 2010.
Pravit Rojanaphruk, “Reports Link Two More Civilian Deaths to Army,” Prachatai,
January 4, 2011.
Army, when he was shot, as he filmed the Red Shirt demonstrators, which was
confirmed by video taken from his camera and now in possession of DSI.
Based on these findings, the Investigators concluded that Mr. Muramoto’s death
was caused by “shooting by an Army soldier acting within the course of his duties.”
Their recommendation was that the matter be assigned to the Police Department
for proper processing under Thai law.
DSI Special Case Number 3234/2553 involves an investigation into the deaths of
six people on May 19, 2010, inside the Pathumwanaram Temple compound where
thousands took refuge after the surrender of the Red Shirt leaders. The investigation
was conducted by DSI Police Lieutenant Colonel Toranin Klangthong and Ms.
Napasnant Watanatouchpong. The investigators interviewed forty-one witnesses
and gathered numerous pieces of evidence— including medical reports, ballistics
reports, weapons, video clips, and copies of the Thai Royal Army armory log-out
sheet reflecting the specific weapons assigned to individual soldiers.
Based on the evidence collected, the Investigators issued the following findings: (1)
Four units of the First Special Forces Battalion, Third Special Force Regiment were
assigned to the elevated BTS train tracks outside the Temple during the afternoon
of May 19, 2010, under the command of Major Nimitr Wirapong; (2) Five of those
soldiers fired live rounds into the Temple area, using M16A2 rifles firing 5.56 mm
caliber bullets; (3) Fragments of green-tipped bullets in 5.56 mm caliber, of the
type assigned to the First Special Forces, Third Special Force Regiment, were found
inside the bodies of the six victims; (4) The bullets inside the victims were fired from
elevated positions; and (5) Spent shell casings in 5.56 mm caliber were found atop
the BTS train rails outside the Temple. Based upon these findings, the investigators
concluded that it was reasonable to believe that the six victims inside the Temple
were killed by soldiers firing from the BTS rails outside the Temple, and that the
matter should be referred to the Royal Thai Police for proper processing under Thai
law.
At least eight additional investigative reports that were leaked to the press contain
similar conclusions, holding soldiers of the Thai Royal Army responsible for killing
unarmed civilians during operations to disperse the Red Shirt demonstrations.
Once handed over to the DSI leadership, however, these investigative reports have
been suppressed.
Not only has no legal or disciplinary action been taken against the security forces
over these deaths. Despite overwhelming evidence to the contrary, as of December
2010 CRES spokesperson Colonel Sansern Kaewkamnerd continued to claim: “I can
categorically deny that the army has killed or hurt any Red Shirts or protesters.”27
Finally, on January 20, 2011, the DSI made an official announcement about the
long-awaited results of its investigations. Unsurprisingly, DSI chief Tharit Pengdit
declared that the investigation had yielded “inconclusive” findings for the vast
majority of the people killed — including each of the incidents described above,
where the DSI’s own investigators had indeed identified those responsible in their
internal reports — adducing a number of excuses for his agency’s failure to identify
those responsible for the deaths.28
The Statement of Anonymous Witness No. 20 is an amalgam of information from a

number of law enforcement sources described as employed by a government agency
in Thailand “in a position to acquire information concerning the investigations
being carried out by the Royal Thai Police and the DSI.” Once again, the statements
were merged to render the individuals who risked their lives and careers to provide
testimonies more difficult to identify. The statement contains the following
information with regard to the DSI investigation into the killings. It is worth
reproducing the full text of the testimony, which speaks to several dimensions of
the cover-up the DSI has been carrying out:
I am employed by an official government agency in Bangkok. My

position allows me to acquire information concerning the
investigations being carried out by the Royal Thai Police (“Police”)
and the Department of Special Investigations (“DSI”) into the
killings that occurred during the Red Shirt demonstrations in
Bangkok in April and May 2010.
It has been the official policy of the government of Thailand to

conceal and/or eliminate all evidence of criminal conduct by the
government or the Army leaders in connection with the civilian
killings. One example of that policy involved the decision to
release the bodies of the civilian victims to their families with
full knowledge that the remains would be cremated, leaving no
possibility of challenging any of the conclusions made in the official
medical reports. Another example involved a massive campaign
27. Anthony Kuhn, “Thai Riots Sign Of Simmering Political Tensions,” NPR, December
17, 2010.
http://www.npr.org/2010/12/17/132143512/thai-riots-sign-of-simmering-
political-tensions
28. “Causes of Riot Deaths Inconclusive,” Bangkok Post, January 20, 2010.
http://www.bangkokpost.com/breakingnews/217349/causes-of-riot-deaths-
inconclusive
by the Bangkok Metropolitan Administration (“BMA”) — under
orders from CRES — to clean the streets of Bangkok immediately
after the conclusion of the Red Shirt demonstrations on May
19. This campaign lasted several days and, in the process, the
BMA destroyed most of the physical and crime scene evidence of
the civilian deaths. This campaign violated Thai laws concerning
preservation of evidence, but it was intentionally carried out in
order to remove any evidence of criminal conduct by the Army
leaders and/or the Thai government.
After the violent events in Bangkok on April 10, 2010, during

which some twenty-five people were killed, the CRES caused the
investigation into those deaths to be assigned to the DSI. The case
was not assigned to the Police because it was determined that the
Police were too numerous and diverse, and it would be impossible
to control the results of their investigations. The DSI, on the other
hand, is much smaller, and its Director, Tharit Pengdit and Deputy
PM Suthep Thaugsuban, are themselves members of the Centre
for Resolution of Emergency Situation (“CRES”). This assignment
to the DSI, however, represented a gross conflict of interest in
that the CRES should itself be a target of criminal investigation in
connection with the killings on April 10.
Nevertheless, on April 16, 2010, DSI Director Tharit was formally

vested with the authority to conduct the investigation into the April
10 killings. Director Tharit promptly assigned the investigation into
all of the 25 deaths to DSI investigator Wirawat Dejboonpa, who is
loyal to Tharit. Investigator Wirawat intentionally did nothing to
investigate the cases. Later, after additional killings in May, a total
of eighty-nine deaths were assigned to investigator Wirawat. He
has to this day failed to conduct any serious investigation into the
killings of innocent civilians, but rather has tried to assign criminal
responsibility to the Red Shirt leaders currently incarcerated, in
order to provide ostensible support for the terrorism charges
asserted against them by the Thai government.
Quite to the contrary, Investigator Wirawat’s investigations have

been improperly biased in favor of the government’s official
position. His investigative conclusion, for example, is that the
Red Shirts were responsible for the explosions on Dinso Road
on the night of April 10 that killed Colonel Romklao Tuwatham
and several other soldiers. However, he has conceded openly that
he has no evidence to support that conclusion. This absence of
evidence is further supported by the fact that nobody has been
arrested in connection with physically causing those explosions.
During the period between May 13 and May 19, 2010, more than
sixty additional people were killed in connection with the Red Shirt
demonstrations. DSI Director Tharit, however, did not assign any of
these killings to his subordinates for investigation until August 30,
2010, when public outcry forced him take some action. This delay
constitutes a violation of Thai law, which requires investigations
into deaths caused by public officials to be concluded within a
specific period of time.
Many of these remaining cases were assigned to investigators

who are unwilling to ignore the truth, and will not whitewash the
investigations out of loyalty to Tharit or the Abhisit government.
Indeed, the majority of the DSI investigators are committed to
proper conduct, and will not fabricate evidence or conceal the
truth in order to reach a predetermined conclusion. At this time,
investigations into more than half of the eighty-nine deaths during
the Red Shirt demonstrations — which are in various stages of
progress — have concluded, at least preliminarily, that the killings
were caused by certain soldiers of the Royal Thai Army under
orders from the Thai government and the CRES.
Some of the DSI investigators that have reached these conclusions

have been instructed by their superiors to change their conclusions.
Some of the killings from the period between May 13 and May
19, 2010 have been assigned to DSI investigators who are loyal
to Director Tharit and are willing to ignore proper investigative
procedures. These DSI investigators are doing nothing substantive
to advance their investigations. They are also hoping for special
promotions that DSI Director Tharit is seeking from the government
on their behalf.
At the moment, certain DSI investigators have completed their

initial reports regarding at least four killings in May 2010, which
conclude that certain soldiers of the Royal Thai Army, under
orders from the government, caused the deaths. At this stage, the
DSI would ordinarily consult with the District Attorney’s Office
and request the assignment of a District Attorney to interface
with the DSI investigators to begin assessing whether the killings
were carried out with intent, or whether they were in self-defense.
However, DSI Director Tharit has taken no steps to begin any
investigation into the issue of intent. This is contrary to normal DSI
procedures and the requirements of Thai law, and is an attempt
to delay the cases.
DSI Director Tharit is engaged in a purposeful effort to delay the

outcome of the DSI’s investigations. This is evident from his failure
to assign the cases promptly for investigation, and from his failure
to initiate any investigation into the issue of intent. His failure to
advance the case is motivated, at least in part, by the fact that he
is a member of CRES, which, under ordinary circumstances, would
be the focus of an investigation.
Additionally, consistent with other government efforts to

suppress evidence, DSI Director Tharit has issued orders that the
DSI investigators are prohibited from summoning any soldier of
the Royal Thai Army for interrogation. This position is wholly
inconsistent with ordinary practices of the DSI, which would have
long ago interrogated anyone the DSI had concluded had been the
cause of a killing.
In November 2010, official DSI reports regarding some of the

killings in May 2010 were leaked to the press, and Red Shirt
leader Jatuporn Prompan made public comment about their
conclusion that certain soldiers had caused the deaths. Shortly
after this occurred, it was reported in the Thai media that Army
Commander General Prayuth Chan- ocha had called for the removal
of DSI Director Tharit. Accordingly, Deputy Prime Minister Suthep
Thaugsuban summoned DSI Director Tharit to meet with him.
Immediately after that meeting, Prime Minister Abhisit held

a press conference reaffirming his support for DSI Director
Tharit. Director Tharit was kept in his position so that he could
make a final decision not to prosecute Army leaders or members
of the CRES.
On his part, DSI Director Tharit told the press that Mr. Jatuporn’s
statements about the leaked DSI reports did not coincide with the
findings of the DSI investigators. These statements by Director
Tharit were untrue.
Shortly after his meeting with Deputy Prime Minister Suthep,

DSI Director Tharit issued an internal DSI edict expressing his
sole authority over the determination of whether there had been
criminal intent in any of the killings. Without a finding of criminal
intent, there can be no criminal liability under Thai law against
Army leaders, CRES members or the Thai government.
Additionally, following his meeting with Deputy Prime Minister

Suthep, DSI Director Tharit informed all of his investigators that if
they are unable to identify with specificity the names of the people
who pulled the triggers that led to killings during the Red Shirt
demonstrations, they must conclude that Red Shirts pulled the
triggers. Additionally, where DSI investigators had concluded that
at least five of the six victims from inside the Wat Patumwanaram
Temple had been killed by Army soldiers, DSI Director Tharit
unilaterally reduced that number to three.
It is abundantly clear from these events that DSI Director Tharit

assured Prime Minister Abhisit, through Deputy Prime Minister
Suthep, that he would conclude that there was no criminal intent
on the part of any Army soldiers in connection with the civilian and
soldiers deaths in April and May 2010, regardless of any finding
by DSI investigators concerning the cause of death. In exchange
for this concession, DSI Director Tharit was allowed to keep his
job.
There is absolutely no possibility that the DSI will voluntarily

conduct a proper investigation into the killings of the civilians
and soldiers during the Red Shirt demonstrations.
As the Department of Special Investigations Deputy Head, Pol. Lt. Col. Seksan
Sritulakarn stated this past summer, routine external pressure has made the DSI
into an entirely “political tool.”29
PROSECUTING THE RED SHIRTS

Whereas the government has sought to ensure that the investigations into the
killings lead nowhere, in the presence of overwhelming evidence for the Royal Thai
Army’s crimes, the Abhisit administration has conversely displayed considerable
aggressiveness in its prosecution of the Red Shirts. On July 30, 2010, the DSI
submitted to the Office of the Attorney General a request to indict twenty-four
core leaders of the UDD, as well as former Prime Minister Thaksin Shinawatra, on
29.
, Matichon, 12 July 2010.
http://www.matichon.co.th/news_detail.php?newsid=1278918895&catid=17
charges of “terrorism.”30 On August 11, as expected, the Attorney General indicted
nineteen of them, all of whom are in custody, and delayed its decision on the six
who remain at large.31 All face possible death sentences if eventually convicted.
Aside from the fact that the Red Shirt leaders are accused of causing the deaths
that took place during the 2010 Red Shirt demonstrations — in the absence of any
finalized police investigation corroborating those claims and in the absence of any
parallel proceedings against state officials responsible for most (if not all) of the
killings — the Court has systematically deprived the Red Shirt leaders of their due
process rights by preventing them from mounting a proper defense against the
charges. The proceedings are assigned to Judge Sujitra Potaya, who has participated
in all of the criminal cases against former Prime Minister Thaksin.
First, despite the seriousness of the capital charges against the Red Shirt leaders,
Judge Sujitra has repeatedly barred the defendants from attending their own trial
hearings. At the Preliminary Hearing on September 27, 2010, the defendants were
denied access to the courtroom. Further, in the written Order memorializing the
Preliminary Hearing, Judge Sujitra stated:
Due to the fact that a lot of people who do not involve in the case
are in the court room, the seats are not sufficient. The next hearing
will determine the number of witnesses, the number of hearings
so the Defendants are not required to appear before court, but the
Defendant’s lawyers shall appear before court.32
On the day the next hearing was convened, the defendants were transferred from
their jail cells to the basement of the courthouse, but Judge Sujitra refused to allow
them to be brought into the courtroom. Formal requests to move the proceedings
to a larger courtroom have been denied. Thus, the defendants are being deprived
of the fundamental right to assist their lawyers in the preparation of their own
defense, based on the rationale that the courtroom to which the case is assigned
is simply too small. Although families of the defendants and the victims are also
30. “UDD Presents Long New Witness List,” Bangkok Post, August 2, 2010.
http://www.bangkokpost.com/news/politics/189110/oag-asked-to-question-250-
more-witnesses
31. “Prosecution Review Completed, 19 Red Shirts to Face Terrorism Trial,” The
Nation, August 11, 2010.
http://www.nationmultimedia.com/home/Prosecution-review-completed-19-red-
shirts-to-face-30135707.html
32. Order dated September 27, 2010, at p. 11. An English translation of Judge
Sujitra’s Order is reproduced in the Appendix.
being kept out of the proceedings, select members of the Thai media are permitted
to observe and report.
Second, Judge Sujitra has barred the defendants from calling key witnesses needed
for their defense. Specifically, the defendants included on their proposed witness
list the Directors of at least thirteen hospitals in Bangkok where victims were treated
during the Red Shirt demonstrations. These witnesses were named because, as the
official custodians of the records of their respective hospitals, the Directors are the
only persons who are able to identify the names of the various doctors who treated
the victims. Without the testimony of the Directors, the defense will be unable to
identify and call the treating physicians to testify about the nature of the injuries
suffered by the victims. Judge Sujitra, however, barred the defendants from calling
the Directors, stating that:
[T]he court is of the view that they are not the physicians who had
directly provided treatment to the patients so the court does not
permit to refer them as witnesses, and will not call them to testify
as requested.33
Further, Judge Sujitra drafted her Order in such as way as to suggest that the
Defendants’ counsel had agreed voluntarily to withdraw the Directors as witnesses,
which, pursuant to the Thai rules of criminal procedure, renders the decision non-
appealable. As a result, the defense lawyers took the extraordinary step of refusing
to countersign Judge Sujitra’s Order.
The government also ignored repeated requests to review the evidence upon which
the terrorism cases are built and has steadfastly refused to grant the UDD leaders
currently on trial access to all forensic, documentary and audio/video evidence
pertaining to their prosecution. In addition, the “evidence” that has been given
to the public about the premeditated nature of these acts of terrorism and their
connection with the UDD leaders remains scant — thus far, all the government has
been able to offer are two speeches given back in January 2010 by UDD leaders
Nattawut Saikua and Arisman Pongruangrong, in which the speakers warned of
retaliation in the event of a military coup (in Mr. Nattawut’s case) or use of deadly
force against the Red Shirts (in Mr. Arisman’s case). With regard to Dr. Thaksin,
prominent government officials accused the former Prime Minister of providing
financial support for the attacks, alleging that at least a few were committed at his
behest for the purpose of sabotaging any agreement on the so-called “roadmap
33. Order dated September 27, 2010, at p. 10.

