April 22, 2013

VIII. Legal Standards: Crimes Against Humanity and Ethnic Cleansing

Crimes Against Humanity

Many of the serious abuses committed against the Rohingya and other Muslims in Arakan State since June 2012 amount to crimes against humanity.

According to the Rome Statute of the International Criminal Court (ICC), crimes against humanity are certain criminal acts, including murder, torture, and persecution “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”[349] International legal jurisprudence provides that the attack must be widespread or systematic, but need not be both.[350] “Widespread” refers to the scale of the acts or number of victims and a “systematic” attack indicates “a pattern or methodical plan.”[351] The attack must also be part of a state or “organizational” policy. [352]

The "attack" does not necessarily need to be a military attack as defined under international humanitarian law, and "need not even involve military forces or armed hostilities, or any violent force at all."[353]

Non-state organizations – such as the RNDP and the Buddhist sangha (order of monks) in Arakan State – can be responsible for crimes against humanity if they are demonstrated to have a sufficient degree of organization. In its leading ruling to date on this issue, the International Criminal Court’s Pre-Trial Chamber stated that “the determination of whether a given group qualifies as an organization under the [ICC’s Rome] Statute must be made on a case-by-case basis,” taking “into account a number of considerations,” including:

(i) whether the group is under a responsible command, or has an established hierarchy; (ii) whether the group possesses, in fact, the means to carry out a widespread or systematic attack against a civilian population; (iii) whether the group exercises control over part of the territory of a State; (iv) whether the group has criminal activities against the civilian population as a primary purpose; (v) whether the group articulates, explicitly or implicitly, an intention to attack a civilian population; (vi) whether the group is part of a larger group, which fulfills some or all of the abovementioned criteria.[354]

The Pre-Trial Chamber emphasized that these factors “do not constitute a rigid legal definition, and do not need to be exhaustively fulfilled.”[355]

Forced population transfers, forced deportation, and persecution are specific crimes against humanity set out by the Rome Statute and other international courts that are particularly relevant to the situation in Arakan State.

Deportation and Forced Population Transfers

The expulsions of Rohingya Muslims and Kaman Muslims from their neighborhoods and villages in Arakan State in June and October 2012, and their subsequent treatment, amount to a Burmese government policy of deportations and forced transfer of populations that appear aimed at permanently removing Rohingya and other Muslims from their current residences to other parts of Arakan State or outside of Burma altogether, thus changing the state’s demographic nature. Widespread and systematic attacks by Arakanese, with the participation of state security forces in many instances, forcibly displaced over 125,000 Muslims from their homes. At least another 20,000 others are known to have fled the country during that time. Underlying these crimes was an evident goal of the majority Buddhist population to drive out Muslim populations.

The authorities have compelled the displaced Rohingya and Kaman populations to live in squalid conditions for months without adequate food or other basic services, face severe restrictions on their movements that greatly hinder their ability to earn a livelihood, and endure abusive treatment from security forces. Rohingya children in these displaced persons camps have been effectively cut off from access to schools and education. Many Muslims in Arakan State have experienced multiple displacements, in at least one case resulting in deaths.[356] In areas damaged by violence throughout the state, municipal authorities have demolished structurally sound mosques, sending a clear anti-Muslim message. The Burmese government has restricted the delivery of humanitarian aid to the Rohingya, and in some areas continues to do so.[357] The government has also attempted to move displaced Rohingya and other Muslims to areas where there has long been a high Muslim concentration – in the north of the state – indicating intent to change the demographic profile of the state by segregating the two primary religious communities.

Deportation and forcible transfer of population are crimes against humanity under the Rome Statute of the International Criminal Court (ICC).[358] Burma is not a party to the ICC but the statute is considered to reflect customary international law.

