Saturday 10 December 2011

Jurists Call for Commission of Inquiry into Burma War Crimes

 Source from
By Katherine Iliopoulos
Crimes in Burma (Myanmar), a human rights report released by Harvard Law School in May commissioned by five of the world’s leading jurists, accused the UN Security Council of failing to investigate human rights violations and war crimes in Burma for more than fifteen years and called for the establishment of a Commission of Inquiry, a step that was taken in relation to the situation in Darfur. 

The Report found that “human rights abuses in Burma are widespread, systematic and part of state policy.” It said the evidence suggests the Burmese regime “may be committing crimes against humanity and war crimes prosecutable under international law.”

Relying exclusively on 15 years worth of UN documents reporting on abuses, including dozens of General Assembly Resolutions, the Report concluded that there existed evidence of “widespread and systematic sexual violence, torture and summary execution of innocent civilians”.

Tyler Giannini, who is the clinical director of the Human Rights Program at Harvard Law School and one of the authors of the Report wrote, “As our research shows, UN documents clearly and authoritatively suggest that the human rights abuses occurring in Burma are not isolated incidents—they are potential crimes against humanity and war crimes. Failure by the UN Security Council to take action and investigate these crimes could mean that violations of international criminal law will go unchecked.”

“In the cases of Yugoslavia and Darfur, once aware of the severity of the problem, the U.N. Security Council established a Commission of Inquiry to investigate the gravity of the violations further,” said the report, which did not rely on reports or documentation from NGOs. “With Burma, there has been no such action from the U.N. Security Council despite being similarly aware of the widespread and systematic nature of the violations.”

Achieving a binding Security Council resolution to establish a special commission of inquiry may be a challenge however. “The Security Council is very much divided on Burma, with France, the U.S. and U.K. in one camp and Russia and China in another,” says Thaung Htun, UN affairs representative for the National Coalition Government of the Union of Burma (NCGUB), the democratically-elected government forced into exile. “Russia and China continue to say that the situation in Burma is not a threat to international peace and security.” In January 2007, a US-sponsored UN Security Council resolution calling for the restoration of democracy in Burma and an end to human rights violations was vetoed by Russia and China, Burma’s primary arms suppliers, in their first joint veto since 1972.

The Harvard report accuses the military regime in Burma of perpetrating international human rights violations and focuses on four specific categories: sexual violence, forced displacement, torture, and extrajudicial killings. UN documents issued since 2002 are the focus, primarily because the period post-2002 is most relevant to the Rome Statute, which is used in the report as the legal framework for assessing violations of international criminal law.

The Report is the first in-depth examination of crimes against humanity since 2005, when Guy Horton, a British human rights researcher and friend of Michael Aris, the late husband of Burma’s main opposition leader Aung San Suu Kyi published a report entitled Dying Alive which also examined the question of violations of international law by Burma’s ruling junta. Unlike the Harvard Report, Horton’s report included an extensive discussion on the question of whether genocide was being committed.

Forced Displacement, Extrajudicial Killings and Torture
According to the Harvard report, in October 2007, sources estimated that the total number of internally displaced persons in eastern Burma was 503,000. These included 295,000 people in ceasefire zones, 99,000 in hiding in the jungle and 109,000 elsewhere in Burma, including in relocation sites. As of the end of 2008, UN documents did not indicate that there had been an improvement in the situation.
The Report argues that the UN has evidence that strongly suggests that the military forces perpetration of forced displacement in Burma constitutes either a crime against humanity prohibited by Article 7(1)(d) or a war crimes prohibited by Article 8(2)(e)(viii) of the Rome Statute.

The former U.N. Special Rapporteur for Human Rights in Burma, Paulo Sérgio Pinheiro, reported in 2008 that he had received information indicating that during the past 15 years, the Burmese Army destroyed more than 3,300 predominantly ethnic villages in eastern Burma in a systematic and widespread campaign to subjugate ethnic groups. By way of comparison, as of October 2007, there had been 2,751 destroyed or damaged villages in the Darfur region.

Over 1 million ethnic Burmese were forced to flee their homes as a result of the attacks, said Pinheiro, escaping as refugees and internally displaced persons.
A report of the Myanmar Rapporteur states that the villages of ethnic groups had been “burnt down during military offensives and they had lost their houses and livelihoods” and had therefore been forced to flee to refugee camps in Thailand for survival, which in turn been the subject of attack.