for reconciliation,” but have failed to support these inflammatory statements with
any actual facts. The Royal Thai Government has been quick to label its opponents
“terrorists,” but it has done a rather poor job of substantiating these claims.
Considering the aggressiveness that the government has demonstrated in

disseminating information that supports its account of the tragic events of April and
May, one must conclude from its refusal to provide the defense team or the public
with any hard evidence of the UDD leaders’ involvement that the charges it has
filed are political — in fact, that the accusations of “terrorism” amount to nothing
other than a media campaign against the Red Shirts supported by the actions of
politicized investigators and a notoriously pliant judicial system. Indeed, the point
of these inquiries was never to find out the truth. The purpose of these criminal
prosecutions is rather to lend some legitimacy to the government’s media campaign
and perhaps keep the UDD leaders in prison as long as possible — whether or not
the investigations uncover any of the facts is besides the point. This is consistent
with many other aspects of Thai politics, where constitutional/legal processes serve
either as sideshow or smokescreen, while most decisions of any consequence are
made elsewhere.
OBFUSCATION AS “RECONCILIATION”
In the wake of the dispersal of the Red Shirt rallies at the Ratchaprasong
intersection, Prime Minister Abhisit Vejjajiva committed himself and his
government to “reconciliation.” Regrettably, it is now clear that the forces presently
governing Thailand have neither the capacity nor the intention to promote
genuine reconciliation. Coupled with the draconian measures and campaign of
persecution launched over the past months — marked by the repeated renewal
of the Emergency Decree, the continuing reliance on the Internal Security Act, the
arrest and detention of hundreds of Red Shirt sympathizers, the internment of
UDD leaders in army camps, and the suppression or censorship of all alternative
media — the staffing of the committees set up under the pretense of moving the
country forward demonstrates that what the government means by “reconciliation”
is in fact “ideological conformity” enforced through a mixture of propaganda and
repression.
In response to the international outcry over the violence in April and May, the
Abhisit administration agreed to impanel a “fact-finding” committee tasked with
investigating the violence and pave the way for “reconciliation.” The committee
is led by former Attorney-General Kanit na Nakhon and is stacked with people
whose loyalty to Thailand’s Establishment is unquestioned. The committee quickly
came under sharp criticism for its apparent lack of independence as well as the
opaqueness of its mandate. In fact, it was clear from the very beginning that its
inquiry was not likely to result in any prosecutions, or bring forth clear allegations
of wrongdoing against top military men. Mr. Kanit himself initially stated that the
“fact finding committee” is less interested in “finding fact or identifying who was
right and who was wrong” than it is in “promoting forgiveness.”34
To his credit, Mr. Kanit has been outspoken in criticizing several measures the
government has taken in the aftermath of the violence. Shortly after his appointment,
Mr. Kanit complained about the practice of forcing the Red Shirt leaders to appear
in court with their ankles heavily shackled and chained as something “against the
UN human-rights principles.”35 In early August, Mr. Kanit urged the government to
reconsider its use of the State of Emergency.”36 Subsequently, Mr. Kanit interviewed
leaders and supporters of groups representing a broad cross-section of Thai civil
society and called on the government to grant bail to Red Shirts who have spent
months in prison awaiting trial.
However, Mr. Kanit’s so-called “Truth and Reconciliation Committee” is reported

to have made no effort to investigate the violence or meet with the victims,37
focusing instead on the task of formulating a broad analysis of Thailand’s political
crisis. Indeed, since the commencement of the Committee’s activities Mr. Kanit has
repeatedly explained that his work was aimed as identifying the “root causes” of
the conflict as opposed to investigating “each particular instance”38 — perhaps in
34. Atiya Achakulwisut, “Reconciliation Will Have Its Price,” Bangkok Post, June 15,
2010. http://www.bangkokpost.com/opinion/opinion/38778/reconciliation-will-
have-its-price
35. “Kanit Decries Chaining of Reds,” The Nation, July 24, 2010.
http://www.nationmultimedia.com/home/Kanit-decries-chaining-of-
reds-30134467.html
36. “Kanit Panel Calls for Transparency over Unrest Details,” The Nation, August 3,
2010.
http://www.nationmultimedia.com/home/Kanit-panel-calls-for-transparency-over-
unrest-det-30135083.html
37. Pongphon Sarnsamak, “DSI Report ‘Ambiguous, Unclear’,” The Nation, November
19, 2010.
http://www.nationmultimedia.com/home/DSI-report-ambiguous-
unclear--30142568.html
38. “Kanit to Dig for Root Causes of Political Conflict,” The Nation, July 8, 2010.
http://www.nationmultimedia.com/home/Kanit-to-dig-for-root-causes-of-political-
conflict-30133319.html
light of the fact that, as he admitted, the committee “[has] been unable to obtain
complete information from the CRES about security forces’ deployment plans,
operations of the security forces, autopsy reports, witness testimonies, photos, or
video footage.”39 Not surprisingly, thus far the investigation has failed to produce
findings of any note.
Mr. Kanit has expressed interest in “restorative justice” — that is, the idea that
future occurrences of violence may be averted by promoting mediation between
victim and offender without necessarily subjecting offenders to prosecution.
Among the key tenets of “restorative justice,” in particular, are the search for a
balance “between the rights of offenders and the needs of victims” and “between
the need to rehabilitate offenders and the duty to protect the public.”40 But while
his goals are laudable, there are both general and particular reasons that render
this approach inappropriate in this situation.
Generally, as the “Nuremberg Declaration on Peace and Justice” has reiterated in

2008, a sustainable peace can only be built on a foundation of justice — “understood
as meaning accountability and fairness in the protection and vindication of rights,
and the prevention and redress of wrongs.”41 In Thailand as anywhere else, dealing
with the past and administering justice for systemic abuses is the only basis upon
which a prosperous, peaceful future can be built.
Indeed, most recently the approach of the international community has been based
on “transitional justice,” which emphasizes accountability for the offenders. The
United Nations’ “Updated Set of Principles for the Protection and Promotion of
Human Rights through Action to Combat Impunity” establishes not only society’s
“inalienable right to the truth” and the victims’ “right to know,” but also specifically
speaks to the “right to justice,” which requires states to ensure “that those
responsible for serious crimes under international law are prosecuted, tried and
duly punished.”42 The UN Principles also contain guidelines for the activities of
commissions of inquiry and truth commissions. Aside from the requirement that
39. Human Rights Watch, “Thailand: Repeal the Emergency Decree,” November 24,
2010.
http://www.hrw.org/en/news/2010/11/24/thailand-repeal-emergency-decree
40. Marian Liebmann, Restorative Justice: How It Works (London: Jessica Kingsley
Publishers, 2007), p. 33.
41. “Nuremberg Declaration on Peace and Justice,” June 13, 2008.
http://www.peace-justice-conference.info/download/Nuremberg%20
Declaration%20A-62-885%20eng.pdf
42. United Nations, “Updated Set of Principles for the Protection and Promotion of
Human Rights through Action to Combat Impunity,” February 8, 2005.
these bodies be impaneled through procedures that ensure their independence and
impartiality, the UN Principles mandate that the investigation should focus as a
matter of priority on violations constituting serious crimes under international law.
The emphasis placed by Mr. Kanit on the “root causes” of the conflict, as opposed
to the specific human rights violations, places the workings of the body he leads
at odds with the standards set by the UN for the activities of actual “Truth and
Reconciliation Commissions.”
The specifics of Thailand’s case make an approach to “restorative justice” based

on impunity especially problematic. First, as the experience of previous massacres
that have taken place since 1973 has shown, granting state officials impunity in the
name of “reconciliation” and “forgiveness” only guarantees that the same tragedy
will happen over and over again. Second, if Kanit and others are serious about
digging for the “root causes” of the conflict, they need not dig very deep to find out
that one of the Red Shirts’ main grievances is that the principle of equality under
the law does not exist in Thailand, where “double standards” pervade the workings
of the country’s judicial process as well as much of the rest of society. In this sense,
shielding powerful people responsible for serious crimes such as murder from legal
prosecution does nothing but serve up fresh evidence of this claim. As such, aside
from being impermissible under international law, impunity for the abuses that
have taken place in 2010 is most likely to exacerbate the conflict.
Perhaps most importantly, though, however sincere Mr. Kanit might be about
promoting mediation between offender and victim, the Royal Thai Government has
taken no meaningful steps in this direction. Not only has the government committed
all resources at its disposal to pervert the course of justice. The continuing
imprisonment of Red Shirt leaders, the persistent demonization of the Red Shirts
as terrorists, the ongoing deprivation of the Red Shirts’ right to due process, and
the systematic recourse to repressive measures that justify the ongoing suspension
of civil and political rights demonstrate that the Royal Thai Government has no
interest in “reconciling” victim and offender — its agenda is rather to reconcile the
victim to the offender’s authority. Moreover, the Abhisit administration’s insistence
on withholding information, on whitewashing the investigation, and on propagating
a self-serving narrative at odds with the evidence demonstrates that the Royal Thai
Government is not just unwilling or unable to peruse the truth, but actively engaged
in an attempt to suppress it.
The events of the past eight months have made it obvious that the government’s
pledge to promote “reconciliation” is nothing more than rhetoric designed to distract
from its ongoing effort to annihilate the opposition and prevent those responsible
for one of the worst episodes of state violence in the country’s history from ever
being brought to justice. No truth or reconciliation will emerge from the proceedings
of Mr. Kanit’s panel. Much like every other initiative the Royal Thai Government
has taken in the name of “reconciliation,” the committee’s function is simply to
make impunity more palatable to the public and the international community. Its
activities, therefore, exemplify the definition of “sham proceedings” described in
the ICC Statute — investigations or trials that “conducted in a manner which, in
the circumstances, is inconsistent with an intent to bring the person concerned to
justice.”
6. 4 CONCLUSION
Aside from meeting the test of “gravity” specified in Article 17(d) of the Rome
Statute, the Thai situation qualifies for admissibility before the ICC based on the
principle of complementarity.
It is clear that the Royal Thai Government will never carry out a fair and complete
investigation into the situation at hand. The Abhisit administration and its backers,
in particular, are unlikely to compromise their tenuous grasp on political power
by exposing military and civilian leaders to prosecution for international crimes.
Moreover, the prolonged detention and the disregard for the due process rights
of hundreds of Red Shirts, whom the government prejudged as “terrorists,” calls
into question the fairness of its probe. Finally, the corruption and politicization of
Thailand’s judicial branch, the lack of independence plaguing the investigations
conducted so far by DSI, the government’s reliance on investigators chosen for
their partisanship rather than their expertise, and the lack of interest on the part
of Mr. Kanit’s “Truth and Reconciliation Committee” in probing the facts of the
violations taints the entire inquiry.
The Thai government, in other words, is both unwilling and unable to conduct a fair
and complete investigation, in accordance with its obligations under international
law. This is in keeping with previous massacres of pro-democracy demonstrators
that the Thai state perpetrated in 1973, 1976, and 1992. But for the possible
intervention of the ICC, the 2010 massacres are on the verge of being whitewashed
through the same, illegal amnesties that have regularly guaranteed impunity for
those who killed hundreds of demonstrators in Thailand.
7. RELIEF SOUGHT
For the reasons set out above, and on the basis of the information presented, the
Applicant respectfully requests that the Prosecutor of the International Criminal
Court start a preliminarily investigation into the situation in Thailand in relation
to the events of April and May 2010, as well as the campaign of persecution staged
since the 2006 coup.
A review of the evidence suggests that members of the Royal Thai Government and
the Royal Thai Army are responsible for a series of human rights violations and a
systematic campaign of political persecution, such that:
(1) There are reasonable grounds to believe that crimes have been
committed within the jurisdiction of the ICC, in particular crimes
against humanity consisting of murder, imprisonment and other
severe deprivation of physical liberty, persecution, and other
inhumane acts;
(2) There is evidence pointing to individual and superior responsibility

for a number of high-ranking officials in Thailand’s civilian and
military leadership.
Based upon the findings presented in this report, it can be said that the jurisdictional
and admissibility thresholds have been met, such as to justify the launch a preliminary
investigation into the situation in Thailand. While it is the duty of the Royal Thai
Government under international law to investigate its own abuses and bring those
responsible to justice, the “investigations” launched by Royal Thai Government
are guaranteed to result in a complete whitewash of the entire incident, just as
previous instances of large-scale state violence that have occurred in Thailand over
the past four decades. In other words, by all accounts the government of Thailand
is unwilling to carry out proper investigations into the Bangkok Massacres. Even
if the civilian administration had the will to investigate, its ability to do so would
be limited by the absence of civilian control over the military. As a result, the Thai
situation qualifies for ICC jurisdiction based on the principle of complementarity. In
the event the ICC Prosecutor would wish to consider the merits this Application on
the basis of the ongoing investigations in Thailand, the Applicant suggest that the
Prosecutor set a time limit within which the Thai authorities must decide whether
the proceedings will result in any criminal prosecutions.
In case the ICC Prosecutor so desires, the Applicant is willing and able to supplement
this Application with additional evidence, including names and biographical data
of several witnesses who have been included in the Application as anonymous
witnesses.
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EXPERT REPORT OF JOE RAY WITTY
I, Joe Ray Witty, state as follows:
INTRODUCTION
1.I am a Green Beret and Master Sergeant (Retired) of the United States Army, Special
Forces. I am a military-trained sniper and an explosives specialist, serving two tours of duty
in military combat operations in Afghanistan and Iraq. I have participated in cross-training
exercises with the Royal Thai Army, and I am familiar with its structure and armament.
2.I am currently employed by Los Angeles Police Department SWAT (Special Weapons and
Tactics) team, where I am a member of SWAT’s sniper and breaching cadres. I am also an
instructor for the Los Angeles Police Department (LAPD) in crowd control and crowd
management, and my responsibilities in that capacity include planning and execution of
police response to public demonstrations throughout the greater Los Angeles area.
3.I have been retained by the law firm of Amsterdam & Peroff LLP to review and evaluate
the Royal Thai Army’s response to the Red Shirt demonstrations in Bangkok in April and
May 2010. In that capacity, I have reviewed extensive video, examined numerous witness
statements, and conducted independent interviews. I have also personally examined
various sites in Bangkok where the Royal Thai Army carried out operations in response to
the Red Shirt demonstrations.
TRAINING AND PROFESSIONAL BACKGROUND
4.I enlisted in the United States Marine Corps (USMC) in 1982, serving approximately 8
years in the 1st Reconnaissance Battalion, where I supervised reconnaissance teams
deployed around the world. While a member of the USMC, I trained and operated in many
host countries in small unit tactics and firearms training, including two MEU-SOC (Marine
Expeditionary Unit, Special Operations Capable) deployments in the West Pacific. My MEU-
SOC deployments included twice attending joint training in Thailand during Cobra Gold
exercises, during which I participated in cross-training with Royal Thai Army forces.
5.I earned my Green Beret in 1988, with primary responsibilities in combat

