Judicial Responsibility and Coups d’État: Judging Against Unconstitutional Usurpation of Power

281 Pages·2023·7.584 MB·English

by  Kriangsak Kittichaisaree

JUDICIAL RESPONSIBILITY AND
COUPS D’ÉTAT
This book examines the responsibility of judges of domestic courts following uncon-
stitutional usurpation of power of government (coups d’état). It explores judges’ lia-
bility for failing to discharge their judicial duty independently and impartially, and
the criminality of usurpers and their accomplices and collaborators for their viola-
tion of fundamental rights and freedoms or commission of crimes of international
concern. Written by a highly regarded non-Western author, the book is coherent
and meticulously researched, covering an approach to coups in an insightful and
fascinating fashion. It includes a sophisticated and thorough analysis of the relevant
comparative jurisprudence of domestic and international courts, with concrete
examples of the best practices among decisions of domestic courts in countries that
have experienced coups d’état. With an increasing global interest in the phenomenon
of coups, democratic backsliding and the place and role of the judiciary as the only
hope to rein in acts of unconstitutional usurpation of power, the book will be an
essential reading for members of the legal profession, those cherishing democracy
as well as students and researchers in constitutional law, law and political science,
public international law, international human rights law, international criminal law,
regime changes, transitional justice and international organizations.
Kriangsak Kittichaisaree is a Judge of the International Tribunal for the Law
of the Sea. He has served as Chairperson of the UN General Assembly’s Working
Group on the Administration of Justice at the United Nations; member of the
UN International Law Commission responsible for the topic ‘The Obligation to
Extradite or Prosecute (aut dedere aut judicare)’; and Thailand’s Ambassador to Iran,
Australia and Russia. He has taught international law at renowned law schools
in four continents. His 11 books include the pioneering textbook International
Criminal Law (2001); Public International Law of Cyberspace (2017, also translated into
Chinese); The Obligation to Extradite or Prosecute (2018); International Human Rights
Law and Diplomacy (2020); and The Rohingya, Justice and International Law (2021).

