Thursday, May 21, 2009

Suu Kyi Lawyer Says UNSC Should Meet if She’s Convicted

The Irrawaddy News

Lawyers representing Burmese opposition leader Aung San Suu Kyi will press for an emergency meeting of the UN Security Council if she is convicted and imprisoned by the court now trying her in Rangoon,
according to her Washington-based counsel Jared Genser. He told The Irrawaddy in an interview that Suu Kyi’s lawyers also supported moves to arraign the Burmese military junta before the International Criminal Court.

The interview in full:

Jared Genser

Question: What is your professional assessment of the case against Aung San Suu Kyi and the way the trial is being conducted?

Answer: I believe firmly that the case is both deeply substantively and procedurally flawed. Substantively, Aung San Suu Kyi has been charged with violating the terms of her house arrest under Article 22 of the State Protection Law. But the junta had exclusive responsibility for providing security around her home. Particularly given that John Yettaw reportedly broke into her compound once before many months ago and this was reported to the junta, it was on notice of the potential security problems. The fact that the junta allowed Mr Yettaw to reenter the country and break into her compound again is entirely its responsibility.

Procedurally, the conduct of the trial has been deeply flawed. Problems with the trial include:

(1) failing to allow Suu Kyi her choice of counsel by revoking the law licence of Aung Thein;

(2) failing to provide adequate time for the defense to prepare for a trial;

(3) failing to provide a fair and public hearing by a competent, independent and impartial tribunal. There is no independent judiciary in Burma—the judges take instruction from the junta;

(4) failing to provide Suu Kyi a presumption of innocence;

(5) failing to comply with prior rulings of the UN Working Group on Arbitrary Detention that the law under which she was held was itself in clear violation of international law.

Q: The case against Suu Kyi comes less than two weeks before she was due legally to be released after serving six years of house arrest. Do you think this is a political case rather than a legal one?

A: Yes. I think there is little doubt that this charge was a pretext for continuing to detain Suu Kyi and ensure that she remained imprisoned until well after the scheduled 2010 elections, despite the fact that those elections are already rigged by the rules established in the so-called constitution that was adopted in the flawed referendum.

Q: According to reports in The New Light of Myanmar and other official newspapers, Suu Kyi and her two personal assistants are accused of breaking Section 22 of the “Law to Safeguard the State Against the Dangers of Those Desiring to Cause Subversive Acts,” because they gave food and shelter to an American intruder. Do you think this is an appropriate charge?

A: I think this charge is patently ridiculous.

Q: What could you do if the court sentences her to a prison term, which could be as long as five years?

A: We will immediately file another case to the UN Working Group on Arbitrary Detention arguing that her sentencing under the State Protection Law is again in violation of international law. In addition, we will request an emergency meeting of the UN Security Council to discuss the situation in Burma.

To be clear, this is not merely because of her sentencing, which I do believe has a destabilizing effect on the region, but actually because the Burmese junta has failed to abide by the demands of the Security Council's presidential statement issued in 2007 after the Saffron Revolution.

Among other demands, the Council urged an early release of political prisoners including Suu Kyi, a renewed effort towards achieving national reconciliation and a restoration of democracy in the country, and open access for humanitarian aid. The junta's continuing conduct has flouted the will of the Security Council and if the junta were to give Suu Kyi an additional term of imprisonment, it would be symbolic of the junta's ongoing oppression of the Burmese people. The Security Council should reengage on the situation in Burma because of the threat it poses to international peace and security.

Q: Exile opposition groups are trying to have leaders of the Burmese military government brought before the International Criminal Court on charges of crimes against humanity. Do you think their action has any chance of success in ending human rights abuses in Burma?

A: While I personally believe that crimes against humanity are being committed in Burma, I think it will be challenging to persuade the UN Security Council to refer the situation in Burma to the International Criminal Court because of the veto right of China and Russia in particular.

As readers will recall, China and Russia previously vetoed a non-binding, non-punitive resolution on Burma proposed in January 2007. Because Burma is not a signatory to the Rome Statute which established the ICC, the only way to get the situation considered there is through a Security Council referral.

I think the best way to end the abuses in Burma will be for national reconciliation to be achieved. Ultimately, it should be for the Burmese people to decide how justice should be meted out.

All that said, however, there is definitely an important role for advocacy groups to play to press for a Security Council referral to the ICC to raise awareness of the terrible abuses taking place in Burma because these abuses fall squarely within the definition of crimes against humanity.

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