Deportation and forcible transfer of population are distinguished by whether or not the victim was forced across an international border:

Both deportation and forcible transfer relate to the involuntary and unlawful evacuation of individuals from the territory in which they reside. Yet, the two are not synonymous in customary international law. Deportation presumes transfer beyond State borders, whereas forcible transfer relates to displacements within a State.[359]

To be recognized as a crime against humanity under the requirements put forth by the ICC, the deportation also must be committed as "part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack."[360] Deportation has also been recognized as a crime against humanity in each of the major international criminal instruments prior to the ICC.[361]

The crime of forcible transfer of populations includes "the full range of coercive pressures on people to flee their homes, including death threats, destruction of their homes, and other acts of persecution such as depriving members of a group of employment, denying them access to schools, and forcing them to wear a symbol of their religious identity."[362]

After June 2012, the RNDP and the Buddhist sangha in Arakan State both issued public statements and at times spoke to the media, explicitly calling for the isolation, departure and removal of Rohingya from Buddhist areas in the state.[363] Members of these organizations committed apparent incitement to violence and participated in attacks that were at least consistent with the expressed positions of their organizations.

Both organizations led efforts to organize the Arakanese community to end all interactions with the Rohingya, with the apparent intention to economically weaken and socially isolate, and eventually drive out the Muslim population of certain areas – by denying them food and other basic services, access to income generating activities, and restricting their ability to move or interact beyond the strict confines of their neighborhoods or IDP camps. Members from both organizations were involved in activities that led to violence that caused population transfers of the Rohingya. State security forces and local government officials indirectly supported these groups in their efforts, including by not acting on advance knowledge of likely violence and failing to intervene to stop or counteract them.

State security forces also participated directly in the forced transfer of populations by committing violent acts such as killings – in some cases, killings of children – and beatings.[364] In June, attacks against the Rohingya Muslim population by state security forces occurred primarily in the state capital, Sittwe, and northern Arakan State. An immediate result was the clearing out of the Muslim population in all areas of Sittwe with the exception of one neighborhood, Aung Mingalar.[365] In October, groups of Arakanese acted alongside local state security forces such the Nasaka, army, and police. In other cases the security forces simply failed to intervene. In at least Kyauk Pyu and Pauktaw, local government officials and members of RNDP were directly involved in meetings prior to the commission of violent acts during which decisions are known to have been made to coerce Muslims to flee.

During the June violence, the security forces began abusive sweeps and mass arrests of hundreds of Rohingya men and boys. The seeming randomness of these arrests, incommunicado detention, and reports of torture and ill-treatment in detention have combined to instill widespread fear in Muslim neighborhoods and villages.[366]

The requisite elements of the crime against humanity of deportation or forcible transfer consist of coercing movement to another location of people lawfully in the area with the intent of permanently relocating them. [367]

First, the actions by the RNDP and sangha in Arakan State, with the direct or indirect support of the government have caused over 125,000 Rohingya Muslims and others "to another location, by expulsion or other coercive acts."[368]

Second, the persons expelled from their neighborhoods and townships in Arakan State – Rohingya and Kaman Muslims – "were lawfully present in the area from which they were deported or transferred."[369] Any claim by the authorities that the displaced families, many who have lived in their townships and neighborhoods for generations, were not lawfully permitted in their homes because they are “illegal immigrants,” ignores the discriminatory treatment of Rohingya under the citizenship law and other legislation and practice.[370] The Kaman Muslims are Burmese citizens so there is no issue as to the lawfulness of their presence.

Finally, the intent to expel the Rohingya from their neighborhoods and villages by the RNDP and sangha is evident from the public statements calling for such action. Evidence of government intent can be found in both the actions and inaction of state security forces, combined with the longtime discriminatory state practices against the Rohingya, such as restrictions on freedom of movement, marriage, childbirth, education, and employment.

