Tragedies such as last year’s cyclone and this spring’s sham trial inevitably draw the world’s eyes to Burma. We should maintain our gaze. Given that the United Nations is aware of the scale and severity of rights abuses in Burma, it is incumbent on the Security Council to authorize a commission of inquiry into crimes against humanity and war crimes in Burma.
- Pedro Nikken and Geoffrey Nice, “What the U.N. Can’t Ignore in Burma”, The Washington Post, 2 June 2009.
What do readers think? Is there any chance of “a commission of inquiry into crimes against humanity and war crimes in Burma”? Would the Security Council ever authorise such a body? If so, who would they be hoping to target? Just Than Shwe and the other, say, State Peace and Development Council members? I suppose there would have to be efforts to go through lists like this one. Gathering evidence would be a moumental job. Is it feasible? Or is this, in fact, a pipe-dream from Nikken and Nice? Are we going to see a Burmese deck of cards any time soon?
7 responses so far ↓
1 Colum Graham // Jun 2, 2009 at 2:58 pm
Maybe there can be a commission into crimes against humanity in Burma, but the UNSC is never going to do anything with the inquiry because Myanmar poses little, if any threat to other nations. An official commission or inquiry would determine that there were crimes against humanity being committed officially in a Humphrey Appleby sort of way. The threat that Myanmar does pose internationally relates to refugee issues and I think there was tension with Bangladesh? But overall, this is not particularly aggressive external behaviour for the UNSC to be unanimously passing resolutions from evidence gathered in an inquiry about domestic issues.
Furthermore in relation to not fully participating in the international community, Myanmar is not yet a signatory to the Rome statute of the ICC (not the cricket council) and Than Shwe or whoever they wanted to prosecute could not be prosecuted simply because they’ve not signed up. There would have to be an uprising first, and then the next government in Myanmar could sign up and have people prosecuted — so as not to interfere with sovereignty. I am echoing (and greatly simplifying) this position from an argument made by Blessing Miles Tendi a while ago on the Guardian that answered calls for ZANU leadership to be prosecuted.
Nikken and Nice use Yugoslavia, Rwanda and Darfur as examples of cases that the UN have had commissions into previously, but I would think that these commissions would have been launched in regards to genocide which, to my understanding, is not happening in Myanmar. Additionally, in relation to this, the commission concerning Darfur and condemning Omar al-Bashir which ultimately lead to the ICC arrest warrant issued for him in March, Sudan became a signatory to the ICC in February (along with Zimbabwe).. Again, I have a limited and confused understanding, but this is how I think it works.
The UNSC is not a moral body, it is a body that keeps order. Some may consider maintaining order to be of moral value, but try telling that to a fellow wallowing in Junta sponsored destitution. Maybe what Nikken and Nice are looking for is an international body of virtuous intervention, something I feel sure they would say is long overdue too.
2 mike // Jun 2, 2009 at 9:28 pm
Legally, there are obvious grounds for a range of charges against the regime. These can be under the Torture convention (which nearly got Pinochet), under the ICC (which can be used for non-signatories like Sudan if – and a big if – the UNSC approves) or in the future when the convention on Enforced Disappearances comes into force. There are must more vague grounds on genocide, but it would be difficult 9but not impossible) to prove that the regime intends to destroy an ethnical group. The UNSC can act under Chapter 7 powers if they consider there are threats to international peace and security – refugee flows across borders, widespread and systematic human rights violations, border violations.
However, politically none of these actions are likely to occur. China and perhaps Russia will veto any UNSC action, which wipes out the ICC and chapter 7 powers. The Convention against torture (CAT) is more hopeful: if a member of the regime, for whom there is good evidence that they commissioned or allowed torture to occur, is in any country that has agreed to it, then he can be arrested. Countries now include Thailand, but not Singapore. These countries can be requested by a third State to either try these pople, or extradite them to a coutry which will try them. But who would accept? Spain would if it was a Latin American Country. USA and England won’t, as won’t any ASEAN country, Australia rather gutless when it come to something like this.
A commission can be set up by anybody. The UN is rather reluctant about entering these now – far too expensive and not widely supported. If ASEAN had a commission you could almost write the findings now – concern, but no consequences
3 Stephen // Jun 3, 2009 at 1:49 pm
There are a number of errors in your post, Column. Much can be clarified by reading the Rome Statute.
1. The UN Security Council can issue a resolution calling for a Commission of Inquiry into Crimes against Humanity in Burma/Myanmar without the country being a signatory to the Rome Statute.
2. Crimes against Humanity were universally accepted at the 2005 UN World Summit as one of four crimes falling under the Responsibility to Protect doctrine for which the UNSC may take action.
3. China may very well block such a resolution. However, given its acceptance of the R2P doctrine, China could not justify its veto on the grounds that Crimes against Humanity are an internal issue.
The question then becomes whether there are/were Crimes against Humanity committed in Burma. Here is a relevant quotes:
However, a relevant questions may by whether a Commission of Inquiry would a positive step for Burma. The Peace vs. Justice debate surrounding ICC action in Africa would be a relevant point of comparison.
4 Patrick // Jun 3, 2009 at 8:42 pm
This op-ed by Niken and Nice is based on a report by Harvard Law School’s Human Rights Program which was commissioned by them and three other jurists, Richard Goldstone (South Africa), Patricia Wald (U.S.), and Ganzorig Gombosuren (Mongolia). The report (http://www.law.harvard.edu/programs/hrp/newsid=59.html), “Crimes in Burma,” compiles information from UN bodies exclusively and comes to the conclusion that human rights abuses in Burma are widespread, systematic, and part of state policy. The recommendation for a Commission of Inquiry is based on the legal analysis that the nature of these abuses may constitute crimes against humanity and war crimes which are prosecutable under international law.
