12 burning spirit house

Much has been written about two amnesty bills tabled by Deputy Prime Minister Chalerm Yubamrung and by Samut Prakan MP Worachai Hema. The Chalerm bill would reportedly offer a blanket amnesty to those involved in political unrest, from the 2006 military coup to the 2010 crackdown on the red shirts, including State authorities responsible for the crackdown on protesters. On the other hand, the Worachai bill would offer amnesty to people being investigated for, or convicted of, crimes related to political violence. However, it would not cover protest leaders or those who ordered the use of force to quell the protests.

While many have discussed about the expressed or hidden aims behind both bills, not much analysis has been done from an international human rights law perspective. In this regard, the current political scenario should not eclipse what is at stake: the passing of an amnesty that could lead to the removal of criminal liability for perpetrators of gross violations of human rights.

In the first place, amnesties do have a place under international law. The legality of an amnesty depends on the crime for which the amnesty is being granted. In Thailand people were charged and prosecuted for defying an emergency decree during political protests. There have been discussions to grant amnesty to such rally goers. However, the stronger tendency is for political leaders to attempt to shield themselves against the possibility of future prosecutions.

The factual evidence collected by the Truth for Reconciliation Commission for Thailand (TRCT), and other reports from international NGOs, suggest that the excessive use of force by the military led to the deaths of unarmed demonstrators during the 2010 political violence. Criminal courts have already concluded that the military was responsible for the killing of civilians.

Key human rights provisions, such as the right not to be arbitrarily deprived of life, remain in force even in times of public emergency that threatens the life of the nation. The killing of unarmed civilians by law enforcement officials would amount to extrajudicial, summary or arbitrary executions, which is considered a gross violation of human rights under international law.

On the other hand, the State’s failure to adequately investigate and prosecute patterns of killings carried out by private individuals during the 2010 political violence would also amount to extrajudicial, summary or arbitrary executions. The reason being that they would imply an acquiescence of the State with the killings committed.

In both scenarios we are talking about the perpetration of gross violations of human rights. And what does international law say concerning the granting of amnesties for gross violations of human rights?

Mainly that amnesties are not permissible on the grounds that victims have a right to an effective remedy and States have a duty to investigate, prosecute and punish perpetrators of gross violations of human rights.

The right to an effective remedy is recognized under the International Covenant on Civil and Political Rights (ICCPR), to which Thailand is a State party. Article 2.3 compels State parties to ensure that, in case of violation of the rights enshrined in the Covenant, individuals have accessible and effective remedies to vindicate these rights. The United Nations Human Rights Committee, that monitors the implementation of the ICCPR, has stated that in case of serious violations of human rights, particularly concerning the right to life, disciplinary and administrative actions do not constitute an effective remedy within the meaning of the article 2.3. Confronted with such violations, the right to an effective remedy entails recourse to criminal proceedings.

However, according to the Human Rights Committee, the ICCPR does not provide private individuals with the right to force the State to prosecute another person, leaving the decision of whether or not to prosecute to the State. On the basis of this reasoning, some have played down the reach of the right to an effective remedy arguing that its primary function would be to ensure the right of victims of human rights violations to compensation rather than to prosecution.

But the Human Rights Committee has also made it clear that the decision of whether or not to prosecute has to be made after State parties take effective steps to thoroughly investigate human rights violations and, where there is evidence, the duty to prosecute those deemed responsible for such violations arises. Hence, the right of the victim to an effective remedy does carry an obligation for the State to investigate and to prosecute.

Notwithstanding this debate, there is an indisputable move at the international level towards closing the gaps that would allow perpetrators of gross human rights violations to get off scot-free. For example, the United Nations (UN) updated its policy Set of Principles to combat impunity in 2005, expanding the prohibition to grant amnesty to perpetrators of gross violations of human rights. Another important document, the Basic Principles and Guidelines on the Right to a Remedy and Reparation, adopted by the UN General Assembly in 2006, provides that in case of gross violations of human rights States have the duty to investigate and, if there is sufficient evidence, the duty to prosecute and, if found guilty, the duty to punish the perpetrators. The UN policy on amnesties is built upon the realization that justice and peace are not contradictory but that properly pursued, they promote and sustain each other.

Back to Thailand, the TRCT noted in its final report that those who violated the law must be held legally accountable and that the Government must address violations of law by all parties through the justice system. The TRCT further stated that rushing the granting of an amnesty to perpetrators would have a negative impact on the reconciliation atmosphere. Most importantly, it called for the collaboration, especially from the victims, as they will be directly affected by an amnesty.

Relatives of victims killed during the 2010 political violence have raised their voices to oppose the two amnesty bills. They opposed the Chalerm bill because it would benefit all involved in the unrest, including the military, but disregard the dead victims. They also opposed the Worachai bill, as it absolves the soldiers who fired at the people. Alternatively victims proposed to free ordinary people convicted of political offenses committed during the 2010 unrest from jail, excluding protest leaders, those who ordered the use of force and soldiers who carried them out. This proposal appears fairly in line with international law and the United Nations policy on amnesties.

Once the Parliament reconvenes in August and starts discussing the bills it should make sure that any proposed amnesty explicitly excludes those who committed gross violations of human rights. MPs might need to recognize that Thailand’s international obligations are at stake, in addition to those to victims at home.

Carlos Fernandez Torne is a PhD candidate at the Universitat Aut├▓noma de Barcelona