engineering/explosive demolition. Additionally, my Green Beret qualification course training
included land navigation, small unit tactics, live fire training, target interdiction,
unconventional warfare, direct action operations, and survival/evasion/resistance/escape
training.
6.I am trained and qualified to identify, maintain, employ and defuse all forms of U.S., NATO
and Soviet Block hand grenades, anti-personnel mines and anti-tank mines. I am also
trained in the maintenance, employment and destruction of military grade explosives. I am a
specialist in the use of explosives for breaching and building entry in hostage situations,
together with explosive demolition of local infrastructure in the assistance of unconventional
warfare.
7.In 1991, I enlisted in the 19th U.S. Army Special Forces Group (Reserves). In 1994, I
graduated from the U.S. Army Scout Sniper Course, earning my designation as a military
scout sniper. As part of my sniper training, I successfully completed range qualification with
the .308 caliber (7.62 mm) weapons platform on moving and stationary targets, at known
and unknown distances up to 1,075 yards.
1
8.As a member of the Special Forces, I served two tours of duty deployed with a Green
Beret operational detachment to both the Afghanistan and Iraq combat theaters, with
collateral duties as a sniper. During the course of those deployments, I engaged in some
160 battlefield operations, at least 30 of which as a sniper interdicting human targets.
9.I am formally qualified for the following weapons systems: Colt Model 1911 (.45 cal.) and
Beretta 92F (9 mm) pistols, Remington 870 shotgun (12 ga.), Remington M24 sniper rifle
(7.62 mm), Colt M16, M16A2 and M4 assault rifles (5.56 mm), H&K MP-5 submachine gun
(9 mm), Barrett (50 cal.) sniper rifle, H&K SCAR-H assault rifle (7.62 mm) and H&K 416
assault rifle (5.56 mm). Additionally, I am intimately familiar with the operation of all NATO
and Soviet Block weapons systems.
10.In 1990, I joined the LAPD, which is the law enforcement entity primarily responsible for
crowd management and riot response in the Greater Los Angeles Metropolitan Area,
covering some 450 square miles and containing a population of approximately 4 million
civilians. As a member of the LAPD, I am a certified and credentialed instructor in crowd
management and riot control, where I regularly teach tactics and procedures to other LAPD
officers. Additionally, I teach crowd management and riot control to hundreds of other law
enforcement agencies throughout the United States, under contract with the National
Tactical Officers Association.
11.During my tenure with the LAPD, I have participated in at least 100 crowd
management/riot control operations, many of which were carried out under my personal
planning and direction. Some notable examples include the Los Angeles riots in 1993
stemming from the acquittal of four police officers charged with beating Rodney King, the
2000 Democratic National Convention in Los Angeles, annual hotel workers labor union
demonstrations, numerous anti-war protests, and various gay rights demonstrations.
12.During the course of these incidents, I have encountered and responded to a wide range
of demonstration techniques, both violent and non-violent, including: (a) use of hurling
devices (slingshots, super-slingshots) for hard projectiles and corrosive substances; (b)
burning of tires; (c) use of knitting needles and other sharp stabbing instruments; (d) use of
firearms; (e) arson; (f) Molotov cocktails; (g) sit-downs, including various chaining methods,
to disrupt and impede vehicular and pedestrian traffic flow; and (h) roman candles, bottle
rockets and M80 firecrackers.
13. Some of these techniques are planned, while some behaviors are spontaneous, often
stemming from a mob mentality. In all cases, however, the appropriate response of law
enforcement is always measured and proportional to the encountered behavior. In no event
is the use of lethal force by law enforcement appropriate except where there is an immediate
threat to life, and in such cases the use of lethal force may continue only so long as such
threat is present. Further, whenever any death or significant injury results from a law
enforcement response to any form of civilian demonstration, a full investigation must be
conducted to examine whether the use of force by law enforcement was appropriate under
the specific circumstances present at the time.
14. In 1998, I was selected to join the LAPD SWAT team, where I am currently posted. The
primary mission of SWAT is to analyze and resolve barricaded suspect situations, serve
high-risk warrants and carry out hostage rescue operations. My collateral responsibilities
with SWAT include sniper and explosive breacher duties.
15.As a SWAT sniper, my responsibilities include securing high risk areas, reconnaissance
and intelligence gathering in the context of crowd management and/or potential terrorist
activity, and application of lethal force as necessary to resolve crisis situations. I am also an
2
LAPD and SWAT certified sniper instructor, and I teach sniper tactics, techniques and
protocols to LAPD officers and other law enforcement entities throughout the United States.
16.My responsibilities as an explosive breacher involve the surgical application of explosives

to provide entry into fortified structures, with minimal damage, for facilitation of law
enforcement entry. I am also an LAPD and SWAT certified breacher instructor, and I teach
explosive and mechanical breaching tactics, techniques and protocols to LAPD officers and
other law enforcement entities throughout the United States. I hold a Blasting License
issued by the State of California for Law Enforcement Tactical Breaching.
17.I have received various military and law enforcement awards, including two Bronze Stars,
the Army Commendation Medal, four Army Achievement Medals, the National Defense
Medal, the Iraqi Deployment Medal, the Afghanistan Deployment Medal and a Los Angeles
Police Unit Citation.
18.I have held a U.S. State Department security clearance continuously since 1998, and I
current hold a Top Secret security clearance.
SCOPE OF REPORT
19.I have been retained by the law firm of Amsterdam & Peroff LLP to review, evaluate and
provide my professional opinion regarding the Royal Thai Army’s response to the Red Shirt
demonstrations in Bangkok in April and May 2010. I understand that my opinion may be
submitted to the International Criminal Court (ICC) in connection with a request by
Amsterdam & Peroff LLP for the ICC to initiate an investigation into the situation in Thailand.
20.My opinions and conclusions as set out in this report are based upon:
a. my personal examination and analysis of various sites in Bangkok where the Royal
Thai Army engaged in activities in response to the Red Shirt demonstrations;
b. personal interviews with various witnesses who were present in Bangkok during the
Red Shirt demonstrations;
c. review and analysis of hundreds of video clips and photographs taken in Bangkok
during the Red Shirt demonstrations in April and May 2010;
d. my personal examination and analysis of physical evidence recovered from the Pan
Fa Bridge and Ratchaprasong areas in Bangkok following Royal Thai Army activities in
response to the Red Shirt demonstrations; and
e. written witness statements provided to me by Amsterdam & Peroff LLP.
SUMMARY OF OPINIONS
21. Based upon the materials and evidence I have examined, I have arrived at the following
overarching conclusions and opinions:
a. On April 10, 2010, the Royal Thai Army did not engage in a rational or reasonable
crowd-management operation, which would necessarily have involved a genuine attempt
to disperse the demonstrators without inflicting injury. Instead, the Royal Thai Army
intentionally sealed off exit routes, herded the crowd into a confined area, and engaged
in various illegal acts designed to provoke the crowd to violence so that the Army would
appear justified in its use of deadly force against demonstrators. These illegal acts
included, but are not necessarily limited to:
3
i. The use of highly trained military snipers to shoot unarmed demonstrators
with live rounds from elevated, concealed positions, without provocation or
justification;
ii. The intentional, indiscriminate discharge of military weapons, including M-16

rifles and other automatic weapons firing live rounds, directly into dense
crowds of unarmed demonstrators, without provocation or justification;
iii. The intentional detonation of multiple military-grade explosive devices within

the immediate vicinity of Army troops, in a deadly form of “friendly fire”
designed to create the false impression that the Army was under attack by
demonstrators.
b. The Royal Thai Army formally adopted rules of engagement that comport with
accepted crowd management standards in order to create the false impression of
reasonable conduct. However, the Thai Royal Army systematically violated its stated
rules of engagement in a manner constituting criminal conduct.
c. The Royal Thai Army’s operation on April 10, 2010 was military in nature. Its
objective was to kill innocent civilians, without provocation or justification, in order to
suppress the Red Shirt demonstrations.
d. The Royal Thai Army repeatedly targeted unarmed civilians during the period April
10 through May 19, 2010, using deadly force in a manner that was wholly inconsistent
with reasonable law enforcement standards, but rather was unprovoked, unjustified,
intentional and criminal.
e. The Royal Thai Army’s operations during the period May 13-18, 2010 were military in
nature. They did not comport with accepted standards of crowd management or with the
Royal Thai Army’s own stated ROE, and they were criminal in nature.
f. The Royal Thai Army’s operations on May 19, 2010 were military in nature. They did
not comport with accepted standards of crowd management or with the Thai Royal
Army’s own stated ROE, and they were criminal in nature. They were designed to kill
innocent civilians, without provocation or justification, in order to suppress the Red Shirt
demonstrations. objective of the operations was to kill innocent civilians, without
provocation or justification, in order to suppress the Red Shirt demonstrations.
THE RED SHIRT DEMONSTRATIONS
April 10, 2010
22.For several weeks preceding the April 10 Army crackdown, thousands of Red Shirt
demonstrators had occupied virtually the full length of Rachadamnoen Avenue, from the
area of the Parliament, south to the Pan Fa Bridge area and winding east to the Democracy
Monument and Khok Wah Intersection areas, stopping just a few blocks short of Pinklao
Bridge on the Chaopraya River. I refer to this broad demonstration area in this report as the
“Pan Fa Demonstration Area.” The gatherings in the Pan Fa Demonstration Area were
carried out in conjunction with collateral Red Shirt demonstrations in the area of the
Ratchaprasong intersection, which I refer to generally in this report as the “Ratchaprasong
Demonstration Area.”
23.I have examined maps and diagrams of the Pan Fa Demonstration Area, including the
areas around Democracy Monument, the Jor Por Ror intersection, Khok Wua intersection,
Tanao, Road, Dinso Road, and the Pan Fa Bridge. I have also examined numerous witness
4
statements – including anonymous witness statements provided by an officer of the Royal
Thai Army with extensive knowledge of the events – and I have examined the Royal Thai
Army’s blocking positions both on maps and in person.
24.On April 10, 2010, several platoons of Royal Thai Army soldiers were equipped with riot
protective gear designed for crowd management situations. This equipment included:
Kevlar ballistic helmets with clear acrylic, non-ballistic face shields; padded chest, shoulder,
upper arm, forearm, elbow, hand and shin protectors covered with hard non-ballistic plastic;
limited blood borne pathogen protection; abrasion protection; batons; and acrylic riot shields.
This is standard crowd management protective gear used by many law enforcement
organizations to protect officers from various forms of assault and/or projectiles during crowd
management operations. Some Royal Thai Army soldiers were also equipped with gas
masks, indicating anticipated tear gas deployment. Documenting video can be viewed at
www.thaiaccountability.org/media/witty-video-1.
25.The Royal Thai Army’s stated Rules Of Engagement (ROE) involved the following seven
steps, which should always be taken incrementally, only as necessary, and with clearly
announced advance warning prior to escalation between steps: (1) show of force by lining
up the security officers holding riot shields and batons; (2) informing and warning the
protesters that the officers are about to use force; (3) use of shields; (4) use of water
cannon or high-powered amplifiers; (5) use of throw-type tear gas; (6) use of batons;
and (7) use of rubber bullets. 1
26.Many elements of the Royal Thai Army were equipped with both M-16 rifles and crowd
management protective gear. This combination serves no valid crowd management
purpose. In my opinion, troops were equipped in this manner to intimidate and/or because
their command planned to re-task them in a combat capacity. Documenting video can be
viewed at www.thaiaccountability.org/media/witty-video-1.
27.Numerous soldiers carried pump action or single shot shotguns. Based on witness
statements, video evidence and physical evidence, the soldiers fired less-than-lethal
munitions (i.e., rubber bullets) using these weapons. However, video evidence
demonstrates that in some cases the soldiers fired less-than-lethal munitions directly at
demonstrators who presented no threat, without any announced warning, in a manner likely
to cause serious bodily injury. Such use of less-than-lethal munitions does not comport with
accepted crowd management protocols or with the Royal Thai Army’s own stated ROE, and
suggests criminal intent to inflict bodily injury. Documenting video can be viewed at
28.Further, my examination of 12-gauge shotgun shell casing recovered from the scene of
the Red Shirt demonstrations reveals that at least some soldiers loaded and fired live
buckshot rounds. As detailed below, it is my opinion that the circumstances presented
during the Red Shirt demonstrations at no time warranted the use of live ammunition by the
Royal Thai Army.
29.The vast majority of soldiers deployed in combat gear were equipped with either Tarov-
21 or M-16 automatic assault rifles. This suggests that their command expected to task
them in a combat capacity rather than a strictly crowd management capacity. Documenting
video can be viewed at www.thaiaccountability.org/media/witty-video-1.
1
http://www.thaiembassy.sg/announcements/backgrounder-current-political-situation-in-
thailand, at note 2.
5
30.The Royal Thai Army used automatic weapons during the daytime hours of April 10. I
was able to discern from media clips the clear sound of at least one weapon fired on full
automatic, in a three round burst. Several soldiers fired their weapons at an upward angle
above the crowd. There is no question that these soldiers used live ammunition, based on
several factors. First, none of the assault rifles fired into the air was fitted with a "Blank
Firing Adaptor" (BFA), which prevents gases from escaping and allows the rifle to retain
enough energy from the discharged blank to force the bolt to retract, ejecting the spent blank
shell and loading a new blank round. Without a BFA, the operator of an assault rifle firing
blanks must manually operate the weapon’s charging handle to chamber another blank
round. However, none of the soldiers I observed was forced to recharge his weapon
manually, despite firing repeated shots. Further, BFAs are always painted a bright color for
safety reasons, to ensure that live ammunition is not introduced into a training environment,
yet no such BFA was visible on any of the weapons fired by the Royal Thai Army.
Documenting video can be viewed at www.thaiaccountability.org/media/witty-video-1.
31.Second, I examined numerous spent brass casings recovered from the demonstration
areas, all of which were from expended live ammunition. None of these casings had the
distinctive crimping around the crown of the cartridge, found on all blank rounds.
32.Shooting live rounds into the air is inherently dangerous. Every live round fired on an
upward trajectory propels a bullet that eventually comes back down. According to US Army
manual FM 3-22.9 (M16/A2 Rifle), the maximum range of the M16A2 rifle is 3600 meters. A
live round fired randomly into the air poses risk to any person within that range. Indeed, a
report published in December 1994 in Journal of Trauma states that doctors at the King /
Drew Medical Center, at the time a major Los Angeles Trauma Center, treated 118 people
between 1985 and 1992 for injuries caused by falling bullets discharged during New Years
and Independence Day celebrations, with 38 of those victims perishing. 2
33.Live rounds fired into the air by Royal Thai Army soldiers posed a grave risk to all
civilians in the area. The use of live ammunition by the Royal Thai Army under non-
threatening circumstances, even when directed over the heads of demonstrators, clearly
violated accepted crowd management protocols and, in my opinion, constituted – at
minimum – criminal negligence.
34.Based on my review of extensive video evidence, it is clear to me that the Thai

