Litigating against Cambodia’s leaders

Thailand has been considering prosecuting Hun Sen, the president of the Cambodian Senate, and his son, Hun Manet, the prime minister of Cambodia, in Thai domestic courts as well as at the International Criminal Court (ICC).

- Kantathi Suphamongkhon

I will explore and evaluate options. (For terminology consistency, this article will use the word “state” to mean a sovereign state or a country.)

DOMESTIC COURTS IN THAILAND

Thailand may claim jurisdiction over foreigners who commit crimes outside of Thailand under the following international legal principles.

Passive Personality Principle: Crimes committed abroad by a non-Thai resulting in injuries sustained by a Thai national.

Protective Principle: Crimes committed abroad by a non-Thai that threaten the security of Thailand.

Universal Jurisdiction Principle: Crimes committed abroad by a non-Thai that are serious enough to be considered an offence against the international community. War crimes, genocide, crimes against humanity, and crimes of aggression are in this category.

Under the Universal Jurisdiction Principle, any individual or any entity can initiate legal proceedings in any national court of any state in the world, and the accused can be arrested in such a state if they travel there.

For example, Dick Cheney, former vice president of the United States, and Donald Rumsfeld, former US secretary of defence, were accused of war crimes committed during the US invasion of Iraq.

Legal proceedings were initiated in the national courts of Belgium, France, Germany, and Spain, using the Universal Jurisdiction Principle. Both Mr Cheney and Rumsfeld avoided travelling to these countries for a long time, fearing arrest and prosecution.

Tzipi Livni, the former Israeli foreign minister, cancelled her trip to the United Kingdom in 2009 when she learned that a lawsuit had been filed against her in a British court anda warrant for her arrest had been issued under the Universal Jurisdiction Principle. Ms Livni was accused of war crimes committed by Israel in Gaza.