Lawyers in Action for Human Rights: Simple Actions for Great Impact

BACKGROUND PAPER

Lawyers in Action for Human Rights: Simple Actions for Great Impact

JUSTICE FOR BURMA CAMPAIGN: The establishment of a UN Commission of Inquiry into international crimes
IBAHRI Background Paper for lawyers and bar associations
July 2011
Supported by the Open Society Institute Burma Initiative and the IBAHRI Trust

Acknowledgement The present documents have been prepared by the IBAHRI. This would not have been possible without the support from our interns, namely Kristina Velcikova, Nishma Jethwa and Camilla Whitehouse and the insight of a numerous organisations and individuals met in London, Geneva, Madrid, on the Burmese-Thai border, Chiang Mai, Bangkok, Warsaw and Paris. The IBAHRI wishes to acknowledge in particular the Burma Lawyers Council, associated with the project.

Lawyers in Action for Human Rights: Simple Actions for Great Impact

IBAHRI Justice for Burma Campaign

IBAHRI Background Paper
Burma is known as one of the most repressive regimes in the world. Since winning independence from the British in 1948, the country has been suffering internal conflicts between the central Government, dominated by the Burman majority ethnic group and ethnic minority groups demanding secession or autonomy.1 For decades, Burmas military junta, named2 the State Peace and Development Council (SPDC), based its counter-insurgency strategy, known as the Four Cuts policy, on targeting the civilian population. Specifically, the Four Cuts policy aimed to undermine the non-state armed groups access to recruits, finances, supplies and information. The Four Cuts policy, together with extensive militarisation3 and the development of state infrastructure projects,4 has resulted in severe human rights violations. Since 1988, the SPDC has exercised almost uncontested control of the country, committing widespread human rights violations and denying citizens basic freedoms.5 The military regime has allegedly destroyed more than 3,300 ethnic minority villages, forcibly displaced over one million refugees, recruited tens of thousands of child soldiers, and committed widespread rape and sexual violence against ethnic women.6 The SPDC has concealed the extent of these crimes by incarcerating political activists7 and human rights defenders, and by denying access to Burma by humanitarian organisations and UN agencies.8 Since 1991, the United Nations (UN) mechanisms have called on the Burmese military regime to respect international human rights law and humanitarian law and to investigate reports of human rights abuses. However, the regime has ignored almost every call from the international community. Meanwhile, in recent years, the Burmese regime has been skilfully operating a strategy of confusion to ease international pressure and actions. At the time of writing, human rights abuses continue in Burma and perpetrators continue to enjoy impunity. In a recent report, Christian Solidarity Worldwide, a United Kingdom (UK) based advocacy organisation, stated that in addition to continuing to suppress democracy, the regime has identified its attacks against ethnic civilians, particularly in Karen and Shan states. On 13 March 2011, the regime broke its 22-year ceasefire with the Shan State Army-North (SSA-N), deploying 3,500 troops from over twenty battalions to attack Murng Su township. Over 100,000 civilians have been affected. The military has killed several civilians, shelled Buddhist temples, forced civilians to work as porters for the army and gang-raped Shan women. Over 3,000 villagers have been forced to flee from their homes.9 In March 2010, the UN Special Rapporteur on Myanmar10 (Burma), Toms Ojea Quintana, recommended the establishment of a UN Commission of Inquiry (COI) into international crimes for Burma. The views of the International Bar Associations Human Rights Institute (IBAHRI) are that in the face of such serious allegations of human rights abuses and the unwillingness of the Burmeses regime to conduct an investigation, the responsibility falls within the prerogatives of the international community which has a duty not only to protect populations from atrocious crimes, such as genocide, crimes against humanity and war crimes, but also to deter commission of such crimes, in case of the state failure or absence of adequate protection. The international community bears a duty to cooperate to end impunity for those aforesaid crimes. To fulfil this duty, it should take subsequent steps to ascertain the facts following serious allegations of crimes being committed. In other words, under international law, UN Member States are obligated to investigate prima facie evidence of violations of alleged human rights, from which derogations are prohibited. This obligation is binding on all states, regardless of domestic laws or treaty obligations. This paper is by no means a comprehensive review of human rights abuses in Burma. Rather, it aims to support lawyers and bar associations taking part in the IBAHRI Justice for Burma campaign by providing sufficient background information on Burma. As such, first it will address prima facie evidence of international crimes. Secondly, the paper will look into the recent call to create a UN COI and thirdly, it will recall the responsibility of the international community for breaches of peremptory norms. The present paper has to be read in conjunction with the Guidelines for lawyers to take action.