government acted inappropriately in deploying the Royal Thai Army in a crowd management
capacity. Many of the soldiers were obviously untrained in crowd management tactics and
protocols, and were ill-equipped to enter any crowd management environment. This lack of
proper training was exacerbated by the fact that many soldiers were issued crowd
management protective gear together with assault rifles, which sent a contradictory and
confusing message to these troops. In my opinion, the very deployment of military troops to
perform a function that should always be limited to trained law enforcement personnel
demonstrated a callous disregard for public safety.
35.The standard for crowd management in a similar situation is to establish a plan and brief
all key leaders. Leaders should in turn brief and supervise at all levels of command to
ensure that the ROE are understood and followed. Decisions should be made to encourage
the direction of the crowd, for a natural dispersal. Blocking positions should identified and
occupied. At least one major avenue should always remain open to permit natural egress of
the crowd. Supervisors should use public address systems to broadcast dispersal orders
2
Ordog, Gary J.; Dornhoffer, Peter; Ackroyd, Greg; Wasserberger, Jonathan; Bishop, Michael;
Shoemaker, William; Balasubramanium, Subramanium, THE JOURNAL OF TRAUMA INJURY, INFECTION,
AND CRITICAL CARE, Spent Bullets and Their Injuries: the Result of Firing Weapons Into the Sky,
December 1994, 3 January, 2011, http://journals.lww.com/jtrauma/toc/1994/12000.
6
and communicate exit routes. Crowds should be given reasonable time to comply. Squads
should form in a line, walking slowly toward the crowd, while supervisors instruct the crowd.
Water cannons might be used to encourage dispersal, and less-than-lethal munitions might
be used against specific unruly elements. Persons involved in criminal acts should be
arrested, using only such force as is reasonably necessary. Perpetrators who escape into
the crowd should be located and prosecuted subsequently, based on video evidence from
cameras deployed by law enforcement.
36.It is obvious that these measures were not employed on April 10. There is no question
that the Royal Thai Army failed to comply with accepted standards of crowd management
and with their own stated ROE.
37.I have read the Statement of Anonymous Witness No. 22, at ¶ 35, which states that the
methods employed by the First Infantry Division were “designed to intimidate rather than
disperse.” Based on the evidence I have examined, I agree fully with that statement.
38.Based on witness statements, interviews and video evidence, the Royal Thai Army’s
Second Infantry Division (Queen’s Guard) deployed company-sized elements in the late
afternoon of April 10 from the rear gate of the First Army Region Headquarters, located on
Outer Ratchadamneon Avenue near the Makhawan Bridge. Units moved by military vehicle
south and occupied Tanao Road. They established and fortified a Command Post (CP) on
Tanao Road north of the Khok Wua intersection west of the Democracy Monument,
occupying the Sib Sarm hang Roundabout. Troops moved on foot to occupy and heavily
fortify a blocking position on the north side of the Khok Wua intersection where Tanao Road
meets Ratchadamneon Klang Avenue.
39.On Dinso Road, elements of the Second

Infantry Division occupied a blocking position
on the southern end of the road, where it
meets Ratchadamnoen Klang Avenue at
Democracy Monument Square. These
troops were supported by three armored
personnel carriers (APCs) with heavy
machine guns mounted and manned on
each vehicle. The machine guns were
locked and loaded with belts of live .50
caliber ammunition.
7
40.The Second Infantry Division established its positions with the military precision of units
deployed under the threat of combat in a combat theater. On Dinso Road, they deployed a
platoon-sized element in front of the APCs, equipped with crowd management protective
gear and, in some cases, assault rifles, in violation of crowd management protocols. I
estimate that this element was comprised of more than 80 soldiers. Immediately behind, a
company-sized element of approximately 100 troops was deployed in combat gear,
suggesting that the true intent of the Second Infantry Division was not to manage and
disperse a demonstration that had been declared unlawful, but to treat the unarmed crowd
as a hostile combat force. I observed tear gas canisters thrown into the protest crowd.
41.I have examined photographic evidence of shooters firing rifles from the third floor
balcony on the white office building located on the corner of Tanao Road and
Rachadamnoen Avenue (The Government Lottery Office). In my opinion, this photograph
depicts an urban sniper hide, established by trained military snipers. I have read testimony
that the Thai military leaders deployed trained snipers in the area of the Khok Wua
intersection, which shot into the crowd beginning at approximately 17:00 hours on April 10,
with the intent to provoked the crowd to violence. (See Anonymous Witness Statement No.
22, at ¶¶ 32 and 38.) In my opinion, the photographic evidence I examined supports that
testimony.
8
42.As darkness fell, the soldiers of the Second Infantry Division exercised little if any
restraint in the discharge of their M-16 assault weapons. While some soldiers on Dinso
Road fired their weapons at an upward angle, over the heads of the crowd assembled at
Democracy Monument, several fired at a level angle, directly into the crowd. None of these
9
weapons was fitted with a BFA, indicating that the soldiers were firing live ammunition.
Documenting video can be viewed at www.thaiaccountability.org/media/witty-video-2
www.thaiaccountability.org/media/witty-video-3
43.I also observed a heavy machine gun (.50 caliber) mounted on one of the APCs firing in
full automatic mode with its barrel level to the horizon, with no BFA attached, indicating that
the weapon was firing live rounds. I also observed several soldiers seated calmly atop
APCs during the same timeframe, indicating that they felt no genuine threat from the crowd.
This type of heavy .50 caliber machine gun is often employed in the combat theater to
disable military vehicles by firing large caliber bullets into engine blocks, and it is sometimes
deployed in an anti-aircraft role. It possesses devastating destructive capability, and its use
in the context of crowd management – particularly, like here, in the absence of any genuine
threat to troops – is shocking and unconscionable. Documenting video can be viewed at
www.thaiaccountability.org/media/witty-video-2; www.thaiaccountability.org/media/witty-
video-3
44.Based on witness statements and photographic evidence, this heavy machine gun was
being fired primarily into the Democracy Monument structure itself. The number of
demonstrators in the Democracy Monument Square clearly numbered in the thousands,
many of whom were directly in front of the soldiers, standing on parts of the monument at
the same elevation as the top of the APCs. There is no question that the gunner on the APC
was creating grave risk of injury from possible direct hits, falling and/or ricocheting bullets,
and from concrete particles thrown off at high velocity by .50 caliber bullets impacting the
monument structure.
45.Based on witness statements, interviews and video evidence, it is my opinion that the
behavior of the crowd on April 10 at no time presented any genuine threat of significant
injury to the troops. The use of live fire over the heads of the protesters did not comport with
accepted crowd management standards, violated the Army’s own ROE, and constituted – at
minimum – criminal negligence. Live fire directly into the crowd was beyond question
criminal.
46.A few minutes prior of 19:15 hours, the troops on Dinso Road significantly increased the
rate at which they were discharging their weapons. I observed the silhouette of a soldier
repeatedly gesturing upward with his arm, apparently ordering the troops to increase their
rate of fire, which in fact occurred in conjunction with the gesture. In response to this
increase, some protesters threw water bottles, bricks, sticks and fireworks at the troops,
which may have caused some minor injury, but in my opinion would almost certainly have
been largely deflected by the riot shields, particularly considering that the Royal Thai Army’s
use of tear gas had created substantial separation between the troops and the
demonstrators. The separation between the troops and the crowd is also confirmed by the
wide arc of the flying water bottles. Documenting video can be viewed at
www.thaiaccountability.org/media/witty-video-2; www.thaiaccountability.org/media/witty-
video-3
47.I also observed a soldier standing atop an APC, holding a semi-automatic pistol in his
hand, which indicates to me that he was an officer and held a leadership position. In
response to the plastic water bottles thrown by the demonstrators, he fired his pistol
repeatedly into the air. There is no doubt that he was firing live rounds because a blank fired
from a semi-automatic pistol does not generate sufficient back pressure to cause the
weapon to complete its reloading cycle. The fact that this officer was discharging live rounds
from a hand gun, in plain view of the troops and in the absence of any legitimate threat,
further confirms that the troops were being ordered to fire their weapons, and it also
suggests that the Army’s intent was to provoke the crowd. Documenting video can be
viewed at www.thaiaccountability.org/media/witty-video-4.
10
48. Based on witness statements regarding concurrent military sniper fire in the area of
Democracy Monument (see Statement of Anonymous Witness No. 22), it is plausible that
the troops on Dinso Road were ordered to increase their rate of fire to cover the sounds of
sniper fire into the crowd. Additionally, given that the rate of fire increased shortly before
19:15 hours, it is also plausible that the increase was timed to coincide with the two
explosions that would come at approximately 19:15 hours, in response to which the troops
on Dinso Road opened fire without restraint into the crowd, killing many and injury hundreds.
49.Indeed, during this same timeframe, the street lights in the Democracy Monument Square
were fired upon and shattered, greatly reducing the ambient light in the area. Not only was
this action unwise in that it hampered the soldiers’ ability to react appropriately to the actions
of the crowd, its timing moments before the explosions suggests to me that it was part of a
larger plan to cause confusion and/or conceal.19
50.I have read the Statement of Anonymous Witness No. 22 at ¶ 41, which states that “this
activity was designed to provoke the crowd to violence so that the troops would have an
excuse to open fire.” In my opinion, the events are entirely consistent with that statement.
51.I have closely examined video of the explosions that killed several Royal Thai Army
soldiers on Dinso Road at approximately 19:15 hours on April 10. I was able to pause one
such video clip at the precise moment of the first explosion, and it is clear to me that it was
caused by military-grade explosives, almost certainly a grenade. The shrapnel pattern
generated by this device was highly symmetrical, indicating that the explosive material
burned at a consistent rate. By contrast, the explosive pattern from an improvised device is
almost always erratic because the seal is never perfect, owing to the fact that improvised
devices are not created in an industry-grade manufacturing environment. Consequently,
humidity will access the explosive material in an improvised device wherever there is even a
minor breach in the seal, compromising the explosive material and reducing its burn rate in
that area, leading to erratic shrapnel patterns. The first explosion on Dinso Road, however,
was much too symmetrical to have been caused by an improvised device, leading me to
conclude that it was almost certainly caused by a military-grade device.
52.Additionally, what appear to be sparks emanating from the explosion are fragments of
molten metal of the type military grenades are designed to project. This was a high-order
detonation, and the pattern of falling soldiers coincides with the effects of a grenade. In my
opinion, the explosion was wholly consistent with the M67 hand grenades widely used by the
Royal Thai Army. Documenting video can be viewed at
www.thaiaccountability.org/media/witty-video-5a.
53.Thirty-four seconds after the first explosion, a second explosion can be heard on Dinso
Road. Although this explosion is not visible on the video I examined, I was unable to discern
any significant difference in tone or timbre between the sounds made by the two explosions.
Because varying types of explosive devices differ significantly in the sound they produce, it
is reasonable to conclude that the second explosion was also caused by a military grenade.
54.Following these explosions, the Army troops immediately react by firing directly into the
crowd of demonstrators. The troops retreat north up Dinso Road, away from Democracy
Monument, but as they do so, they continue to fire into the crowd. My understanding is that
dozens of civilians were killed and thousands injured as a result. Documenting video can be
viewed at www.thaiaccountability.org/media/witty-video-5b.
55.The video evidence and my personal examination of the site lead me to conclude that the
first grenade could not possibly have come from the Red Shirt crowd. First, had the grenade
come from the crowd, it would necessarily have been thrown a distance of at least 70 yards.
11
The average soldier is able to throw a 14-ounce hand grenade less than half that distance,
only about 30 yards.
56.Second, taking into consideration the trajectory of the water bottles being thrown from the
crowd in the direction of the soldiers, it is inconceivable to me that an incoming 14-ounce
grenade on the same or similar flight trajectory would not have been noticed in advance by
the troops, given their numerical concentration in the area of the explosion. All soldiers –
including those in the Royal Thai Army, with whom I have trained – are trained to react to
any hazardous object thrown into their vicinity. In the case of an incoming grenade, or any
object that even remotely resembles a grenade, all soldiers are specifically trained to yell a
“grenade” warning and immediately seek cover or go prone. However, it is clear from the
video evidence that the troops did not react in any way to the grenade in advance of the
explosion. Documenting video can be viewed at www.thaiaccountability.org/media/witty-
video-5c.
57.Third, proper law enforcement practice under the circumstances would have called for
extensive deployment of video cameras in the area, monitoring the crowd for unruly
elements for real-time interdiction and, if appropriate, subsequent prosecution. It is my
understanding that the Thai government has been unable to produce any video of anyone
from the Red Shirt crowd throwing a hand grenade into the ranks of the First Infantry
Division on Dinso Road.
58.It is clear to me, therefore, that the grenade was either dropped or rolled along the
ground by someone within the ranks of the troops in the immediate vicinity of the explosion.
An M67 grenade has a timed fuse of five seconds, ample time for someone to surreptitiously
drop a grenade in the area of the explosion and walk behind the adjacent APC, visible in the
video evidence, in time to avoid injury. In my opinion, this is the only plausible deduction,
based on the evidence I have examined.
59.I have heard that the Thai government claims that certain “men in black” or other
unknown elements affiliated in some way with the Red Shirts carried out the grenade attacks
on Dinso Road on April 10. In my opinion, this is an unreasonable deduction. The Second
Infantry Division was deployed on Dinso Road with military precision, indicating that they
were following military strategies and protocols designed to secure their perimeter and
prevent access by undesirable elements. In my opinion, these protocols would have
prevented any “man in black” or, indeed, anyone not affiliated with the Royal Thai Army from
gaining access to the area near the explosion.
60.I have read the Statement of Anonymous Witness No. 22, which suggests that the
grenade attack on Dinso Road may be been carried out by soldiers of the rival First Infantry
Division (King’s Guard) or, alternatively, by elements working under the direction of General
Prayuth Chan-ocha, Commander of the Second Infantry Division. In my opinion, either
deduction is plausible, based on the evidence I have examined.
61.I have read the Statement of Anonymous Witness No. 22, which states that the Army’s
strategy on April 10 “was not to disperse the demonstrators. Rather, the operational
strategy was to concentrate the demonstrators in a confined area, provoke the crowd to
violence in order to create a perceived need for self-defense, and open fire.” (Statement of
Anonymous Witness No. 22, at ¶ 29.) In my opinion, based on all of the evidence I have
examined, the events prior to the grenade explosions on April 10 were entirely consistent
with that statement.
62.Further, this statement provides a rational motivation, in my opinion, for the grenade
attacks themselves. This is particularly true given the troop reaction following the
explosions, which was to open fire on the crowd.
12
63.In my opinion, even if the grenades on April 10 had been thrown from the Red Shirt
crowd – which, as explained above, is not a reasonable deduction – the Army’s reaction
following the explosions was criminal in nature. The proper reaction to the grenade
explosions would have been for the troops to hold fire, retreat, and deploy snipers with
spotters to identify elements in the crowd who might be prepared to throw another grenade.
Lethal sniper fire would be appropriate under such a scenario only if an individual were
spotted preparing to throw another grenade. Instead, as indicated above, the troops
immediately began to fire without restraint into the crowd, and they continued to fire into the
crowd as they retreated north up Dinso Road. In my opinion, this is clearly criminal
behavior.
64.Further, long after the troops retreated and reestablished blocking positions
approximately 150 meters north of Democracy Monument Square on Dinso Road, the Army
continued to shoot at unarmed civilians without provocation. This is abundantly clear from
video evidence I examined. One notable example shows a young Thai man carrying a pole,
to which a Red Shirt banner was attached, walking slowly across Dinso Road, from west to
east, at least 150 yards from where the Second Infantry Division had taken up a position
upon retreat after the grenade explosions. He was not approaching the troops, nor was he
exhibiting any kind of threatening behavior, and he does not appear to be armed.
Notwithstanding, he was struck in the head by a bullet, and, as he collapsed to the ground,
his entire brain mass spilled from his cranium onto Dinso Road. This event was captured on
videotape, and the victim’s wound was subsequently photographed at close range, shown
below. The video evidence can be viewed at www.thaiaccountability.org/media/witty-video-
6.
65. In my opinion, this young man’s head injury was not caused by a 5.56 mm bullet from an
ordinary M-16 rifle. This kind of gaping wound was unquestionably created by a .50 caliber
round or, at the very least, a 7.62 mm round. In my opinion, this man was shot by a military
sniper equipped with either a Remington M24 sniper rifle firing a 7.62 mm round, or a .50
caliber Barrett sniper rifle, both of which are available in the Thai military arsenal. Given the
non-threatening behavior of the victim immediately prior to his death, it is my opinion that
shooting him in this manner constituted criminal conduct.
66.Another example of the unprovoked shooting that continued well after the Army troops
had retreated on Dinso Road can be seen in a video clip that shows a wounded soldier lying
on the curb a few yards north of where Dinso Road meets Democracy Monument Square. It
is not clear from the video evidence how his injury was caused, but it is plausible that it
resulted from one of the grenade explosions or perhaps from the indiscriminate rifle fire of
the troops as they retreated north on Dinso road. The wounded soldier calls out in Thai, and
13
I understand from an interpreter that he was requesting assistance. There is audible gunfire
nearby. A man – Anonymous Witness No. 15 – approaches the injured soldier, carrying a
medical kit with a red cross prominently displayed. Two shots ring out immediately, and the
medic is wounded in the foot. Documenting video can be viewed at
www.thaiaccountability.org/media/witty-video-7. Statement of Anonymous Witness No. 15
is available here: www.thaiaccountability.org/wp-content/uploads/2011/01/Witness-15-
statement.pdf.
Summary of Opinions Regarding Events of April 10, 2010
67. A summary of my opinions concerning the events of April 10, 2010 follows immediately
below. These are my broad, overarching views, and their summary here does not in any
way diminish or detract from any other opinion I may have expressed elsewhere in this
Expert Statement.
68.It is my opinion that the Royal Thai Army did not engage in a rational or reasonable
crowd-management operation, which would necessarily have involved a genuine attempt to
disperse the demonstrators without inflicting injury. Instead, the Royal Thai Army
intentionally sealed off exit routes, herded the crowd into a confined area, and engaged in
various illegal acts designed to provoke the crowd to violence so that the Army would appear
justified in its use of deadly force against demonstrators. These illegal acts included, but are
not necessarily limited to:
a. The use of highly trained military snipers to shoot unarmed demonstrators with live
rounds from elevated, concealed positions, without provocation or justification;
b. The intentional, indiscriminate discharge of military weapons, including M-16 rifles

