Burma's General Thura Shwe Man (L), the third most powerful leader of the regime, Prime Minister General Thein Sein (2nd L) and military officers attend a ceremony during Armed Forces Day in Naypyitaw on March 27, 2010.

© 2010 Reuters

James Ross is the Legal and Policy Director at Human Rights Watch, where he has worked since 2001. He previously worked in the Humanitarian Affairs office of Médecins Sans Frontières in Holland; for the Organization for Security and Cooperation in Europe (OSCE) in Bosnia; the International Human Rights Law Group in Cambodia; and the Lawyers Committee for Human Rights in the Philippines. He is a graduate of the University of Pennsylvania and Harvard Law School, and has written on US national security issues and on human rights issues in Southeast Asia. In 1991 he wrote the report "Summary Injustice: Military Tribunals in Burma," for the Lawyers Committee for Human Rights.

He talks to The Irrawaddy about calls, led by United Nations Special Rapporteur on Human Rights in Burma Tómas Ojea Quintana, for a United Nations Commission of Inquiry into war crimes and crimes against humanity in Burma. The formation of a Commission of Inquiry has been publicly supported most recently by the United States, as well as the United Kingdom, Australia, the Czech Republic and Slovakia.

Question: Civil wars in Burma have been ongoing since the late 1940s. Why are there calls for a UN inquiry now?

Answer: The recent calls for an international Commission of Inquiry into alleged war crimes and crimes against humanity in Burma stem from the March 2010 report by UN Special Rapporteur for Human Rights in Burma Tómas Quintana. Quintana outlined a pattern of serious crimes that he said could indicate "a state policy that involves authorities in the executive, military and judiciary at all levels" and called on the UN to consider an inquiry with a fact-finding mission to investigate international crimes.

The United Nations has issued highly critical human rights reports on Burma annually for nearly 20 years, describing widespread, egregious and systematic abuses by government security forces. And there have been 19 General Assembly resolutions on the human rights situation in the country. But it's not enough for the UN to simply continue to churn out reports, however critical. The UN should make use of these reports as a basis for establishing an impartial international Commission of Inquiry that can conduct investigations into abuses by both government forces and non-state armed groups, determine whether international crimes have been committed, and suggest a mechanism for bringing justice to the victims and holding perpetrators to account.

Human Rights Watch is calling on the UN General Assembly to adopt a resolution in its upcoming session requesting that the secretary-general establish such a Commission of Inquiry.

Calls for an international Commission of Inquiry have been made for a number of years by many others in addition to Human Rights Watch, including the Harvard Law School Human Rights Clinic and Amnesty International. The proposal isn't new, but the momentum to take action is.

Q: What is a Commission of Inquiry and how would it work?

A: There is no one single way to conduct an international Commission of Inquiry, but certain basic principles are crucial. It can be established through resolutions adopted by the UN General Assembly, the Human Rights Council in Geneva, or the UN Security Council-or the UN secretary-general, Ban Ki-moon, could establish it on his own initiative. We are proposing a Commission of Inquiry that is mandated to investigate reports of violations of international humanitarian law and human rights law in Burma by all parties, which means all the armed groups in Burma, and identify the perpetrators of such violations with a view to ensuring that those responsible are held accountable. The commission should be comprised of highly regarded individuals, including experts in international law, forensics experts and others with past experience investigating armed conflicts.

Q: Could a UN inquiry lead to the International Criminal Court?

A: That's way down the track, if at all.

The first steps are to have a Commission of Inquiry that establishes clearly the patterns of international crimes in Burma and the alleged perpetrators-basically what took place, what international law was violated, and who was responsible. The commission could then make recommendations on moving the process forward for criminal prosecutions.

People should not underestimate the difficulties of getting the situation in Burma before the International Criminal Court (ICC) in The Hague. The court investigates and prosecutes individuals alleged to be responsible for war crimes, crimes against humanity, and genocide when states are unwilling or are unable to do so. Burma is not a party to the Rome Statute of the ICC, which was adopted in 1998 and went into effect in 2002. That means that the ICC can only become involved in the situation in Burma if the Burmese government makes such a request-don't hold your breath!-or if the UN Security Council refers the situation to the court. This happened in 2005 when the Security Council referred the situation of Darfur to the court even though Sudan had not ratified the ICC treaty. A Security Council referral would require a positive vote by nine of the 15 council members and no veto by any of the five permanent members.

Q: What international law applies to the conflicts in Burma?

A: The armed conflicts between the Burmese government and several non-state armed groups are governed by the laws of war, which have their source in international treaties and the rules of customary international law. Customary international law, based on established state practices, binds all parties to an armed conflict, whether states such as Burma or non-state armed groups such as the ethnic insurgent armies. The main treaty law applicable to the conflicts in Burma is Article 3 common to the four Geneva Conventions of 1949, which Burma has ratified. Common Article 3 sets out minimum standards for the proper treatment of persons within a warring party's control, namely civilians and wounded and captured combatants.

Q: How are violations of international humanitarian law different from war crimes?

A: States and non-state armed groups can be found responsible for violations of international humanitarian law. War crimes are serious violations of international humanitarian law committed by individuals with criminal intent-that is, intentionally or recklessly. War crimes include a wide array of offences, among them deliberate, indiscriminate and disproportionate attacks against civilians; committing torture, enforced disappearances and summary executions; and using child soldiers. Individuals also may be held criminally liable for attempting to commit a war crime, as well as assisting in, facilitating, or aiding and abetting a war crime. Leaders and commanders may also be found liable as a matter of "command responsibility" if they knew or should have known that serious abuses were taking place but did not act to stop them or punish those responsible.

Q: How do you classify crimes against humanity?