JUSTICE FOR BURMA CAMPAIGN: The establishment of a UN Commission of Inquiry into international crimes

Lawyers in Action for Human Rights: Simple Actions for Great Impact

1. UN documents clearly and authoritatively demonstrate that international crimes have been committed by the Burmese regime Hundreds of reports have collected prima facie evidence of state-sanctioned widespread and systematic violations of human rights, including: arbitrary killings; forced displacement of civilians; forced labour; rape and grave sexual violence; and torture which are likely to amount to crimes against humanity or war crimes under the terms of the Rome Statute of the International Criminal Court (ICC). In a report issued by the Harvard Human Rights Clinic11 (the Report), high profile Commissioners12 have concluded that UN documents dating back to 1992 clearly and authoritatively demonstrate that crimes against humanity and war crimes have been committed by the junta in Burma. By examining solely UN documents, the Report establishes that a prima facie case exists for crimes against humanity committed by the military regime. Pursuant to Article 7(1) of the Rome Statute establishing the ICC, a crime against humanity is defined as a prohibited act committed as part of a widespread or systematic attack, directed against any civilian population, and with knowledge of the attack.13 Such prohibited acts include, inter alia, torture, rape and sexual violence, forcible transfer of a population, and murder. The report further asserts that a number of actors within the UN system, including the Special Rapporteur on Myanmar, the UN General Assembly (UNGA), Commission on Human Rights and later the Human Rights Council, have consistently noted the occurrence of these violations in Burma since 1991. During the last 20 years, the UNGA, UN Commission on Human Rights and the UN Human Rights Council have adopted 42 resolutions14 on Burma acknowledging the commission of severe violations of human rights, progressively expanding the scope of abuses and calling on the Burmese regime to respect the humanitarian and human rights law. In the meantime, UN mechanisms have been calling the military junta to undertake an investigation into reports of human rights violations.15 For example in 2002, the UNGA expressed that it was gravely concerned about: The ongoing systematic violations of human rights, including civil, political, economic and social and cultural rights, of the people of Myanmar; [] Extrajudicial killings; rapes and other forms of sexual violence carried out by the members of the armed forces; torture; renewed instances of political arrests and continuing detentions, including of prisoners who have served their
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sentences; forced relocation; destruction of livelihoods; forced labour; denial of freedom of assembly, association, expression and movement; discrimination on the basis of religious or ethnic background; wide disrespect for the rule of law and lack of independence of the judiciary; deeply unsatisfactory conditions of detention; systematic use of child soldiers [].16 More recently, in 2007, the UNGA expressed concern about such human rights violations in Myanmar including the: Discrimination and violations suffered by persons belonging to ethnic nationalities of Myanmar [Burma], including extrajudicial killings, rape and other forms of sexual violence persistently carried out by members of the armed forces; the continuing use of torture and the prevailing culture of impunity; (b) The attacks by military forces on villages in Karen State and other ethnic States in Myanmar, leading to extensive forced displacements and serious violations of the human rights of the affected populations.17 However, UN bodies have consistently failed to either use the language of international crimes, or take the steps dictated by the seriousness of allegations of severe human rights in Burma such as undertaking an impartial investigation to determine whether or not alleged violations constitute international crimes and possibly establishing individual culpability.

2. Political and economic context As described above, reports of widespread and systematic violations of human rights date back 20 years. UN Member States have so far been reluctant to take a harsh stand against the Burmese military junta, sometimes based on economic interests. Instead, many states have maintained a latent position, pushing the issue of international action away from the agenda.

Economic context Some states have been involved in natural resource extraction development projects run by the military junta. State development projects have often resulted in serious human rights violations, such as forced labour, extortion, land confiscation and forced displacement of populations.18

Salween River project Chinas investment in Burma is most notable and is increasing.19 As of 2008, China had 69 multinational corporations invested in Burmas hydropower, oil,

JUSTICE FOR BURMA CAMPAIGN: The establishment of a UN Commission of Inquiry into international crimes

Lawyers in Action for Human Rights: Simple Actions for Great Impact

natural gas and mining projects.20 An important example is the Chinese involvement in the Salween River Dams (the Tasang Dam and the Hat Gyi Dam). These dams have caused forcible relocation of 15,000 people, with the potential for an additional 3,000. The Chinese have also instigated counterinsurgency violence.21 Thailand has also shown support for the Salween Dam projects, which has been included in its national Power Development Plan,22 despite warnings of human rights abuses.23 In 2007, Wan Mai village land was confiscated in order to build a company office; this type of uncompensated, forced relocation is expected to continue.24

