Mark of the Beast: Branding Opposition as "Terrorism" in Thailand

MARK OF THE BEAST B R A N D I N G O P P O S I T I O N A S “ T E R R O R I S M ” I N T H A I L A N D

AMSTERDAM & PEROFF LLP

T H A I L A N D 2 0 1 1 G E N E R A L E L E C T I O N R E P O R T S E R I E S , N O . 4

One year ago, the Royal Thai Government massacred al-

most ninety people to avoid an early election it feared it

might lose. Finally, the early general elections for which

dozens of Red Shirts gave their lives are scheduled to take

place on July 3, 2011. While it is hoped that the elections

will be free of outright fraud and ballot stuffing, the com-

petitiveness and fairness of the process are being under-

mined in many other ways.

The upcoming elections will take place in a context of in-

timidation and repression, coupled with the continuing

efforts by most of the institutions of the Thai state to

secure a victory for the Democrat Party. Aside from com-

peting against a hobbled opposition under rules design

to artificially boost its seat share, the Democrat Party will

once again avail itself of the assistance of the military,

the bureaucracy, the judiciary, and the royalist establish-

ment. These institutions stand ready to commit whatever

money, administrative resources, and television airtime

might be necessary to haul the otherwise unelectable

Mark Abhisit over the hump.

In this series of reports, Amsterdam & Peroff details the

attempts by Thailand’s Establishment to fix the results of

the upcoming general elections. This report — the fourth

in the series — focuses on the charges of terrorism filed

against leaders of the Red Shirts. The report situates these

criminal trials within the context of other measures em-

ployed by the Abhisit administration to criminalize dis-

sent and prevent the opposition from forming Thailand’s

next government.

AMSTERDAM & PEROFF | 2011 GENERAL ELECTION REPORT SERIES, NO. 4 1

1. INTRODUCTIONDays after deadly clashes with security forces on April 10, 2010 left twenty-six

people dead and more than eight hundred injured, the Red Shirts dismantled

their main rally site at the Phan Fa Bridge and concentrated their forces in

the heart of Bangkok’s modern commercial district at the Ratchaprasong

intersection. From then on, a large banner hung on the protest stage: “Peaceful

Protesters, Not Terrorists.”

While the government had previously never missed an opportunity to warn

of the danger presented by the Red Shirts, as justification for repeatedly

imposing the Internal Security Act in advance of planned rallies, the

designation as “terrorists” sprung directly from the events of April 10, 2010.

The administration of Mark Abhisit Vejjajiva sought to justify the imposition

of the Emergency Decree on April 7 and the volume of lethal force unleashed

on protesters on April 10 by casting the Red Shirts as a violent threat to the life

of the nation. The failure of the government’s first crackdown against the Red

Shirts, moreover, led it to claim that the fight against domestic “terrorism”

could justify the more incisive, more violent operation to disperse the Red

Shirts and manage the difficult aftermath.

The labeling of the Red Shirts as “terrorists” figured prominently in the case

made by the government to justify the week-long crackdown launched on May

13, 2010 in the area surrounding Ratchaprasong. On the eve of the crackdown,

the government warned that it would shoot “armed terrorists,” estimating that

approximately five hundred “armed elements” had infiltrated the Red Shirts.1

That number is consistent with the purportedly leaked internal government

report that National United Front for Democracy against Dictatorship (UDD)

leader Jatuporn Prompan had revealed to the press on April 19, 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.2 On the

evening of May 13, Major-General Khattiya Sawasdipol (“Seh Daeng”), a

renegade army officer and purported leader of the Red Shirt movement’s

1. “Sansern: 500 Terrorists Infiltrating Reds,” Bangkok Post, May 14, 2010.http://www.bangkokpost.com/breakingnews/177896/500-terrorists-blending-with-reds-sansern

2. “จตุพร” ปูดทหารแตงโมแฉแผน “อนุพงษ์” สั่ง 9 ข้อ4ขั้นจัดการแดงให้จบใน 7 วัน ห้ามพลาด อ้าง สูญเสีย 500 ก็ยอม, Matichon, April 20, 2010.http://www.matichon.co.th/news_detail.php?newsid=1271686129&grpid=10&catid=01


more extreme faction, was shot in the head by a sniper while he stood before

the cameras and microphones of New York Times reporter Thomas Fuller at

the edge of Lumphini Park.3 Despite having explicitly identified Seh Daeng

as a “terrorist,” the government denied any involvement.4 As the crackdown

unfolded, 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 anticipated

two to five hundred casualties.5

Following the rallies’ dispersal on May 19, 2010, the government has clung

to the accusation of “terrorism” to justify the continued abuse of emergency

legislation, the indefinite detention of Red Shirt leaders, and the criminalization

of opposition to Abhisit’s undemocratic rule by presenting it as a threat

to national security. According to the government-appointed Truth and

Reconciliation Committee, no less than 145 cases of terrorism were filed by

the authorities in the wake of the rallies. In late July 2010, the Department of

Special Investigations referred to the Office of the Attorney General charges

of terrorism against twenty-four Red Shirt leaders as well as former Prime

Minister Thaksin Shinawatra. Shortly thereafter, the Attorney General indicted

nineteen of them, all of whom were in custody, and delayed its decision on

the six who remained at large.6 All face possible death sentences if eventually

convicted.