For decades the Burmese government has made conditions extremely difficult for the Rohingya through severe restrictions and human rights violations. As a result, tens of thousands have been compelled to move from their homes or flee the country. This longstanding situation, exacerbated by events since June 2012, amounts to a Burmese government policy of deportation and forcible transfer. UN bodies for at least two decades have consistently acknowledged deportation of Rohingya from Arakan State, and the abuses that contribute to it. Successive UN special rapporteurs have often identified these abuses in terms explicitly suggesting the commission of international crimes, such as “widespread,” “systematic,” and as a result of “state policy.”[371] The current UN special rapporteur on human rights in Burma, Tomas Quintana, reported in 2010:

Discrimination [against the Rohingya] leads to forced deportation and restriction of movement owing to the enduring condition of statelessness, which is the result of the Rohingyas’ historic difficulty in obtaining citizenship, particularly following the enactment of the 1982 Citizenship Act. Acts of land confiscation, forced relocation and eviction through violent means also appear to be widespread and systematic. Finally, discrimination leads to persecution, which can be defined as intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.[372]

Persecution

Persecution is recognized as among the offenses considered to be crimes against humanity.[373] The ICC statute defines persecution as “the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.”[374] The crime of persecution consists of an act or omission that 1) entails actual discrimination and denies a fundamental human right, and 2) was carried out deliberately with the intention of discriminating on one of the recognized grounds.[375] These include for political, national, ethnic, and religious reasons.[376] Persecutory acts have been found to include murder, sexual assault, beatings, destruction of livelihood, and deportation and forced transfer, among others.[377]

Both acts of violence and other apparently discriminatory actions – such as the majority Buddhist community depriving Rohingya of access to their livelihoods or to food to force them to leave – might be considered acts of persecution that amount to crimes against humanity.

"Ethnic Cleansing"

Human Rights Watch has documented a pattern of human rights violations in Arakan State that amount to “ethnic cleansing” of the Rohingya and other Muslims from their areas of residence. Although “ethnic cleansing” is not formally defined under international law, a UN Commission of Experts has defined the term as a “purposeful policy designed by one ethnic or religious group to remove by violent and terror-inspiring means the civilian population of another ethnic or religious group from certain geographic areas. . . . This purpose appears to be the occupation of territory to the exclusion of the purged group or groups.”[378]

Commenting on the situation in the former Yugoslavia in the early 1990s, the Commission of Experts stated:

[T]he patterns of conduct, the manner in which these acts were carried out, the length of time over which they took place and the areas in which they occurred combine to reveal a purpose, systematicity, and some planning and coordination from higher authorities. Furthermore, these practices are carried out by persons from all segments of the Serbian population in the areas described: members of the army, militias, special forces, the police and civilians. Lastly, the Commission notes that these unlawful acts are often heralded by the perpetrators as positive, patriotic accomplishments.[379]

The UN Committee on the Elimination of Racial Discrimination found that attempts to alter permanently the ethnic make-up of a region are contrary to international law: it noted that "any attempt to change or uphold a changed demographic composition of an area, against the will of the original inhabitants, by whichever means, is a violation of international law."[380] The United Nations has also repeatedly characterized the practice of ethnic cleansing during an armed conflict as a violation of international humanitarian law, and has demanded that perpetrators of ethnic cleansing be brought to justice.[381]

As discussed above, the orchestrated violence in Arakan State, particularly in October, involved near simultaneous attacks by Arakanese against Rohingya villages and settlements. The violence, largely carried out by mobs armed with a variety of weapons, appeared organized and inspired by higher entities, including the RNDP and the sangha. State security forces stood by and watched or participated in the killing, and later disposed of the bodies in a manner that hindered rather than helped investigations.

Perhaps most indicative of all, ethnic cleansing was reflected in the terror tactics of the Arakanese attackers. According to survivors, the mobs relentlessly killed all those they could catch. They hacked children to death with machetes and threw some into fires. Muslim neighborhoods and entire villages were burned to the ground. State security forces deprived the outnumbered Muslims of their weapons in anticipation of the slaughter. And when the slaughter happened, they dumped the Rohingya bodies in areas inhabited by Rohingya displaced persons – no doubt to send a message of terror.