Political context In the meantime, to counterbalance very poor human rights records, the Burmese regime has been operating a skilful strategy of confusion, which has resulted in easing international actions and pressure. This strategy of confusion can be explained by the following citation from the Asian Human Rights Commission: As military strategists and planners who think in terms of threats and enemies, the most effective strategies and plans are those where both outside observers and as many people in the domestic population as possible are left uncertain about what has happened and why, what may happen or may not happen next and what it all means. 36 Recent political developments could be seen as a convincing illustration of such a strategy. On 7 November 2010, Burma held its first parliamentary elections in 20 years. One week later, Nobel Peace Prize recipient Daw Aung San Suu Kyi was released from house arrest. On 31 January, the newly elected37 Parliament was convened and on 30 March 2011, Thein Sein was sworn in as the President of a newly civilian masquerade Burmese regime, concluding the seven-step road map to democracy announced in the aftermath of the Depayin massacre in 2003.38 On 16 May 2011, 55 out of 2,066 political prisoners were freed following a visit by Vijay Nambiar, Special Adviser to the Secretary-General. The unanimous view of international and Burmese NGOs is that the changes are purely cosmetic, evidenced by the legal and political reality described below. A few days before the new Parliament was convened, General Than Shwe, former head of the ruling junta, enacted a number of laws that favour military compensation over the welfare of Burmese citizens, including: the State Budget Law for 2011 2012, allocating the largest portion of the budget to defence; the Military Draft Law, which extends military conscription to five years; and the Reserve Forces Law, which requires that retired army personnel have to serve in the reserved armed forces for five years.39 Despite the new governments masquerade as a civilian government, President Thein Sein is a former General and just four out of 30 members of the Cabinet are civilians. The new parliament, which is overwhelmingly dominated by the Burmese regimes party, is vested with no real power. Members of Parliament (MPs) face criminal charges for speaking out on issues that are deemed to endanger national security. Should the MPs wish to ask questions, they are required to submit them ten days in advance. Behind the scenes, the military junta maintains the power over the state.40

Shwe Gas Pipeline In addition to the dam projects, China has invested financially in a project to build a gas and oil pipeline across Burma to Chinas southern Yunnan province.25 This project aims to increase foreign investment, while the impoverished communities lacking electricity in Burma, such as Rakhine State remain neglected.26 South Korea (Daewoo) and India (ONGC Videsh) are part of the investment consortium.27 Analysis identifies government attacks and the subsequent forced migration of 37,000 refugees in attempts to clear the region for the impending project.28 It is common for infrastructure projects such as these to rely on labour by underage workers who, because of widespread poverty, feel they have no choice.29

Additional projects Farmers have been relocated due to their land being sold to Chinese businesspeople to create rubber plantations.30 China has also invested in rebuilding Stilwell Road, which runs from India to Burma, winning its bid against Indian investors.31 China is now in agreement with Burma for the construction of the Nam Tabat Hydropower Project.32 A second pipeline, similar to Shwe Gas Pipeline, will carry crude oil from the Middle East to Rakhine State; corporations from China, India, South Korea, Thailand, Russia, Australia, France and Malaysia have shown interest in developing offshore and onshore blocks.33 Thailand is currently trying to recruit strategic partners to co-invest in a land development project in Dawei.34 The potential negative environmental impact on the area could be very grave.35

JUSTICE FOR BURMA CAMPAIGN: The establishment of a UN Commission of Inquiry into international crimes

Lawyers in Action for Human Rights: Simple Actions for Great Impact

The strategy has proven to be effective and states have shown to be reluctant to take harsh steps against Burma in light of recent political changes. At the time of writing, human rights abuses continue in Burma and perpetrators continue to enjoy impunity. It has been reported that in Karen and Shan States, the regime has intensified its attack against civilians and human rights violations continue on a daily basis. Fighting has resumed during the past year in Eastern Burma, notably in Shan State, following the governments attempt to conscript ethnic ceasefire groups into Border Guard Forces.41 In a recent letter sent to President Obama, US-based organisation US Campaign for Burma stated: between May and June of this year, scores of ethnic villages were destroyed, hundreds of ethnic people and common prisoners were used as porters and human minesweepers, and the property and belongings of ethnic minorities were looted by the Burmese army. Villagers have been arrested, tortured and killed by Burmese troops on accusations that they were supporters of the ethnic resistance groups. Tens of thousands of villagers have been displaced and fled to the Thai-Burma and ChinaBurma borders. Credible reports have emerged of cases of sexual violence against women and girls by Burma army troops. These reports are in line with extensive documentation of sexual violence perpetrated by Burmese military personnel over many years. More than 13,000 Kachin refugees are now taking shelter in Laiza, at the China-Burma border and thousands more are taking refuge inside Chinese territory. The number of refugees is expected to grow more as fighting continues.42 On 18 June, Peace Nobel Prize recipient and leader of pro-democracy opposition Daw Aung Saan Kyi, who was freed from house arrest a week after the first elections in 20 years took place, was warned not to conduct political activities in breach of the law.