This report exposes the speciousness of the charges of terrorism lodged

against the leaders of the UDD as well as the systematic denial of their rights

to due process, which has turned the proceedings into little more than a show

trial. In addition, the report situates these trials in the context of a broader

strategy by the Abhisit government and its Establishment backers to rely on

the country’s legal and judicial system to mask the suppression of political

3. See Thomas Fuller and Seth Mydans, “Thai General Shot; Army Moves to Face Pro-testers, New York Times, May 13, 2010.http://www.nytimes.com/2010/05/14/world/asia/14thai.html

4. “Khattiya Sawatdiphol (Seh Daeng),“ New York Times, May 17, 2010.http://topics.nytimes.com/top/reference/timestopics/people/k/khattiya_sawatdi-phol/index.html

5. “บรรหาร-เนวิน” ขวางพรรคร่วมถอนตัว คาด “อภิสิทธิ์” ลาออกหลังลุยม็อบแดงจบ อาจยืดเยื้ออีก 1 สัปดาห์,” Matichon, May 17, 2010.http://www.matichon.co.th/news_detail.php?newsid=1274104360&catid=01

6. “Prosecution Review Completed, 19 Red Shirts to Face Terrorism Trial,” The Na-tion, August 11, 2010. http://www.nationmultimedia.com/home/Prosecution-review-completed-19-red- shirts-to-face-30135707.html


dissent and taint the opposition party Pheu Thai with “terrorist” leanings or

associations in the lead-up to general elections scheduled for July 3, 2011.7

The government’s relentless media campaign serves both to deflect attention

from the government’s failure to hold any state agent accountable for the

2010 Bangkok Massacres as well as to brand the political formation that has

won every election since 2001 as an enemy of Thailand. Turning the charge

of “terrorism” on its head, this report argues that the government’s actions

in April and May 2010 fit the definition of “state terrorism” far better than

the baseless accusations cooked up by the authorities against the Red Shirt

leaders and supporters currently facing trial.

2. THE TAINT OF “TERRORISM”While it is sometimes contended that there is “no agreed universal definition

of terrorism,”8 international law definitions rest to a considerable extent on

Security Council Resolution 1566 (October 8, 2004) as well as the UN General

Assembly in Resolution 54/109 (December 9, 1999). The resolutions define

terrorism as follows:

criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public or in a group of persons or particular persons, intimate a population or compel a government or an international organization to do or to abstain from doing any act.

The Special Rapporteur on the protection and promotion of human rights

and fundamental freedoms while countering terrorism has emphasized the

necessary connection between the criminal act and the underlying ideological

aim.9 The Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human

Rights commissioned by the International Commission of Jurists with the

support of the Special Rapporteur,10 counsels against the excessively broad

7. For the most recent example, see “Reds Linked to Terrorism a Fact: Democrat Spokesman,” The Nation, May 25, 2011.http://www.nationmultimedia.com/2011/05/25/national/Reds-linked-to-terrorism-a-fact-Democrat-spokesman-30156170.html

8. Report of the Eminent Jurists Panel on Terrorism, Counter-terrorism and Hu-man Rights, Assessing Damage, Urging Action (International Commission of Jurists, 2009), p. 7.

9. “Protection of Human Rights and Fundamental Freedoms while Countering Ter-rorism” (16 August 16, 2006). UNGA Doc A/61/267, para. 44.

10. See Report of the Special Rapporteur on the promotion and protection of hu-


understanding of terrorism that tends to characterize the United States’ “war

against terror,” for fear that it might create a “legal black hole” and justify the

development of a separate and exceptional legal system.

Thailand’s terrorism statute was introduced by Thaksin Shinawatra’s

government in 2003, at the end of a controversial process that placed activists

like Jaran Dittaphichai, now a Red Shirt leader, at odds with the administration.11

Section 135/1 of the Thai Criminal Code defines terrorist acts to include:

1) Acts of physical violence that might result in loss of life and bodily harm, or undue restrictions on anyone’s personal liberty;

2) Acts that damage public infrastructure, communication, and transportation system;

3) Acts against any private or public property that potentially cause

“significant economic damage.”

