Support for an international commission of inquiry into war crimes in Burma got a major boost as the UN's special rapporteur on Burma, Tomas Ojea Quintana, strengthened his call for a commission of inquiry into violations of international law in Burma. "Failing to act on accountability in Myanmar will embolden the perpetrators of international crimes and further postpone long-overdue justice," he said in a report delivered to the UN general assembly last week.
Since Quintana first broached the issue in his March 2010 report, more than a dozen countries - including the UK, France, US, Canada and Australia - have publicly voiced their support for a commission of inquiry.
Despite this growing momentum for justice, not one of these countries is showing concerted leadership to make the commission of inquiry a reality. Instead, there are various excuses given for delaying justice. But the victims of atrocities in Burma should not have to wait any longer.
Over the course of the world's longest-running civil war - now more than six decades old - Burma's security forces have committed deliberate attacks on civilians, carried out summary executions, sexual violence and torture, they have used child soldiers and committed other war crimes with total impunity. Ethnic minority armed groups have also committed serious abuses.
For nearly 20 years, the UN has been passing annual resolutions on Burma, condemning human rights violations and calling on the government to stop abuses and hold the perpetrators accountable. Yet the government has failed to act, hence the UN special rapporteur's call for a commission of inquiry to be set up through the UN general assembly or the human rights council or on the secretary general's own initiative.
Such a commission would investigate reports of violations of international humanitarian law and human rights law by all parties to the conflict in Burma. It would be different from the usual UN reports, because a commission would collect information to establish that crimes have been committed. By shining the spotlight on the violations, this would give recognition to victims, and compel the Burmese government to seriously address the problem.
Concerned governments have a prime opportunity to move on the commission of inquiry recommendation with the annual Burma resolution at the general assembly. So why don't they act? Diplomats have given various reasons for not wanting to pursue accountability now, but the main excuse is the looming elections - "It's not the right time." It is true that the first elections in 20 years are about to take place in Burma on 7 November. Yet all the evidence suggests these elections will simply entrench military rule with a civilian face - a quarter of all parliamentary seats are reserved for military officers. More than 2,000 political prisoners remain behind bars, and the pro-military party, the Union Solidarity and Development party (USDP), will be the only party to field candidates for every open seat. Yes, generals are shedding their uniforms, but no one should be hoodwinked into thinking there is any genuine civilian transition underway that could be threatened by an international inquiry.
Some governments seem concerned that pushing for an international process of accountability may negatively affect the conduct of the elections by driving Burma further into isolation. A few Asian leaders have suggested a commission of inquiry could lead to renewed intense fighting in Burma. If anything, embarking on an accountability process will put all parties to the conflict on notice that there are consequences for serious abuses. As we have seen from Liberia to the Balkans, justice could instead facilitate a process in which highly abusive figures are marginalised and a more reformist leadership is able to emerge in Burma.
Some states are concerned that acting on a commission of inquiry may affect whether democracy leader Aung San Suu Kyi will be released shortly after the elections, as her current term for house arrest expires. While we all want to see Suu Kyi released, her liberty is not a meaningful indicator of progress in Burma. She has been released and detained many times over the last 20 years. Burma's military rulers are masters at using one woman's freedom as a bargaining chip to distract and deter the international community from taking actions that would harm the military's interests.
Another argument is that certain powerful countries, namely China, are actively lobbying against a commission of inquiry for Burma. A commission will only succeed if the major players who have come out in support of a commission are as active in support for it as China is in efforts to scupper it. In the past, commissions of inquiry have been created by the security council despite China's initial reservations, most recently in the case of Darfur. But there will need to be a commitment to a campaign of sustained advocacy and high-level démarches to ensure enough votes to support it.
The international community needs to heed the call of the UN special rapporteur to act, because as he points out, "Justice and accountability are the very foundation of the UN system." Getting a commission of inquiry for Burma will entirely depend on how much the EU, the US and like-minded states are prepared to engage, rather than on how much the spoilers want to shoot it down.
Elaine Pearson is deputy director of Human Rights Watch's Asia division.
