March 28, 2010

The call by Tomas Quintana, the United Nation's human rights monitor to Burma, to consider the establishment of a Commission of Inquiry into possible crimes against humanity and war crimes in Burma is welcome, if long overdue. But just how probable is a high-level UN inquiry into serious international crimes in Burma, an investigation that could potentially result in a recommendation for a Security Council referral to the International Criminal Court (ICC) prosecutor to initiate an investigation?

In terms of political realities, an honest assessment would say it is unlikely because of the unfortunate, yet almost certain opposition by some powerful UN Security Council (UNSC) members such as China and Russia. But with respect to the urgency of the case and need for justice in Burma, there must be an all-out effort to ensure that the proposal for a commission seizes the attention of the UN as a way to bring justice and accountability to Burma. As Mr Quintana noted in his March 8 report to the UN Human Rights Council, the grave crimes perpetrated by the Burmese army, or Tatmadaw, are a "result of state policy that involves authorities in the executive, military and judiciary at all levels". A review of UN human rights reports on Burma since 2002 by Harvard Law School last year concluded that the world body itself has been referring to such crimes as widespread and systematic, thereby reaching a threshold that justifies a Commission of Inquiry (CoI) or a direct referral to the ICC prosecutor by the UN Security Council. The Harvard report, "Crimes in Burma", looked at four aspects of crimes - forced displacement of civilians, sexual violence, torture and murder.

Commissions of Inquiry are actually not unusual, and have been used to address serious violations of international human rights and humanitarian law around the world. Many originate in Security Council resolutions, although there is a possibility that the Human Rights Council could itself establish a CoI. Such bodies include the Security Council-created CoI on Darfur in 2005 which led to a Security Council referral to the ICC and an ICC investigation, the General Assembly-created Group of Experts that led to the Khmer Rouge tribunal in Cambodia, the recent decision to convene a Panel of Experts to advise Ban Ki-moon on accountability for potential war crimes in Sri Lanka during the final months of the civil war that ended in May 2009, and the the recent CoI ordered by Mr Ban to address the killings in Guinea last year.

Judging from past CoIs and Panels of Experts, such an investigative body for Burma might comprise several eminent people or jurists with expertise in the area of human rights, humanitarian law and international justice, supported by a group of investigators within a secretariat that includes a research team composed of lawyers, investigators, forensic experts, military analysts and gender violence experts. A possible mandate for a Burma commission could be something along the lines of: "To investigate reports of violations of international humanitarian law and human rights law in Burma by all parties, and to identify the perpetrators of such violations with a view to ensuring that those responsible are held accountable."

Burma has experienced a CoI before. In 1997, the International Labour Organisation (ILO) formed a commission to investigate forced labour in Burma, although the military regime refused to attend hearings and did not permit the commission to visit Burma formally. The subsequent report in 1998 argued that forced labour was widespread and systematic, and fundamentally breached Burma's commitments as a ratifying state of ILO Convention No29 on forced labour. The commission's report increased pressure on the military regime and led to the military dominated State Peace and Development Council (SPDC) passing Law 1/99 to expressly ban forced labour. The practice of forced labour imposed by state officials and the Tatmadaw continues, but through the continuing work and pressure of the ILO, Burma's compliance is subject to regular review and admonishment in Geneva.

The SPDC has also co-operated in a desultory fashion with the UN on children and armed conflict, responding to Security Council Resolution 1612 (2005), which seeks to promote a broad set of protections for children in war. The regime's formal body on the prevention of recruitment of child soldiers, the Committee for Prevention of Recruitment of Minors, created in 2004, is largely a public relations vehicle, and serious concerns continue to be raised about the lack of co-operation with UN agencies and NGOs on the issue of child soldiers. A long-awaited action plan on child soldiers still languishes, waiting for agreement with the authorities. Unlike some recent ICC cases in Africa where child soldier recruitment was the basis for indictments, the SPDC's formal body could help Burma avert any ICC investigation on the grounds that they prosecute the use of child soldiers, but its performance could be assessed by a CoI. The ICC would also assess whether the state is genuinely willing and able to investigate and prosecute the cases it is considering as part of its assessment of whether a case is admissible.

In a sign of modest progress, the SPDC recently sentenced three military officers to prison terms for their role in recruiting and using child soldiers, using information derived from investigations by the ILO. But there may be a limit to how far the SPDC will let such other such prosecutions proceed. In the 2008 constitution, Chapter IV, prosecution of military personnel will remain the sole purview of the Tatmadaw. The relevant passage reads "in the adjudication of Military justice: the decision of the Commander in Chief of the Defence services is final and conclusive" - denying civilian justice mechanisms any role.

Any UN mandated CoI should be empowered to investigate all parties to Burma's conflicts, including investigating crimes in violation of international law perpetrated by non-state armed groups. For years, the vast majority of human rights reporting has centred on abuses by the Tatmadaw. Much less attention has focused on abuses by the more than 30 ethnic militia armies, many of whom have longstanding ceasefire agreements with the SPDC. Allegations of abuses by these groups are widespread, but difficult to verify, and include torture, ill-treatment and summary executions of captured Burmese soldiers and suspected informants. However, recruitment and use of child soldiers by almost all non-state armed groups has been well documented by Human Rights Watch and others. Abuses by these groups against civilians such as forced labour, torture and murder are more difficult to verify, but should also be investigated.

In the most egregious reported case, in the early 1990s, the All Burma Students Democratic Front (ABSDF) in Kachin State, northern Burma, conducted an internal investigation and subsequently publicly executed a number of suspected Burmese spies in its ranks. More than 100 members of the group were tried and sentenced, with 15 young men and women being publicly tortured and then executed. Many of the perpetrators of this violence are free, living in exile, and have never been held accountable for these crimes.

States that support creating such a UN commission should make clear that investigating international crimes has nothing to do with current day Burmese politics. In establishing a CoI, there should be no reference to the 2010 elections, Aung San Suu Kyi and Burma's 2,100 other incarcerated political dissidents, or sanctions or humanitarian assistance unless it has direct bearing on the whole investigation and its central aims of ensuring justice and accountability for crimes against humanity and war crimes.

The next stage will be for states to sponsor the creation of a commission, and prepare to engage in the intensive diplomatic negotiations at the UN and other national capitals to make it happen. A failure by concerned states to support the call for a UN CoI on Burma will embolden the Burmese military to tighten its grip on power. Critics of efforts to seek international justice contend that accountability must take a back seat to peace and reconciliation deals that can potentially end the fighting. Yet in Burma, it is precisely the lack of accountability that has so fuelled a cycle of impunity for rights abuses by all parties to the conflict. Convening a CoI could have a deterrent effect that gives all parties to the conflict reason for pause. Uneasy peace accords signed by the SPDC in the late 1980s and early 1990s with more than 15 ethnic militias are looking shakier now than at any point since they were reached. The reason is the lack of political, economic and legal dividends produced by these ceasefire arrangements. A UN CoI would potentially have a positive effect in bringing various parties to the negotiations, and potentially spur multilateral peace talks in Burma.

All conflicts and their eventual resolutions are unique, and while justice and human rights are universal in their application, local conditions and context affect how a CoI operates. Peace in Burma may well be supported and accelerated by a commission of inquiry if such an investigation is given a broad mandate and the necessary resources and co-operation to look into all serious crimes perpetrated during Burma's complex civil war. The Burmese military and its xenophobic leadership have survived decades of condemnation, sanctions and moderately toned UN mediation. The generals respect strength and fear the possibility of international accountability. It is time they face the prospect of real justice for once in their lives.

David Scott Mathieson is Burma researcher for Human Rights Watch. 

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