Nonetheless, consistent with the definition provided in the United Nations’

resolutions, the commission of these acts may be classified as “terrorism”

only when undertaken with a demonstrable intent to either: 1) Threaten or

to compel the Thai government, a foreign government, or an international

organization to do or abstain from doing any act; or 2) Cause disorder by

creating widespread fear among the public.12

While the Thai legislation includes no direct reference to the ideology that

animates a group engaging in “terrorist” acts, Section 135/1 (3) specifically

exempts from the definition of terrorism “any act of demonstrating, rallying,

protesting, opposing or supporting a movement demanding state assistance

or seeking justice, which is an exercise of a person’s liberty as prescribed

in the Constitution.” Framed as the protection of constitutional rights, this

exemption confers upon the authorities the discretion to determine which

groups “seek justice,” and are hence entitled to their constitutional rights, and

which groups can be denied the exercise of their rights based on the presumed

fraudulence of their demands for “justice.”

man rights and fundamental freedoms while countering terrorism (2009) A/64/211, p. 11.

11. Marwaan Macan-Markar, “Bangkok’s About-Turn on Terrorism,” AsiaTimes, Au-gust 13, 2003.http://www.atimes.com/atimes/Southeast_Asia/EH14Ae04.html

12. John Fotiadis and Tongkamol Chantararatn, “What Makes a Terrorist Under Thai Law,” Bangkok Post, December 7, 2010.http://www.bangkokpost.com/opinion/opinion/185944/what-makes-a-terrorist-under-thai-law


Sociologist Jyotrirmaya Tripathy approaches terrorism as a discursive product,

one that is produced by language.13 This does not mean that the shrapnel from

bombs that cut through flesh and bones are not real, or that the devastating

emotional loss of a loved one killed is to be dismissed as linguistic construct.

Rather, viewing terrorism as a discursive product calls into question the

mechanisms of power by which one entity, the state, has the prerogative to

determine the character of other actors: those declaimed as terrorists. Naming

someone a “terrorist,” in particular, carries a prescription: the labeled group

or individual is not to be engaged by the state, or by legitimate political/social

actors.14 One does not negotiate with terrorists. Terrorist groups must be

eliminated. The moniker itself is employed to deny legitimacy to the group,

as the terrorist is by definition an outsider, a rogue, an element beyond the

pale. As Martha Crenshaw puts it: “calling adversaries ‘terrorists’ is a way of

depicting them as fanatic and irrational so as to foreclose the possibility of

compromise, draw attention to real or imagined threats to security, and to

promote solidarity among the [supposedly] threatened.”15

In this way, the danger with anti-terrorism provisions is always two-fold:

to provide too expansive a definition of terrorism and to prosecute under

terrorism that which is not terrorist activity. The second danger is now

manifest in Thailand. The presence of “terrorists” constitute a security threat;

by calling the Red Shirt leaders “terrorists,” the government has changed the

political landscape from one characterized by political opposition to Abhisit’s

government to one characterized by security, recasting all who oppose the

government as “terrorists” and all who stand by Abhisit as “threatened” by

terrorism. Employing the “terrorist” label replaces political contestation, and

the ability to challenge hegemonic discourses, with a process of securitization,

which places a premium on protecting the status quo. Violence against

the labeled perpetrators of violence, then, becomes no violence at all: the

government’s violent crackdown against the Red Shirts was without apology

or remorse. Instead, the government portrayed itself as the victim of violence,

not its perpetrator. By branding opponents as terrorists, Abhisit denies their

political character. In turn, even the most inhumane acts of violence are now

13. Jyotirmaya Tripathy, “What Is a Terrorist?” International Journal of Cultural Studies, Vol. 13(2010): 219-234.14. Martha Crenshaw, “Relating Terrorism to Historical Contexts,” in Terror-ism in Context (University Park, PA: The Pennsylvania State University Press, 1995), p. 9.15. Ibid, p. 9.


said to be justified if committed against opponents marked as “terrorists.”

Deaths or injuries to civilians incurred through the actions of the government

are “collateral damage,” something to be tolerated as the cost of the security

of the state.