It is essential for investigations of human rights violations to be conducted in an independent, impartial and credible manner, without delay. Former UN Special Rapporteur on Myanmar, Paulo Sergio Pinheiro, also agreed that a COI should be created, as in the cases of the former Yugoslavia, Rwanda and Sudan, because such a commission would accomplish three goals: [f]irst, it will make the junta accountable for its crimes with a potential indictment by the International Criminal Court. Second, it will address the widespread culture of impunity in Burma. Third, it has the potential to deter future crimes against humanity in Myanmar.44

A. A UN COI for Burma From the former Yugoslavia to Rwanda, Darfur, Sri Lanka, Gaza and recently Libya, Syria and Ivory Coast the recourse to UN led fact-finding missions has significantly increased in the past decades and their value has become obvious. Past cases establishing a UN COI for states with similar records of human rights violations specifically Cambodia, Bosnia and Liberia have been successful in two important ways: first, they have led to the creation of international criminal tribunals mandated to end impunity; and secondly, they have offered the possibility of peace and redress for the citizens of the subject countries.45

DefINITION

3. The UNs Special Rapporteur call for a UN Commission of Inquiry The United Nations Special Rapporteurs report on the situation in Burma recommended in March 2010 the establishment of a COI into international crimes for Burma. The report described the gross and systematic human rights abuses in the country, potentially amounting to war crimes and crimes against humanity, and described a state policy that allows military, executive and judiciary authorities to act with impunity.43 In 2011, after the establishment of a new civilian government, the UN Special Rapporteur on Myanmar reiterated his call for a COI, stating, the responsibility falls to the international community if the government fails to do so. []
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Under the annexed text to the UN Resolution Declaration on Fact-finding by the United Nations in the Field of the Maintenance of International Peace and Security46 (the Declaration), the UNGA recognised the importance of factual investigations for the maintenance of international peace and security and the need to improve this role. The Declaration states that: the ability of the United Nations to maintain international peace and security depends to a large extent on its acquiring knowledge about the factual circumstances of any dispute or situation, the continuance of which might threaten the maintenance of peace and security. While the consent of the state to receive a factfinding mission is required; states should aim to follow a policy of admitting United Nations factfinding missions to their territory.47 UN COIs comprise high level panels of experts in law and international human rights who are deployed in a country to investigate reports of human rights abuses, collect prima facie evidence of internationally prohibited acts and sometimes identify perpetrators from which a report including findings and recommendations is issued. In other words, a COI seeks to establish the truth and to ascertain the facts.

JUSTICE FOR BURMA CAMPAIGN: The establishment of a UN Commission of Inquiry into international crimes

Lawyers in Action for Human Rights: Simple Actions for Great Impact

B. How can it be established? Fact-finding activities, such as a COI, can be initiated by four specific organs of the UN when aiming to accrue full knowledge of a situation pertaining to international peace and security: 1. 2. 3. 4. The Security Council under Chapter VII of the UN Charter. The UNGA under Charter VI of the Charter. The UNGA can also recommend the SecretaryGeneral or Security Council to set up a COI. The Secretary-General, whose authority is derived from Chapter V of the Charter. The Human Rights Council is also empowered to create a COI under UNGA Resolution 60/251.

COIs have been used in the past to instigate a process by which individual accountability for international crimes can be sought. The process often involves the UN Security Council, acting within its Chapter VII Article 39 powers, recognising that the situation in question is a Threat to the Peace. This then triggers the creation of a COI, set up by one of the four bodies listed above, to investigate the threat and collect prima facie evidence of the crimes. This is a strong option for the case of Burma. A report written by DLA Piper, entitled Threat to the Peace, concluded that the situation in Burma portrayed the same general characteristics that had persuaded the Security Council to establish COI in the former Yugoslavia, Rwanda and Sudan, including: (1) the overthrow of a democratically-elected government; (2) conflict among governmental bodies and insurgent armies or armed ethnic groups; (3) widespread internal humanitarian/human rights violations; (4) substantial outflow of refugees; and (5) other crossborder problems (for instance, drug trafficking).48 However, while Burma remains on the permanent UN Security Council agenda, the Security Council has not recognised the situation as a threat to the peace. Yet, the situation has to be understood in the current political context, as well as the politics within the Security Council, which is so far the only world body with binding powers. The seriousness of allegations of mass human rights abuses against ethnic minorities in Burma should constitute sufficient ground for the Security Council to pass a resolution enjoining the Burmese Government to immediately issue orders prohibiting violations of humanitarian and human rights law on the one hand and establishing a UN led fact-finding mission on the other. The latter could lead to the establishment of an international judicial mechanism, a direct referral to the ICC or to a recommendation enjoining the states to exercise

their universal jurisdiction. However, achieving a binding Security Council resolution to establish a COI is unlikely to happen, given the predicted opposition by UN permanent members, namely China and Russia. That said, the IBAHRI believes that the UNGA constitutes the likeliest option for Burma. Indeed, the UNGA could aptly set up a COI on its own or recommend the UN Secretary-General (or the Security Council) to do so as it previously did in Cambodia. In July 1998, a Group of Experts was instated by the Secretary-General of the UN at the request of the UNGA49 to: (a) evaluate the existing evidence of crimes committed between 1975 and 1979; (b) assess whether it was possible to apprehend, detain or extradite Khmer Rouge leaders; and (c) to explore options for an international or national tribunal.50 Ultimately, the COI recommended the establishment of an international criminal tribunal in 1999.