Right to Return Home

International law provides a remedy for persons victim to the crime against humanity of deportation and forced and arbitrary transfer. They are entitled to return to their home areas and property.[382] This right is related to the right to return to one's home country – the Universal Declaration of Human Rights provides that, "Everyone has the right … to return to his country."[383] Some international human rights instruments recognize this right.[384] Although there is no specific provision in international covenants affirming the right of internally displaced persons to return to their places of origin, that right would be protected by the “right to freedom of movement and residence” within the borders of a country.[385]

The Sub-Commission on the Promotion and Protection of Human Rights, which operated under the former UN Human Rights Commission, reaffirmed "the right of all refugees and internally displaced persons to return to their homes and places of habitual residence in their country and/or place of origin, should they so wish.”[386] The UN Security Council and other UN bodies have also repeatedly asserted the right of internally displaced persons to return to their former homes. The Security Council, in its Resolution 820 (1993) dealing with Bosnia and Herzegovina, stated "all displaced persons have the right to return in peace to their former homes and should be assisted to do so."[387]

Also applicable to the situation in Arakan State are the UN Guiding Principles on Displacement,[388] which are drawn from accepted principles of international law.[389] The Guiding Principles set out provisions relating to return, resettlement and reintegration of Internally Displaced Persons. [390] Principle 28 states:

Competent authorities have the primary duty and responsibility to establish conditions, as well as provide the means, which allow internally displaced persons to return voluntarily, in safety and with dignity, to their homes or places of habitual residence, or to resettle voluntarily in another part of the country. Such authorities shall endeavour to facilitate the reintegration of returned or resettled internally displaced persons.[391]

This principle further provides that special efforts should be made to ensure the full participation of all internally displaced persons in the planning and management of such processes. The participation of women, in particular, is considered essential.

Right to Redress

International law provides for victims of human rights violations to receive adequate compensation. The Universal Declaration of Human Rights provides that, “Everyone has the right to an effective remedy by the competent national tribunals” for acts violating fundamental rights. [392]

The UN Committee on the Elimination of Racial Discrimination (CERD), in its General Recommendation XXII, says compensation should be provided for those refugees and displaced who are able to return and have lost property:

All refugees and displaced persons have, after their return to their homes of origin, the right to have restored to them property of which they were deprived in the course of the conflict and to be compensated appropriately for any such property that cannot be restored to them.[393]

When displaced persons are unable to return to their homes because their property has been destroyed, they are entitled to compensation. The UN Commission on Human Rights recognized the need for property restitution as an effective remedy for forced displacement.[394]

The Guiding Principles provide that:

Competent authorities have the duty and responsibility to assist returned and/or resettled internally displaced persons to recover, to the extent possible, their property and possessions which they left behind or were dispossessed of upon their displacement. When recovery of such property and possessions is not possible, competent authorities shall provide or assist these persons in obtaining appropriate compensation or another form of just reparation.[395]

The right to return needs to be conducted in a manner that does not further violate human rights. The UN Sub-Commission on the Promotion and Protection of Human Rights, under the UN Commission on Human Rights, urged "all states to ensure the free and fair exercise of the right to return to one's home and place of habitual residence by all refugees and internally displaced persons and to develop effective and expeditious legal and administrative procedures to ensure the free and fair exercise of this right, including fair and effective mechanisms to resolve outstanding housing and property problems."[396]

As noted, the Rohingya’s lack of citizenship has resulted in their being denied fundamental rights, such as restrictions on land and property ownership. Addressing the discriminatory provisions in the 1982 Citizenship Law that effectively deny Rohingya citizenship is crucial for ensuring Rohingya receive adequate compensations for violations of their rights.