The dehumanization of pro-democracy demonstrators for the purposes of

building public support for episodes of state violence is a technique with

a long track record in Thailand. The label of violent “revolutionaries” was

employed against the Red Shirt protestors just as it was employed throughout

the events of Black May 1992. Then as now, the military government accused

the demonstrators of aiming to overthrow Thailand’s monarchy,16 seeking

to cast them as un-Thai and, by reflection, as devilish or inhuman based on

the country’s nationalist discourse.17 Then as now, the military government

imposed the Emergency Decree and announced that drastic action would be

taken against “rioters.”18 Then as now, the military government claimed that

soldiers only shot in self-defense.19

The government’s portrayal of the Red Shirts is even more strikingly reminiscent

of the manner in which the military justified to the public the murder of several

dozen pro-democracy students — some of them raped, mutilated, and burned

alive — at Thammasat University on October 6, 1976. Much like the Red Shirts,

the students who had barricaded themselves in Thammasat University campus

had been falsely accused of having stockpiled large amounts of weapons in

the halls of the university. 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 (recently re-discovered by

ultra-nationalists) did at the time, “the scum of the earth” (nak paendin). 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 ideas. In 1976, the students were labeled “communists;”

in 2010, the government updated its terminology to the changed geopolitical

context and branded the Red Shirts “terrorists.”

These historical parallels point to the fact that the most recent wave of

16. Tan Lian Choo, “Clashes Provoked by Group Bent on Revolt: Suchinda,” The Straits Times, May 20, 1992.

17. For an explication of this “logic,” see David Streckfuss, The Truth on Trial in Thailand (London: Routledge, 2010), p. 305.

18. “‘Drastic Action’ to Quell Protest,” Bangkok Post, May 18, 1992.

19. “Shootings Were in Self-Defence, Says Spokesman,” The Nation, May 20, 1992.


demonstrations and violence has played out according to the same script

followed by the events of 1973, 1976, and 1992. Just as in those instances,

the Red Shirts’ calls for “democracy” and “justice” were described by the

government as a façade for an ideology threatening the security of the Thai

state. Just as in previous instances, the Red Shirts, even when exceptionally

engaged in looting. property destruction, and resistance — primarily in

situations where they themselves were under fire — were not the armed

“terrorists” the government made them out to be. Just as in previous instances,

false accusations of ideological extremism and violent tendencies were

instrumental to the case made by the government and the military to justify

the imposition of extraordinarily repressive measures and to shoot scores of

unarmed demonstrators with impunity. Now as ever, the Thai Establishment

answered calls for democracy with the dehumanization of its opponents, the

subversion of the rule of law, and human rights violations on a massive scale.

In its latest report on the 2010 government crackdown, Human Rights Watch

documents how the Abhisit administration authorized the military to target

Red Shirt protestors as “terrorists” to justify the lethal use of force:

On May 14, the CRES [“Center for the Resolution of the Emergency Situation”] set out new, expanded rules of engagement that liberalized the use of live fire against the protesters. Under the new rules, soldiers were allowed to use live ammunition […] when forces have ‘a clear visual of terrorists.’ The term ‘terrorists’ was left undefined, giving soldiers no guidance as to what constituted a permissible target and providing a basis for the use of firearms and lethal force that exceeded what is permitted under international law in policing situations.20

According to Human Rights Watch, the government’s use of “terrorism”

was “dangerously vague”, given that “[i]n practice, the security forces began

deploying snipers to shoot anyone who tried to enter ‘no-go’ zones between

the UDD and security force barricades, or who threw projectiles towards

soldiers;” on “many occasions, security forces appear to have randomly shot

into crowds of UDD supporters who posed no threat to them, often with lethal

consequences.”21

Whereas over ninety people were killed and around two thousand injured

in the six weeks leading up to May 19, 2010, an additional casualty of the

crackdown was any pretense of “democratic rule” and “respect for the rule of

20. Human Rights Watch, Descent into Chaos: Thailand’s 2010 Red Shirt Protests and the Government Crackdown (2011), pp. 81-82.

21. Ibid., p. 16.


law” that Abhisit’s administration had sought to maintain. Confronted with a

massive, well-organized, and largely peaceful challenge to his government’s

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

a state of emergency.

The imposition of the Emergency Decree provided the government with a

semblance of legal foundation for its crackdown against the Red Shirts. The

government proscribed any assembly or gathering of five or more persons

as well as any act that could incite unrest. The government further issued

regulations that conferred upon the administration extraordinarily expansive

powers, as 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” and to

“summon an individual to report to the officers or give evidence pertaining to

the emergency situation.”22

On May 13, 2010, 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 formally lifted on December 21, 2010.

The Emergency Decree was never invoked for the purposes of confronting

an emergency, but rather to authorize the government to stamp out political

opposition and to consolidate its hold on political power. The prolonged

enforcement of the Emergency Decree constituted a clear violation of the

International Covenant on Civil and Political Rights (ICCPR). Article 4 permits

the suspension of certain rights guaranteed in the ICCPR, such as 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”; under no circumstances can a State of Emergency be used

22. “Announcement pursuant to Section 11 of the Emergency Decree on Public Ad-ministration on Emergency Situation B.E. 2548 (2005).”


