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Aung Htoo, BLC: ‘Than Shwe fears the ICC’

As calls for Than Shwe to be indicted for war crimes gather momentum, DVB speaks to exiled Burmese lawyer, Aung Htoo, who heads the Burma Lawyers’ Council. He claims that China’s rise as an international player may indeed be detrimental to the ruling junta, as it works to maintain its dignity and ‘abstain’ if the issue reaches the UN Security Council.

Why is a UN probe into crimes against humanity and war crimes in Burma necessary?

In addition to reports issued by the international human rights organizations such as the International Committee of Red Cross (ICRC), Amnesty International (AI), the International Federation of Human Rights (FIDH), Human Rights Watch (HRW) and others, the reports of UN Special Rapporteur on Human Rights Situation in Burma, Tomas Quintana, have indicated that human rights violations in Burma are likely crimes against humanity and/or war crimes. It has become the responsibility of the society – national and international alike – to address those heinous crimes in appropriate ways. If not, justice for victims of crimes will have been perpetually denied, repeated commission of such heinous crimes in near future would not be deterred, the rule of law will never prevail, and, as a result, the rule of the military dictatorship will have been entrenched and a peaceful democratic transition for Burma only a myth.

How will Burma benefit from such an inquiry?

If the UN Commission of Inquiry (CoI) can operate well inside Burma, the truth will be uncovered; prevailing impunity in Burma will have been denied to some extent; society may find ways to address the sufferings of the victims of heinous crimes; peaceful movements of grassroots people who are seeking justice will be strengthened; pressure on the ruling military regime from the national and international community to transform society may notably increase; the internal conflicts within the ruling military regime might be exacerbated; and as a result, it may lead to reformation of security forces such as army, police and intelligent organizations and justice mechanism, including the judiciary. And finally, legal action might be taken on the perpetrators of heinous crimes by the International Criminal Court and a genuine democratic transition for Burma may become a reality.

Wouldn’t China, which has a seat on the UN Security Council, block moves to hold the inquiry?

In today’s world, the rule of law has become a convergence of diverse concepts, adopted by both Western and Eastern societies: one focuses on individual freedoms whereas another seeks the collective value of society, despite the existence of mixed practices in many countries. It is proven that since 1980 China has focused on the importance of the rule of law despite the fact that it may hesitate to recognize “democracy”. The commission of heinous crimes in Burma is directly relevant to the issue arising due to the lack of the rule of law. In addition, under the Chapter of Fundamental Rights, Article 33 of the Constitution of China stipulates: “The State respects and preserves human rights.” This is time for the international community to persuade China to deal with the issues of Burma from the aspect of the rule of law and human rights.

It is also expected that as China has become an international actor, it may attempt to maintain its dignity and may not protect the perpetrators of heinous crimes in Burma, turning a blind eye under whatever circumstances. If the majority of the international community consistently highlights the situation of Burma from the aspect of commission of heinous crimes, China may exercise similar practice by taking a position of ‘abstention’ if there is a motion in the UN Security Council, as was the case for Sudan.

How could a CoI result in perpetrators of such crimes being held accountable at the International Criminal Court?

It will depend on the finding of the COI. If its report is comprehensive enough and if there are prima facie to prosecute perpetrators, the UN Security Council may refer the situation of Burma to ICC.

What are the chances of a conviction?

It will be relevant only to the efforts of the ICC prosecutor as well as merits of the case. However, it is noteworthy that the ICC Chief Prosecutor, Luis Moreno-Ocampo is quite active in exerting efforts for ending impunity across the world and is also ardent to address the impunity issue in Burma.

Under the Coalition of the International Criminal Court (CICC)’s initiation, the representatives of civil society organisations from the states that founded the ICC held a meeting with the Moreno-Ocampo at the World Forum Conference Centre at the African Meeting Hall on 23 November 2009. He responded to my question with full interest, stating that he cannot initiate investigations proprio motu [‘by one’s own volition’] because Burma has not ratified the Rome Statute as of yet; as well, because the UN Security Council has not yet referred the situation of Burma to the ICC.

He did however explain in detail the conditions that might allow initiation of investigations proprio motu : most importantly, there can be conditions that will allow the Chief Prosecutor to initiate investigations proprio motu if he can obtain evidence brought forward against a citizen or citizens that belong to one of the 110 states that have signed and ratified the Rome Statute of the International Criminal Court, which prove that that citizen has conspired with and abetted the junta, which itself has committed international crimes.

There is no doubt that if ICC Prosecutor receives a comprehensive report from CoI, he and his good office will attempt to prosecute perpetrators of heinous crimes in Burma.

If the CoI recommended prosecution of members of the Burmese government, couldn’t they just ignore an arrest warrant as did Sudanese President Omar al-Bashir?

To answer your question, I have four points:

1. Al-Bashir has not been arrested due to the protection of the African Union and the Arab League; in Asia there is no regional organisation that will protect Senior General Than Shwe. I do not believe that ASEAN will protect him. Nor do I presume that even China will give him protection if the crimes in Burma continue to become increasingly explicit. Even the October 2009 UN General Assembly Resolution began to call on the military regime “to take urgent measures to put an end to violations of international human rights and humanitarian law”.

2. In Burma there is the charismatic national leader Daw Aung San Suu Kyi who is well-known around the world; there is the National League for Democracy, the party that influences the whole nation of Burma; and there are the 1990 election results. In addition, currently almost all major ethnic armed resistance organizations – ceasefire as well as non-ceasefires – stand against the rule of the military dictatorship. These conditions do not exist in Sudan. Arrest warrant against Senior General Than Shwe, and other former generals such as Shwe Mann, Thein Sein and Tin Aung Myint Oo, who were deeply involved in the commission of heinous crimes, will effectively encourage the democratic movement inside Burma and across world and the struggle of the ethnic people and organizations to establish a democratic federal union for Burma.

3. The forthcoming 2010 election in Burma is the result of efforts of the military dictators to achieve legitimacy to rule the country indefinitely in accordance with the 2008 constitution. Arrest warrants against those top generals who have turned into civilians and who will take high political positions after the 2010 election will seriously damage their dream for achieving legitimacy under the rule of the military dictatorship.

4. In addition to Korea and Japan, Bangladesh also became a state party to the Rome Statute of the ICC in 2010. As an immediate neighbour of Burma, Bangladesh is accountable to arrest the military leaders. Thailand, which is another immediate neighbour of Burma, may support the efforts of the international community to implement the arrest warrant, issued by ICC with a low profile, so long as Thailand is under the leadership of democratic party led by incumbent Prime Minister Abhisit. The regional situation existing for Burma is different from Sudan.

Could the money to be spent on an inquiry be better used elsewhere?

It will depend on the decision of relevant parties, national and international alike.

Does Than Shwe fear a CoI?

He does. Let me share my experience. The International Federation of Human Rights (FIDH) and the Burma Lawyers’ Council (BLC) conducted the biggest seminar on Burma of those held in Bangkok entitled “Advancing Human Rights and Ending Impunity in Burma” on 4-6 May 2009, with the participation of over 70 organizations from around the world.

During the seminar period, the military regime issued an arrest warrant against me and, conspiring with Thai police, sent its military intelligence working in the Burmese embassy in Bangkok to where the seminar was being held. Then it attempted to kidnap me, even in the presence of the international community and human rights organizations. Immediately after the seminar, I had to hide in Bangkok for three weeks. Then, with the assistance of FIDH, Thai human rights lawyers, a local human rights NGO in Bangkok, the Swedish embassy and Thailand’s ministry of foreign affairs, my family and I were able to leave Bangkok for Sweden on 23 May 2009, safe and sound.


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