Torture and extrajudicial killings have been documented extensively by UN actors, indicating a widespread and systematic pattern of conduct. They are both prohibited as crimes against humanity and war crimes under the Rome Statute. As an example, the Harvard Report described an incident in the village of Tagu Seik on 7 July 2005: “The army surrounded, searching and ransacking the village on suspicion that the villagers had contacts with the Karen National Union (an armed opposition group) and were hiding weapons and explosives, though none were found. According to the source, an indigenous local schoolteacher called Stanford died during interrogation as a result of being tortured, including with electric shocks.”

Torture and the ill-treatment of political prisoners and ethnic minorities in Burma have also been documented by Amnesty International (AI) for approximately 15 years, as well as Human Rights Watch, according to whom political prisoners and those perceived to be supporters of armed opposition groups, such as the Chin National Front (CNF) and the Chin National Army (CNA), are particularly vulnerable to torture by security forces.
The Chin Human Rights Organization documented 16 extrajudicial killings, including four children, perpetrated by the Burmese army and police in Chin State between 2005 and 2007. None of the accused in these cases have faced justice. In March 2007, the Burmese army allegedly executed three village chiefs in Matupi , after accusing them of failing to reveal the presence of CNA forces and for providing support to the CNA.

Widespread and Systematic Sexual Violence and Genocide
In his 2005 report, Horton described a strategy of forced pregnancy used to change the ethnic composition of certain areas or to ‘ethnically cleanse.’ He cited a secret government document that appears to actively promote a policy of racial destruction through sexual intercourse: “So that our great primary aim of our single Burman race to last forever we will meet with success, and for the greater national race to progress and develop, the easiest method is an aggressive campaign to dilute racial blood by taking foreign women who are not Burman.”

The two International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR) have both identified rape as potentially an act of genocide. The connection between forced impregnation and genocide was made by the ICTR in the Akayesu case, which made the connection between the prevalence of sexual violence and the political agenda behind identity-based conflict. In this way, the Tribunal established that sexual violence and military objectives could be one and the same.

Article 2 of the Genocide Convention, which Burma signed in 1956, defines genocide as any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.

 In Horton’s report, it was argued that rape can be used as a weapon to inflict genocide activity 2(d) by imposing measures intended to prevent births within the group.

In the Akayesu case, the ICTR said: “In patriarchal societies membership of a group is determined by the identity of the father, an example of a measure intended to prevent births within a group is in the case where, during rape a woman of the said group is deliberately impregnated by a man of another group, with the intent to have her give birth to a child who will consequently not belong to its mother’s group. . . . rape can be a measure intended to prevent births when the person raped refuses subsequently to procreate in the same way that members of a group can be led, thorough threats of trauma, not to procreate.”

Secondly, Horton argued that widespread rape can express genocide activity 2 (c) inflicting conditions of life calculated to bring about destruction of the group in whole or in part. The ICTR has said: “Sexual violence may cause disintegration of a group through deliberate emotional destruction of a vital part of that group. Women are the caretakers of society and if they become dysfunctional, the survival of the society is threatened.”

In March 2004 the Independent published an article entitled ‘Point of No Return’ where it described the institutionalisation of rape in the Burmese military, where women have been violated on suspicion of providing food for the Shan rebels. It cited interviews by human rights monitors with defecting Burmese soldiers – many of them young and traumatised by their training – who suggested they were encouraged to regard the forced impregnation of Shan women as a racial duty. “Your blood must be left in the village,” they were told.

Although genocide may be difficult to prove in the case of Burma, particularly with regards to the requisite special intent to destroy an ethnic group or groups in whole or in part, any Commission of Inquiry ought to examine whether genocidal acts may have occurred.
The Harvard Report omits any discussion of genocide, instead arguing that the UN has evidence that strongly suggests that the military forces perpetration of prohibited acts of sexual violence and rape in Burma constitute either crimes against humanity prohibited by Article 7(1)(g) or war crimes prohibited by Article 8(2)(e)(vi) of the Rome Statute.
The widespread nature of the abuse is reflected in the scale of the violations documented by the various UN actors. For example, a Report by the Society for Threatened Peoples found evidence of 173 incidents of rape and other forms of sexual violence, involving 625 girls and women, committed by Burmese army troops in Shan State, mostly between 1996 and 2001. According to the Report, this information was transmitted to the Myanmar Rapporteur, who reported that this trend continued in the period of 2002 to 2005 during which he received reports of 188 rape cases in Shan State. The UN reports refer to incidents of rape, itself a prohibited act, as well as gang rape and forced marriage.