C. A step-by-step approach: a COI to ascertain facts and deter the commission of further crimes In light of the political context, the view of the IBAHRI is that states should adopt a step-bystep approach, according to which, the mandate of a UNGA COI for Burma would primarily be to seek the truth, ascertain the facts and legally determine the extent to which they amount or do not amount to international crimes. The language of crimes against humanity and war crimes has not been used so far by either the UNGA or the Human Rights Council. In other words, in the absence of adequate protection by a state, such a process can only be instigated by an independent and impartial body mandated to look into egregious violations of international human rights and humanitarian law committed by all parties to the conflict; that is, the Burmese army and the non-state armed groups. If a prima facie case of crimes against humanity and war crimes is found, the Commissioners could possibly spell out recommendations such as: 1. 2. enjoining the Burmese Government to issue orders prohibiting violations of human rights and humanitarian law; calling upon the Security Council to set up a follow up COI to identify perpetrators and explore options for an international judicial mechanisms; calling on the UN Member States to exercise their Universal Jurisdiction.

3.

The IBAHRI further believes that a step-by-step policy, that is, first ascertaining facts rather than a latent wait and see position, would lead to a wider consensus within the international community.
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JUSTICE FOR BURMA CAMPAIGN: The establishment of a UN Commission of Inquiry into international crimes

Lawyers in Action for Human Rights: Simple Actions for Great Impact

The announcement and establishment of a COI may have a significant deterrent effect on the commission of further crimes; insofar as the international community will send a strong signal to Burmas generals that human rights abuses against ethnic minorities must stop immediately.

THe INTeRNATIONAL LABOUR ORGANIzATION COI PReCeDeNT IN BURMA

On 20 June 1996, a letter of complaint was submitted to the International Labour Organization (ILO) on behalf of Burmese workers highlighting Burmas non-compliance with the Forced Labour Convention, to which Burma is a State Party. Pursuant to Article 26 of the Constitution of the ILO, a COI was formed in Burma in 1997 to investigate breaches of international labour laws, out of which a report detailing the widespread use of forced labour was issued.51 This COI is an excellent precedent for a COI on international crimes: This report was produced without active cooperation by the Government of Burma, insofar as the military regime refused to comply with the investigation and did not permit any formal visits.52 Eventually Order 1/99 was passed on 14 May 1999 by the State Peace and Development Council (SPDC) in Burma, prohibiting the use of forced labour, which previously set out in two Burmese acts (Towns Act 1907 and Villages Act 1908), which allow forced labour.53 The continued pressure from the ILO has made Burma subject to regular review on such matters. While forced labour is still a state practice, it has considerably decreased.

4. Responsibility of the international community Every call from the international community to investigate allegations of human rights abuses has been persistently ignored by the Burmese regime. The 2008 Constitution grants blanket amnesty for all government officials for past acts. Article 445 of the Constitution provides that: No proceeding shall be instituted against the said Councils or any member thereof of the Government, in respect of any act done in the execution of their respective duties. There is a growing tendency to believe that state sovereignty does not apply to certain atrocities.54 Over recent decades, major debates have arisen over the question of state responsibility with regard to international crimes. The International Law Commissions (ILC) Draft Article 19 relating to the responsibility of Internationally Wrongful Acts
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made a distinction between international delicts and international crimes, defining the latter as an international wrongful act resulting from the breach by a state of an international obligation so essential for the protection of fundamental interests of the international community as whole. Examples of international crimes include crimes against humanity, war crimes and crimes of aggression, genocide or slavery. Articles 40 and 41 of the ICLs Articles on Responsibility of States for Internationally Wrongful Acts provide that a gross and systematic failure by a State to fulfil the obligation, results in binding all states to cooperate to bring an end through lawful means any serious breach within the meaning of article 40. While the provision is silent on the forms the duty to cooperate should take, some scholars believe that the emerging norm of the Responsibility to Protect constitutes an example of cooperation among states to put an end to serious breaches of peremptory norms.55 At the United Nations World Summit in 2005, the international community endorsed the principle according to which each individual state has the responsibility to protect its population from genocide, war crimes, ethnic cleansing and crimes against humanity.56 The corollary to the principle of the responsibility to protect is that if a population within a state is suffering serious harm, and the respective state is either unable or unwilling to protect that population, then the responsibility falls on the international community to intervene and provide protection to the harmed population.57 Even though the concept has primarily envisaged principles for military intervention, coercive measures such as criminal prosecution have been considered.58 As the Inter-American Court of Human Rights indicated in the La Cantura v Peru case, a breach of jus cogens norm entails certain consequences, including the investigation and prosecution of the perpetrators of those breaches.59 The Court stated that: events [have been] described before this court by the Commission for Truth and Reconciliation, domestic judicial organs and the States representatives as crimes against humanity, and it has been established that these were perpetrated in the context of a generalized and systematic attack against sectors of the civilian population. As a result, the duty to investigate and eventually conduct trials and impose sanctions, becomes particularly compelling and important in view of the seriousness of the crimes committed and the nature of the rights wronged; all the more since the prohibition against the forced disappearance of people and the corresponding duty to investigate and punish those responsible has become jus cogens.60 Stemming from the development of concept of non-derogeable jus cogens norms and development

