UN inaction on Burma war crimes ‘unjustifiable’

UN Special Rapporteur Tomas Ojea Quintana has led calls for a UN investigation into war crimes in Burma (Reuters)
By SIR GEOFFREY NICE QC and JULIANNE KERR STEVENSON
Published: 20 September 2010

It is time for the UN to investigate the consistent reports of mass human rights violations in Burma to enable the identification of those responsible. The failure to take this step is unjustifiable. For decades NGOs and UN actors have documented reports of extrajudicial killings, sexual violence, torture, mass internal displacement, sexual violence, the use of child soldiers and forced labour, and the list goes on. The scale and gravity of the violations reported strongly suggests that they amount to war crimes or crimes against humanity.

Yet, although it is undeniable that mass violations have been, and continue to be, perpetrated primarily by the Burmese military junta but also by armed ethnic groups, those who commit these alleged international crimes do so with absolute impunity. This impunity will not end without a UN initiated investigation specifically aimed at obtaining evidence in order both to clarify the true extent of the atrocities, but also to obtain evidence linking an individual to a specific crime in order to establish accountability. Once such evidence has been obtained, it will be a question of whether the UN and the international community will have the necessary political will to bring the perpetrators to justice.

There is strong evidence of mass human rights atrocities in Burma. In May 2009 the International Human Rights Clinic at Harvard Law released the report, Crimes in Burma, which highlighted the fact that for fifteen years, numerous UN actors, such as the Special Rapporteur for Burma, the General Assembly and Commission on Human Rights had raised considerable concern over the perpetration of grave human rights violations in the country. A former Special Rapporteur for Burma reported that he had received information indicating the military regime had destroyed, forcibly displaced, or forced the abandonment of over 3,000 villages in eastern Burma where ethnic minorities predominate. Further, that at least one million people fled their homes because of the attacks, escaping as refugees and internally displaced persons.

Reports of mass human rights atrocities have continued since the release of the Crimes in Burma report. Just one of the many examples available is provided by the Special Rapporteur’s comments on the situation in the Shan state in his report of March 2010:

“The Special Rapporteur is alarmed by the dire human rights situation in Shan State. Since 27 July 2009, it is reported that the military have burned down over 500 houses and scores of granaries, and forcibly relocated almost 40 villages, mostly in the Laikha township. According to reports, over 100 villagers, both men and women, have been arrested and tortured. At least three villagers have been killed. This would be the largest forced relocation since 1996–1998, when over 300,000 villagers in southern and central Shan State were displaced.”

UN actors have also highlighted the pervasive culture of impunity that perpetrators enjoy, observing a general failure to investigate allegations of abuse, the threat of reprisals for those who report abuses, the failure to prosecute those responsible, and the lack of an independent judiciary.

However, NGOs and UN actors face tremendous difficulties in obtaining the evidence from victims and others in Burma, which would establish the full extent of the atrocities committed and allow for the identification of, and obtain evidence against, individual perpetrators. For example, the Special Rapporteur’s last visit to Burma on 15 January 2010 was limited to a mere five days, and he was provided with his programme on a daily basis by the government. Such a limited and controlled investigation cannot hope to establish the true extent of the situation. Further, it is unable to provide the detailed evidence directly linking a perpetrator to an alleged crime, which is required to establish individual responsibility.

This reality has been recognised by two former Special Rapporteurs for Burma, who have come out in support of the call for a Commission of Inquiry into the issue of international crimes in Burma, as well as the current rapporteur, Tomas Ojea Quintana. He stated in March this year that:

“Given the gross and systematic nature of human rights violations in Myanmar [Burma] over a period of many years, and the lack of accountability, there is an indication that those human rights violations are the result of a State policy that involves authorities in the executive, military and judiciary at all levels. 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 Rome Statute of the International Criminal Court.

The mere existence of this possibility obliges the Burmese government to take prompt and effective measures to investigate these facts. There have clearly been cases where it has been necessary to establish responsibility, but this has not been done. Given this lack of accountability, 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.”

Thus, on the issue of whether the reported mass violations amount to international crimes, the Special Rapporteur’s statement that the evidence he has received of the incidents of sexual violence, extrajudicial killings and torture suggests that they are widespread, systematic and part of a deliberate strategy to terrorise and subjugate civilians, clearly supports such a conclusion.

Although such statements may in of themselves be insufficient to bring individuals to trial, it should be recognised how strong the supporting evidence for war crimes and crimes against humanity actually is in the Burma context. In addition to the assessments by the various reliable UN bodies referred to in the ‘Burma Report’ much information has been provided by various NGOs, not all of whom are dependent upon second hand sources for what they report (however cautious they may have to be about explaining how they obtain first-hand ‘in-country’ intelligence and providing anonymity to the victims and witnesses spoken to).

There has been no effective counter from the regime to the allegations made and no effective and independent inquiry of any kind has been published that suggests the allegations reported by the UN and other bodies are wrong. It is, of course, a reality that those applying the (international) rule of law and who therefore proceed on the basis of evidence are at a disadvantage in comparison to those who resist the provision of information about crimes, supported as they may be in this approach by the political interests of patron states.

We have little, if any, doubt about the strength of the underlying evidence and thus of the fact that very serious crimes have been and are being committed in Burma. This is the reason we – and many others – are pressing for political action that will render impossible the continued blocking of truth by political action or inaction.

It is therefore imperative that a Commission of Inquiry is established by the UN. Such a Commission could be established directly by the UN Secretary General, which was the route adopted in the case of the Bosnian war crimes commission in the early 1990s. It could also be established by the Security Council, though this procedure is obviously susceptible to a veto by permanent members such as China.

The necessity of such a step has been recognised by some members of the international community. These include the USA, Canada, Australia, Slovakia and the Czech Republic. It is to be hoped that other nations, in particular those on the Security Council, will adopt the same stance.

In the event that a Commission of Inquiry was established there is every reason to believe that it would obtain evidence of mass international crimes. Moreover, a properly functioning commission should be able to gather evidence establishing the accountability of both the perpetrators in the field and those exercising command and control over the strategy of terror.

The inevitable question that would arise once the Commission identified the perpetrators at all levels of command and obtained sufficient evidence against them would be: will the international community bring the perpetrators to justice? It is impossible to answer this question conclusively. Whether the perpetrators of the mass human rights atrocities would be brought to trial is entirely dependent upon the will of the international community.

At this time, there is no indication that the Burmese government will take any genuine and effective steps to end the prevailing culture of impunity in Burma. Further, Burma is not a State Party to the International Criminal Court, and so for alleged perpetrators to be tried by this institution the Security Council would have to refer the situation to the Court. It must not be under-estimated how difficult this would be to achieve. Again, such a procedure is susceptible to a veto by a permanent member of the Security Council – the most obvious concern of course being China. It must be hoped that the political will demonstrated by a future establishment of a Commission of Inquiry would carry through to prosecution of those it identified.

It seems clear, therefore, that if a UN Commission of Inquiry was initiated it would not be a lack of evidence that would prevent trials of alleged perpetrators of mass human rights atrocities in Burma; rather a lack of the necessary international political will by the UN and its member states.

Sir Geoffrey Nice QC is co-Commissioner of the Harvard International Human Rights Law Clinic Report Crimes in Burma. Sir Geoffrey worked in the Office of the Prosecutor at the International Criminal Tribunal for the former Yugoslavia, and was the lead trial attorney in the prosecution of Slobodan Milošević.

Julianne Kerr Stevenson is co-author of the Harvard International Human Rights Law Clinic Report Crimes in Burma and Member of the Bar.

They write on behalf of the Burma Justice Committee.
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