Moreover, any attempt to redress past abuses and to repossess private property should be free of violence, intimidation, and threats. The potential for hostility against Rohingya and Kaman Muslims from local Arakanese, Buddhist monks, political party activists, state security forces, and government officials remains high, and could complicate returns unless the authorities take proactive measures. [397] In order to prevent renewed violence and state-sanctioned abuse against the Rohingya, any program to implement the right to return of the displaced communities should ensure that persons who have their claims legally recognized can actually return to their homes in safety.[398]

Moreover, the government of Burma is obligated to ensure that those who may not have lawful or other rights to dwell within the housing or property registered to returnees do not become homeless or subject to other human rights violations. According to the UN Committee on Economic, Social and Cultural Rights:

Evictions should not result in rendering individuals homeless or vulnerable to the violation of other human rights. Where those affected are unable to provide for themselves, the State party must take all appropriate measures, to the maximum of its available resources, to ensure that adequate alternative housing, resettlement or access to productive lands, as the case may be, is available.[399]

[349] Rome Statute of the International Criminal Court, 2187 U.N.T.S. 3, entered into force July 1, 2002, art. 7, http://www1.umn.edu/humanrts/instree/Rome_Statute_ICC/romestatute.html (accessed April 10, 2013).

[350] Ibid., art. 7(1); Prosecutor v. Dusko Tadic, ICTY, Case No. IT-94-1-T, Opinion and Judgment (Trial Chamber), May 7, 1997, para. 646, http://www.icty.org/x/cases/tadic/tjug/en/tad-tsj70507JT2-e.pdf (accessed April 10, 2013).

[351] See Prosecutor v. Akayesu, ICTR, Case No. ICTR-96-4-T, Judgement (Trial Chamber I), September 2, 1998, para. 579. In Akayesu the Trial Chamber defined widespread as “massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims.”, http://www1.umn.edu/humanrts/instree/ICTR/AKAYESU_ICTR-96-4/Judgment_ICTR-96-4-T.html (accessed April 10, 2013); See also Prosecutor v. Kordic and Cerkez, ICTY, Case No. IT-92-14/2, Judgement (Trial Chamber III), February 26, 2001, para. 179; Prosecutor v. Kayishema and Ruzindana, ICTR, Case No. ICTR-95-1-T, Judgement (Trial Chamber II), May 21, 1999, para. 123; Prosecutor v. Dusko Tadic, ICTY, Case No. IT-94-1-T, Opinion and Judgment (Trial Chamber), May 7, 1997, para. 648. See also Prosecutor v. Kunarac, Kovac and Vokovic, ICTY, Case No. IT-96-23 and IT-96-23-1A, Judgement (Appeals Chamber), June 12, 2002, para. 94. In Kunarac the Appeals Chamber stated that “patterns of crimes – that is the non-accidental repetition of similar criminal conduct on a regular basis – are a common expression of [a] systematic occurrence.”

[352]ICC Statute, art. 7(2)(a), http://untreaty.un.org/cod/icc/statute/99_corr/cstatute.htm (accessed April 10, 20130).

[353] Rodney Dixon in Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (Baden-Baden: Nomos Verlagsgesellschaft, 1999), p. 124.

[354]The Situation in the Republic of Kenya, Pre-Trial Chamber II, International Criminal Court, March 31, 2010, Case No. ICC-01/09, para. 93, http://www.icc-cpi.int/iccdocs/doc/doc854287.pdf (accessed September 13, 2012).

[355] Ibid.

[356] The authorities denied Rohingya IDPs assistance in making their way from a remote displacement site in Pauktaw Township to Sittwe, where they would have been able to come to shore on a jetty, and where they might find food, medical care, and other humanitarian aid. Instead, they attempted to reach Sittwe from another coastal area with large swells and no assistance from the navy. Human Rights Watch interviews with K.M., K.O., K.P., displacement site, February 4, 2013.

[357] Tens of thousands of displaced Rohingya in the officially recognized camps are not receiving adequate amounts of aid and in other areas the government is failing to facilitate aid deliveries through Arakanese communities hostile to the delivery of aid to Muslims. The government has also stalled in granting visas to aid workers and in granting travel authorizations. See chapter VI of this report on “Humanitarian Concerns.”

