BURMA:ADDRESSING IMPUNITY AND ENFORCING THE RESPONSIBILITY TO PROTECT

1. BURMA:ADDRESSING IMPUNITY AND ENFORCING THE RESPONSIBILITY TO PROTECT 1

2. Burma States and Divisions 2

3. Major Ethnic Groups of Burma 3

4. SCALE AND GRAVITY OF THE PROBLEM • “600,000 Casualties”,Tom Kramer (“Military Rule and Ethnic Conflict,” European Centre for Conflict Prevention, 2004); • “10,000 dying a year for five decades”,(Martin Smith, p.101, “Burma and the Politics of Ethnicity”, Zed Books, 1991); • “Death toll as high as millions”,(ibid, SLORC Chairman, Gen. Saw Maung); • “Millions of homes, lives and families have been shattered”,(Martin Smith, ibid); • "Up to 4 million internally displaced across Burma" (Internal Displacement 2008, Norwegain Refugee Council, p.9) • "1.5 million evicted in lowland Burma, 1988-1990” (UN Habitat 1991) • Hundreds of thousands of refugees and externally displaced people in Thailand, Malaysia, Bangla Desh, China, and the wider world. 4

5. IDEOLOGY OF BURMANISATION Tatmadaw slogan: "One blood, one voice, one command” (Smith, "Burma", Zed books, p.196) nisationA 5

6. DISPLACED EASTERN PEOPLE 6

7. Internally Displaced Population Estimates, 2009 7

8. Displaced Villages in Eastern Burma, 1996-2009 8

9. Internal Displacement in Eastern Burma, 1996-2009 9

10. DISPLACED VILLAGE 10

11. 11

12. Development Projects in Eastern Burma, 2009 12

13. 13

14. Northern Karen Areas 14

15. 15

16. 16

17. 17

18. 18

19. (KARENNI STATE) Medical group SPDC troops RESISTANCE TROOPS 19

20. The Burning of Daw Kaw Village Karenni State Feb. 2000 20

21. 21

22. 22

23. 23

24. 24

25. 25

26. ALLEGED SYSTEMATIC SEXUAL VIOLENCE: BIOLOGICAL GENOCIDE “O-all of you our Burman comrades: since we are in a period wherein it offers the best opportunity to undertake the matter we must, to achieve the purpose of admixture of blood (my bold) while you are in Shan State, lure and possess Shan and other foreign women by means of money, materials, incentives or through the heart, as in love affair.” (Top Secret, “Dying Alive,” p.210) 26

27. INSTITUTIONAL COMPLICITY IN THE NARCOTICS TRADE BETWEEN THE WA AND SPDC “Opium field cutting will be done only in some area as show off. If we destroy all opium. . . we cannot get enough government support for the expenses needed for. Burma army in the area have to support themselves in any way. We can as a general rule to get tax from all who plant the opium in kind of opium content approximately 250 to 300 gram each one viss (1 viss= 1,600 gram) and keep that amount for further refining to earn more money.” (Para.2.8, Report on meeting held between SPDC and UWSA, Thai Military Intelligence , 24/11/04) 27

28. Chart A: Human Rights Violations Listed by General Assembly Resolutions 28

29. Chart B: Human Rights Violations Listed by Commission on Human Rights and Human Rights Council Resolutions 29

30. Chart C: Human Rights Violations Listed by Reports of the Special Rapporteur on the Situation of human rights in Myanmar 30

31. UN OFFICE OF HIGH COMMISSION FOR HUMAN RIGHTS: SYSTEMATIC VIOLATIONS “These violations, including the killing of women and children . . . have been so numerous and consistent over the past years as to suggest that they are not simply isolated or the acts of individual misbehaviour by middle and lower rank officers but are the result of policy at the highest level, entailing political and legal responsibility.” (My underline) (UN Special Rapporteur, Rajsoomer Lallah, UN Document A/53/364, Para. 59, Sept. 10, 1998) 31

32. “The above mentioned serious human rights violations have been widespread and systematic, suggesting that they are not simply isolated acts of individual misconduct by middle or low ranking officers but are the result of a system . . .” (UN Special Rapporteur, Paulo Pinheiro, U.N. Doc. A/61/369, Para. 32, Sept.21, 2006) He described the Depayin massacre of Daw Aung San Suu Kyi's convoy as a “State instigated massacre” and a “Prima facie case of State connivance”. 32

