By Katherine Iliopoulos
The political conflict in Thailand that has been raging since March 14, 2010 between the United Front of Democracy against Dictatorship (UDD) known as the ‘Red Shirts’ and the government of Prime Minister Abhisit Vejjajiva has led to violence and possible human rights abuses. At least 85 have been killed and 1,898 injured according to the Public Health Ministry, and violence has spread beyond the capital Bangkok.
Although the government has used military force against the protestors and hostilities in have been continuing for some time, the violence is unlikely to be classified as an ‘armed conflict’ for the purposes of international humanitarian law. However Thailand remains bound by a number of international human rights obligations.
Common Article 3 to the 1949 Geneva Conventions and Article 1 of 1977 Additional Protocol II to the 1949 Geneva Conventions apply to non-international armed conflicts, or conflicts taking place within the territory of a single state. According to the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the Tadic case, two conditions must be met for an outbreak of violence inside a country to rise to the level of a non-international armed conflict. Non-state armed groups must carry out protracted hostilities, and these groups must be organised. However there is no settled definition of “armed conflict” in international law.
Any definition of “armed conflict” would turn on the distinction between internal disturbances or insurrections – such as that occurring presently in Thailand – and internal armed conflicts. The former are governed by domestic law – and moderated by international human rights law – and the latter are governed by international humanitarian law.
The Rome Statute of the International Criminal Court (ICC) codifies the ICRC Commentary’s view that internal “armed conflicts” within the meaning of Common Article 3 do not include “situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence.” However, the political violence in Thailand could not realistically be classified as a riot, nor is it isolated or sporadic. A much clearer elaboration of the distinction between an internal disturbance and an armed conflict was provided in the Limaj case at the ICTY in November 2005.
First, the hostilities must reach a minimum level of intensity. This may be the case, for example, when the hostilities are of a collective character or when the government is obliged to use military force against the insurgents, instead of mere police forces. Secondly, non-governmental groups involved in the conflict must be considered as “parties to the conflict,” meaning that they possess organised armed forces. This means for example that these forces have to be under a certain command structure and have the capacity to sustain military operations.
In this case, the Red Shirts protesters do not appear to be an organised armed group, in fact, the UDD is a non-violent movement. Bloody street fighting has occurred however in the past weeks, between government security forces and heavily armed anti-government militants mixed in among non-violent protesters. There is no evidence however that there is a command structure nor any form of military organisation in the UDD.
Although not a criterion for the application of Common Article 3, control of a part of the territory by a non-state armed group would constitute strong evidence in favour of its application.
The situation in Thailand, and more specifically Bangkok, could be best described as a state of turmoil or “internal unrest” where fundamental human rights are being violated.
Violence peaked on 10 April, when the government’s attempt to forcibly disperse anti-government protests organized by the (UDD) and supported by former prime minister Thaksin Shinawatra escalated into a street battle in the capital. According to the Erawan Emergency Medical Center, 15 civilians and 5 soldiers were killed by gunshots, explosions from grenades and improvised explosive devices and beatings. At least 569 civilians, 265 soldiers, and 8 police officers were injured from teargas inhalation, assaults, and gunshot and shrapnel wounds.
The protestors were successfully dispersed last week in a bloody military crackdown during which the army shot at them, used armoured vehicles to destroy their bamboo-and-tire barricades and forced them to retreat from the city centre. All these allegations could give rise to violations of the right to life and personal security and the right to freedom of peaceful assembly.
Along with Libya and twelve other countries, Thailand was elected to the United Nations Human Rights Council (HRC) on 13 May, as the Royal Thai Army was shooting and killing people in Bangkok amid continuing political turmoil.
In 2005, the HRC criticised Thailand’s Emergency Decree, which was originally declared by the government of former Prime Minister Thaksin Shinawatra. Section 17 of the Emergency Decree breaches Thailand’s international obligations, including those under the International Covenant on Civil and Political Rights (in particular, Article 4) to investigate all such violations regardless of circumstances, and to hold perpetrators to account. From its Concluding Observations in its report of 8 July, 2005, the HRC stated that “Section 17 provides for officials enforcing the state of emergency to be exempt from legal and disciplinary actions, thus exacerbating the problem of impunity. Detention without external safeguards beyond 48 hours should be prohibited.” Human Rights Watch (HRW) recently expressed alarm at reports that the Emergency Decree is being used to hold persons in unofficial places of detention – such as military camps instead of police stations and jails – and without access to legal advice or family members.
The application of martial law since January 2004 has granted greater powers to Thai security forces in the region. According to human rights groups, this law enables the central government to ban any types of political gatherings and to censor the media. The powers extend to the detention of individuals without charge, which is a violation of procedural fairness and freedom from arbitrary arrest. According to HRW, Thai authorities have also used emergency powers to shut down hundreds of websites, a satellite television station, online television channels, and community radio stations, most of which are considered closely aligned with the UDD. It said that this sweeping clampdown on the media violated Thailand’s obligations to respect the freedom of the media and the freedom of expression.
There have also been reports that UDD members have used children as ‘human shields’ and have targeted journalists.
While there is evidence to suggest that both sides were involved in acts of violence and brutality, only the government of Thailand could be charged with violations of international human rights law, particularly the International Covenant on Civil and Political Rights (ICCPR), while some anti-government protestors could be charged with crimes under national law. This would form part of the government’s responsibility to punish breaches of human rights. This is the case because so far, the assumption has been that it is states – governments and their officials – that have primary responsibility both for protecting human rights and for ensuring that human rights are not infringed, either by state agents or by third parties.
As a fundamental component of his five-point “road map” for national reconciliation, Prime Minister Vejjajiva publicly endorsed an independent fact-finding investigation into fatal incidents involving security forces and protesters. However in the past, political and military leaders have passed decrees and laws to pardon individuals after political violence instead of ensuring accountability. HRW emphasised that any investigation should address abuses by both sides, particularly incidents in which people were killed or wounded.
Thai society is deeply divided between the urban elite and rural poor, with most of the Red Shirts from the north and impoverished north-east. The protesters are pushing for the devolution of economic and political power to average Thais. No resolution has been reached between the parties on the future of Thaksin Shinawatra, the populist former prime minister who was deposed in a 2006 coup d’état and later charged with corruption. He now faces charges of terrorism – for allegedly fomenting the violence – and has apparently found sanctuary in Montenegro, which has refused to extradite or try him without proof or an international arrest warrant. The next general election in Thailand is scheduled to take place in 2011.
Katherine Iliopoulos is an international lawyer based in The Hague, Netherlands.
Thailand: Conduct Independent Inquiry into Political Violence
Human Rights Watch
25 May, 2010
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