ทั้งนี้ เว็บไซท์ของ นายโรเบิร์ต อัมสเตอร์ดัม ได้เผยแพร่เนื้อหาดังต่อไปนี้
Thailand’s Minister of Foreign Affairs, Surapong Tovichakchaikul is to meet with the chief prosecutor of the International Criminal Court (ICC), Fatou Bensouda, today to discuss the possibility of opening an investigation into the protests of April-May 2010.
Below are answers to frequently asked questions about the
possibility of Thailand extending jurisdiction to the ICC.
Frequently
Asked Questions:
Question: What is the ICC and why is the prosecutor in Thailand?
Answer:
The ICC is located in The Hague. The ICC is established by a treaty known as
the Rome Statute of the ICC. One hundred twenty-one countries have joined the
treaty. Thailand has signed, but not ratified the Rome Statute. Thailand is
therefore not a party to the treaty.
UDD
lawyer Robert Amsterdam filed an application with the Prosecutor of the ICC on
January 30 2011, requesting a preliminary investigation into the protests that
occurred in Thailand between April-May 2010, where 98 civilians were killed and
2,000 others injured by the Royal Thai Army.
The
application alleges that crimes against humanity were committed against
civilian protesters. Although the ICC has jurisdiction over genocide, war
crimes and crimes against humanity, only crimes against humanity are alleged in
the application relating to Thailand. There is no basis to allege genocide or
war crimes.
Question: Since Thailand is not a party to the ICC treaty, how
could the ICC investigate alleged crimes against humanity in Thailand?
Answer:
In this case, the ICC’s jurisdiction can be established in two ways:
First,
the ICC can exercise its jurisdiction ratione personae over Prime Minister
Abhisit Vejjajiva, under Article 12. 2(b) of the Rome Statute, as he is a
citizen of the United Kingdom, which is a state party to the ICC.
Second,
Article 12.3 allows a State not party to the treaty, such as Thailand, to
accept ICC jurisdiction over a particular situation on an ad hoc basis, by
depositing a Declaration with the ICC. The Thai Government is currently
considering whether to make a Declaration accepting ICC jurisdiction over the
crimes against humanity allegedly committed in 2010.
Question: Would such a Declaration accuse anyone of committing a
crime?
Answer:
No. It would merely permit the ICC to consider whether crimes against humanity
were committed by any person or by any party on or after January 1, 2010.
Question: Would such a Declaration turn over responsibility for
investigating crimes against humanity to the ICC?
Answer:
No. Thailand would continue to have primary responsibility to investigate and,
if appropriate, to prosecute any crimes against humanity. The ICC could
investigate or prosecute only if Thai authorities are unable or unwilling to do
so.
Question: Then why accept ICC jurisdiction over the alleged crimes
against humanity?
Answer:
The Declaration would enable the ICC Prosecutor to open a Preliminary
Examination. In such an Examination she could engage in a process of dialogue
with Thai authorities over the progress of investigations and prosecutions in
Thailand. If she concludes that justice is not being done in Thailand, she
could act.
Question: Could she then investigate and prosecute the alleged
crimes against humanity?
Answer:
She could open a full investigation only if two conditions are met.
First,
she would have to notify Thailand of her intention to open a full
investigation. Thailand would then have one month to respond. Thailand could
choose to accept her investigation. Alternatively, Thailand could object and
assert the right of Thai authorities to investigate the case instead. The ICC
Prosecutor could not then open a full investigation, unless she obtains
permission from three ICC judges. She would have to prove to them that the Thai
investigation does not genuinely pursue justice. Thailand would have an opportunity
to be heard before the three judges and to present its objection. If the judges
ruled in favor of the ICC Prosecutor, Thailand could appeal to a panel of five
ICC appeals judges.
Second,
even if Thailand has no objection, the ICC Prosecutor could not open a full
investigation unless she first obtained approval from a panel of three ICC
judges. Without such approval, she could open only a Preliminary Examination.
In
sum, a Government Declaration under Article 12.3 would merely open the door to
a process of ongoing dialogue between Thailand and the ICC. It would be only a
beginning, not an end.
Question: What is a Preliminary Examination?
Answer:
A Preliminary Examination is a first step, designed to determine whether the
ICC Prosecutor should ask the ICC judges for permission to open a full
investigation. In a Preliminary Examination the ICC Prosecutor could consider
the progress of investigations and prosecutions in Thailand. She could also
conduct a limited inquiry into whether crimes against humanity were committed.
A Preliminary Examination would not interfere with criminal investigations or
prosecutions in Thailand. The Thai proceedings could go forward at the same
time.
Question: If the Thai Government makes a Declaration accepting ICC
jurisdiction, will the Prosecutor open a Preliminary Examination?