33. LAW APPLICABLE TO BURMA • ARTICLE 3 OF THE GENEVA CONVENTIONS • CRIMES AGAINST HUMANITY • GENOCIDE 33

34. THE GENEVA CONVENTIONS • THE GENEVA CONVENTIONS: COMMON ARTICLE THREE. • BURMA SIGNED AND ACCEDED TO THE GENEVA CONVENTIONS IN 1992. COMMON ARTICLE THREE APPLIES TO A SITUATION OF INTERNAL CONFLICT. IT THUS PROTECTS CIVILIANS IN AREAS OF ETHNIC CONFLICT AND ENABLES VIOLATORS TO BE PROSECUTED. • IT DOES NOT PROTECT DEMOCRACY ACTIVISTS OR THOSE KILLED OR WOUNDED IN THE DEMOCRCACY UPRISING. • ARTICLE 3 PROTECTS THOSE TAKING NO ACTIVE PART IN HOSTILITIES IN AN INTERNAL CONFLICT FROM: • a) Violence to life and to persons, in particular murder of all kinds, cruel treatment and torture; • b) Committing outrages on personal dignity, in particular humiliating and degrading treatment; • c) Taking of hostages; • d) The passing of sentences and carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognizable as indispensable. 34

35. CRIMES AGAINST HUMANITY • They apply to all victim groups including political and gender groups and can take place in either war or peace. All the people of Burma are thus protected by this body of law including lowland Burman democracy activists. • For a crime to be considered to be a crime against humanity it must be inflicted as part of an attack on a civilian population and be either widespread or systematic. An attack may be interpreted as “mistreatment.” • The crimes against humanity applicable to Burma, defined by the Rome Statute of the International Criminal Court, are: • Murder, • Deportation or forcible transfer of population, • Imprisonment or severe deprivation of physical liberty, • Torture, • Rape, Sexual violence or Sexual Slavery, • Forced Pregnancy, • Persecution, • Enforced disappearance of persons, • Other inhumane acts. 35

36. CONFLICT OF INTERPRETATION: COUNTER INSURGENCY ABUSES V CRIMES AGAINST HUMANITY There is a conflict between the UN Special Rapporteurs for Human Rights affirming systematic and widespread violations i.e. crimes against humanity, and those claiming these are abuses resulting inadvertently, or unintentionally, from the counter insurgency programme known as the Four Cuts. It should be noted the violations also occur in areas where there is no insurgency, e.g in the Rohingya areas and against democracy activists and monks in lowland Burma. Moreover, the violations in eastern Burma involve confiscation of land, population transfer and “Development”. 36

37. GENOCIDE • It is defined as the destruction of an ethnic, racial, religious or national group in whole or in part. (my underline) The political democracy movement is thus not protected by this law. • “Part” is understood to mean: “Substantial” in terms of numbers or “Significant” in terms of status. • In terms of geography “Part” means a “Limited geographic zone, even a municipality.” (ICTY Srebrenica Judgment.) • The ethnic peoples, particularly those who have been violently displaced into unendurable conditions and deprived of the necessities of life, are thus protected by this Convention. • Burma signed and acceded to the Genocide Convention in 1956. 37

38. THE RESPONSIBILITY TO PROTECT: WORLD SUMMIT DOCUMENT 2005 Heads of State and governments attending the 60th session of the UN General Assembly September 2005 agreed as follows: 139. The international community through the United Nations also has the Responsibility to use appropriate diplomatic, humanitarian, and other peaceful means, in accordance with chapters 6 and 8 of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context we are prepared to take collective action in a timely and decisive manner through the Security Council in accordance with the Charter including Chapter 7 on a case by case basis and in co-operation, with regional organisations as appropriate should peaceful means be inadequate and national authorities are manifestly failing to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. (My underline) 38

39. INFERRED INTENTION "In the absence of a confession from the accused, intent can be inferred from certain number of presumptions of fact" (ICTR-96-4-T-1998) 39

40. CRIMES IN BURMA: HARVARD LAW REPORT MAY 2009 “In short, UN actors documenting of reported violations have been strongly suggesting that these violations may constitute crimes against humanity and war crimes under international law. This creates a prima facie case that such crimes have been occurring and justifies intensified Security Council action to investigate the scope and scale of these potential crimes”. (“Crimes in Burma”, Harvard Law School, May 2009) 40

41. SECURITY COUNCIL RESOLUTION 1674 April 2006 26. Notes that the deliberate targeting of civilians and other protected persons and the commission of flagrant and widespread violations of international law and human rights law in situations of armed conflict, may constitute a threat to International peace and security and reaffirms in this regard its readiness to consider such situations and where necessary to adopt appropriate steps. 41

42. GENERAL ASSEMBLY RESOLUTION JAN. 2009 : IMPLEMENTING THE RESPONSIBILITY TO PROTECT • UN Three Pillar Model: • 1. Protection Responsibilities of the State • 2. Assistance and Capacity Building • 3.Timely and Decisive Response 42

