Hunting the Junta

The Irrawaddy News
JULY, 2009 - VOLUME 17 NO.4

Lawyers launch a difficult mission to bring the generals to justice

CALLS for the members of Burma’s military junta to be arraigned before the International Criminal Court (ICC) are becoming louder with each new breach of human rights. The task of bringing the generals to face justice at The Hague, however, will not be easy—and some legal experts say it will prove impossible as long as the junta can rely on such powerful allies as China and Russia to block international action.

Despite the pessimism, a team of international lawyers is pressing the UN Security Council to establish a commission of inquiry into allegations of crimes against humanity in Burma—a first step towards bringing the generals to justice.

If efforts by a team of international lawyers prove successful, Burmese junt a leader Than Shwe could one day find himself in the dock in The Hague once occupied by the accused Serbian war criminal Slobodan Milosevic. (Illustration: Harn Lay/Th Irrawaddy)

The initiative was undertaken by five of the world’s leading jurists, who instructed the International Human Rights Clinic at Harvard Law School in the US to draw up a report for the UN on the case for prosecuting members of the Burmese regime.

The Irrawaddy interviewed one of the report’s authors, Tyler Giannini, the Harvard Law School Clinic’s director, and began by asking him to explain why it will be difficult to bring the generals before the ICC in The Hague.

Answer: Since the Burmese military has not signed the treaty that created the ICC, any international process involving international justice and accountability would need to begin with the United Nations Security Council. The Security Council would need to refer the “situation” in Burma to the ICC. The ICC Prosecutor would then conduct investigations of its own before any further proceedings considering possible charges. Additionally, the transfer of any indicted individuals would have to occur before any trial could take place.

By referring the “situation,” the prosecutor is also obliged to look at all actors, not just the government, when considering possible charges.

Two other considerations are critical when considering ICC prosecution of international criminal law violations. First, the international community can only act if the nation in question is either not carrying out investigations and prosecutions of its own or if such actions are held to be not genuine processes. Second, the ICC only has jurisdiction over events since July 1, 2002, when the treaty creating it came into force.

Q: It is often pointed out that legal action was successfully taken in the cases of Darfur, Rwanda and the former Yugoslavia. Can a similar route be taken in Burma’s case?

A: In all three cases, the United Nations Security Council followed a similar pattern to pursue the question of international justice and accountability. First, the Security Council took note that there were possible violations of international laws, including crimes against humanity and thus determined there was a threat to international peace and security. Second, the Security Council set up a Commission to investigate the scope and scale of violations, to assess whether potential international crimes were taking place, and to identify the perpetrators. Finally, the Security Council took steps to institute international justice. In the cases of the former Yugoslavia and Rwanda, the Security Council established specific international tribunals to hold perpetrators to account. With Darfur, the Security Council referred the situation to the ICC.

Q: This route leads, of course, through the UN Security Council, but the Harvard Law School report suggests the Security Council is failing to take action in Burma’s case. What specific action would the authors of the report like to see taken?

A: The study set out to look solely at UN documents such as General Assembly resolutions and reports of Special Rapporteurs to assess what the UN knows about possible international criminal law violations in Burma. After examining documents since the early 1990s, with a focus on the post 2002 period, the study found that multiple UN actors have consistently reported on “widespread” and “systematic” violations.

The use of such terms raises the specter that crimes against humanity may be taking place. For example, between 1996 and 2006, the UN Special Rapporteur on the situation of human rights in Burma stated that 3,077 villages had been displaced, destroyed or were forced to be abandoned based on “independent” and “reliable” sources. Such displacement is comparable to displacement that has occurred in Darfur.

The report concludes that in light of such documentation and previous precedents in the former Yugoslavia, Rwanda, and Darfur, the UN Security Council should create a Commission of Inquiry (COI) to investigate international crimes in Burma. Security Council members should take up the issue of creating a COI, and the Security Council should be prepared to follow any recommendations that the COI delivers.

Q: Do you believe that the threat alone of legal action before an international court or tribunal could bring sufficient pressure on the Burmese regime to end its human rights abuses? Could the threat perhaps be sufficiently intimidating to cause second-echelon military commanders to press for political change?

A: Ending human rights violations in Burma will not be easy or immediate. The call for a COI investigation is not only important, however, because it highlights the need for the regime to uphold the rule of law and end the culture of impunity in the country to hold violators to account. In addition to accountability, a UN Security Council-endorsed investigation can help prevent further abuses by increasing scrutiny on the military and making it clear that violations such as forced displacement, sexual violence and extrajudicial killings are not acceptable.

The international community has rallied to condemn the trial of Daw Aung San Suu Kyi, and the outcry has caused the military to at least pause and consider how to handle the trial of the opposition leader more carefully. In a similar way, a COI focused on assessing crimes against humanity may help prevent some abuses.