[358]Rome Statute of the International Criminal Court (ICC), opened for signature July 17, 1998, reprinted in 37 I.L.M. 999 (1998), arts. 7(1)(d), 7(2)(d), http://untreaty.un.org/cod/icc/statute/99_corr/cstatute.htm (accessed April 10, 2013). The Rome Statute entered into force on April 11, 2002 and the ICC has the authority to prosecute the most serious international crimes since July 1, 2002.

[359]Prosecutor v. Krstic, (Trial Judgment) IT-98-33-T (2 August 2001), para. 521.

[360] ICC Statute, art. 7(1), http://untreaty.un.org/cod/icc/statute/99_corr/cstatute.htm (accessed April 10, 2013).

[361] These included the Nuremberg Charter, the Tokyo Charter, the Allied Control Council Law No. 10, and the statutes of the international criminal tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR).See Roy Lee (ed.), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Ardsley, NY: Transnational Publishers, 2001), p. 86; M. Cherif Bassiouni and Peter Manikas, The Law of the International Criminal Tribunal for the Former Yugoslavia (New York: Transnational Publishers, 1996), pp. 627-38 (arguing that the crime of "deportation" under the Nuremberg Charter included "all unjustified transfers [including] internal displacement.").

[362]Christopher K. Hall in Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (Baden-Baden: Nomos Verlagsgesellschaft, 1999), p. 162.

[363] See, e.g., “Burmese Monks Who Preach Intolerance Against Muslim Rohingyas,” BBC News, November 21, 2012, http://www.bbc.co.uk/news/world-asia-20427889 (accessed February 4, 2013).

[364] For more information on specific cases, see the section on “Killings” in chapter II of this report.

[365] UNOCHA reported in July 2012 that an inter-agency rapid needs assessment covered 104,719 IDPs located in 114 locations in four townships. UN Office for the Coordination of Humanitarian Affairs, Myanmar: Displacement in Rakhine State, Situation Report No. 5, July 19, 2012, http://www.searo.who.int/entity/emergencies/crises/MMR_OCHA_5_Rakhine.pdf (accessed April 11, 2013).

[366] Human Rights Watch interviews with J.N., K.Q., and confidential communications with a Rohingya prisoner, November 2012. The UN Special Rapporteur on Human Rights in Burma, Tomas Quintana, visited Rohingya prisoners in 2012 and documented their torture and ill-treatment.

[367] See The Prosecutor v. Milomir Stakić, Case No. IT-97-24-T, ICTY, Appeals Chamber, Judgment, paras. 686-87.

[368] R. Lee, The International Criminal Court, p. 86 (defining the relevant elements of the crime of deportation).

[369] Ibid.

[370] See Irish Center for Human Rights, Crimes Against Humanity in Western Burma: The Situation of the Rohingyas, http://www.nuigalway.ie/human_rights/documents/ichr_rohingya_report_2010.pdf (accessed April 10, 2013), p. 109.

[371] See reports by UN special rapporteurs on human rights in Burma in footnote #400.

[372]UN General Assembly, “Situation of human rights in Myanmar,” A/65/368, September 15, 2010, http://www.unhcr.org/refworld/country,,UNGA,,MMR,,4cbbe7f22,0.html (accessed April 10, 2013), pp. 16-17.

[373] See ICC Statute, art. 7(1)(h), http://untreaty.un.org/cod/icc/statute/99_corr/cstatute.htm (accessed April 10, 2013); Nadhimana, Barayagwiza and Ngeze, ICTR Appeals Chamber, November 28, 2007, para. 985;

[374] ICC Statute, art. 7(2)(g), http://untreaty.un.org/cod/icc/statute/99_corr/cstatute.htm (accessed April 10, 2013).

[375]Prosecutor v. Krnojelac, ICTY judgment, IT-97-25T, March 15, 2002, sec. 431.

