SPECIAL TRIBUNAL FOR MYANMAR

BACKGROUND GUIDE

CHAIRPERSON: SWATI NARNAULIA DIRECTOR: AISHWARYA PADMANABHAN

SPECIAL TRIBUNAL FOR MYANMAR

The Republic of the Union of Myanmar (popularly referred to as Burma) has lived under autocratic and repressive military rule for more than four decades. For over twenty years, many of the organs of the United Nations (UN) have repeatedly denounced the ruling military regime for failing to cooperate with the international community and to take serious steps to end the on-going grave violations of international law, including the General Assembly, the Commission on Human Rights, the Human Rights Council, Office of the Special Rapporteurs on the Situation of Human Rights in Myanmar, the International Labour Organization, and the Committee on the Elimination of Discrimination against Women. Some of the violations, as documented by the UN documents alone, include forced displacement, sexual violence, extrajudicial killings, crimes against ethnic minorities and torture.

POLITICAL HISTORY
Myanmars recent history has been marked by decades of military rule, widespread human rights violations, and armed conflict. Since 1962 when General Ne Win staged a coup that began the era of military rule (which still continues) the Burmese military has repressed political opposition, including student uprisings most notably in 1974. Human rights abuses by the military regime in both conflict and non-conflict zones have been commonplace, with attacks primarily aimed at students, political opponents, and ethnic nationalities. The rights abuses range from the suppression of civil and arbitrary associated political rights, detentions with the and lack such as freedom of expression and assembly, to problems of an

independent judiciary. Violent abuses, such as extrajudicial killings, torture, and disappearances, along with epidemic levels of forced labour and discriminatory practices against women and ethnic nationalities have also been historically widespread.

One of the most appalling evidences of the ethnic undertones of the conflict is the Four Cuts policy instituted in the 1960s. The Four Cuts policy aimed at cutting off armed ethnic nationalities groups from food, money, intelligence, and recruits. The Four Cuts policy led to thousands of civilian deaths and the destruction of food, crops, and numerous villages. In the wake of protests opposing the deteriorating economic situation in the country many student-led demonstrations emerged, culminating in major peaceful protests calling for democracy in August 1988. The regime responded violently, with the army killing thousands of civilians, including women and children; a conservative estimate of deaths is at 3,000. The military leadership soon thereafter reorganized itself and took power as the State Law and Order Restoration Council (SLORC), declared martial law and arrested demonstrators. However the protests for democracy only grew stronger progressively and world pressure mounted. In May 1990, the regime succumbed held multi-party elections. Even though many opposition leaders had been placed under house arrest or imprisoned at the time, the military suffered a massive defeat in the elections. Daw Aung San Suu Kyi, the daughter of General Aung San, the leader of the National League for Democracy (NLD)secured 80% of the parliamentary seats in the 1990 elections. However, the ruling SLORC refused to transfer power. Instead, the SLORC created a military-led National Convention to draft a new constitution. The suppression of political opposition continued post the elections. Aung San Suu Kyi remained under house arrest for almost 15 of the 21 years from 20 July 1989 until her release on 13 November 2010. General Than Shwe has led the military regime (also popularly known as the Junta) took charge in 1992. In 1997, the regime again changed its name to State Peace and Development Council (SPDC). By the late 1990s, the SPDC had largely consolidated control over the country; however, political freedoms did not follow. The SPDC has continuously placed restrictions on Daw Aung San Suu Kyi and other politicians. As with the events of 1988, brief periods where more political space has existed have been followed by clampdowns. For example, in May 2003, during a time when Daw Aung San Suu Kyi had been released from house arrest and was attempting to organize NLD activities by traveling outside Rangoon, regime supporters attacked

her supporters, resulting in injuries and deaths. The event has become known as the Depayin Massacre. In 2010, elections were held again the Union Solidarity and Development Party (USDP), overwhelmingly won the elections with 80% of the total votes. The USD is a Junta backed government and has replaced the SPDC. However, most countries have refused to recognize the new government and believe that the elections were marred with polling irregularities. A majority of the international community suspects that the USDP is a proxy for the Junta and that the military still controls the vast majority of the power in the governments. The situation in Myanmar was placed on the permanent agenda of the UN Security Council (UNSC) in 2006. In March 2010, drawing the international communitys attention to the continuing atrocities in Myanmar Toms Ojea Quintana, UN Special Rapporteur on human rights in Burma urged the UN to establish a Commission of Inquiry with a specific fact finding mandate to address the question of international crimes in Myanmar.

