The United Nations Special Rapporteur on human rights in Burma, Tomás Ojea Quintana, has recommended that the UN should consider establishing a Commission of Inquiry into war crimes and crimes against humanity by the Burmese government.
The recommendation was included in an advance, unedited version of his report submitted to the UN Human Rights Council, which published it on its Web site.
The special rapporteur report said that the “gross and systematic” nature of the abuses and the lack of action to stop them indicated “a state policy that involves authorities in the executive, military and judiciary at all levels.”
It said; “According to consistent reports, the possibility exists that some of these human rights violations may entail categories of crimes against humanity or war crimes under the terms of the Statute of the International Criminal Court.
“UN institutions may consider the possibility to establish a commission of inquiry with a specific fact finding mandate to address the question of international crimes.”
Last week, a panel of judges and Nobel laureates met with UN Secretary-General Ban ki Moon and UN Security Council member-states, to make a case for an international inquiry into the ruling junta.
After hearing representative testimony about abuses suffered at the hands of the regime from 12 Burmese women at an event organized by the Nobel Women’s Initiative and Burmese women’s groups, the panel said it believed that the regime is guilty of crimes such as forced displacement of people, violence to life and person, sexual violence including rape and sex trafficking, torture, and persecution of people based on religious or ethnic identity, among others.
One of the judges, Prof. Vitit Muntarbhorn of Thailand, told the UN secretary-general that “we find that the Burmese military regime is responsible both individually and as a State for the crimes and violations at issue here based on its acts and policies of commission as well as its not acting to prevent these crimes and violations.” Muntarbhorn was joined by Nobel Peace Prize winners Jody Williams and Shirin Ebadi, as well as fellow judge Heisoo Shin.
However, there are formidable hurdles to be overcome, if any international inquiry using the International Criminal Court (ICC) is to be established for Burma.
Prof. David C. Williams, a constitutional law expert at Indiana University, has worked on Burma issues for many years. He told The Irrawaddy that there are three ways for a case to go before the the ICC. Any State that is party to the Rome Statute, which established the ICC, can refer a case to the Court. However this option is closed as Burma has not ratified the Rome Statute, and in any case would hardly refer itself to the ICC.
The second option is also a non-starter. Anyone can communicate to the ICC prosecutor that international crimes are occurring anywhere in the world, and the prosecutor can initiate an investigation. However the ICC has jurisdiction only over crimes occurring in the territory of a state that has signed up to the ICC, which again rules Burma out.
It is the third avenue that the NWI and others are considering even if it is a long shot given that China and Russia have a history of abstaining from or vetoing UN Security Council resolutions condemning the Burmese junta. Williams explained: “The UN Security Council can refer a case to the prosecutor. When a case begins this way, the Court has jurisdiction even over crimes occurring in states that are not parties to the Rome Statute, such as Burma. This path therefore seems the most promising. Darfur came before the ICC by this route.”
This is partly based on the principle of universal jurisdiction, an aspect of international law whereby states claim jurisdiction over alleged crimes that were committed outside the prosecuting state, irrespective of nationality, country of residence, or any other relation with the prosecuting country. The alleged crime must be considered a crime against humanity, and the case is based on the view that certain international law obligations are binding on all states, regardless of domestic laws or treaty obligations.
The indictment and arrest warrant issued by the ICC for Sudan’s President Omar al-Bashir came after a long and arduous process, in which the UN set up a Commission of Inquiry (CIO) to examine possible crimes committed in Darfur by the Sudanese Army and its proxy militias.
China and Russia abstained in a UN Security Council vote on setting up a COI for Darfur, with China following a policy of “non-interference’” in Sudanese affairs, even as it supplied the regime with oil revenues and weapons enabling it to carry out violence against its own people in Darfur. However, a COI was established by UN Security Council Resolution 1564, after months of high-level advocacy and a blizzard of media reporting on the fighting in Darfur.
This included visits to the region by UN Secretary-General Kofi Annan and US Secretary of State Colin Powell. Powell said that genocide was taking place in Darfur, something that President Bush and Democrat candidate John Kerry agreed upon during their subsequent presidential election campaign.