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.23 The decree, specifically,

authorized the authorities to suspect persons without charge for up to thirty

days in unofficial places of detention. 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.24 A year since the dispersal of the rallies, over a hundred Red Shirt

protesters remain in prolonged, arbitrary detention, often in harsh conditions,

for violating the Internal Security Act and the Emergency Decree,25 which the

Thai authorities wielded in an effort to criminalize legitimate political protest.

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

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.26 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

23. 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/

24. Marwaan Macar-Markan, “Jails Fill Up with Political Prisoners, Critics,” Inter-Press Service, August 23, 2010.http://ipsnews.net/news.asp?idnews=52571

25. Daniel Schearf, “Thai Protesters Mark One Year Anniversary of Government Crackdown,” Voice of America, May 19, 2011.http://www.voanews.com/english/news/Thai-Protesters-Mark-One-Year-Anniversa-ry-of-Government-Crackdown-122224679.html

26. 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, No-vember 16, 2010 (http://asiancorrespondent.com/42679/thai-army-brutality-an-account/)


to confess to crimes and jailed without any chance to defend themselves.”27

Although the state of emergency was formally lifted on December 22, 2010,

the government continued to rely on the Internal Security Act without

interruption between March 11, 2010 and May 24, 2011. 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.”28 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.”29 The junta-appointed National Legislative Assembly approved

the draft legislation on December 20, 2007, immediately before authorizing

general elections.

In a 2010 report entitled Thailand’s Internal Security Act: Risking the Rule of

Law?, the International Commission of Jurists expressed grave concerns about

the government’s habitual recourse to the Act as “a violation of the rights to

freedom of expression and association guaranteed under the ICCPR.”30 The

Commission found that while the Internal Security Act was an improvement

over previous emergency laws or martial law, the Act nevertheless remained

too close to those forms of extra-legal rule; consequently, Thailand risked

“violating its human rights obligations” by repeatedly taking advantage its

provisions.31 The Commission emphasized that the Internal Security Act

“threatened to undermine the principle of the separations of powers between

27. See “Panel Claims Red Shirt Inmates Tortured,” Bangkok Post, December 7, 2010.http://www.bangkokpost.com/news/politics/210009/panel-claims-red-shirt-in-mates-tortured

28. Internal Security Act, B.E. 2551 (2008), s. 3.

29. Human Rights Watch, “Thailand: Internal Security Act Threatens Democracy and Human Rights,” November 5, 2007.http://www.hrw.org/en/news/2007/11/04/thailand-internal-security-act-threatens-democracy-and-human-rights

30. International Commission of Jurists, “Thailand’s Internal Security Act: Risking the Rule of Law?” February 2010.http://icj.org/IMG/REPORT-ISA-THAILAND.pdf

31. Ibid., p.vi.


the legislative and executive branches of government,” particularly given that

the Act confers upon the infamous Internal Security Operations Command

(ISOC) the ability “to determine what activities are to be prohibited, while at

the same time giving the ISOC the power to enforce those prohibitions.”32

3. PROTESTERS, NOT “TERRORISTS”Whereas the government has spent the past year making sure that the

investigations into the killings of over eighty Red Shirt protesters lead nowhere,

despite overwhelming evidence of the Royal Thai Army’s crimes, the Abhisit

administration has conversely displayed considerable aggressiveness in its

prosecution of the Red Shirts. The prosecution of nineteen Red Shirt leaders

on charges of terrorism is based on allegations that the defendants instigated

or ordered the commission of several acts of violence. Notwithstanding the

fiery rhetoric employed by some of its speakers, little hard evidence connects

the UDD and its core leaders to the episodes of violence the Red Shirts are

accused of carrying out.

First, the government has failed to provide any credible information linking

Red Shirt leaders with the dozens of grenade attacks that targeted banks,

military installations, public offices, party headquarters, and the private

residence of coalition politician Banharn Silpa-archa since the beginning of the

rallies. Though some have pointed that other groups besides the Red Shirts

had far greater interest in building the climate of fear that the string of attacks

generated, the government only accused the Red Shirts. Bomb attacks that

immediately preceded the beginning of the rallies were instrumental to the

government’s case for imposing the Internal Security Act, while those carried

out thereafter were crucial to the justification for the Emergency Decree. At

one point, the Department of Special Investigations sensationally announced

that on March 20, 2010 the Red Shirts had targeted the Temple of the Emerald

Buddha — one of Thailand’s most sacred structures — in a failed attack with

a Rocket-Propelled Grenade (RPG), based on the “confession” of a man who

claimed to have been paid by a politician to carry out the bombing.33 Nothing

32. Ibid., p. vii. 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/

33. “Ex-Policeman Held in RPG Case,” The Nation, May 1, 2010.http://www.nationmultimedia.com/home/2010/05/01/national/Ex-policeman-held-


has been heard since about the plot the government alleged.