and other automatic weapons firing live rounds, directly into dense crowds of unarmed
demonstrators, without provocation or justification; and
c. The intentional detonation of multiple military-grade explosive devices within the

immediate vicinity of Army troops, in a deadly form of “friendly fire” designed to create
the false impression that the Army was under attack by demonstrators.
69. The Royal Thai Army formally adopted rules of engagement that comport with accepted
crowd management standards in order to create the false impression of reasonable conduct.
However, the Thai Royal Army systematically violated accepted standards of crowd
management and its own stated rules of engagement in a manner constituting criminal
conduct.
70.The Royal Thai Army’s operations on April 10, 2010 were military in nature. Its objective
was to kill innocent civilians, without provocation or justification, in order to suppress the Red
Shirt demonstrations.
May 13-19, 2010
71.It is my understanding that, following the events of April 10, 2010, the Red Shirt
demonstrators voluntarily dispersed from the Pan Fa Demonstration Area and concentrated
their protests at the Ratchaprasong Demonstration Area. The Royal Thai Army established
a perimeter around the Ratchaprasong Demonstration Area until, on May 19, they breached
the Red Shirt barricades, leading to the surrender of the Red Shirt leaders and the official
end of the demonstrations.
14
72.After the events of April 10, the Thai government issued the following statement
amending its previously established ROE:
Following the incidents on 10 April 2010, during which use of weapons by

armed elements among the protesters cost the lives of not just unarmed
demonstrators but also a number of security officers, this rule has been
revised for the operations to cordon off the Ratchaprasong Area in May to
permit use of live bullets in one additional case, namely: to retaliate
against clearly identified elements armed with weapons. Also, with a view
to preventing casualties due to close confrontation as happened on 10
April, shotguns may be used against armed groups and terrorist elements
approaching security units to prevent them from causing harm to others,
and in this case, security forces would only aim below the knee level. The
use of tear-gas launcher is also permitted in order to maintain distance
between the officers and armed protesters. As a principle, security units
would not use lethal weapons against unarmed demonstrators and in no
circumstances would they be used against women and children. 3
73.In my opinion, these amended ROE are inappropriate because they establish an official
policy to use deadly force “to retaliate.” Retaliation has no place in reasonable and accepted
standards of crowd management. In my opinion, the phrase “to retaliate” suggests an intent
by the Thai government to engage in further criminal conduct through the use of unprovoked
deadly force against the Red Shirt demonstrators.
74. It is my understanding that, beginning in early May 2010, the Second Cavalry Division
was assigned to secure Rama IV Road in the Bonkai area south of Ratchaprasong, while
the First Infantry Division was assigned to secure the Ding Dang and Rajaprarop areas north
of Ratchaprasong. It is my further understanding that the commanding officers of these
divisions were given unwritten orders for their troops to shoot any moving target in their
respective designated areas, regardless of whether such targets represented a threat. (See
Statement of Anonymous Witness No. 22, at ¶¶ 48 and 52.) Such orders would
unquestionably violate any reasonable standard of crowd management, and would
constitute criminal conduct.
75.Nevertheless, based on
witness statements, interviews
and video evidence, it is my
conclusion that the Royal Thai
Army indeed set up live fire
zones in the Bonkai, Ding Dang
and Rajaprarop areas near
Ratchaprasong. Although there
is ample video evidence of
unarmed civilians being fired
upon, injured and killed by
bullets coming from the direction
of Army blocking positions in
these areas during the period
between May 13-19, one video
clip in particular, taken from
directly behind Army soldiers deployed in elevated positions, clearly demonstrates that the
3
. http://www.thaiembassy.sg/announcements/backgrounder-current-political-situation-in-thailand, at
note 3.
15
soldiers were acting under orders to shoot any moving target, without regard to whether they
represented a threat. This documenting video evidence can be viewed at
76.In my opinion, the persons shown running across the alley represented no threat
whatsoever to the troops, which are clearly deployed in an elevated position, armed with
weapons that are not fitted with BFAs. The troops immediately opened fire upon seeing the
civilians, in a clear attempt to use deadly force without provocation or justification. In my
opinion, this is criminal conduct, as is any order to engage in such conduct.
77.I also understand that the Second Cavalry and the First Infantry Divisions were given
orders to prevent any photographic evidence of Army troops killing civilians, and that these
orders resulted in the intentional targeting of journalists. I also understand that these same
Divisions were ordered to prevent the bodies of any persons killed by Army troops from
being removed, which resulted in the intentional targeting of medical personnel. (See
Statement of Anonymous Witness No, 22, at ¶¶ 48-50 and 52.) Such orders, to the extent
that they call for troops to use deadly force against a person merely because they are taking
photographs or assisting the wounded – rather than presenting an immediate threat of
severe bodily injury – would violate accepted standards of crowd management, and would
constitute criminal conduct, as would the carrying out of such orders.
78.Further, such orders would seem to represent a concerted and organized effort to
suppress evidence. As an active law enforcement officer, it is clear to me that the intentional
suppression, destruction and/or fabrication of evidence would constitute criminal conduct, as
would any orders to engage in such conduct.
79.I understand that troops from the Second Infantry Battalion of the 31st Infantry Regiment,
with support from the Third Special Forces Regiment, breached the Red Shirt barricades
around Ratchaprasong on May 19, 2010. I also understand that their orders were to shoot
any person suspected of having weapons, although they were not required to make a
determination about whether such persons were actually armed. Further, their orders
expressly stated that any individual carrying a slingshot was to be considered armed and
dangerous. (See Statement of Anonymous Witness No. 22, at ¶¶ 56-57.)
80.In my opinion, such orders do not comport with accepted standards of crowd control or
law enforcement. No law enforcement officer should use deadly force except where there is
an imminent threat of severe injury to the officer or to other persons. Absent such a threat,
actual possession of a deadly weapon does not constitute a justification to employ deadly
force. Further, mere suspicion that someone might possess a deadly weapon is never a
sufficient justification to use deadly force. In my opinion, these orders effectively gave the
Army troops carte blanche to employ deadly force without provocation or justification,
81.It is my understanding that Army troops did, in fact, kill civilians on May 19 without
provocation or justification, pursuant to these orders. Although I understand that they were
not the only such victims on May 19, six people – including three nurses – were shot by
Army troops from an elevated train rail outside the What Patumwanaram Temple that day,
as they were taking refuge from the troops. This conduct is clearly criminal, as were any
orders to engage in such conduct.
82.It is also my understanding that the Army troops who breached the Red Shirt barricades
on May 19 were given orders to kill the Red Shirt leaders and any Red Shirt guards, without
regard to whether they were armed, dangerous, or presented any threat. (See Statement of
Anonymous Witness No. 22, at ¶¶ 57-58.) Such conduct would clearly be criminal in nature,
as would any order to engage in such conduct.
16
83.In my opinion, the Royal Thai Army approached the clearing operation on May 19 not as
a civilian crowd control operation, but as a military exercise, treating the demonstrators in
the Ratchaprasong area as an opposing military force instead of civilians engaged in a
demonstration that had been declared illegal.
Summary of Opinions Regarding Events of May 13-19, 2011
84.A summary of my opinions concerning the events of May 13-19, 2011 follows
immediately below. These are my broad, overarching views, and their summary here does
not in any way diminish or detract from any other opinion I may have expressed elsewhere
in this Expert Statement.
85.It is my opinion that The Royal Thai Army’s operations during the period May 13-18,
2010 were military in nature. They did not comport with accepted standards of crowd
management or with the Royal Thai Army’s own stated ROE, and they were criminal in
nature.
86.It is my opinion that the Royal Thai Army’s operations on May 19, 2010 were military in
nature. They did not comport with accepted standards of crowd management or with the
Thai Royal Army’s own stated ROE, and they were criminal in nature. They were designed
to kill innocent civilians, without provocation or justification, in order to suppress the Red
Shirt demonstrations.
CONCLUSIONS
87. I am willing to review evidence – if any exists – that might contradict my opinions. As of
this date, however, I have not seen any.
Dated: January 25, 2011
17
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From VDO interviews
Name: Kangsadal
Age:
Contact number:
Incident Location: Behind Satreevittaya 2, Dindeang Intersection
Date: 10th April 2010, 14 May 2010
Interviewer: Where is your hometown?
Kangsadal: Aythaya
Interviewer: So you are officially a member of RED Ayuthaya?
Kangsadal: I wasn’t so active before the last year event (in April). I supported
the RED just like others but I did not know that it would come this far, so, I have
been quite active this year.
Interviewer: Were you at the protest camp all the time?
Kangsadal: No, I usually came in the morning and left for work couple of hours
later.
Interviewer: You lived in Bangkok?
Kangsadal: Yes
Interviewer: Did you join the protest in PhanFa area?
Kangsadal: Yes, I was there on the 10th too
Interviewer: Can you tell us what happened?
Kangsadal: Yes, I came here with my son.
Interviewer: What time did you get there?
Kangsadal: I got to the protest area around 7.30 – 8.00
Interviewer: So, you were monitoring the news before you got there?
Kangsadal: Yes, and when I heard from the radio that the soldiers were coming
closer then I knew that the situation would get worse so I decided to leave home
to the protester to help.
Interviewer: Where about do you lived in Bangkok?
Kangsadal: Ladplakao, I heard K.Nattawut on the radio that they needed people
from Rachaprasong camp to help Phanfa camp so I took the motorcycle with my
son and my nephew to Phanfa camp as soon as I heard the announcement. When
I got to the stage I saw people rushed to the dead bodies up on the stage, I didn’t
want to see that scene so I ride back to Wisutkasat area. At that time the soldiers
were about to come out. The drivers of the first 3 cars drove very fast.
Interviewer: What time was it?
Kangsadal: Around 8.00-9.00 pm already
Interviewer: It was when they brought the dead body on the stage right?
Kangsadal: I am sure because I didn’t want to see the dead bodies on the stage,
that why I came out. I came as far as Wisuttikasat near Deves Insurance
building.
Interviewer: Ok, you got to that junction and you met the troops?
Kangsadal: There weren’t many red protesters at that area. But I saw groups of
soldiers stood by the side of the road and wait for the car to pick them up. The
first 3 car went past me very fast, the drivers drove very fast and I saw the reds
inside the 4th or 5th cars I don’t remember exactly. There were so many red shirts
inside. At first I thought they were soldiers but dressed as red, I thought they
were tricky.
Interviewer: The protesters were inside the car to the soldiers’ trucks?
Kangsadal: I saw soldiers’ trucks only and the last truck carried red shirts too.
Interviewer: Did you remember, what the trucks looked like?
Kangsadal: They were like buses with individual seats.
Interviewer: So it was soldiers’ buses
Kangsadal: Yes and there was one full of Red Shirts inside. At first I thought
they were the Fake Reds or Reds soldiers who came and help. I did not
understand the situation because it just happened, I got quite confused so I asked
them and I got the message that they were all Red protesters inside the last bus,
all Reds.
Interviewer: All men?
Kangsadal: Yes, all men. Young men
Interviewer: How do you that they were young?