[376] ICC statute, art. 7(1)(h), http://untreaty.un.org/cod/icc/statute/99_corr/cstatute.htm (accessed April 10, 2013).

[377] See Antonio Cassese, ed. The Oxford Companion to International Criminal Justice, (Oxforcd: Oxford University Press, 2009) p. 454.

[378]Report of the United Nations Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), 27 May 1994, http://www.his.com/~twarrick/commxyu4.htm#par129 (accessed April 10, 2013).

[379] Ibid.

[380] UN Committee on the Elimination of Racial Discrimination, Decision 2 (47) of August 17, 1995, on the situation in Bosnia and Herzegovina, U.N. Doc. A/50/18/1995, http://www.un.org/documents/ga/docs/50/plenary/a50-18.htm (accessed April 10, 2013), para. 26.

[381]See Security Council resolution 771 (1992), http://www1.umn.edu/humanrts/peace/docs/scres771.html (accessed April 10, 2013); Security Council resolution  780 (1992), http://www1.umn.edu/humanrts/peace/docs/scres780.html (accessed April 10, 2013); Security Council resolution 808 (1993), http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N93/098/21/IMG/N9309821.pdf?OpenElement (accessed April 10, 2013); Security Council resolution 941 (1994), http://www.unhcr.org/refworld/country,,,RESOLUTION,BIH,,3b00f15b40,0.html (accessed April 10, 2013); U.N. General Assembly resolution 46/242, http://www.un.org/documents/ga/res/46/a46r242.htm (accessed April 10, 2013); and U.N. General Assembly resolution 47/80, http://www.un.org/documents/ga/res/47/a47r080.htm (accessed April 10, 2013).

[382]The right to return has been recognized by some experts as a norm of customary international law. See "Current Trends in the Right to Leave and Return," U.N. Doc. E/CN.4/Sub.2/1985 (emphasizing that the right to return is part of the whole body of human rights, and stating that the "concordance of State practice and common opinion juris, [the right to return] created a legal obligation according to customary international law."), http://www1.umn.edu/humanrts/Amensty%20Laws_Joinet.pdf (accessed April 10, 2013).

[383] Universal Declaration of Human Rights, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948), art. 13(2), http://www1.umn.edu/humanrts/instree/b1udhr.htm (accessed April 10, 2013).

[384] See, e.g., International Convention on the Elimination of all Forms of Racial Discrimination (ICERD), which guarantees "the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: … the right to "leave any country, including one's own, and to return to one's country." ICERD, 660 U.N.T.S. 195, entered into force Jan. 4, 1969, art. 5 (d)(ii), http://www1.umn.edu/humanrts/instree/d1cerd.htm (accessed April 10, 2013).

[385] Universal Declaration of Human Rights, art. 13(1), http://www1.umn.edu/humanrts/instree/b1udhr.htm (accessed April 10, 2013).

[386] See Sub-Commission on the Promotion and Protection of Human Rights, Housing and Property Restitution in the Context of the Return of Refugees and Internally Displaced Persons, Resolution 1998/26, http://www.unhcr.org/refworld/topic,4565c2253e,4565c25f49d,3dda64517,0,UNSUBCOM,,.html (accessed April 10, 2013). The Sub-Commission was under the UN Human Rights Council, which was dissolved in 2006.

[387] UN Security Council, Resolution 820, S/Res/820, April 17, 1993, http://www.un.org/ga/search/view_doc.asp?symbol=S/RES/820(1993) (accessed April 10, 2013). Similar language by the Security Council affirming this right to return can be found in resolutions addressing the conflicts in Abkhazia and the Republic of Georgia, Azerbaijan, Bosnia and Herzegovina, Cambodia, Croatia, Cyprus, Kosovo, Kuwait, Namibia, and Tajikistan.

[388]Guiding Principles on Internal Displacement (“Guiding Principles”), U.N. Doc. E/CN.4/1998/53/Add.2 (1998), noted in Comm. Hum. Rts. res. 1998/50, http://www1.umn.edu/humanrts/instree/GuidingPrinciplesonInternalDisplacement.htm (accessed April 10, 2013).