Second, while the “Men in Black” who appear to have killed military officers

during the clashes on April 10, 2010 were never conclusively identified, the

commandos are thought to have been highly trained military officers — whether

retired or active duty.34 Again, though the government has claimed that these

men worked for the Red Shirts, presumably at the orders of the slain Maj.-Gen.

Khattiya Sawasdipol (Seh Daeng), it has offered no evidence to support that

claim. In the pro-Establishment publication The Nation, conservative columnist

Avudh Panananda speculated that the killing of Col. Romklao Thuwatham was

likely to have been related to the dominance achieved by the Queen’s Guard and

the “Eastern Tigers” clique within the country’s armed forces.35 More recently,

though the report issued by Human Rights Watch speaks of the “Men in Black”

as pro-UDD, the same report notes that these men were neither connected

to the Red Shirt leadership,36 nor were they led by Major-General Khattiya

Sawasdipol (Seh Daeng); despite this, the government continues to allege

otherwise.37 A 2010 report by the International Crisis Group examining the

results of the government’s investigation into the activities and organizational

structure of the “Men in Black” similarly casts doubt over the government’s

theory.38 Over a year since they appeared out of thin air, the fact that so little

is known about the “Men in Black” raises suspicions that this force enjoys the

protection or sanction of the Thai state or some authority within its ranks.

Third, the government was quick to point the finger against the UDD in the

in-RPG-case-30128366.html

34. Avudh Panananda, “Anti-Riot Squad Cut Up by Soldiers in Black,” The Nation, April 13, 2010.http://www.nationmultimedia.com/home/2010/04/13/politics/Anti-riot-squad-cut-up-by-soldiers-in-black-30127131.html

35. Avudh Panananda, “Is Prayuth the Best Choice amid Signs of Army Rivalry?” The Nation, June 8, 2010.http://www.nationmultimedia.com/home/2010/06/08/politics/Is-Prayuth-the-best-choice-amid-signs-of-Army-riva-30131079.htmlSee also International Crisis Group, “Bridging Thailand’s Deep Divide,” Asia Report N°192, July 5, 2010, p. 10. http://www.crisisgroup.org/~/media/Files/asia/south-east-asia/thailand/192_Bridging%20Thailands%20Deep%20Divide.ashx

36. Human Rights Watch, Descent into Chaos: Thailand’s 2010 Red Shirt Protests and the Government Crackdown (2011), p. 44-46.

37. Ibid. p. 79.

38. International Crisis Group, “Thailand: The Calm before Another Storm?” ICG Asia Briefing No. 121, April 11, 2011, pp. 3-4.http://www.crisisgroup.org/~/media/Files/asia/south-east-asia/thailand/B121-%20Thailand-%20The%20Calm%20Before%20Another%20Storm.ashx


immediate wake of an M-79 grenade attack on the Sala Daeng SkyTrain station

that took place during a stand-off between Red Shirts and pro-government

“Multicolor” Shirts on April 22, resulting in one death. The suspects it had initially

detained, however, were quickly released. Contradicting CRES’ conclusion that

the grenades were lobbed from the Red Shirt encampment near the Rama VI

monument, eye-witnesses among pro-government counter-protesters claim

the grenades were fired from nearby Chulalongkorn Hospital.39

Finally, the government maintains that the thirty-nine arson attacks that took

place in Bangkok on May 19 were “systematically planned and organized.”40

However, it has provided no credible evidence of a conspiracy. Most of the Red

Shirt leaders were already in custody by the time the arson attacks occurred

and had publicly instructed their followers to disperse. Moreover, important

questions remain about the timing of the incident at the CentralWorld shopping

mall and the effects that the military’s actions had on the speed with which

firefighters arrived on the scene and extinguished the fire. Indeed, testimony

included in the Application filed by Amsterdam & Peroff to the Prosecutor of

the International Criminal Court points to the fires being deliberately set by

elements connected to the Royal Thai Army for the purpose of discrediting the

Red Shirts.