Kangsadal: It wasn’t clear, they drove very fast.
Interviewer: But all I know is all of them wore red shirts, did you see anything
after that?
Kangsadal: I waited until the last truck drove passed me and the last one was
tank so the crowd were screaming and tried to push the tank but we could not do
anything much.
Interviewer: ahead of that street is where Tri-Tossathep temple is located, is that

right? Were you standing at the intersection?
Kangsadal: Yes, I was there. There was a police box and next to the box was a
hotel but I don’t remember the name of the hotel. I waited until there were no
soldiers left in that area. But I was sure that I saw red shirts on the last bus and
they drove incredibly fast.
Interviewer: Did you follower them? What did you do after that?
Kangsadal: I was waiting for my nephew and my son because they wanted to go
inside the killing zone. But my mother called and asked us to go home so we went
back home but not on the same motorcycle. My other 2 nephew took another
motorcycle but before they left they went back to the area and they took some of
the bullets from the killing zone.
Interviewer: Around 10.00-11.00 pm?
Kangsadal: It was almost mid night but the kids went back to the killing area.
Interviewer: What you have told us was the incident on the 10th April right?
Kangsadal: Yes, But I went home first.
Interviewer: How about Rachaprasong? Where were you? It was on the 14th
right?
Kangsadal: I entered the protest area by Pratu Nam gate, it was still accessible
but I saw the guards were building barricades using tyres and fences. And some
of the guards rushed to Makkasan area to build the barricades there as well.
Interviewer: To make it harder for the soldier to get to Rachaprasong?
Kangsadal: Yes, When I was in front of Intra Hotel the situation wasn’t so good
so I called my daughter. She is quite a stressful girl so I couldn’t just call and ask
her to come home so I went back home by myself and kept wondering what
would happen there? But my daughter came home just a while after I got home
and she told me that we should not go anymore because it was very dangerous
there. But I couldn’t bare not knowing anything so I took a motorcycle to the
protest area again in the evening.
Interviewer: When was that? What time?
Kangsadal: It was around 4 pm. I used Soi Morleng to get into the protest area
but the soldiers were blocking my way. So I tried using another road but they
blocked it as well so I waited there for a while until the situation got worse. I was
sure that they were going to start shooting and they laterally did because they
were sitting on the ground already.
Interviewer. Who sat on the ground?
Kangsadal: Soldiers where sitting on the ground and getting ready. There was
one woman, she went up to the soldiers and started to told them off for killing
people and blocking the ways. When I was this woman I was sure that things
would get more intense and the Soi or the road was very small. We were so near
to the soldiers, they were in front of the Soi
Interviewer: Soi Morleng?
Kangsadal: Not exactly, It was Rachaprarob 22. I went back to get my

motorcycle and drove back to Din Dang intersection. I was the only vehicle on
the road and it was scary. There were so many soldiers on the way to the
monument. I parked my motorcycle near Chai Samorapum monument there
were other vehicles parking at that area too.
Interviewer: So, it was near Century hotel?
Kangsadal: Yes, I was there and I was with the crowd confronting the soldiers
line.
Interviewer: What time was it?
Kangsadal: It was around 4-5 pm I saw on motorcycle trying to pass the soldiers
line but they did not let him on and the protesters were screaming at the soldiers.
Interview: They did not let him to go to which place?
Kangsadal: To the main stage area but I think he was trying to get home. I
believed his home is near to the protest area. And the soldiers tried to put the
fence up to blocked the area from one end to another end, across the street.
Around Rachaprarob soi 20-22 they did not anyone in anymore. Absolutely
noone. They were so well prepared, like they have been practicing all this before.
Interviewer: You were next to the police box right?
Kangsadal: I hided behind the box and I saw some of the soldiers were getting
ready and people were saying that they were going to shoot. They were going to
literally shoot! And then fire at the crowd.
Interviewer: To your direction?

Kangsadal: Yes, at us. I thought it was getting really bad so I tried not to stay
still I tried to move and when I got to the round corner near Century Hotel I
heard more gun shots and people were shouting. They are shooting, shooting!!
And I heard series of gun shots, very loud so I ran until the loud stop hearing
those shots and I try to help those who fell down because they got shot!
Interviewe: Were you helping or trying to escape the bullets?
Kangsadal: I tried to help because they fell down. I thought they started shooting
to warn us not to go near. But people fell down, things went very fast I was
trying to run and help the one who fell. As soon as we ran they fired.
Interviewer: Where were you heading?
Kangsadal: Ran up somewhere to find a place to hide.
Interviewer: To the building?
Kangsadal: Headed towards the monument.
Interviewer: Did you see many soldiers shooting at people?
Kangsadal: Yes, there were many of them and they blindly shooting at us. So we
had to run away from their direction.
Interviewer: How many of you?
Kangsadal: I did not remember but there were many of us as well.
Interviewer: Did you see the soldiers’ weapons
Kangsadal: They were carrying rifles, M16 I think.
Interviewer: Do you know what M16 look like?
Kangsadal: I am not sure But I knew they used live rounds and it was automatic
guns because I heard series of load gun shots many bangs in one go.
Interviewer: What did you do after you ran to the point where you found the
place to hide? When did you realize that you got shot as well?
Kangsadal: As soon as I started to run I knew there was something and people
where shouting, someone got shot!! But they did not stop shooting so we had to
run until we met the motorcycle and he took me to the hospital. To Rachaviti
hospital. More casualties kept coming into the hospital while I was there. The
bullet did not reach my bones it went through. Luckily it did not harm important
part.
Interviewers: You believed that you have been shot by one of the soldiers?
Kangsadal: Yes, because I saw them. They were firing at were I was. I they were
around 50 meters from Century hotel, near the intersection and the police box.
But before they start shooting I was quite close to where they were.
Interviewer: Did you know other people who got shot at that area?
Kangsadal: We got to know each other at the hospital but I did not ask for their
contact but I’m sure that hospital has.
Interviewer: Did you know their names?
Kangsadal: No, I did not ask at all. But one of them told me that both her
boyfriend and she was injured. Her boyfriend got shot and she was stepped on
by someone. Her boyfriend was at Rachavidhi hospital as well.
Interviewe: They were together? And was injured around the same time?
Kangsadal: Yes.
Interviewer: Khun Kangsadal’s report will be handed to the ICC and she might
be ask by the ICC for another interview, when they have investigated the
document and evidence. Would you cooperate with them again if they needed
more information?
Kangsadal: Yes
Interviewe: Thank you

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(Translation)
followed by M79 grenade. The second bomb dropped among us. They used laser for
targeting before shooting.
Question: Did this happen at Dindaeng?
Khun Prathak: No, at the opposite of Indra Hotel on [May] 14. When the laser aimed at
any thing, it would be instantly followed by a bomb. I was hit by the second bomb, at this
side of my back. I still keep an X-Ray film. I did not have any injection. The doctor told
me to stay for a while. I have not had an operation, just taking medicine as prescribed by
the doctor and having an injection.
Question: What injured you?
Khun Prathak: It probably was a small triangular fragment of M79. I still keep the X-
Ray film with myself.
Question: Was it shrapnel?
Khun Prathak: Yes, it is. I also appeared on ‘Spring News’ in that night, on TV. A
friend of mine called me immediately. I carried my mobile phone with myself at all
times. My blood flew out at all times. There were four injured persons. A foreigner was
injured at the base of his ear, and a boy was wounded at his neck. I took pictures of all
these four people. They could not come out from that area. I lied prostrate on that area
for more than half an hour. A staff of Indra Hotel tried to contact ‘Sirinthorn’, but they
could not enter the area. A red-shirt guard then contacted with the others to bring me out
by a motorcycle.
Question: How many injured people were there in such area?
Khun Prathak: Four people.
Questions: How long did it take?
Khun Prathak: About half an hour. Any car entering such area would be shot. They
tried to help me but they had to turn back because there was someone shooting from
above. Even an ambulance with a white flag could not enter. They shot from the
pedestrian bridge. We could not walk out of the area; otherwise, we would be shot. I
heard the gun fire at all times. Then, I was taken to the UDD protest area by a
motorcycle. After waiting for a while, I was taken into the basement of the Central World
building and then to the Police Hospital. I stayed at the hospital until morning. Many
people were injured and many were dead. My girlfriend was there as well. She waited
for me for half an hour.
Question: What time was it?
Khun Prathak: It was half past 8 p.m. I was injured at around 7 p.m. The ‘Spring
News’ also recorded a video.
Question: Do you have a videotape?
Khun Prathak: They shot video of me
2
(Translation)
Question: Did they give you a tape?
Khun Prathak: No, I would like to watch it as well. A friend of mine has all video clips.
Question: Oh, really? If possible, can we have the videotape?
Khun Prathak: I am not sure whether I can contact him, but Spring News certainly has
it. On [May] 14th, I wore this black shirt. Right now, the shirt still has a hole.
Question: Is this the shirt? The hole still remains in the shirt?
Khun Prathak: I had my brother patch it.
Question: Is this the incident of the day you were injured? Is there any other day?
Khun Prathak: After that, the wound became better, but I still join the protest.
Question: How long did you stay in the hospital?
Khun Prathak: Just one night because there were not enough beds. My injury was not
so serious. Many other cases were much more serious than mine. I left the hospital at
around 5 a.m. of 15th. I came back home for convalescing. Then, I went back to join at
Dindaeng again.
The Incident at Dindaeng, on 19th, around 2 p.m.
Question: When did you join the protest? On 15th, is it right?
Khun Prathak: Everyday, from 15th, 16th, 17th and 18th.
Question: Once you left from the hospital at around 5 a.m. of 15th, you then joined the
protest again in the evening, is it right?
Khun Prathak: Yes. I have a bullet proof vest. I am a police officer. Everyone
remembered me.
Around 2 p.m. of 19th, a woman who collected waste everyday was shot at a
police kiosk at Dindaeng intersection. She was shot in her head. I took her body out of
that area.
Question: Shot in the head?
Khun Prathak: That is right, down from a pedestrian bridge at a Soi near Shell petrol
station, Ratchaprarop. There was also a soldier at an apartment under construction.
Question: In ChivaThai Building, is it right?
3
(Translation)
Khun Prathak: Yes, he shot the woman who was carrying a white sack. He might
misunderstand. That woman was collecting garbage at the front of me. She was shot in
the head and fell down. I tried to take her body out of that area. No one dared to go out.
Then, a man riding a motorcycle to us and asked, “What happened?” I told him, “Don’t
go! Don’t go!” I looked at the woman through a telescope. She lied down without
moving. It was so sure that she was shot. We would like to take her out. That man
volunteered to take her out by waving a white-cross flag. Everyone took a picture of him.
I told him, “Can you please take the body of that woman out?” He said, “It’s alright, I’ll
help you. I am also a red shirt.” He was so brave. He carried a white flag among many
people. The soldiers were also standing above.
Question: Did they shoot you?
Khun Prathak: No, we had a white flag. I told him to move her body, but he told me,
“She is dead.” Her brain splattered on the ground. I told him to drag her body out of the
area and took her to Rajavithi Hospital.
Question: Was she dead?
Khun Prathak: Sure. She was a trash collector, died at around 1 p.m.
Question: At which point?
Khun Prathak: At a police kiosk, Dindaeng intersection. The police kiosk had been
burned, so she went into the damaged kiosk to collect waste.
Question: At the flyover, is that right?
Khun Prathak: That is right, at the front of the burned kiosk. She fell down instantly on
the road. She is quite slim and was shot in her head. She fell down with her plastic sack.
Question: Where did you take her to?
Khun Prathak: At Rajavithi Hospital. That is the police kiosk as I said. I explicitly saw
she died. We then took her body out of the area.
Question: Where was the shooter?
Khun Prathak: From a high position.
Question: ChivaThai Building?
Khun Prathak: I think so, from the high position.
Question: Sniper?
Khun Prathak: Yes. I saw two of them standing up there. I was lying prostrate at the
front of Century Park Hotel, and they kept firing.
Question: You were at the front of the Century Park Hotel, right?
4
(Translation)
Khun Prathak: Yes.
Question: While the trash collector was shot, where were you?
Khun Prathak: I was behind her. At the intersection, there was a large drain pipe. We
were all lying prostrate over there. She was shot and fell down instantly. Sorry, I cannot
remember whether it was on 18th or 19th.
Question: Was it on the date the rally was dispersed?
Khun Prathak: Before that date.
Question: On 19th, the situation was different, is that right?
Khun Prathak: On 18th and 19th, I still joined the rally.
As for the fire incident at the Center One Shopping Plaza, we did not set fire to it.
A soldier in a Soi adjacent to the Shopping Plaza shot at a transformer causing a blast.
Then, A fire broke out and spread through the Center One. We did not set fire. On that
day, there were five soldiers shooting at the transformer. When the transformer blasted,
we ran out of there.
Khun Prathak: A friend of mine, who is a soldier, must be responsible for cartridge
case. However, hundred thousands of cartridge cases were withdrawn and lost.
Question: They used a lot, is it right?
Khun Prathak: Yes, they shot all, whether hire motorcycle drivers or local people. A
corpse which had been at Shell petrol station for two days could not be taken out. If you
told these soldiers, who were standing on the sky train, to go to Saphan Kwai, they could
not get there. They look so young and some could not even speak Thai. They were
trained to shoot according to the instruction. They were instilled that the Red Shirts were
all bad.
Question: After the gunfire on that day, did you go back to that place again?
Khun Prathak: Yes, I did on 20th, but was driven off by the ‘Black Ear’ [Police Major
General Wichai Sungprapai], with a troop and a police team. I told them that they
imposed curfew at night-time, and during daytime they also drove us to go back home,
we could not go anywhere. My girlfriend also shouted at them. Then, four police
officers carrying machine guns came towards us. I scold them that carrying weapons was
prohibited, why they still carried the weapons. I also shouted at them to have them go
away.
Question: On 20th, did they allow anyone to enter the area?
Khun Prathak: No, they blockaded the road.
Question: Are you talking about the Victory Monument?
5
(Translation)
Khun Prathak: That is right.
Question: If we need a witness, would you please give evidence for us?
Khun Prathak: Sure I am pleased to do that. I love the Red Shirts.
The last question, what do you want from giving these statements?
Khun Prathak: Nothing. I want Khun Thaksin back to recover the economy and people
would make good livings.
End of Transcription
6
(Translation)
(22)
Court Proceedings Report For Court Use
(GARUDA)
Case Black No. Or.2542/2553
Case Red No. /25
Criminal Court
27 September 2010
Criminal Case
Public Prosecutor (Special Public Prosecutor Office,