JUSTICE FOR BURMA CAMPAIGN: The establishment of a UN Commission of Inquiry into international crimes

Lawyers in Action for Human Rights: Simple Actions for Great Impact

of individual criminal responsibility under international law and the a policy of interference of the Security Council under the UN Charter in the event of a threat to peace and security, the investigation and prosecution of international crimes falls today within the prerogatives of the international community as a whole. In other words, under international law, UN Member States are obligated to investigate prima facie evidence of international crimes, namely war crimes and crimes against humanity. This duty is binding on all states, regardless of domestic laws or treaty obligations. In Libya, the violent crackdown on protesters led the Security Council in a statement of 22 February to invoke the Responsibility to Protect Libyan citizens. The Human Rights Council, in a resolution adopted at the 15th Special Session,61 decided to set up a COI to open investigation into violations of human rights law. On 26 February 2011, the Security Council unanimously decided to defer the situation to the ICC. The international communitys rapid response to the Libyan crisis is a welcome step forward. Severe human rights violations have been allegedly committed in Burma for more than 20 years. The international community has a responsibility not only to deplore, but to protect and act.
Notes 1 Burmas main characteristic trait is certainly its ethnic diversity, with one-third of the Burmese population comprised of ethnic minorities. The 1974 Constitution provided for seven ethnic minority states, including the Chin, Kachin, Karen, Kayah (Karenni), Mon, Arakan and Shan States and seven divisions mostly inhabited by the Burman majority. See Martin Smith, Burma-Myanmar: The Time For Change, (Minority Group International, May 2002), 8. Rights of Ethnic Minorities: www.ibiblio.org/obl/docs/yearbooks/8.%20 Rights%20of%20Ethnic%20Minorities.htm. 2 The SPDC was officially dissolved on 30 March 2011 at the time of the transformation of the military regime into a civilian government. 3 Thailand Burma Border Consortium (TBBC) 2010, Protracted Displacement and Chronic Poverty in Easter Burma/Myanmar: The main threats to human security in Eastern Burma are related to militarisation. Under the guise of state building, the Burmese armys strength grew from 180,000 soldiers in 1988 to 370,000 troops by 1996, and it is generally assumed there are now over 400,000 soldiers. [] By withholding rations and paying meagre salaries, the SPDC effectively compels frontline troops to extort food and confiscate fields from local villagers. 4 Ibid; state-sponsored development initiatives frequently lead to the deployment of Burmese Army troops to secure control over the surrounding areas. See International Monetary Fund, 7 January 2009, Myanmar: Staff Report for the 2008 Article IV Consultation, unpublished report page 6, which states that, a combination of coercive measures, such as forced labour, extortion and land confiscation, [which] drive down incomes to the point that the household incomes collapse and people have no choice but to leave their homes. 5 Brad Adams, Burmas Road to Reform: What Has Really Changed?, (The Nation, 28 July 2007): www.hrw.org/en/ news/2007/07/27/burmas-road-reform-what-has-reallychanged.