A: Crimes against humanity are prohibited acts committed in a widespread or systematic manner against a civilian population either in war or in peacetime. Specific crimes against humanity include offences such as murder, torture and forced displacement that are known to be part of a larger attack on a civilian population.

Q: Would it be possible to only investigate Sen-Gen Than Shwe and senior Burmese military officials?

A: War crimes and crimes against humanity can be committed by anyone, not just senior government officials. For a commission of inquiry to be credible and conform to international standards, it would need to be impartial-meaning that it would investigate whoever committed serious crimes, regardless of their political affiliation or motivations. Violations by one side do not justify violations by the other, and noble motives never justify the commission of a war crime. If an investigation uncovered that an ethnic armed group was responsible for a war crime, it would be unjust to the victims if the investigation was canceled as a result.

Q: Can Than Shwe or other Burmese military leaders, and commanders of ethnic armies who are responsible for war crimes be arrested and prosecuted if they travel to other countries?

A: In theory it is possible, but in practice it is very difficult.

Certain categories of grave crimes in violation of international law, such as war crimes and torture, are subject to what is called "universal jurisdiction," a concept that refers to the ability of the courts of one country to investigate and prosecute certain crimes committed by a foreign national in another country. For instance, in 2009 a US federal court sentenced "Chuckie" Taylor, the son of former Liberian president Charles Taylor, to 97 years in prison for torture committed in Liberia, based on the US anti-torture statute-this was possible because Taylor was in the US and there was a great deal of evidence personally linking him to the crimes. Many other countries have universal jurisdiction laws, Germany and Spain for instance, but they usually require there to be a connection to the country bringing the case, such as the victims being nationals. To initiate such a case, it is necessary to convince local prosecutors that there is sufficient hard evidence of direct involvement to get a conviction, and that can be very difficult.

Q: Do you expect the military government, or whatever government is in power after the November 2010 election, to cooperate with a UN Commission of Inquiry?

A: Ideally, an inquiry would have full access to Burma and to officials and personnel in all armed groups at every level, as well as unfettered access to civilians affected by armed conflict. Certainly a Commission of Inquiry raised at the highest levels of the UN would make it harder for the Burmese government to resist participation. Unfortunately the government has routinely blocked investigators from UN agencies to work in the country, or haphazardly permitted UN human rights envoys to visit, only to tightly control their travel, itinerary and the people they meet. Nevertheless, a Commission of Inquiry that received no cooperation from the Burmese government could still accomplish a great deal. First, the Commission of Inquiry could interview victims and witnesses of abuses outside of Burma. Second, the Commission of Inquiry could review the thousands of pages of UN reports and other information documenting violations in recent years. Third, a Commission of Inquiry could undertake a legal mapping exercise-a detailed analysis of crimes and perpetrators-of alleged war crimes and crimes against humanity that would help a future prosecutor. Finally, a Commission of Inquiry without access to Burma could still provide recommendations to the UN regarding accountability avenues for serious international crimes.

Q: Why is accountability important?

A: Officials who seek to pit political stability and justice against each other often do so to escape accountability for serious international crimes. Human Rights Watch's years of reporting in conflict areas has found that justice for such crimes often can yield short and long-term benefits to reaching a sustainable peace. By contrast, impunity far too often carries a high price. Investigating and prosecuting individuals responsible for serious international crimes is an obligation under international law-but it is much more than that. Holding individuals accountable is important because it may deter future atrocities, promote respect for the rule of law, and provide avenues of redress for the victims of horrific abuses. It can promote discipline and professionalism by the armed forces and law enforcement officials, encourage responsible command and control, and lead to better relations with the civilian population. States and armed opposition groups that fail to hold perpetrators accountable undermine their standing among populations and with countries abroad, and increase the likelihood of international action being taken against them.

Q: What effect will a Commission of Inquiry have on the upcoming election in Burma?

A: It shouldn't have any effect at all, as the elections in Burma are clearly a rigged process to ensure continued military rule but with a civilian face. Some Burma watchers argue that calling for an international Commission of Inquiry and pursuing accountability for serious international crimes may negatively affect the conduct of the elections by driving the Burmese military further into isolation, making it more resistant to pressure for greater democratization. If anything, the opposite will be true. Experience in countries that have undertaken an accountability process shows that a Commission of Inquiry, by demonstrating that there may be penal consequences for serious international crimes by all sides, may deter further criminality and help marginalize highly abusive figures, providing space for a more reformist leadership to emerge.

Q: Is Burma one of the worst cases for violations of international law in the world?

A: Human Rights Watch doesn't try to rate which countries are the worst human rights abusers.

In fact, we monitor and report on human rights violations in more than 80 countries around the world. But we've come to learn that where the most serious violations of international law-war crimes and crimes against humanity-have occurred, it's not enough to "name and shame" those responsible. To really put an end to abuses means putting those responsible behind bars. So we've increasingly devoted efforts to press for local prosecutions of violators-and if that is unsuccessful-to press for international investigations. For instance, during the final months of the armed conflict in Sri Lanka between the government and the Tamil Tigers in 2009, more than 7,000 civilians were killed, many as a result of war crimes by both sides. The president, Mahinda Rajapaksa, promised UN Secretary-General Ban Ki-moon that serious investigations would take place, but more than a year after the fighting, that hasn't happened. So Secretary-General Ban has put together a Panel of Experts to advise him on accountability mechanisms, and even though the Sri Lankan government is loudly opposing this modest action, it is moving forward. We expect that the Panel's findings will generate international momentum to create an international investigation into war crimes in Sri Lanka-the same kind of momentum we are now seeing for a Commission of Inquiry in Burma.

James Ross is the Legal & Policy Director at Human Rights Watch.