While the Red Shirts were accused by the government of committing various

acts of violence, direct evidence pointing to the Red Shirts’ responsibility for

these acts remains thin. What is more, there exists no evidence pointing to

the Red Shirt leaders’ role in planning the attacks, or even knowledge of the

attacks. Moreover, authoritative observers have publicly cast doubt on whether

even the worst offenses could be reasonably described as “terrorism.” In a

report on the 2010 massacres, the International Crisis Group not only urged

the government to drop the terrorism charges, but also specifically observed:

“It is difficult to make a case that Thaksin’s role in the recent violence in

Thailand fits with definitions of terrorism widely used internationally.”41

39. คนเลวบึ้มเอ็ม79บีทีเอสศาลาแดงเจ็บ75ดับ1-พยานอ้างยิงจาก รพ.จุฬาฯ, ASTV-Manager, April 23, 2010. http://www.manager.co.th/Crime/ViewNews.aspx?NewsID=953000005567740. Jocelyn Gecker, “Thai Troops Open Fire on Red Shirt Protesters in Bangkok,” As-sociated Press, May 20, 2010.http://www.adelaidenow.com.au/thai-troops-open-fire-on-red-shirt-protesters-in-bangkok/story-e6frea6u-1225868598260

41. International Crisis Group, “Bridging Thailand’s Deep Divide,” Asia Report N°192, July 5, 2010, p. 18.


Similarly, United Nations Special Rapporteur on Human Rights and Counter-

Terrorism, Martin Scheinin, expressed serious reservations about whether any

of these offenses might qualify as “terrorism,” owing to the fact that the Red

Shirts have never been accused of “serious violence against members of the

general population or segments of it.”42 As per the banner that hung on stage

at Ratchaprasong, the Red Shirts were throughout protesters, not terrorists.

4. ABUSE AND DENIAL OF DUE PROCESSThe abuse of terrorism provisions is compounded by the prosecution’s

systematic denial of the Red Shirt leaders’ rights to due process and to a full

and fair defense. The International Covenant on Civil and Political Rights

guarantees to each and every accused person a fair defense, including the

right to choose one’s counsel, to prepare a defense with adequate time and

facilities, and to receive full access to the evidence. The accused have a right to

examine the evidence independently, through their own experts and lawyers,

under the same conditions as the government, and to assemble the evidence

affirmatively in their own defense.43 No doubt fearing that a genuine legal

process would absolve the accused, the Thai Establishment is committed to

holding no more than a “show trial.”

The proceedings are assigned to Judge Sujitra Potaya, who has participated

in all of the criminal cases against former Prime Minister Thaksin Shinawatra.

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.44

42. Achara Ashayagachat, “Thailand’s Terrorism Law ‘Goes Too Far’,” Bangkok Post, February 19, 2011.http://www.bangkokpost.com/news/local/222370/thailand-terrorism-law-goes-too-far

43. ICCPR, Art. 14.

44. Order dated September 27, 2010, at p. 11.


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 being kept out of the proceedings, select

members of the Thai media are permitted to observe and report.

Judge Sujitra, moreover, 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.45

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 would be insufficient, in

45. Order dated September 27, 2010, at p. 10.


any genuine court of law, to warrant arrest and indictment for terrorism: 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

Nattawut’s case) or use of deadly force against the Red Shirts (in Arisman’s

case). With regard to Thaksin Shinawatra, 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” 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 not substantiated these claims. In turn, the administration has

systematically undermined and obstructed all attempts to determine the truth

of the events of April and May 2010. Human Rights Watch’s study concluded

that the parliamentary inquiry commissions, the National Human Rights

Commission, and the Independent Fact-Finding Commission for Reconciliation

were all “unable to obtain complete information about security forces’

deployment plans and operations, autopsy reports, witness testimony, photos,

or video footage from the CRES” due to the absence of “military cooperation.”46

No charges have ever been leveled against military officers, while the findings

of internal reports that pointed to the security forces’ commission of deliberate

acts of murder were suppressed.47 As a result, Human Rights Watch has

concluded that the Abhisit government is “sending Thais the message that the

scales of justice are imbalanced, if not entirely broken.”48

5. RESISTING STATE TERRORISMDespite an exceedingly broad terrorism statute and the subservience of the

courts to the interests of the Establishment, convicting the UDD’s leaders of

terrorism charges so groundless and so nakedly political will likely prove no

easy feat. While the Thai judiciary rarely shies away from legal contortions, it

46. Human Rights Watch, Descent into Chaos: Thailand’s 2010 Red Shirt Protests and the Government Crackdown (2011), p. 23.

47. For instance, see “DSI Changes Ruling on Cameraman’s Death,” Bangkok Post, February 27, 2011.http://www.bangkokpost.com/news/politics/223658/dsi-changes-ruling-on-camera-man-death

48. Human Rights Watch, Descent into Chaos: Thailand’s 2010 Red Shirt Protests and the Government Crackdown (2011), p. 7.


remains to be seen whether, at the conclusion of the trial, the Establishment

will judge it politically tenable to execute nineteen among the country’s most

prominent opposition figures. While definitions of terrorism are often contested,

no reasonable argument can be made to support the notion that the UDD is

a “terrorist group,” or that its leaders are responsible for “acts of terrorism.”