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See Letter from 442 Members of Parliament to HE Ambassador Michel Kafando and HE Mr Ban Ki-moon, 10 December 2009: http://uscampaignforburma.org/wp-content/ uploads/2009/12/442-MPs-Letter-to-UNSC.pdf. According to the Burmese organisation, Assistance Association for Political Prisoners (AAPP), as of 2011, 2,061 political prisoners were incarcerated. On 16 May 2011, 55 political prisoners were freed, following the visit of Vijay Nambiar, Special Adviser to the Secretary-General. Amnesty International, 2006 Annual Report for Myanmar (Burma), 2006: www.amnestyusa.org/annualreport. php?id=ar&yr=2006&c=MMR. Christian Solidarity Worldwide, Visit to Burma and the Thailand-Burma Border 13 March13 April 2011: http:// dynamic.csw.org.uk/article.asp?t=report&id=135. The ruling military junta changed the name of the country from Burma to Myanmar in 1989. The name has been recognised by the UN. The International Human Rights Clinic at Harvard Law School, Crimes in Burma, 28 May 2009: www.law.harvard. edu/programs/hrp/documents/Crimes-in-Burma.pdf. For a detailed examination of acts perpetrated by the military regime that constitute crimes against humanity, see also Amnesty International Myanmar: Crimes Against Humanity in Eastern Myanmar, June 2008, and Physicians for Human Rights, Life Under the Junta, Evidence of Crimes against Humanity in Burmas Chin State, January 2011. The Commissioners included: Justice Richard J Goldstone, former Chief Prosecutor of both the International Criminal Tribunals for the former Yugoslavia and for Rwanda; Patricia M Wald, Retired Judge on the US Court of Appeals and former Judge at the International Criminal Tribunal for the former Yugoslavia; Sir Geoffrey Nice QC, Deputy Prosecutor of the International Criminal Tribunal for the former Yugoslavia; Judge Pedro Nikken, former Judge and President of the Inter-American Court of Human Rights; and Hon Ganzorig Gombosuren, former Judge at the Supreme Court of Mongolia. Rome Statute of the International Criminal Court, adopted on 17 July 1998 by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, entered into force 1 July 2002, Art 7(1), UN Doc.A/CONF.183/9(1998) (Rome Statute). Nineteen UNGA Resolutions on Burma (19912010); fourteen Resolutions adopted by the UN Commission on Human Rights (19922006); nine Resolutions adopted by the Human Rights Council (2006present). Burma Campaign UK, Burma Briefing, The United Nations General Assembly & Burma, (August 2010): http:// burmacampaign.org.uk/images/uploads/2-UNGA-andBurma.pdf. UNGA Resolution 57/231, 18 December 2002. UNGA Resolution 62/222, 22 December 2007. For further information on state development projects run by the Burmese Government, please visit Earth Rights Internationals website at www.earthrights.org. Alternative ASEAN Network on Burma, China Invests more in Burma, Burma Bulletin, (January 2011): www.scribd.com/ doc/48035110/02feb11-January-2011-Burma-Bulletin. Earth Rights International, China in Burma: The Increasing Investment of Chinese Multinational Corporations in Burmas Hydropower, Oil and Natural Gas, and Mining Sectors, (September 2008): www.burmalibrary.org/docs5/China_in_ Burma-ERI.pdf. Sai Sai, New report reveals human costs of planned Salween mega-dam in war-torn Shan State, Press Release, 4 August 2009: www.salweenwatch.org/images/stories/downloads/ campaigns/tasang_press_release_english.pdf. Thailands Energy Policy and Development Plan under the Administration of Prime Minister General Surayud Chulanont (summary), 2006: www.eppo.go.th/doc/gov-policy-2549/ energy-policy-2006.html. Usa Pichai, Thailand asked to revise new energy plan, Mizzima, 5 August 2009: www.mizzima.com/news/ regional/2576-thailand-asked-to-revise-new-energy-plan.html.

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Burma Rivers Network, Tasang Dam, last updated September 2008: www.burmariversnetwork.org/dam-projects/salweendams/tasang.html#1. China investment in Myanmar Soars, Al Jazeera, 16 July 2009: http://english.aljazeera.net/ business/2009/07/200971633541548833.html. Ibid. Thomas Maung Shwe, Report: Burma-China pipeline leads to widespread abuses, fuels conflict, Mizzima, 31 March 2011: www.mizzima.com/business/5099-report-burma-chinapipeline-leads-to-widespread-abuses-fuels-conflict.html?sms_ ss=facebook&at_xt=4d95e1947ab86540,0. Lawi Weng, Shwe Gas Calls on Corporations, Govts to Suspend Pipeline Project, The Irrawaddy, 7 September 2009: www.irrawaddy.org/article.php?art_ id=16736&Submit=Submit. US Department of State, Bureau of Democracy, Human Rights, and Labor, 2010 Country Reports on Human Rights Practices. 2010 Human Rights Report: Burma, 8 April 2011: www.state.gov/documents/organization/160450.pdf, at 45. Ko Htwe, Shan Farmers to Sue Govt over Land Seizures, The Irrawaddy, 12 April 2011: www.irrawaddy.org/article.php?art_ id=21117. China Wins Burmas Stilwell Road Contract, The Irrawaddy, 6 January 2011: www.irrawaddy.org/news-scroller/jday06.php. MoU signed for implementation of Nam Tabat Hydropower Project, NLM, 22 January 2011: www.scribd.com/ doc/48035110/02feb11-January-2011-Burma-Bulletin. US State Department, Bureau of East Asian and Pacific Affairs, Background Note: Burma, 28 July 2010: www.state.gov/r/ pa/ei/bgn/35910.htm#econ. Ital-Thai looking for partners, Bangkok Post, 9 November, 2010: www.bangkokpost.com/print/205414/. The International Herald Tribune, An Industrial Project That Could Change Myanmar, The New York Times, 26 November 2010, available at: www.nytimes.com/2010/11/27/world/ asia/27iht-myanmar.html. Asian Human Rights Commission, The State of Human Rights in Burma in 2010, Burma: Government by confusion and the un-rule of law, AHRC-SPR-002-2010. SPDC Election Laws Set the Stage for Sham Elections International Federation for Human Rights, April 2010: www.fidh.org/SPDC-ELECTION-LAWS-SET-THE-STAGEFOR-SHAM. Seventy people associated with the National League for Democracy were killed by the Burmese military junta. Zin Linn, Burma allows one-quarter of new national budget for defense, Asian Correspondent.com, 1 March 2011: http://asiancorrespondent.com/49377/burma-allows-onequarter-of-new-national-budget-for-defense/; Htet Aung, Military Security Trumps Human Security in Burmas Budget, The Irrawaddy, 9 March 2011: www.irrawaddy. org/article.php?art_id=20901&page=2; See Articles 2(b), 3 & 4, People Military Service Law of SPDC, Union of Myanmar Gazette (Registered No 39), 2 January 2011: www. scribd.com/doc/46731374/SPDC-s-Military-ConscriptionLaw-english; Constitution of the Republic of the Union of Myanmar (2008): www.burmalibrary.org/docs5/ Myanmar_Constitution-2008-en.pdf; SPDC Continues Authoritarian Rule with Military Draft Law as Citizens Push for Genuine Democracy, Burma Partnership, 17 January 2011: www.burmapartnership.org/2011/01/spdc-continuesauthoritarian-rule-with-military-draft-law-as-citizens-pushfor-genuine-democracy/; Tint Swe, Burmese dissident: conscription and Parliament, the new weapons of the military junta, AsiaNews.it, 14 January 2011: www.asianews. it/news-en/Burmese-dissident:-conscription-and-Parliament,the-new-weapons-of-the-military-junta-20500.html.