In 2006, the Torture Rapporteur wrote that “Women and girls are subjected to violence by soldiers, especially sexual violence, as “punishment” for allegedly supporting ethnic armed groups. The authorities sanction violence against women and girls committed by military officers, including torture, inter alia, as a means of terrorizing and subjugating the population, particularly those in the Shan state.”

The Way Forward
Should a Commission of Inquiry be established, there are several options that could be considered: prosecution, truth commissions or the invocation of the Responsibility to Protect.
Since Burma is not a party to the Rome Statute, any prosecution of high-ranking individuals before the International Criminal Court would have to stem from a Security Council referral. On the other hand, the UN Convention against Torture may also be invoked, and Burmese officials who travel to other countries may be arrested and prosecuted. Although Burma is not a party, the Convention requires states parties to either extradite or prosecute a person alleged to have committed torture and who is present on the territory of the state party. Thailand is a new addition to the list of signatories.
The possibility of a Truth and Reconciliation Commission (TRC) for Burma has been debated, particularly in the wake of the Depayin massacre of 30 May 2003, when at least 70 people associated with the National League for Democracy were killed by government-sponsored mob. The Asian Legal Resource Centre is of the opinion that the massacre amounts to a crime against humanity, but the Harvard Report does not discuss the massacre at all, except in relation to Burma’s historical context. The fact that the military regime remains in power poses a significant obstacle to a Truth and Reconciliation Commission.

The doctrine of the Responsibility to Protect (R2P) has frequently been cited as a basis upon which States ought to intervene in order to stop the humanitarian situation in Burma, receiving much attention in the wake of Cyclone Nargis in May 2008.

At the 2005 World Summit, when United Nations member states agreed that there is a ‘Responsibility to Protect,’ they limited its scope to case of “genocide, war crimes, ethnic cleansing and crimes against humanity.” Under the doctrine of R2P, the international community has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means to help protect populations threatened by these crimes. Only when a state “manifestly fails” in its protection responsibilities, and peaceful means are inadequate, are stronger measures justified, in particular the use of force authorised by the Security Council under its Chapter VII powers.

The 2007 China-Russia veto, and UN Security Council Resolution 1769, which authorized the deployment a UN-African Union force for Darfur but did not refer to the Responsibility to Protect, may suggest a reluctance on the part of the Security Council to recognize a case for R2P in relation to Burma.
Even if a Commission of Inquiry were to conclude that war crimes, crimes against humanity or genocide are occurring in Burma, thus paving the way for the invocation of R2P, some argue that the use of force would be counter-productive; harming the very people it is supposed to protect.

Internal armed conflict erupted in Burma shortly after Burma gained independence from Great Britain in 1948. Ethnic minorities later took up arms originally fighting for independence but now almost all of them have accepted the Union of Myanmar and now want greater autonomy over local areas and increased political representation.

In 1988, pro-democracy demonstrations in Burma – known as the 8888 Uprising – were quelled in a bloody coup by the military-backed State Law and Order Restoration Council (SLORC), who changed the country’s name from Burma to Myanmar a year later. SLORC refused to acknowledge 1990 election results that favoured the National League for Democracy, led by Nobel Peace Prize winner Daw Aung San Suu Kyi, who remains under house arrest. The coup led to the exile of thousands of political opponents and to a united front of political and ethnic opposition groups against the ruling military junta, the State Peace and Development Committee (SPDC) headed by General Than Shwe.

Cease-fire agreements with several ethnic opposition groups have not prevented regular SLORC offensives against opponents along Burma’s borders, resulting in tens of thousands refugees and over one million internally displaced people.

Katherine Iliopoulos is an international lawyer based in The Hague, Netherlands. 

Related Links:

Crimes in Burma (PDF)
Harvard Law School Human Rights Program
May 2009

Dying Alive: A Legal Assessment of Human Rights Violations in Burma (PDF)
By Guy Horton
April 2005

Responsibility to Protect: Official Website
International Crisis Group Website: Responsibility to Protect
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