ESTABLISHMENT OF THE SPECIAL TRIBUNAL FOR MYANMAR

(The information contained in this section is fictitious. However for the purposes of the conference, participants are to consider the following true. This is to lend legitimacy and legal authority to the proceedings of the committee.) Recently the UNSC has declared that the situation in Myanmar constitutes a threat to international peace and security and initiated a formal investigation through a commission of inquiry to investigate crimes committed in Myanmar since 2002.1 The said commission has gathered evidence of grave abuses, predominantly from the eastern region of Myanmar, in accordance with all relevant standards of international criminal law. The UNSC has also, on the recommendation of the commission, established a Special Tribunal for Myanmar (hereinafter Tribunal) as per its resolution dated July 28, 2011.2 (The permanent members of the UNSC, China and Russia chose not to exercise their veto in the face of fierce international pressure.) The Tribunal has been established to investigate, try, and sentence those found guilty of having

This is post the establishment of the International Criminal Court. Its temporal jurisdiction being limited to crimes committed after July 1, 2002. In addition, since 2002, there have been new, major operations by the Burmese army, particularly in the eastern area against civilians, which would provide a sizeable sample of data for assessing whether international crimes may have been committed.
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committed war crimes and crimes against humanity. The Tribunal shall follow the procedure of the International Criminal Court as laid out in the Rome Statute, 2002.

TENTATIVE LIST OF THE ACCUSED

The constituting UNSC resolution allows the Tribunal to amend, as required, the list accused persons as provided therein, provided there is sufficient evidence to support such change. The following are a few names of the members of the SPDC. This represents a non-exhaustive list of persons requested to be indicted as per the report of the commission of inquiry.

SENIOR GENERAL THAN S HWE

Senior General Than Shwe is a Burmese military leader and politician who was chairman of the SPDC from 1992 to 2011. During the period, he held important positions of power including commander-in-chief of the Myanmar Armed Forces and head of Union Solidarity and Development Association. In 2011, he officially resigned from his position as head of state, in favour of his chosen successor, Thein Sein.

DEPUTY SENIOR GENERAL MAUNG AYE

Vice-Senior General Maung Aye is the former Vice Chairman of the SPDC, which was until March 2011, the ruling military Junta. In 1968, he became commander of the Northeast Region. In 1988, he became commander of the Eastern Region. Two years later he was promoted to major-general. In 1992 he was made Army Chief. In 1993 he was named Lieutenant General and the Deputy Commander in Chief of Defense Services. Maung Aye and Senior General Than Shwe, along with six other top military officers, were reported to have resigned their military posts on 27 August 2010. He reportedly transferred the deputy commander-in-chief post to Lt-Gen Ko Ko, head of Chief of Bureau of Special Operation3, but remains the country's deputy head of state. The rumours were later to be proven false.
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A copy of the resolution would be provided to the participants on the first day of the conference.

GENERAL THURA SHWE MANN

Thura Shwe Mann is joint chief of staff of the Burmese Armed Forces, and was the third-highest ranking member of the SPDC, after Than Shwe and Maung Aye. Shwe Mann earned the honorific title "Thura" for his bravery in fighting the Karen National Liberation Army in 1989. He was the Tactical Operations Commander for Light Infantry Division 66, based in Prome, Northern Bago Division in 1991. Shwe Mann joined the Ministry of Defence in 2001, becoming joint chief-of-staff. In 2003, he was promoted to general. In November 2008, Mann visited North Korea to reportedly purchase sophisticated weapons and armament for Myanmar's armed forces.