However, a similar international urgency or profile has not been seen with regard to Burma, where similar crimes have been ongoing for a longer time-frame than in Darfur. Fighting in the western Sudan region first broke out in 2003. When visited by Nobel laureates last week, both the UK and French deputy ambassadors to the UN expressed their concern at the ongoing human rights violations in Burma and said that they would like to hear more from victims and activists with first-hand experience of Burma. They stopped short of giving any indication that any action would be initiated based on the testimonies, or the findings and recommendations of the panel. However, Mark Farmaner, director of the Burma Campaign UK, told The Irrawaddy, “In recent months, we have seen a shift in the language the UK government is using, talking more about international law and describing abuses as widespread and systematic.”
Even if a COI was established, it would then have to find that crimes against humanity and war crimes had been committed, before there would be case to go before the ICC. The findings sometimes do not match the expectations of advocacy groups, or the statements made by politicians. For example, the Darfur COI did not find that genocide had taken place, but then, this did not prevent an eventual arrest warrant being issued by the ICC for the Sudanese president.
Benedict Rogers, the East Asia team leader at Christian Solidarity Worldwide, a UK-based human rights NGO that lobbies on behalf of oppressed Christian minorities, said he believes that there is sufficient evidence for a case to be made.
“Over many years, the United Nations itself has documented evidence of the widespread and systematic use of rape, forced labor, the forcible conscription of child soldiers and other violations that count as war crimes and crimes against humanity,” he told The Irrawaddy.
The growing portfolio of interviews, testimony and documentation of rights abuses against Burmese citizens could eventually provide the basis for an international tribunal. Reflecting on the particular impact on women from ethnic regions, Prof. Monique Skidmore, the author of “Karaoke Fascism: Burma and the Politics of Fear,” said that “the use of rape as a systematic weapon of war against Burma’s minority groups is well documented [and] irrefutable in a great many cases.”
Ethnic-based NGOS such as the Karen Human Rights Group, the Shan Women’s Action Network, the Free Burma Rangers and others have all issued reports outlining such crimes, which Janhabi Nandy, the manager of policy and advocacy at the NWI, describes as constituting a breach of the “Responsibility to Protect” (R2P) principles agreed to by the UN in 2005, whereby states are expected to protect their own civilians.
In January 2007, a UN Security Council resolution was proposed, based on the R2P norm, calling for and end to grave violations of human rights. However, China and Russia vetoed the resolution, claiming that the internal affairs of a state did not belong in the Security Council and that the situation did not constitute a threat to international peace and security. The R2P doctrine was controversially invoked by French Foreign Minister Bernard Kouchner after the May 2008 Cyclone Nargis, when the junta was criticized for its refusal to allow sufficient aid to enter the affected region, with more than 3 million homeless and around 150,000 thought to have died.
Surprisingly perhaps, the junta signed up to uphold R2P, when the doctrine was included in the September 2005 UN World Summit document. The junta accepted that it has primary responsibility to protect Burma’s population. Despite this commitment the government has failed to rein in the army and proxies such as the Democratic Karen Buddhist Army. The army’s long-established “four cuts policy” was developed under former dictator Gen. Ne Win to undermine support for ethnic opposition groups. It targets civilians as a means of undermining military opponents, by cutting off access to food, funds, information and recruits. In turn, the policy justifies burning of cropland, imprisonment and torture and murder of village chiefs, and the mass forced displacement of ordinary people.
Whether or not the appeals for an international inquiry generate any political ramifications inside Burma remains to be seen. Perhaps fearing that any loosening of military control could be the first step on a long road leading to The Hague, the junta does not appear likely to grant any concessions to international opinion.
This is despite offers by the US and others to reduce sanctions. The announcement of Burma’s 2010 election laws is a case-in-point, with Aung San Suu Kyi predictably barred from running, and her party, the National League for Democracy, under a 60-day deadline to decide to participate in the election or disband.Show