[389] Ibid., The introductory note to the General Principles state: “The Principles reflect and are consistent with international human rights law and international humanitarian law.” para. 9.

[390] Ibid., section V.

[391] The UN Guiding Principles on Internal Displacement are not legally binding but provide an authoritative normative framework for the protection of internally displaced persons. The Guiding Principles are a firm reinstatement of existing international human rights, refugee, and humanitarian law as it relates to the internally displaced. They draw heavily on existing standards and provide additional guidance and explanation when there are gaps. They are intended to provide practical guidance to governments, other competent authorities, the UN and other intergovernmental agencies and NGOs in their work with internally displaced persons.

[392] Universal Declaration of Human Rights, art. 8, http://www1.umn.edu/humanrts/instree/b1udhr.htm (accessed April 10, 2013); see also, International Covenant on Civil and Political Rights,
G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A
/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976. art. 3(a) (states undertake to “ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity.”) Burma is not a party to the covenant, http://www1.umn.edu/humanrts/instree/b3ccpr.htm (accessed April 10, 2013).

[393] Committee on the Elimination of Racial Discrimination, General Recommendation XXII: Article 5, http://www.ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx (accessed April 10, 2013); and refugees and displaced persons, adopted at the 49th session, August 24, 1996, U.N. Doc. A/51/18, http://www.unhchr.ch/tbs/doc.nsf/0/76ebd2611b2261d2c12563e90058d7d7/$FILE/N9625738.pdf (accessed April 10, 2013).

[394]See, e.g., Commission on Human Rights resolutions 2000/41 and 1999/33 (recognizing the "right to [property] restitution for victims of grave violations of human rights."), http://www.unhchr.ch/huridocda/huridoca.nsf/%28Symbol%29/E.CN.4.RES.2000.41.En?Opendocument (accessed April 10, 2013).

[395] UN Guiding Principles, principle 29(2), http://www.unhchr.ch/Huridocda/Huridoca.nsf/0/d2e008c61b70263ec125661e0036f36e (accessed April 10, 2013).

[396]Sub-Commission on the Promotion and Protection of Human Rights, Resolution 1998/26, August 26, 1998, http://www.unhchr.ch/huridocda/huridoca.nsf/%28Symbol%29/E.CN.4.Sub.2.RES.1998.26.En?Opendocument (accessed April 10, 2013).

[397] For instance, efforts to recreate multi-ethnic communities in the Balkans after years of forced displacement, severe human rights abuses, and violence between ethnic communities made it nearly impossible for minorities to live peacefully among hostile majorities, even when their legal claims have been recognized.See, e.g., Human Rights Watch, "Unfinished Business: Return of Displaced Persons and other Human Rights Issues in Bijeljina," vol. 12, no. 7(D), May 2000, http://www.unhcr.org/refworld/country,,HRW,,BIH,,3ae6a87b0,0.html (accessed April 10, 2013); Human Rights Watch, "Second Class Citizens: The Serbs of Croatia,” vol. 11, no. 3(D), March 1999, http://www.unhcr.org/refworld/country,,HRW,COUNTRYREP,HRV,,3ae6a7df4,0.html (accessed April 10, 2013); Human Rights Watch, "Broken Promises: Impediments to Refugee Return in Croatia," vol. 15, No. 6(D), September 2003, http://www.hrw.org/reports/2003/09/02/broken-promises.

[398] See Human Rights Watch, Claims in Conflict: Reversing Ethnic Cleansing in Northern Iraq, August 3, 2004, http://www.hrw.org/reports/2004/08/02/claims-conflict.

[399] UN Committee on Economic, Social and Cultural Rights, General Comment 7 on Forced Evictions, (1997), http://www.unhchr.ch/tbs/doc.nsf/ (accessed December 10, 2012), para. 16.