Special Case Section 1) Plaintiff
Between
een
Mr. Veera Musikapong and his associates, totaling 19 Defendants
The judges started the proceedings at 9:40 hours (engaging in other case)
The hearing was scheduled to be held for meeting about the case, examination
of the 19 Defendants’ statements and evidence and scheduling the date of witness
examination. The public prosecutor as the Plaintiff; the 19 Defendants (except the 2nd
and the 8th Defendants who are proportional MPs of Group 6 and Area 5 in Bangkok
from Phue Thai Party respectively since the court granted permission as per the
petition dated 19 August 2010 to postpone the examination of witness statements until
the end of the legislative ordinary session which under the Royal Decree on
Summoning the Legislative Ordinary Session B.E. 2553 (2010), the session started on
1 August 2010); Mr. Prakasith Traiyasunan as the 1st Defendant’s lawyer; Mr. Suphap
Phetsri, Mr. Sommhai Koosap as the 2nd Defendant’s lawyers; Miss Patima Srito as
the proxy of Mr. Ongart Kamthong who acts as the 2nd, 3rd, 5th, 10th Defendants’
lawyer; Mr. Viyatti Chartmontri as the 2nd, 3rd, 7th, 9th, 10th Defendants’ lawyer; Mr.
Opat Soison as the 3rd Defendant’s lawyer; Mr. Peera Limcharoen, Mr. Sutham
Sawasdee, Mr. Chamroon Kaewchamnong, Mr. Chetsada Chandee as the 4th
Defendant’s lawyers; Mr. Kamnuan Chalopatham as the 5th Defendant’s lawyer; Mr.
1
(Translation)
Karom Pholtaklang as the 5th, 6th, 7th, 8th, 11th, 14th, 16th Defendants’ lawyer; Mr.
Thamrong Lakdan as the 6th Defendant’s lawyer; Mr. Suphawat Thaksin as the 9th
Defendant’s lawyer; Mr. Akom Rattanapojjanat as the 11th Defendant’s lawyer; Mr.
Jirasak Boonna as the 12th, 13th, 18th Defendants’ lawyer; Mr. Ketpanya Wongsilp as
the 12th, 18th Defendants’ lawyer; the proxy of Mr. Borphit Chamnanaue who acts as
the 14th Defendant’s lawyer; the proxy of Mr. Supacharaphoom Santaweesuk who
acts as the 15th Defendant’s lawyer; Mr. Surapon Boonsam as the 16th Defendant’s
lawyer; Mr. Surawut Prasithprasat as the 17th Defendant’s lawyer; Mr. Preeda
Nakpiew as the 19th Defendant’s lawyer; and Mr. Anon Namp as the 19th Defendant’s
lawyer appeared before court.
In regard to the 4th, 8th Defendants’ petition dated 18 August 2010, requesting
a preliminary hearing against the public prosecutor, the court was of the view that the
police officer as the inquiry officer conducted the inquiry before submitting to the
public prosecutor who is considered as the state lawyer under the first paragraph of
Section 165 of the Criminal Procedure Code. There is no ground requiring the court to
make the preliminary hearing before accepting the Plaintiff’s plaint for consideration.
Thus, the court dismissed the 4th, 8th Defendants’ petition.
With respect of the petition dated 6 September 2010, requesting the court to
issue an order of autopsy and appointment of physician and expert for the 2nd, 3rd, 5th,
7th, 8th, 9th, 10th, 11th, 14th, 16th Defendants and for Mrs. Supharat Thongpuai, Mr.
Bancherd Pongklinchan, Mrs. Sunantha Preechaveth, Mrs. Boonnam Tawieng as the
authorized person of Mrs. Sa-ngad Wattananukul, Mrs. Nuan Chaiman, Miss
Boontrika Tangphet, Miss Charoen Thaiklang as the authorized person of Mr.
Kittinan Saechong, Mr. Samran Wang-ngam and Miss Namthip Puangtoum, who are
called as the 1st – 9th Petitioners respectively (the 1st - 9th Petitioners did not appear
before court), the copy of which has been sent the Plaintiff and no objection is made,
the court was of the view that the power of attorney of Mrs. Sa-ngad, the 4th Petitioner
and of Mr. Kittinan, the 7th Petitioner did not empower Mrs. Boonnam and Miss
Charoen to appoint a lawyer. Thus, the 4th and the 7th Petitioners’ petitions are
illegitimate and because the compiler does not have the power. In addition, Mr.
Karom Pholtaklang is not the 9th Defendant’s lawyer; hence, the 9th Defendant’s
petition is also illegitimate. Under the fifth paragraph of Section 150 of the Criminal
Procedure Code, only the public prosecutor has the power to file a petition requesting
2
(Translation)
the court to make an inquiry and issue an order indicating who a deceased person iss,
where and when he/she died? and what the cause of death is? Therefore, the filing of
the petition for the same by the 2nd, 3rd, 5th, 7th, 8th, 10th, 11th, 14th, 16th Defendants and
the 1st - 9th Petitioners are thus illegitimate. The court dismissed their petition.
Miss Theeranee Musikchai, Mr. Suthirojn Kamoltantirojn, Mr. Viroj
Sintaweelert, Mr. Suchot Rimvilai, Miss Niparat Chaothong by Mr. Sutham Suayroop
as lawyer, Miss Chittri Chittriphan by Mr. Vichitboon Kaewthanasilp, Mr. Narongvit
Thongnet, Miss Rapeeporn Patpeerapong, Mr. Jool Wattanasupanon by Mr. Thanapha
Juiklang, Mr. Chanachai Chaipanya, Miss Chuenjit Poolpholanan by Mr.
Watcharakorn Donkotchan, Mr. Chayasak Juanchanphet, Mrs. Kannika Khunchai,
Mr. Panjanat Sornchai by Mr. Prakorb Kruamakam, Mr. Aphisith Judasri, Miss
Anchalee Srivanalak, Miss Chatchaporn Kanwongkit by Mr. Somchai Sukpeerakit
filed by the lawyer’s administration officer, Mrs. Nittaya Densuphakit, Mr. Songsak
Pornprityapong, Miss Kanchana Praditsatien, Mr. Manop Thangthamyingyong, Mrs.
Kampong Daengsri and Mrs. Yanada Muansonthong by Mr. Phailin Dolsuk, filed the
petition dated today claiming that they are damaging parties and requesting
participation as the Plaintiffs. The copy of the petition was sent to the Plaintiff and no
objection was made. The court thus permitted the said petitioners to participate in this
case as 1st – 23rd joint Plaintiffs respectively.
The 2nd, 9th Defendants and the proxy of Mr. Ongart who acts as the 10th
Defendant’s lawyer (in fact he is the lawyer of the 2nd, 3rd, 5th, 10th Defendants) filed
the petition for postponement of the hearing. The petition is dated today, the copy of
which was sent to the Plaintiff and no objection was made. The court issued an order
allowing the 2nd, 9th Defendants not to appear before court today until the end of the
legislative ordinary session, and the examination of the Plaintiff’s witnesses will be
conducted after the end of the said session. Furthermore, the 10th Defendant did not
have only Mr. Ongart as the lawyer, but Mr. Vinyat also the 10th Defendant’s lawyer
who appears before court today. Therefore, there is no ground to postpone the
hearing as per the said three petitions.
The 1st Defendant by Mr. Prakasith filed a petition requesting the Appeal
Court to cancel the restrictions which are set forth as the conditions of the bail bond
dated 30 July 2010. The copy of the petition was sent to the Plaintiff and no objection
was made. This petition will be soon submitted to the Appeal Court for consideration.
3
(Translation)
The plaint was read and explained to the 19 Defendants (except the 2nd, 9th
Defendants) and to their lawyers. The 1st - 3rd, 8th, 10th - 16th Defendants gave the
statements of denial as per the statements of the 1st, 15th Defendants dated 16 August
2010 and the statements of the 3rd, 6th – 8th, 10th - 19th Defendants dated today, the
copies of which were sent to the Plaintiff. All Defendants’ statements of denial were
accepted and examined.
After asking Mr. Suphap and Mr. Sommhai as the 2nd Defendant’s lawyers and
Mr. Suphawat as the 9th Defendant’s lawyer, they stated that the 2nd, 9th Defendants
would defend the case and give the statements of denial as the same as other
Defendants.
The court asked the party about the witnesses to be reviewed by the other
party and filed with the court.
The Plaintiff stated that he wishes to refer documentary evidence of four
boxes, 26 files in a total of 84 items as per the details in the second additional list of
the Plaintiff’s witnesses dated today. The 19 Defendants (except the 2nd, 9th
Defendants) and the 19 Defendants’ lawyers reviewed the said documents. The
Plaintiff filed them with the court and the court deemed as Exhibits Jor. 1 to Jor. 84.
The 1st Defendant stated that Witness Item Nos. 29 and 30 i.e. around 50
VCDs or DVDs as per the list of the Defendant’ witnesses dated 23 September 2010
have not been reviewed by the Plaintiff and filed with the court. The 1st Defendant
requested court permission to subsequently file the same.
Up until present, the 2nd Defendant has not filed the list of witnesses under
Section 173/1 of the Criminal Procedure Code. The court will wait until the
scheduled date of checking the readiness of witnesses.
The 3rd Defendant stated that Witness Item No. 271 as per the list of the 3rd
Defendant’s witnesses dated 17 September 2010 which the court deemed as Exhibit
Lor. 1, as well as Witness Item Nos. 39, 132, 137, 144, 175, 272 i.e. around 25 VCDs
have not been reviewed by the Plaintiff and filed with the court. The 3rd Defendant
requested permission to subsequently file the same.
The 4th Defendant stated that Witness Item Nos. 145-205 i.e. documentary
evidence and around 100 VCDs or DVDs as per the list of the 4th Defendant’s
witnesses dated today have not been reviewed by the Plaintiff and filed with the court.
The 4th Defendant requested permission to subsequently file the same.
4
(Translation)
The 5th Defendant’s lawyer has already filed Witness Item Nos. 34-93 i.e.
documents and a partial amount of VCDS as per the list of the 5th Defendant’s
witnesses dated 17 September 2010 with the court, but he took them back for
rechecking the completeness after reviewing the Plaintiff’s witnesses. The 5th
Defendant requested permission to subsequently file the same.
The 6th Defendant stated that Witness Item No. 223 as per the list of the 6th
Defendant’s witnesses dated 17 September 2010 which the court deemed as Exhibit
Lor. 2. The 6th Defendant requested permission to subsequently file Witness Item
Nos. 213-215 (VCDs or DVDs), Nos. 216-217 and No. 34 as per the first additional
list of the 6th Defendant’s witnesses dated today.
The 7th Defendant stated that Witness Item No. 272 as per the list of the 7th
Defendant’s witnesses dated 17 September 2010, Witness Item Nos. 32-35 as per the
first additional list of the 7th Defendant’s witnesses dated today; Witness Item Nos.
273-290, Nos. 294-301 (around 50 VCDs) as per the list of witnesses dated 17
September 2553; and Witness Item No. 30 as per the additional list of witnesses have
not been reviewed by the Plaintiff and filed with the court. The 7th Defendant
requested permission to subsequently file.
The 8th Defendant stated that Witness Item Nos. 201-279, Nos.282-286 as per
the list of the 8th Defendant’s witnesses dated 17 September 2553 have not been
reviewed by the Plaintiff and filed with the court. The 8th Defendant requested
permission to subsequently file the same.
Up until present, the 9th Defendant has not filed the list of witnesses under
Section 173/1 of the Criminal Procedure Code. The court will wait until the
scheduled date of checking the readiness of witnesses.
The 10th Defendant stated that Witness Item No. 273, Nos. 294-296 as per the
list of the 10th Defendant’s witnesses dated 17 September 2553 and those in the
additional list dated today; Witness Item Nos. 25-40, Nos. 43-45, No. 274 and Nos.
276-301 as per the first list of witnesses; and Witness Item Nos. 41-42 as per the
additional list of witnesses i.e. around 25-30 VCDS or DVDs have not been reviewed
by the Plaintiff and filed with the court. The 10th Defendant requested permission to
subsequently file the same.
The 11th Defendant stated that Witness Item No. 223 as per the first additional
list of the 11th Defendant’s witnesses dated 20 September 2553; and Witness Item
5
(Translation)
Nos. 224-242, Nos. 246-253 i.e. around 60 VCDs or DVDs have not been reviewed
by the Plaintiff and filed with the court. The 11th Defendant requested permission to
The 12th, 13th and 18th Defendants stated that Witness Item Nos. 33, 77, 35-39,
42-43, 45-47, 49-62 and 73 as per the list of the 12th, 13th and 18th Defendant’s
witnesses dated today which the court deemed as Exhibits Lor. 3 to Lor 31; and
Witness Item Nos. 40-41 i.e. two DVDs which the court deemed as Exhibits
WorLor.1 to WorLor.2 respectively have not been reviewed by the Plaintiff and filed
with the court.
The 14th Defendant stated that Witness Item Nos. 252, 272-274, 280, 283,
285-288, 290-297, 299, 300, 301, 303-305 as per the list of the 14th Defendant’s
witnesses dated 17 September 2553; and Witness Item No. 3 as per the additional list
of witnesses dated today have not been reviewed by the Plaintiff and filed with the
court. The 14th Defendant requested permission to subsequently file the same. In
addition, the witnesses in the form of VCD or DVD are the same set as the 16th
Defendant’s.
The 15th Defendant stated that Witness Item No. 28 as per the list of witnesses
dated 17 September 2010 has not been reviewed by the Plaintiff and filed with the
court. The 15th Defendant requested permission to subsequently file the same.
The 16th Defendant stated that Witness Item Nos. 20-50 as per the first
additional list of witnesses dated 21 September 2010 i.e. 200 newspapers, 100
magazines, 200 slides, around 300 CDs and around 200 DVDs have not been
reviewed by the Plaintiff and filed with the court. The 16th Defendant requested
permission to subsequently file the same.
The 17th Defendant stated that there is no documentary evidence and material
to be reviewed by the Plaintiff or filed with the court.
The 19th Defendant stated that Witness Item Nos. 45-52 as per the list of the
19th Defendant’s witnesses dated 17 September 2010 to be reviewed by the Plaintiff
and filed with the court are in the case file on detention – section 5 and the court
deemed all of them as Exhibit Lor. 32. In regard to Witness Item No. 44, the 19th
Defendant will check whether the Plaintiff referred the same as his witness, if not, the
19th Defendant will do so by requesting the court’s subpoena and permission to
6
(Translation)
All the documents and instruments of evidence shall be separately kept. The
said Defendants are permitted to subsequently file the documentary evidence and
instruments of evidence by 29 November 2010. Upon a lapse of the specified period,
it shall be deemed that the Defendants do not wish to refer them as witnesses nor
adduce them.
There is no fact accepted by both parties.
The Plaintiff wishes to adduce a total of 334 oral witnesses as per the list of
witnesses dated 17 September 2010 such as Witness Item Nos. 1-2 i.e. the
complainants; Witness Item Nos. 3-7 i.e. the officials from the National Security
Council, the Intelligence Unit of the Special Branch – Royal Thai Police, et al;
Witness Item Nos. 8-13 i.e. the people who are oral witnesses of the events as per the
plaint; Witness Item Nos. 14-27 i.e. the government officials who are witnesses of the
attack against the parliament as per the plaint; Witness Item Nos. 28-30 i.e. the
witnesses who accepted the investigation reports but not the oral witnesses of the
explosion at the 1st Infantry Regiment; and Witness Item Nos. 31-33 i.e. officers who
are oral witnesses of the attack against Thaicom Satellite Station, Lat Lum Kaew.
Due to the fact that up until now, the Plaintiff still has a lot of witnesses to
adduce, the court requires the Plaintiff to file a statement indicating details of the
witnesses to adduce at least two months before the scheduled date of hearing.
The 1st Defendant states that he wishes to adduce a total of eight oral witnesses
as per the list of witnesses dated 23 September 2010, consisting of Witness Item Nos.
1-19 i.e. the 1st Defendant who claims himself and the 2nd -19th Defendants as
witnesses; Witness Item No. 20 i.e. the oral witness of the demonstration at
Ratchaprason Intersection and the positioning of the military force by the
government; Witness Item No. 21 i.e. the Secretary to the Prime Minister who is in
charge of coordinating between the government and the demonstrators; Witness Item
No. 23 i.e. the 1st Defendant’s lawyer who was in the suppression of demonstration at
Sala Daeng because his office is located there; Witness Item No. 25 i.e. the journalist
of the military news line – conflict among soldiers; Witness Item No. 26 i.e. Prime
Minister; Witness Item No. 27 i.e. Deputy Prime Minister and Head of the Center for
the Resolution of Emergency Situation; and Witness Item No. 28 i.e. the Center for
the Resolution of Emergency Situation’s Spokesman.
7
(Translation)
In regard to the 12th, 13th, 18th Defendants’ witnesses, the list of their witnesses
dated today consists of Witness Item Nos. 1-3 i.e. the 12th, 13th, 18th Defendants who
claimed themselves as witnesses; Witness Item Nos. 4-10 i.e. female merchants who
are oral witnesses of the events at Phan Fah Lee Lat Bridge and Ratchaprasong
Intersection and saw that the 12th Defendant sold red shirts and foot-shaped clappers
in the said two areas. Furthermore, additional seven witnesses i.e. female merchants
at the places of the events are included in the list, totaling 15 witnesses because it is
not sure whether all the witnesses in the existing list can appear before court. The
direction of the case defense is no involvement in the demonstration.
The 13th Defendant’s witnesses are Witness Item No. 11 i.e. his wife who
rented the apartment room owned by Witness Item No. 12 in Pratunam area; Witness
Item No. 12 i.e. the apartment owner who has the lease agreement as evidence and
will testify that such two persons are husband and wife and actually rented his
apartment room. In this respect, the direction of case defense is that the 13th
Defendant is the husband without marriage registration observed the event but was
injured by stray bullets. Additional five female merchants who rented the rooms in
the same apartment will be included in the list, totaling 8 witnesses.
The 18th Defendant’s witnesses consist of Witness Item Nos. 14, 15 i.e. the
supervisors – one of them will be adduced together with an order; Witness Item Nos.
16-20 i.e. the colleagues who were assigned to perform the same work in the same
place; Witness Item No. 21 i.e. the beloved person who testified that the 18th
Defendant had met her during weekends at her home in Cha-am District, Petchaburi
Province; Witness Item No. 22 i.e. the older brother who testified that some weekends
the 18th Defendant went to his home in Chachengsao Province where he lives with his
mother; Witness Item No. 23-24 i.e. the editors of Thai Rat/Khaosod Newspapers
who testified about the news published; Witness Item Nos. 25-27 i.e. the television
program masters of ceremony - National Channel and Kom Chad Leuk who are oral
witnesses of the event at Bon Kai; Witness Item Nos. 28-30 i.e. news reporters who
worked in the place of event; Witness Item No. 29 i.e. the person who was shot;
Witness Item No. 31 i.e. the owner of tour agency which arranged the tour program to
China for Seh Deang not for a training of weapon application; Witness Item No. 32
i.e. Seh Deang’s daughter who testified that that the 12th, 13th, 18th Defendants are
members of Kattiya Party not his father’s subordinates, totaling 20 witnesses. The
8
(Translation)
direction of case defense is that at the time of event he worked with the witnesses per
Witness Item No. 16-20 pursuant to the order of Battalion 153 – Hua Hin and
sometime was in Yala Province.
In respect of the 17th Defendant’s witness, the list of witnesses dated today
consists of Witness Item No. 1 i.e. the 17th Defendant who claims himself as witness;
Witness Item No. 2 i.e. his wife who was pregnant for eight months at the time of the
event and rented the room of Ratchadamri Place located behind 16 October Memorial;
Witness Item No. 3-5 i.e. the village head, assist village head (Moo 2) and member of
the Tambon Administration Organization; Witness Item No. 6 i.e. older sister who
testified that the 17th Defendant sometimes lives in Pattaya District, Chonburi
Province, totaling six witnesses. The direction of the case defense is that the 17th
Defendant is a merchant of used articles and travels between Bangkok and Buriram
Provinces.
This was at 15.30 hours, the 3rd, 4th, 5th, 6th, 7th, 8th, 10th, 11th, 14th, 15th, 16th
Defendants are required to prepare the statement indicating the number of witnesses
to be adduced and relation of the witnesses to be adduced for submission to the court
within two months from today. Upon a lapse of the specified period, it shall be
deemed that the Defendants do not wish to adduce such witnesses.
For the 2nd, 9th Defendants, the hearing for examining their statements is
scheduled to be held on 17 January 2011 at 9:0 hours The 2nd, 9th Defendants’ lawyers
shall file the lists of the 2nd, 9th Defendants’ witnesses, the petition showing details of
the relation of the witnesses to be adduced, and the document evidence or instrument
of evidence (if any) with the court by 17 January 2011. Upon a lapse of the specified
period, it shall be deemed that the Defendants do not wish to adduce such witnesses.
In connection with the witnesses to be adduced, the court reminds the parties
that the principle for referring oral witnesses of the Defendants should be based on the
fact that such witnesses will appear before court as the Defendants’ witnesses or
middleman witnesses whose testimonies will at least be in favor of the party referring
them as witnesses. In addition, they should not testify in the negative way nor testify
that they cannot remember or do not have involvement in any issue which will benefit
the Defendants’ direction of the case defend. The court may consider that such
circumstance is the impediment of the case proceedings or dishonest conduct of the
case with the intent to make nuisance and use the court as a tool to call the witness to
9
(Translation)
give testimonies even though their testimonies are not favorable or beneficial to the
Defendants such as Witness Item Nos. 26-28 of the 1st Defendant; Witness Item Nos.
140-143, 147-148, 164-173, 176-177, 189 (Mr. Saravuth Benjakul), 195, 198, 230,
204, 219, 222, 224, 245, 247-250, 261, 267-268, 270 of the 3rd Defendant; and the
same witnesses or the witnesses of the aforesaid nature all remaining Defendants,
who are not academicians (middleman witnesses) but the witnesses of the
government, military officers or military officers who performed the duties at the time
of the event who are in the opposite side of or have different opinion from the 19
Defendants as per the allegations in the plaint. The said witnesses may not appear
before court as witnesses of the 19 Defendants and their testimonies will actually not
be favorable to the case or the 19 Defendants’ direction of the case defense. If
wishing to ask for the discretion of officials, the document showing the reason for
exercising such discretion exists. With respect to the directors of the hospital such as
Central Hospital, Vachira Hospital, Ramthibordi Hospital, Hua Chiew Hospital,
Siriraj Hospital, Ratchavithi Hospital, Police General Hospital, Bhumiphol Hospital,
Lerdsin Hospital, Taksin Hospital, Charoenkrung Pracharak Hospital, Mission
Hospital, Somdej Pra Pinklao Hospital, the court is of the view that they are not the
physicians who had directly provided treatment to the patients so the court does not
permit to refer them as witnesses and will not call them to testify as requested.
Since the joint Plaintiffs’ lawyer prepared only one copy of the document and
the Plaintiff has received the same. An additional copy shall be give to each of the 19
Defendants within 30 days from today. Upon a lapse of the specified period, it shall
be deemed that they do not wish to participate as the joint Plaintiffs.
The court allows Mr. Akom, the 11th Defendant’s lawyer; Mr. Surapon, the
16th Defendant’s lawyer who engage in conducting the case at Southern Bangkok
Criminal Court; and Mr. Anon, the 19th Defendant’s lawyer who engages in
conducting the case at Talingchan Provincial Court to leave the court before 12.00
hours without signing this court proceeding report, but it shall be deemed that they
have duly acknowledged the order in this report.
The hearing shall be postponed to be held on 27 December 2010 at 9:00 hours.
The court urges that in this case, the Defendants have a lot of lawyers as listed
below:
10
(Translation)
Defendant Number of Lawyer(s)