The Red Shirt movement, for one, exhibits none of the organizational traits of

a terrorist organization— the movement is open, participatory, and relatively

transparent in both its objectives and decision-making. Furthermore, unlike

terrorist organizations, the Red Shirts do not seek to overthrow Thailand’s

democratic regime. Their demands emphasize the full realization of democracy,

the legal amendment of a constitution that was written by a military junta, the

removal of the Establishment’s extra-legal authority, the relegation of military

generals to their rightful military barracks, and the respect for the outcomes

of freely conducted elections.

Most important of all, as the UN Special Rapporteur has reminded the Thai

press, “terrorism” is first and foremost about violence against civilians. The

key determinant of terrorist activities is the intentional targeting of civilians,

often to inflict the greatest possible damage or create the greatest spectacle.

Their criminal indictments notwithstanding, no Red Shirt leaders have ever

been accused of committing acts of violence against the civilian population.

The reason is quite simple: “terrorism” is a weapon of the weak. And while the

Thai government has tried its best to describe the UDD as beyond the pale or

outside the mainstream, the fact remains that the Red Shirts are the largest

social movement ever created in Thailand, to say nothing of the fact that the

broader political force from which the UDD has sprung has won every election

held in Thailand over the last decade.

The evidence collected thus far by various agencies and organizations that

have investigated the events surrounding the 2010 Bangkok Massacres does

not support the government’s claim that the Red Shirts are “terrorists” or that

their leaders commissioned acts of “terrorism.” What the evidence shows is

that individuals whose links with the Red Shirt movement have never been

established engaged in some criminal acts, including incidents of property

destruction, looting, arson, assault, and the homicide of a half-dozen security

forces during violent clashes. Each of these possible crimes should be

properly investigated. Whoever they are, the victims are entitled to justice

and compensation. And those responsible deserve to be prosecuted fairly and


punished in a measure proportionate to their offenses. But it is much too

convenient for the government to continue to use these incidents as an excuse

to kill, imprison, and slander Red Shirts who have no known links to the crimes

in questions, while stonewalling attempts to establish who really committed

these acts and why. In fact, important questions remain about many of the

episodes of violence and property destruction, some of which may well have

been committed at the authorities’ behest as part of a “strategy of tension”

that has a long history in Thailand and elsewhere.49

Whether or not any of the acts of violence and property crime alleged by the

government can be pinned on the Red Shirts, one truth remains: the only acts

of “terrorism” that took place during the 2010 Bangkok Massacres were acts

of “establishment terrorism” or “state terrorism,” whose “main forms” are

known to be “arbitrary detention, unfair trial, torture, and political murder or

extrajudicial execution.”50 Only the Royal Thai Army and its civilian puppets

have targeted civilians who dared demand political change, with a clear intent

to kill,51 for the purpose of terrorizing the general public into accepting

their undemocratic rule. Only the Royal Thai Army and its civilian puppets

have kidnapped and tortured ordinary citizens. Only the Royal Thai Army

and its civilian puppets have overthrown legitimate governments, abolished

democratic constitutions, repeatedly undone the results of competitive

electoral processes, and continuously subverted the rule of law. That each of

these measures were undertaken by law, were given the force of law, or were

backed by guarantees of immunity from the law does not reflect or signify the

“lawfulness” of the actions in question. The legalization of “state terrorism” is

only possible because forces reminiscent of a criminal syndicate — Thailand’s

Establishment — have captured the state and remade it in their own image.

Resistance against these forces is not a matter of treason or terrorism. It is a

question of dignity and patriotism.

49. See Amsterdam & Peroff LLP, Application to Investigate the Situation of the King-dom of Thailand with Regard to the Commission of Crimes against Humanity, Sub-mitted to the Office of the Prosecutor of the International Criminal Court on January 31, 2011, pp. 64-73.http://robertamsterdam.com/thailand/?p=527

50. See Gus Martin, Understanding Terrorism: Challenges, Perspectives, and Issues (Thousand Oaks: Sage, 2006), p. 83.

51. For a compelling demonstration, see Andrew Walker, “Shoot to Kill,” New Man-dala, May 25, 2011.http://asiapacific.anu.edu.au/newmandala/2011/05/25/shoot-to-kill/

T H A I L A N D 2 0 1 1 G E N E R A L E L E C T I O N R E P O R T S E R I E S , N O . 4

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Mark of the Beast: Branding Opposition as "Terrorism" in Thailand

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