"Sam Rainsy," former opposition leader of Cambodia, announced filing a case at the International Criminal Court (ICC) against the Thai military and Cambodian leaders on war crimes charges. Experts see four factors influencing the court’s acceptance, noting Thailand must provide clear evidence of destroying scammer dens and using civilians as shields.
Dr. Patrapong Saengkrai, lecturer at the International Law Center, Faculty of Law, Thammasat University, posted on his personal page Phil Saengkrai about Sam Rainsy’s announcement to "file a case" at the ICC against Cambodian leaders and the Thai military.
I will briefly explain as follows.
At the ICC, individuals or governments cannot directly file cases. Only the ICC prosecutor can investigate and screen cases to decide whether to prosecute.
At this stage, Sam Rainsy has announced he will submit documents and evidence to the ICC prosecutor to request starting an investigation under Article 15 of the Rome Statute. Therefore, no formal prosecution has been filed yet.
According to the press release, Sam Rainsy focuses on attacks on buildings housing scammers and seeks the prosecutor’s investigation against two groups:
(1) Thai soldiers, charged with war crimes for targeting civilians, civilian property, and disproportionate attacks on military targets that cause civilian harm, given the scammer centers housed large numbers of people.
(2) "Cambodian leadership" accused of human trafficking, detention, forced labor, neglecting to evacuate civilians from scammer centers despite warnings of attacks, and using civilians as human shields. The press release does not specify the exact legal charges, but these could constitute war crimes or crimes against humanity.
If Sam Rainsy submits the case to the prosecutor, the prosecutor’s office will screen it to see if it meets policy conditions, such as jurisdiction (which is certain here since Cambodia accepts ICC jurisdiction), sufficient evidence, and seriousness of the alleged crimes. If conditions are met, the prosecutor will request the court’s authorization to proceed with an investigation, including collecting evidence on-site.
At this stage, all information remains confidential. From my inquiry with practitioners, current prosecutorial practice is to keep all matters secret without notifying involved parties or relevant states. The prosecutor will announce the screening result only once annually at the state parties’ meeting late in the year. This means if Sam Rainsy submits the case, we "might" learn the prosecutor’s official decision by the end of this year.
This is difficult to predict and is truly at the prosecutor’s discretion. The prosecutor receives thousands of such cases yearly, so it is hard to foresee where and when resources will be allocated. Ten years ago, a Cambodian NGO submitted a similar case, but the prosecutor chose not to investigate, and the matter faded.
The current prosecutor, Karim Khan, a former British lawyer with extensive experience defending both prosecution and defense in international criminal cases, is known to have assisted Filipino victims in bringing cases to the ICC when he was a lawyer. The ICC and prosecutor have faced heavy criticism for alleged bias toward Africans, as most defendants have been African. Hence, there is motivation to pursue cases outside Africa to address this criticism.
Regarding allegations against Thai soldiers, I believe the outcome depends entirely on evidence. If it can be proven the scammer center was used militarily, such as as a real weapons cache, that all efforts to minimize civilian harm were made, and the military target’s value was high and proportional to civilian damage, then prosecution might not proceed. However, this all depends on evidence and intelligence gathered from the beginning of the battle strategy.
But regarding allegations against Cambodian leaders concerning scammer centers, with numerous detainees and strong international interest in resolving the issue, it is possible the prosecutor may be inclined to proceed.
To add, another way to trigger an ICC investigation is if a state party to the Rome Statute requests it, as with Ukraine or Israel cases. Such state requests increase the likelihood the prosecutor will initiate proceedings compared to requests from individuals. Therefore, if any Rome Statute state party requests the ICC prosecutor to investigate scammer centers, it further increases the chance of a serious investigation decision.