The report is significant for several reasons. There is actually a lot of documentation of the human rights violations, much of it collected at great risk by local community based organizations. Human rights report from these groups get dismissed (unfairly, I think) for bias since they come from the communities experiencing the violence. Calling for the UN to act based exclusively on the reports that the UN itself has generated takes that excuse not to act off the table. As Stephen rightly points out, the UN Security Council can authorize a Commission of Inquiry.
Where that would lead is not clear, nor should it be at this point. There is enough evidence to suspect that the violence in Burma rises to the level of crimes which have been determined to be so severe they are of concern to all of humanity. A Commission of Inquiry is designed to come to an official determination about that suspicion and to recommend ways forward. A whole range of options beyond any kind of prosecutorial action could then be considered which are difficult to push for now: an arms embargo, targeted sanctions against those responsible for the crimes, etc.. There is also the issue of the Right to Truth, which is articulated in the UN’s Updated Principles on Impunity (see http://daccess-ods.un.org/access.nsf/Get?Open&DS=E/CN.4/2005/102/Add.1&Lang=E), meaning that knowing what is occurring, for the sake of knowing (especially on the part of victims and their loved ones) is a right in and of itself.
5 Colum Graham // Jun 3, 2009 at 8:47 pm
Stephann,
I don’t see where what I’ve said is erroneous in relation to article five of the Rome statute, and given your points – there has possibly been an error in your reading of what I’ve written. I’m not sure whether what you’ve written is a critique of my comment or whether you are just commenting generally.
From Article 19 of the Rome Statute:
2. Challenges to the admissibility of a case on the grounds referred to in article 17 or challenges to the jurisdiction of the Court may be made by:
(c) A State from which acceptance of jurisdiction is required under article 12.
From Article 12
1. A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5.
Myanmar is not a party to the statute on any level for the statute to have any applicability to Myanmar in relation to article 5. Where is what I’ve said erroneous? The ICC is not the UNSC!?
I didn’t say there couldn’t be a resolution called for a commission, I said maybe there could be a commission, and then questioned its usefulness which was related to my view on the sentiment of people looking from the outside to see immediate action. Sure, maybe there would be teeth spawned through a commission that document evidence for sanctions or eventually, criminal trials, but how are those teeth going to make an imprint without people in Myanmar overwhelmingly determining that those teeth should make an imprint?
In regards to intervention, the world summit fact sheet you’ve kindly linked states at the beginning of the Responsibility to Protect part with ‘Clear and unambiguous’. Responsibility to protect is an unclear and ambiguous term applied to four very clear actions in article five of the Rome Statute.
The instability caused by external governments ‘acting responsibly’ by intervening in the region would quite easily be tabled as irresponsible given the myriad of other military engagements and financial crises that UNSC governments are involved in at the moment. Is it not irresponsible of the UN to set out a ‘get out of jail’ reference for peoples treated inhumanely, without having the resources to pursue its objectives? Indeed, intervention could be least irresponsible for China – if China shared a more mutual global outlook with the US and European UNSC members.
However, looking for China to immediately act in accordance with a decision made at the world summit of 2005 is premature. Given China’s behaviour over the past 30 years, you surely cannot expect China to change or make an immediate exception to it’s whole foreign policy directive of non interference because of an unrealistic UNSC agreement made in 2005. Again, responsibility to protect is a flowery notion. I’d sign up to it too and even buy the superman cape, but that doesn’t mean I’d be running off to save people from their hells willy nilly just because I bought the cape and signed the paper. It would take internal will for me to do that. Maybe buying the cape and signing the paper signals a change of direction, but given the norm of non interference posturing, there would be many other hypocrisies to take care of before actually changing tack.
Are you suggesting that based on ‘Responsibility to Protect’, intervention can be made where there is any form of ‘crime against humanity’? Which crime against humanity is more significant than the other? Which should be the first on the list of crimes against humanity that the UNSC decides to act on, or should they act on all of them at once as the moral beacons of humanity?! The UNSC could even ‘act responsibly’ with the USA and water boarding! The facetious possibilities here are probably endless.
Furthermore, I don’t think the UN is going to give precedence to the notion of ‘Responsibility to Protect’ over a nations sovereign right to self determine. What sort of peace or justice would we have if some external body decided we needed to be ‘protected’? Perhaps we’d have the sort of peace and justice that is found in Myanmar today….
Stephan, perhaps what you’ve written is blunt out of the frustration for action – and I’m sorry if this is antagonistic. I don’t see how it’s possible to be hopeful in relation to this. I’d like to be hopeful though.
6 Colum Graham // Jun 3, 2009 at 11:05 pm
Patrick & Stephan,
From Article 13:
(b) A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations
But given what I quoted earlier, doesn’t the Rome Statute contradict itself with this caveat?
How much of an obstacle is the Tatmadaw to the UNSC taking action? Could it be provocative? Could China, by voting for a referral, provoke a ‘cornered animal’ reaction? How will an arms embargo on Myanmar make it significantly less militarized?
To be honest, I thought with the UN discussing Myanmar frequently, altogether this would constitute an ‘inquiry’, but obviously not. A ‘Commission of Inquiry’ seems much more significant than I had thought, but it’s still depressing to think of how much bureaucracy has to be waded through to reach anything proactive being done. Hopefully with the UNSC having more experience with these situations, as outlined in the Harvard Law School report in the precedents section, means that they are more efficiently carried through.
How does the UN reconcile its values of national self determination vs good governance?
7 Colum Graham // Jun 4, 2009 at 10:49 am
Sovereignty* – this post has been subjected to a stream of consciousness bombardment… :-S
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