Answer:
That will be her decision. However, if Thailand accepts ICC jurisdiction, we
understand that she will open a Preliminary Examination into the crimes against
humanity allegedly committed in 2010.
Question: What could the ICC Prosecutor do in a Preliminary
Examination?
Answer:
She could analyze information voluntarily sent to her. She could also seek
additional information, on a voluntary basis, from the Thai Government or other
governments, from the United Nations, and from non-governmental or
inter-governmental organizations. In addition, she could receive testimony
offered on a voluntary basis in The Hague. Based on all this information, she
could determine whether there is a reasonable basis to open a full
investigation.
Question: What could she not do in a Preliminary Examination?
Answer:
In a Preliminary Examination, the ICC Prosecutor could not require the Thai
Government to make witnesses available. Nor could she interview witnesses or
conduct investigations in Thailand. If she believes those further steps are
needed, she would have to notify Thailand and request permission from the ICC
judges to open a full investigation, in the manner described above.
Question: How long could a Preliminary Examination take?
Answer:
There is no precise time limit. It could take months. If the ICC Prosecutor
decides to allow Thai criminal proceedings to run their course, it could take
years.
Question: Is it possible that the ICC Prosecutor might never seek
to open a full investigation?
Answer:
Yes. If justice is genuinely pursued in Thailand, there will be no need for the
ICC Prosecutor ever to open a full investigation.
Question: If she eventually opens a full investigation, and she
concludes that someone committed a crime against humanity, can she bring
criminal charges against that person?
Answer:
No, not on her own. She would first have to obtain the approval of three ICC
judges. Both the accused person and the Thai Government would have an
opportunity to be heard and to object to any charges. If the three judges ruled
against their objections, they could appeal to five ICC appeals judges.
Question: If the ICC judges allow the Prosecutor to bring charges,
could she order the arrest of the person?
Answer:
No. Only the ICC judges can order the arrest of an accused person.
Question: If the ICC judges issue an arrest warrant, would Thailand
be required to arrest and turn over the accused person to the ICC?
Answer:
Yes, subject to judicial approval. By making the Declaration accepting ICC
jurisdiction over the alleged crimes against humanity, Thailand would agree to
cooperate with the ICC. However, any arrested person would have the right to
challenge the legality of his arrest, first before Thai courts, and then again,
if he is transferred to The Hague, before the ICC judges.
Question: Would a trial before the ICC be fair?
Answer:
Yes. ICC judges are independent experts in criminal law and international law,
elected by the governments of the more than 120 States Parties to the ICC. An
accused person is entitled to be defended by a lawyer of his choice before the
ICC and to have all the fair trial rights recognized by international law. All
accused persons are presumed innocent. They cannot be convicted unless they are
proved guilty beyond a reasonable doubt. If convicted, the accused has the
right to appeal to a panel of five ICC appeals judges.
Question: Does the Thai Government require royal or parliamentary
approval in order to make a Declaration accepting ICC jurisdiction over the
alleged crimes against humanity in 2010?
Answer:
No. Under Section 190 of the 2007 Thai Constitution, royal approval is required
for all treaties, and parliamentary approval is required for certain treaties.
However, a Declaration by the Thai Government, accepting ICC jurisdiction on an
ad hoc basis under Article 12.3 of the Rome Statute, is not a treaty. By
definition, a treaty involves a bilateral or multilateral agreement between Thailand
and another party or parties. A treaty becomes legally effective only after at
least two parties agree to accept it as legally binding.
In
contrast, a Declaration under Article 12.3 is a unilateral act by Thailand. The
Declaration is legally effective as soon as Thailand deposits it with the ICC.
No agreement by the ICC is needed to make it legally effective. The Declaration
is not an agreement, but a sovereign act by Thailand. Because it is not a
treaty, it is not subject to Section 190 of the 2007 Thai Constitution, and
does not require royal or parliamentary approval.
Question: Would a Declaration under Article 12.3 require any
changes to Thai law?
Answer:
Not at this stage, and perhaps never. The Government can make an Article 12.3
Declaration with no new legislation. If the ICC Prosecutor decides to open a
Preliminary Examination, as we believe she will, no new legislation would be
required at that stage. Only if a full ICC investigation is eventually opened –
at least months and possibly years from now – might amendments to current Thai
law be required.
Question: Could ICC jurisdiction pose any risk to the King?
Answer: No. There is absolutely no prospect of any ICC
proceeding against the King.
ที่มา
http://robertamsterdam.com/thailand/2012/11/01/understanding-the-icc-application-faq/
ที่มา
http://robertamsterdam.com/thailand/2012/11/01/understanding-the-icc-application-faq/
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