JUDICIAL
RESPONSIBILITY AND
COUPS D’ÉTAT
Judging Against Unconstitutional
Usurpation of Power
Kriangsak Kittichaisaree
Designed cover image: © Getty Images
First published 2023
by Routledge
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© 2023 Kriangsak Kittichaisaree
The right of Kriangsak Kittichaisaree to be identifed as author of this work
has been asserted in accordance with sections 77 and 78 of the Copyright,
Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced or
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Trademark notice: Product or corporate names may be trademarks or
registered trademarks, and are used only for identifcation and explanation
without intent to infringe.
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library
ISBN: 978-1-032-40719-7 (hbk)
ISBN: 978-1-032-40718-0 (pbk)
ISBN: 978-1-003-35842-8 (ebk)
DOI: 10.4324/9781003358428
Typeset in Bembo
by Apex CoVantage, LLC
CONTENTS
Preface vii
List of Abbreviations x
1 Introduction 1
Overview 1
Scope of this book 2
Modus operandi of unconstitutional usurpation of power 4
Judges’ roles in unconstitutional usurpation of power 7
Practical challenges 9
Methodological and related normative questions 11
2 Legal bases to assess the lawfulness of unconstitutional
usurpation of power 15
Legal bases used to validate coups 16
Legal bases used to invalidate coups 43
Concluding remarks 72
3 Permissible parameters for judges in post-coup suppression
of fundamental rights and freedoms 75
International conventions and rules of customary international law
on the protection of fundamental rights and freedoms 75
States of emergency and derogation of fundamental rights
and freedoms 89
Military tribunals 104
Law enforcement measures 114
vi Contents
Refusal to render judgments on ‘political questions’ 119
Concluding remarks 122
4 Availability or non-availability of defences for judges in
relation to judicial responsibility post-coups 125
Individual criminal responsibility arising from judges’ roles in an
oppressive regime 127
Independence of judiciary and allegiance to the new
‘constitutional’ order 139
Superior orders 153
Duress 155
Judicial immunity 158
Concluding remarks 159
5 Amnesties, pardons, immunities and other restrictions on
the prosecution of usurpers of power and their accomplices
or collaborators 161
Amnesties, pardons and immunities 161
Statutes of limitations 184
Transitional justice 188
A right balance 208
Concluding remarks 216
6 International or extra-territorial criminal prosecution of
coups-related crimes of international concern 219
Prosecution before the International Criminal Court, ad hoc
international tribunals and hybrid courts 219
Prosecution in foreign courts exercising universal jurisdiction 238
7 Epilogue 248
Index 261
PREFACE
Unconstitutional usurpation of power of government either by means of a military
coup d’état or a self-coup by the incumbent Head of State or Government still takes
place in several parts of the world nowadays. In 2021 alone, there were military
coups in Myanmar, Chad, Sudan, Guinea, and Mali as well as the self-coup by the
President of Tunisia.
Unlike the Cabinet and the Legislature that are normally dissolved after the
usurpation of power, the Judiciary is usually kept in operation to uphold the legiti-
macy of the regime installed by the usurper, sometimes with judges toeing the line
and the usurper replacing those who are not. There are several writings, from a
comparative constitutional law perspective, on domestic courts’ decisions on the
lawfulness or otherwise of ‘revolutions’, including coups, but not much has been
written on judicial responsibility in this regard that spans not only comparative
constitutional law, but also criminal law, public international law, international
human rights law, transitional justice and international criminal law. To fll this
gap, this book will analyze judicial responsibilities of domestic judges to uphold
fundamental rights and freedoms usually curtailed after coups d’état; their liability
for failing to discharge their judicial duty independently and impartially; and the
criminality of usurpers, their accomplices and collaborators for the usurpation of
power and consequential abuses.
Citizens whose fundamental rights and freedom are adversely afected by acts
resulting from unconstitutional usurpation of power desperately look up to the
Judiciary as their saviour. Should the Judiciary fail, the nation’s democracy as well
as the protection of its citizens’ fundamental rights and freedoms also fails.
Since modern-day coups  are staged in the non-Western world, in the Global
South, Western liberal democratic principles are not cherished by coup  leaders and
there seems to be no existing book that covers all the issues just mentioned in a
holistic manner. A book written by a non-Western author may be more favourably
viii Preface
considered as not condescending on countries that have experienced coups, or
‘neo-imperialistic’ in subjugating the values and interests of these countries.
Thailand, where I come from, has experienced 12 military coups d’état plus one
self-coup by the then civilian Prime Minister and quite a few failed coup attempts
since the end of the absolute monarchy in 1932. I have heard and seen what has
happened in the aftermath of each of the six coups and three attempted coups ever
since I can remember. I have even had surreal experiences about two of the coups.
When the Thai Army Chief staged the coup to topple the Thai Prime Minister
on 19 September 2006, I was with the Premier in New York City, where he was
scheduled to address the General Debate of the United Nations General Assembly.
As the then Director-General of the Department of International Organizations
of the Ministry of Foreign Afairs of Thailand, it was my responsibility to oversee
the Premier’s ofcial trip to the United Nations as well as provide the substance
of his speeches and multilateral dialogues. The secretariat’s room was turned into
a war room trying to challenge the coup in Bangkok, thousands of miles away.
The Premier issued a few orders dismissing the Army Chief and instructing key
armed forces personnel to return to the barracks, and it was my task to translate
these orders into English to inform the international community who was still in
charge of the country at that moment. The following year, in September 2007, still
Director-General of that Department, I accompanied the Prime Minister installed
by the coup to New York City, again to address the UN General Assembly and meet
with his counterparts from friendly countries. In an evening, I even found myself
one of the four persons having a small private dinner with the very courteous Pre-
mier. Several months later, I took up my new position as Thailand’s Ambassador to
the Islamic Republic of Iran and my frst ofcial guest from Thailand was, believe
it or not, the former Army Chief who staged the coup in September 2006. He was
paying an ofcial visit to Iran in his capacity as Deputy Prime Minister in charge
of national security, the position he held from 1 October 2006 to 28 January 2008.
The General also visited Iran privately quite a few times after he left that position.
When I was Ambassador to the Russian Federation, I organized the frst-ever of-
cial visit abroad by the Thai Premier who had come into power by the military coup
of 22 May 2014. A colleague from the Thai Judiciary who worked closely with
me during the early days of my career with the Thai Government happened to be
the presiding judge of the Supreme Court in a case challenging the legitimacy of
the 2014 coup. With such unique personal contact with those directly involved
in the two Thai coups and living in a society that has experienced so many coups,
I assume that I can understand the ethos and mindset of coup leaders and their
opponents. Now as an international judge, my sense of judicial responsibility com-
pels me to look closely at the need to balance the positions of these opposing sides
in an impartial, judicious manner.
It is always a great pleasure to be reunited with Alison Kirk, Senior Commis-
sioning Editor of Routledge, and her team who have efciently and expeditiously
steered the publication of my latest two books. I very much appreciate how Anna
Gallagher, Editorial Assistant/Law, has helped me through the process.
Preface ix
I would like to express my thanks to the following individuals who have pro-
vided invaluable information for my research: Stephen Rapp, Phani Dascalopoulo-
Livada, Charles Jalloh, Renzo A. Cristaldo Garay, Sarthak Roy, Marie Anne Cyra
Uy, Ayşe Güzel Öztürk, Louis Savadogo and Niki Manafa. I am also grateful
to Mrs Rosa Palau, Director of the Documentation and Archive Centre for the
Defence of Human Rights, or the Museum of Justice which is a unit of the Judici-
ary of Paraguay, where the archives related to the dictatorship in Paraguay (better
known as the ‘Archives of Terror’) are kept. She has kindly shared with me the
relevant rulings of the Supreme Court of Paraguay.
Thanks are owed to Elzbieta Mizerska-Dyba, Head of Library and Archives, and
Svenja Heim, Library Assistant, of the International Tribunal for the Law of the Sea
for their assistance in fnding the publications I needed.
All the webpages referred to in this book are accessible as of 15 November 2022.