40

41 42

43

44

45

46 47 48

49

50 51

52

53

54

55

56 57

58 59 60

61

See n9 above. See also, Aung Din, People power in waiting in Myanmar, Asia Times Online, available at: http://atimes. com/atimes/Southeast_Asia/MC10Ae06.html. See above, n 3 and 9. http://uscampaignforburma.org/pr/2011-presidentobama-urged-to-take-action-on-burma-by-22-human-rightsorganizations-and-one-individual-in-the-united-states.html. UN Doc A/HRC/13/48, 10 March 2010, Progress report of the Special Rapporteur on the situation of human rights in Myanmar, paras 13, 57, 121 and 122. Paulo Sergio Pinheiro, End Burmas System of Impunity, The New York Times, 27 May 2009: www.nytimes.com/2009/05/28/ opinion/28iht-edpineiro.html. T Fawthrop and H Jarvis, Getting Away with Genocide? Elusive Justice and the Khmer Rouge Tribunal, (Sydney: University of New South Wales Press Ltd, 2005), Few elements of justice are more important to the community than the principle that justice must not only be done, but must be seen to be done. UNGA Resolution 46/59, 9 December 1991: www.un.org/ documents/ga/res/46/a46r059.htm. Article 7(6) and Article 3(20) and 3(21) of the United Nations Resolution Declaration on Fact-Finding. DLA Piper, Threat to the Peace: A Call for the UN Security Council to Act in Burma, September 20, 2005: www.burmacampaign. org.uk/reports/Burmaunscreport.pdf. Report of the Group of Experts for Cambodia, SC Res 1999/231, UN Doc S/1999/231 (15 March 1999). The Group of Experts was made up of Ninian Stephen (Australia) as Chairman, Rajsoomer Lallah (Mauritius), and Steven R Ratner (United States). Ibid. The Report of the Commission of Inquiry appointed under article 26 of the Constitution of the International Labour Organization to examine the observance by Myanmar of the Forced Labour Convention, 1930 (No 29), Geneva, August 1998: www.ilo.org/public/english/standards/relm/gb/docs/ gb273/myanmar.htm#Part%201. DS Mathieson, Commission of Inquiry for Burma is Long Overdue, 2010, The Bangkok Post: Human Rights Watch (Commission of Inquiry for Burma). Order 1/99: Order directing not to exercise powers under certain provisions of The Towns Act, 1907 and the Village Act, 1907: www.khrg.org/khrg2002/khrg0201b.html. Janet Benshoof, The Changing Landscape of International Law: the Global Responsibility to Prosecute Perpetrators of Grave Crimes Inflicted on the People of Burma, (2007), Legal Journal on Burma / Lawka PaLa, 27, 3340. Annie Bird, Third State Responsibility for Human Rights Violations, (2011), The European Journal of International Law, 21 N(4), 883900. Resolution A/RES/60/1: http://unpan1.un.org/intradoc/ groups/public/documents/UN/UNPAN021752.pdf. IBA, The responsibility to protect in the case of humanitarian crises: an emerging norm of international law?, 2008: www. ibanet.org/Search/Default.aspx?q=responsibility%20to%20 protect. See above, n 55. Ibid. Inter-American Court of Human Rights Case, La Cantuta v Per Judgment, November 29, 2006 (Merits, Reparations and Costs), p 84 (257) Report of the Human Rights Council on its fifteenth special session, A/HRC/S-15/1: www2.ohchr.org/english/bodies/ hrcouncil/docs/15session/HRC-S-15-1_AUV.pdf.

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JUSTICE FOR BURMA CAMPAIGN: The establishment of a UN Commission of Inquiry into international crimes

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