1 3
2 3
3 3
4 4
5 4
6 1
7 2
8 1
9 2
10 2
11 2
12 1
13 1
14 2
15 1
16 2
17 1
18 2
19 3
The court urges that it will not consider a difficulty of the lawyer and will be
deemed as the impediment of the case proceedings.
Due to the fact that a lot of people who do not involve in the case are in the
court room, the seats are not sufficient. The next hearing will determine the number
of witnesses, the number of hearings so the Defendants are not required to appear
before court, but the Defendant’s lawyers shall appear before court. Additionally, the
court orders that any persons who do not involve in the case cannot access to the court
room so as to avoid any disorder/read.
-Signature- -Signature-
(Miss Suchitra Potaya) Recorded/Read (Mr. Somkiat Kaewmalee)
11
(Translation)
-Signature- Plaintiff 1st Defendant

(a hearing in absentia is 2nd Defendant 3rd Defendant
permitted)
4th Defendant 5th Defendant
6th Defendant (a hearing in absentia is 7th Defendant
permitted)
th
8 Defendant 9th Defendant
1st Defendant’s 2nd Defendant’s
Lawyer Lawyer
Proxy of Mr. Ongart Kamthong, the 2 , 3 , 5th, 10th Defendant’s
nd rd
Lawyer
2nd, 3rd, 7th, 9th, 10th Defendants’ Lawyer
3rd Defendant’s -Signature- 4th Defendant’s
Lawyer Lawyer
th
5 Defendant’s Lawyer
5th, 6th, 7th, 8th, 11th, 14th, 16th Defendants’ Lawyer
6th Defendant’s 9th Defendant’s
Lawyer Lawyer
th
(allowed to leave early 11 Defendant’s Lawyer
without affixing signature)
12th, 13th, 14th Defendants’ Lawyer
12th, 18th Defendants’ Lawyer
Proxy of Mr. Borphit Chamnanaue, the 4th Defendant’s Lawyer
Proxy of Mr. Suphat Phoomsansuk, the 15th Defendant’s Lawyer
(allowed to leave early 16th Defendant’s 17th Defendant’s
without affixing signature) Lawyer Lawyer
th
(allowed to leave early 19 Defendant’s
without affixing signature) Lawyer
12
(Translation)
After reading the court proceedings report at around 17.00 hours, the court room
officer informed verbally and prepared a report of officers in writing which is dated
the same date and submitted today.
The declaration on the reason why the persons required to affix signatures failed
to affix their signatures is recorded at the end of this court proceedings report in place
of affixing their signatures under Section 50(2) of the Civil Procedure Code in
conjunction with Section 15 of the Criminal Procedure Code.
-Signature- -Signature-
(Mr. Somkiat Kaewmalee) (Miss Suchitra Potaya)
13

Red Shirts Application To The International Criminal Court To Investigate Crimes Against Humanity in Thailand

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Red Shirts Application To The International Criminal Court To Investigate Crimes Against Humanity in Thailand

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APPLICATION TO INVESTIGATE THE SITUATION OF

THE KINGDOM OF THAILAND

AMSTERDAM & PEROFF LLP

THE NATIONAL UNITED FRONT FOR DEMOCRACY AGAINST DICTATORSHIP

THE KINGDOM OF THAILAND

AMSTERDAM & PEROFF LLP

This Application is submitted to the Prosecutor of the International Criminal

The Application contains evidence sufficient to demonstrate that a substantial basis

The evidence presented in this Application includes a compilation of information

• Contrary to popular belief, the Army’s initial suppression operation on April

• At approximately 19:45 hours, two explosions near Democracy Monument

• After the military operations on Rachadamnoen Avenue on April 10

1. The use of highly trained military snipers to shoot unarmed

2. The intentional, indiscriminate discharge of military weapons, including

3. The intentional detonation of multiple military-grade explosive devices

This Application also includes as evidence a compilation of information provided

• Other DSI investigators are doing nothing substantive to advance their

2. Road to the 2006 Coup 7

3. The Bangkok Massacres 15

4. Crimes against Humanity 75

5. Jurisdiction of the ICC 107

7. Relief Sought 141

At least fifty-five more people died in suppression operations around Ratchaprasong

(i) The situation can be brought within the jurisdictional ambit of

(ii) At least with regard to Prime Minister Abhisit Vejjajiva — who

(iii) The situation gives rise to international crimes within the

(iv) The political and military leadership of Thailand is deemed

This updated report addresses the jurisdictional basis to launch an investigation

THE RISE OF THAKSIN SHINAWATRA

THE 2006 COUP

NEW CONSTITUTIONAL ORDER

1. “Announcement on the Appointment of the Leader of the Council for Democratic

On September 9, 2008, the Constitutional Court forced Prime Minister Samak to

OFFICIAL POLICY TO ERADICATE THE RED SHIRT MOVEMENT

Almost immediately after the 2006 coup that deposed former

In addition to military force, one of the central strategies of

The military leadership responsible for this policy included

The Statement of Anonymous Witness No. 22 describes the preparations and

Because of its historic political significance, the area of

All of the roads in the vicinity of Rachadamnoen Avenue were

In addition to the training activities at the Eleventh Regiment

The Army leadership began to examine and study the history of

3. Statement of Anonymous Witness No. 22, at ¶¶ 8-12.

3.1 ABHISIT’S ASSAULT ON DEMOCRACY

Chiranuch Premchaiporn, the web manager of independent publication Prachatai,

3.2 THE SONGKRAN UPRISING, 2009

2. Freedom House, “Freedom in the World, 2010 Edition,” http://www.freedomhouse.

In response to these demonstrations, the Royal Thai Army’s Second

At approximately midnight on April 12, The Army withdrew troops

General Walit was given four basic orders in connection with

Additionally, General Prem Tinsulanonda ordered General Prayuth

General Prayuth assigned Colonel Romklao Thuwatham to lead the

3.3 THE 2010 MASSACRES

The Statement of Anonymous Witness No. 22 describes the strategy as follows:

5. Statement of Anonymous Witness No. 22, at ¶¶ 13-21.

An Army Task Force was established — under the command of

On March 8, 2010, Nattawut Saikua — a well-known Red Shirt leader — issued

On about March 8, 2010, Prime Minister Abhisit moved his

The Army Leadership and the Government Leadership determined

6. Statement of Anonymous Witness No. 22, at ¶¶ 22-23.

The specific objectives of the operation were to terrorize the

7. Statement of Anonymous Witness No. 22, at ¶ 27-30.

Nevertheless, on April 7, Abhisit declared State of Emergency for Bangkok as well as