LIEUTENANT GENERAL THEIN SEIN

Thein Sein is a Burmese politician and military figure who has been president of Myanmar since March 2011. Previously he was prime minister from 2007 until 2011. Thein Sein was assigned in April 2007 by the nation's ruling military Junta as interim prime minister, replacing Soe Win, who was undergoing medical treatment. Thein Sein became Soe Win's permanent successor on 24 October 2007 after Soe Win's death on 12 October 2007. Sein held the position of first secretary in the ruling SPDC Junta. He was the country's fourthhighest ranking general, and also served as the chairman of the government-sponsored National Convention Convening Commission. Thein Sein carried out high-level negotiations with Bangladesh and Cambodia. Soon after his official appointment as prime minister, he was promoted to the rank of general from lieutenant general. On his first official visit outside Myanmar as prime minister, Thein Sein carried out high-level negotiations with Laos, Vietnam and Cambodia.

LIEUTENANT GENERAL THIHA THURA TIN AUNG MYINT OO

General Thiha Thura Tin Aung Myint Oo is one of the vice presidents of Myanmar. He is also chairman of Burmese Trade Council and Minister of Military Affairs. Prior to occupying the office of the vice-president on 4 February 2011 he was the first secretary of the SPDC, the military regime which seized power in 1988.

LT. GEN. MAUNG BO

Lt Gen. Maung Bo is the Chief of Bureau of Special Operation-4 and an SPDC member since 1997. The Bureau of Special Operations No.4 is responsible for security, military, political, economic, and social tasks. In 1992, Maung Bo was a colonel and the Tactical Operations Commander2 of the Northern Military Region in Myitkyina, Kachin State, under the command of Maj-Gen Kyaw Ba, one of the original SLORC members. Maung Bo served as Deputy Commander in the Northern MR (1993-97) under Brig-Gen Saw Lwin BC.8677, Minister for Hotel and Tourism and under Brig-Gen Kyaw Win BC.10194, the Training General. He commanded MOC-6 (Pyinmana) and in Nov 1997, he was promoted to Brig-Gen and became the Eastern Military Region Commander in Taunggyi, Shan State, and appointed a member of the SPDC.

TENTATIVE GROUNDS OF PROSECUTION

Ethnic crimes Ethnic crime or ethnic cleansing is the planned and deliberate removal from a specific territory of persons of a particular ethnic group, by force or intimidation, in order to render that area ethnically homogenous. Murder, torture, arbitrary arrest and detention, extra-judicial executions, rape and sexual assaults, confinement of civilian population in ghetto areas, forcible removal, displacement and deportation of civilian population, deliberate military attacks or threats of attacks on civilians and civilian areas, and wanton destruction of property have all been used as tool of ethnic cleansing. Further, the Genocide

Convention lays down the broad framework for penal consequences for ethnically motivated planned extermination of people. The study of violations in eastern Burma highlights that ethnic nationalities hve been particularly vulnerable to the systematic abuses reportedly perpetrated by the Burmese military forces. In general, the different ethnic sub-groups in Burma have been loosely simplified by anthropologists and linguists into four main families: the Tibeto-Burmese, Mon-Khmer, Shan (or Tai) and Karen. There has been ethnic resistance to the Junta in the past however the military regimes offensives have weakened the ethnic movements considerably. During the 1990s, the numerous military campaigns against ethnic nationality groups led to a litany of human rights violations, which included increased displacementboth inside the country and into neighbouring countries. In early 1992, for example, a mass exodus took place, during which at least 250,000 Muslims from Burma (the Rohingya) fled to Bangladesh. In the mid- to late 1990s, the regime also launched major attacks against the Shan as well as other ethnic nationalities, which forced hundreds of villages to relocate and hundreds of thousands to flee their homes, including many to Thailand. There are several other alleged instances of ethnically motivated crime including waging genocide against ethnic minorities, especially people belonging to the Karen ethnic group, who are primarily Christian. Crimes against humanity Nearly two years prior to recent crises in Myanmar, such as the cyclone Nargis and large demonstrations in August and September 2007, a military offensive was launched by the Myanmar army, known as the tatmadaw, against the Karen civilians of Kayin (Karen) State and Bago (Pegu) Division. More than 140,000 Karen civilians have been killed, tortured, forcibly displaced, sexually violated, forced to work, or otherwise subjected to widespread and systematic violations of international human rights and humanitarian law since November 2005. These violations may amount to crimes against humanity.

