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Any UN Commission of Inquiry must be truly objective and should investigate all parties to the conflict in Burma. Practically, the threat of an investigation could do much to discourage violations of international humanitarian and human rights law. Politically, a comprehensive investigation might be less likely to antagonise the regime and could engender the support of more of the international community. Only such an impartial investigation could set the stage for real national reconciliation.
It is clear that the UN should instigate a Commission of Inquiry into international crimes committed in Burma. Failure to do so is evidence of its continued impotence and inertia. Egregious human rights abuses such as torture, extrajudicial killings, internal displacement, sexual violence and the use of child soldiers have been documented for decades. The scale and gravity of these breaches of international criminal law powerfully suggest that they amount to crimes against humanity and war crimes. An objective investigation into the situation in Burma is therefore imperative.
While the actions of the Burmese government in its various guises are thoroughly deplorable, it must also be recognised that international crimes have been perpetrated by non-state armed groups in Burma. Reports of torture, forced labour and murder committed by these groups are less well-documented and must equally be investigated. Additionally, the recruitment of child soldiers and the use of land mines must urgently be examined. The Burma Lawyers’ Council is trying to educate non-state armed groups about humanitarian and human rights law in the hope that this will help them to adhere to international legal standards. The mere threat of an investigation could have immediate preventative effects and catalyse real change in the attitudes of all armed groups.
Additionally, a partisan inquiry could be politically counterproductive. An investigation only into the State Peace and Development Council (SPDC) would be seen, correctly, as a direct attack on the regime. It would be unlikely to engender cooperation from the military and would almost certainly muzzle any steps towards dialogue with the generals. China would be likely to seek to protect the regime in the belief that an international investigation would increase instability in the border regions.
When considering international investigations and judicial processes, we must look beyond the purely legal. Such processes also aim to be anthropologically cathartic. By giving victims of violence the opportunity to confront those held to have wronged them, these processes allow meaningful collective reconciliation and can avoid the perpetuation of enmity. The suggestion that only one party to a conflict is blameworthy denies the victims of other parties a voice. A one-sided investigation could deny the real harm suffered by thousands of civilians at the hands of non-state armed forces. Enmities could remain unresolved, or, as history has demonstrated, deepen. Beware victors’ justice. To be truly beneficial, a Commission of Inquiry must investigate the perpetration of crimes by all parties.
It is understandable that some members of the opposition movement might be uneasy about the investigation of anti-regime armed groups. At this stage, however, concerns about international prosecution are premature. Both the Tutsis and the Hutus were investigated by the Commission of Experts instructed by the UN Security Council to investigate the situation in Rwanda. The Hutu extremists were found to be ultimately responsible for the atrocities committed, and it was only they that were consequently prosecuted in the specially created international tribunal.
There is no established protocol for the creation of a Commission of Inquiry. An inquiry could be instigated by various bodies including the UN Security Council, the Secretary-General, the Human Rights Council or the International Labor Organization. The appeal of the first is that it is the only UN body that could force a referral to the International Criminal Court or set up another international tribunal. It is therefore arguable that only a Security Council mandated Commission of Inquiry would have any real potential bite.
A UN Commission of Inquiry would not be the first in Burma. In response to an ILO Commission of Inquiry, several Tatmadaw Kyi soldiers found guilty of recruiting minors were eventually punished. The Secretary-General’s 2010 report to the UN General Assembly on children and armed conflict states that a tiny number of child soldiers have been released through Burmese Government mechanisms. These commendable, if inadequate, steps demonstrate that objective investigations and recommendations can have some beneficial effect in and of themselves.
Notably, however, Commissions of Inquiry established by the Security Council with regard to the former Yugoslavia, Rwanda and Darfur were all part of a process that ultimately resulted in international criminal trials. We should not be too hasty to leap to criminal proceedings. Lawyers may talk about the integrity of the pursuit of international justice, but we are navigating inherently political waters. Even the ICC retains the right to refuse a case where an investigation may aggravate a conflict or destabilise a reconciliation effort. Highlighting this, some fear that the indictment of Omar al-Bashir has significantly hindered peace-building efforts in Darfur. Thirty years after the fall of the Khmer Rouge, the functioning of the internationalised Extraordinary Chambers in the Courts of Cambodia is threatened by political discontent.
The creation of any international judicial mechanism for Burma is a long way off. Since Burma is not a party to the Rome Statute, the ICC cannot initiate proceedings without the order of the Security Council. More immediate concerns therefore include persuading China and Russia not to veto a Security Council mandated Commission of Inquiry. To that end it is critical that calls for an investigation are cogent, developed and impartial. Though political and economic interests may be difficult to overcome, it is likely that China would at least consider supporting measures with the potential to lay the groundwork for genuine security in the border areas.
Kirsty Ogilvie is a Fellow of International Criminal Law at the Burma Lawyers’ Council, and was called to the Bar of England and Wales in 2010