43. RESPONSIBILITY TO PROTECT AS INTERNATIONAL LAW “It should be underscored that the provisions of Para.138 and Para. 139 of the Summit Outcome are firmly anchored in well established principles of international law.” (Para. 3, General Assembly Resolution “Implementing the Responsibility to Protect,” January 2009) 43

44. REFERRAL TO THE INTERNATIONAL CRIMINAL COURT, JANUARY 2009 “In paragraph 38 of the summit outcome, States affirmed their responsibility to prevent the incitement of the four specified crimes and violations. When a State manifestly fails to prevent such incitement the international community should remind the authorities of the obligation and such acts should be referred to the International Criminal Court under the Rome Statute.” (Para. 54, “Implementing the Responsibility to Protect,” Jan. 2009) 44

45. FAILURE OF UN NEUTRALITY IN FORMER YUGOSLAVIA AND RWANDA “Impartiality for United Nations operations must therefore mean adherence to the Principles of the Charter: where one party clearly and incontrovertibly is violating its terms, continued equal treatment of the parties by the United Nations can in the best case result in ineffectiveness and in the worst case amount to complicity with evil.” (Lakhdar Brahimi, UN Report, 2000) Complicity does not necessarily mean aiding and abetting the perpetrators. It can also mean failing to act on the knowledge that crimes are being, or are likely to be committed, or failing to try at least to prevent them happening, despite having the means to do so.” (my underline) (Complicity with Evil, The UN in the modern age of Genocide, Adam Lebor, Yale University Press, Preface, p.9) ISSUE OF ACTIVE AND PASSIVE COMPLICITY 45

46. RECOMMENDATIONS • TO CALL ON THE UN OFFICE OF HIGH COMMISSION FOR HUMAN RIGHTS TO CONCEPTUALISE THE WIDESPREAD AND SYSTEMATIC VIOLATIONS IN BURMA AS CRIMES AGAINST HUMANITY; • TO CALL ON THE UNITED NATIONS TO HONOR THE BRAHIMI REPORT, ACKNOWLEDGE ITS POLICY OF NEUTRAL MEDIATION HAS BEEN EXHAUSTED, AND IMPLEMENT PILLAR THREE OF THE RESPONSIBILITY TO PROTECT; • TO CALL ON THE CURRENT BRITISH GOVERNMENT, OR ITS SUCCESSOR, TO APPOINT SOMEONE WITH SUFFICIENT MORAL, STATURE, COMMITMENT AND RESOURCES TO LEAD A CAMPAIGN TO ESTABLISH A COMMISSION OF ENQUIRY WITH THE OBJECTIVE OF GETTING THE JUNTA REFERRED TO THE ICC AND PILLAR 3 OF THE RESPONSIBILITY TO PROTECT IMPLEMENTED; • TO URGE THE BURMESE OPPOSITION AND LOBBYING GROUPS TO UNITE AND IGNITE A GLOBAL CAMPAIGN TO BRING ABOUT CHANGE IN BURMA. 46

47. PASSIVE COMPLICITY “ . . . failing to try to at least to prevent them [the violations] happening, despite having the means to do so.” Adam Lebor, “Complicity with Evil”, YUP, 2006 47

48. STRATEGY OPTIONS • Collaborate with the Junta, e.g. vote for the new Constitution; • Support neutral mediation efforts involving “National reconciliation” and “Tripartite dialogue”;  • Support the campaign for a Commission of Enquiry; • Establish a Campaign for the implementation of Pillar Three of the Responsibility to Protect, i,e. “A timely and decisive response” to a State “Manifestly failing to protect its citizens from Crimes against humanity” including: • Referral to the International Criminal Court • Targeted financial sanctions • An arms embargo • Provision of humanitarian relief 48

49. CONVERGENCE: CRIMES IN BURMA AND HARVARD LAW REPORT MAY 2009 THE UN General Assembly adoption of the Responsibility to Protect in January 2009, including Pillar Three, “A timely and decisive response”, activated by Crimes against Humanity, January 2009 The assessment of the violations in Burma as Crimes Against Humanity by the Harvard Law School's Report “Crimes in Burma” Report, chaired by Richard Goldstone, May 2009. 49

50. APPLYING THE RESPONSIBILITY TO PROTECT TO BURMA / MYANMAR In such a situation, United Nations (UN) member States, in keeping with their 2005 agreement, have a responsibility to protect the targeted minorities. This responsibility includes using appropriate diplomatic, humanitarian and other peaceful means to protect populations. In the face of the government’s manifest failure to protect its population from imminent and recurring attacks, there is an international commitment to take timely and decisive action to protect populations under threat. This international obligation arises in the context of Burma as gross human rights violations that may constitute crimes against humanity and war crimes are being perpetrated daily. Global Centre for the Responsibility to Protect March 2010 50