War crimes Under international humanitarian law, civilians may only be evicted from their homes temporarily in order to ensure their safety, or for imperative military reasons. Under the Rome Statute of the International Criminal Court, it is a war crime to order, in a non-international armed conflict, the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand. The tatmadaws forcible displacement policy also violates the human rights of the individuals concerned, including the right to an adequate standard of living and the right to choose ones residence. During 1996 and 2006, when forcible relocations on a massive scale were initiated by the tatmadaw in Kayin, Shan, and Kayah states, the population of more than 3,000 villages in these ethnic minority states is believed to have been displaced. The villages had been burned forcing inhabitants to flee. Many even abandoned their villages fearful for their safety and security while others were forcibly relocated by the tatmadaw. In 2007 alone, at least 167 entire villages were displaced, including in Thandaung township (Hpaan District, Kayin State), where an estimated 5,000 people were displaced. Some villagers have endured repeated cycles of displacement, often in trying to evade military attacks on their villages, or demands for forced labour. Kayin State has the second highest number of displaced persons among the states of Myanmar. Child soldiers According to the Human Rights Watch Burma has the largest number of child soldiers in the world and the number is growing. The overwhelming majority of Burma's child soldiers are found in the national army, which forcibly recruits children as young as 11, although armed opposition groups use child soldiers as well. Burma's army has doubled in size since 1988, and with an estimated 350,000 soldiers is now one of the largest armies in Southeast Asia. According to the accounts of former soldiers interviewed by Human Rights Watch, 20 percent or more of its active duty soldiers may be children under the age of 18.

Use of children in combat is an practice that it internationally condemned in spirit though the details regarding positions which qualify as non-combat or age vary across treaties.

Forced labour (Slavery) Unpaid forced labour contravenes the International Labour Organizations (ILO) Convention concerning Forced or Compulsory Labour, 1930, which the government of Myanmar ratified in 1955. According to Article 1 of this Convention, states parties must suppress the use of forced or compulsory labour in all its forms within the shortest possible period. While Article 2(2)(d) allows for the imposition of forced labour in cases of emergency, including war. The ILO Commission of Inquiry, appointed specially to investigate reports of forced labour in Myanmar, concluded as early as 1998 that: There is abundant evidence before the Commission showing the pervasive use of forced labour imposed on the civilian population throughout Myanmar by the authorities and the military for portering, the construction, maintenance and servicing of military camps, other work in support of the military, work on agriculture, logging and other production projects undertaken by the authorities or the military, sometimes for the profit of private individuals, the construction and maintenance of roads, railways and bridges, other infrastructure work and a range of other tasks, none of which comes under any of the exceptions listed in Article 2(2) of the Convention.

There is evidence which points towards the use of civilian population as forced labour throughout Myanmar by the authorities and the military for portering, the construction, maintenance and servicing of military camps, other work in support of the military, work on agriculture, logging and other production projects undertaken by the authorities or the military, sometimes for the profit of private individuals, the construction and maintenance of roads, railways and bridges, other infrastructure work and a range of other tasks, none of which comes under any of the exceptions listed in Article 2(2) of the Convention. The ILO has noted that the systematic nature of the use of forced labor may constitute a crime against humanity.

Extrajudicial killings The issue of extrajudicial killings has been one of the key factors involved in the matter of gross human rights violations in Myanmar. A Human Rights Watch report claims that the SPDC sends threatening letters to village leaders that sometimes contain a bullet, chili, and charcoal. These enclosures are interpreted as being symbolic of the future that awaits residents who do not cooperate with the terms of relocation (a bullet represent death, the chili means life will be unpleasant, and the charcoal signifies the burning down of villages). In fact, civilians that have failed to heed the SPDC orders to relocate have been subjected to extrajudicial killings. Conditions of detention, torture, custodial deaths Prison conditions in Burma are poor and well below internationally accepted standards. It is estimated that prisons in Burma comply with less than 10% of the internationally recognized Standard Minimum Rules for the Treatment of Prisoners. Prisoners in Burma are susceptible to a host of detention-related health problems, due to inadequate dietary regime, poor hygienic conditions, and denial of necessary and timely medical treatment. SPDC prison official often torture prisoners. Methods of torture include being shackled, beaten, and forced to perform pounzan (a squatting position, in which prisoners have to put their clenched hands on their knees). Reports periodically surface regarding the beating of political prisoners by prison gangs. The beatings are encouraged and condoned by the SPDC prison authorities. Since 1988, at least 138 political prisoners have died in prisons across Burma as a result of torture, ill-treatment, and lack of healthcare. In December 2005, the International Committee of the Red Cross suspended prisons visit throughout Burma because of interference by regime-backed Union Solidarity and Development Association. Issue of civil rights The military persecutes not only students and politicians but other actors including religious institutions. For example, the military regime targeted Buddhist monks during the 2007 events, which have become known as the Saffron Revolution (a reference to the color of the monks robes). The military regimes sudden removal of fuel subsidies in August 2007 triggered peaceful demonstrations, which led to the detention of several 1988 generation student activists, and the

beating of several monks. Throughout September 2007, demonstrations grew under the leadership of Buddhist monks and spread across the country. The regime responded with a harsh crackdown, using the tools of violence, arbitrary detention, a curfew and the banning of public gatherings.98 The UN Special Rapporteur reported fatalities and numerous arrests. The UN Security Council responded by issuing its first ever-Presidential Statement on Burma that deplored the violence used against protestors, urged the release of all political prisoners, and called for the military regime to create the necessary conditions for a genuine dialogue . . . with all concerned parties and ethnic groups. The military regime ignored the UN Security Council, as it has other calls from the UN to protect civil and political freedoms. Instead, it has pursued its own course. In May 2008, one week after Cyclone Nargis hit Burma and left an estimated 134,000 dead, the SPDC held a referendum on a new constitution, which would institutionalize its power after elections. The international community, including UN actors, have condemned the new constitution and its drafting process for lacking real participation (as well as legitimacy and reconciliation) For example, one of the reasons the Constitution is condemned is that those who criticize the process may be sentenced and imprisoned. The continuation of political suppression is also evidenced by the fact that between June 2007 and late November 2008, the military nearly doubled the number of political prisoners in the country to over 2,100.

TRIBUNALS RESPONSIBILITY
UN actors have described violations in this region as both widespread and systematic, as well as part of a policy. The Special Rapporteur whose mandate is to focus on the human rights situation in Burma has highlighted in particular the persistent nature of the violations and their widespread and systematic pattern. Moreover, he has come to the conclusion that these violations take place within a culture of impunity due to the military regimes failure to provide accountability and justice. These concerns are echoed by other UN actors, such as the thematic Special Rapporteurs, when acting within their specific focus areas. In short, the Tribunal must determine by examining UN actors documenting of reported violations and other permitted sources whether these violations may constitute crimes against humanity and war crimes under international criminal law. If the international community and the Tribunal fail to take action the grave humanitarian situation in eastern Burma and elsewhere in the country will continue unchecked. The perpetrators of serious human rights and humanitarian violations will remain unaccountable. A culture of impunity will persist that is highly conducive to the continuance and escalation of violations.

LINKS FOR FURTHER RESEARCH

Repositories of UN Resolutions on Burma http://www.altsean.org/Research/UN%20Dossier/UNGA.htm http://www.altsean.org/Research/UN%20Dossier/UNSC.htm http://www.un.org/News/Press/docs/2007/sc9139.doc.htm

Articles for overview http://www.un.org/children/conflict/english/myanmar.html http://www.reuters.com/article/2008/02/14/us-olympics-spielbergidUSN1231478420080214 http://www.reuters.com/article/2007/06/22/us-un-war-civiliansidUSN2219294820070622 http://www2.ohchr.org/english/bodies/hrcouncil/docs/13session/A-HRC-13-48.pdf