By Lennert Breuker

Alarming reports on the human rights situation in Myanmar have unfortunately been a consistent phenomenon over the last two decades. But some more momentum seems to have been given to the possibility of a legal response with the report of 10 March of the UN special rapporteur on the situation of human rights in Myanmar (http://www2.ohchr.org/english/bodies/hrcouncil/docs/13session/A-HRC-13-48.pdf). Mr. Tomas Ojea Quintana recommended amongst others:

121. Given the gross and systematic nature of human rights violations in Myanmar over a period of many years, and the lack of accountability, there is an indication that those human rights violations are the result of a State policy that involves authorities in the executive, military and judiciary at all levels. According to consistent reports, the possibility exists that some of these human rights violations may entail categories of crimes against humanity or war crimes under the terms of the Rome Statute of the International Criminal Court.

122. The mere existence of this possibility obliges the Government of Myanmar to take prompt and effective measures to investigate these facts. There have clearly been cases where it has been necessary to establish responsibility, but this has not been done. Given this lack of accountability, United Nations institutions may consider the possibility to establish a commission of inquiry with a specific fact-finding mandate to address the question of international crimes. At this particular stage in the history of Myanmar, the State faces this critical assignment which must be addressed by this Government and by a newly elected Government as well.

The conclusion that the human rights violations, at least prima facie, meet the level of crimes against humanity or war crimes had already been put forward in a report of the International Human Rights Clinic at Harvard University of May 2009 (http://www.law.harvard.edu/programs/hrp/documents/Crimes-in-Burma.pdf – see Human Rights Watch for an overview). The report mentioned forced displacement, sexual violence, extrajudicial killings and torture as examples of acts which have very likely been committed in Myanmar (referred to as Burma in the report), and which are criminalized under international law. The report similarly concluded that a Commission of Inquiry to investigate crimes committed in Burma should be set up. It even went a step further by suggesting that ‘the Security Council should be prepared to act upon findings and recommendations made by such a Commission, including a potential referral to the International Criminal Court…’ (See report p.4).

Besides the fact that the report was based on evidence that was not gathered through private, and therefore perhaps less transparent means of investigation, but was exclusively based on UN documentation, it also carries significant authority because of the eminency of the lawyers involved, amongst which justice Richard Goldstone, Patricia Ward and Sir Geoffrey Nice. All of whom have extensive experience of course in the field of international criminal justice.

In contrast to the Harvard report, Mr. Tomas Ojea Quintana does not specify what should be done with the findings of the Commission of Inquiry, if such a Commission would materialize. In any case, he affirms the responsibility of the State itself in addressing the possible crimes as is shown in the last sentence of the cited paragraphs. At the same time, he points out right at the start of the report that:

‘…there is a pattern of gross and systematic violation of human rights which has been in place for many years and still continues. Given the extent and persistence of the problem, and the lack of accountability, there is an indication that those human rights violations are the result of a State policy, originating from decisions by authorities in the executive, military and judiciary at all levels. The Government of Myanmar needs to take prompt and effective measures to investigate these facts.’

It’s not hard to see a paradox manifesting itself in the last two sentences: being dependant on the cooperation of a State in the fight against impunity, while at the same time it is (extremely) likely that the State itself is the main culprit. A situation that must be all too familiar to the ICC.

Adjudication at the national level therefore does not seem to hold much promise for criminal justice. Especially since the rapporteur himself called the judiciary of Myanmar ‘seriously flawed’ (p11), and repeatedly made reference to the climate of impunity. Any real change of the reliability of the judicial system on a short term seems highly unlikely in view of the examples in the report of the brutal repression of civil society if it engaged in initiatives to promote some kind of rudimentary transition to democracy. Thus any perspective on democratic reform and the establishment of a genuine rule of law seems nothing short of utopian at the moment.

A referral to the ICC would seem a more effective alternative. But then the Security Council would have to step up, and yet another referral to an institute some notable permanent members are opposed to, might lend it too much legitimacy in their eyes. Then again, a resolution modeled after 1593 could offer a way out.

But what would the ICC be able to achieve in case of a State that is known for its isolationist attitude and even refuses aid when faced with an impending humanitarian catastrophe? A ‘Sudan’ scenario is likely. In a commentary on the Hague Justice Portal (http://www.haguejusticeportal.net/eCache/DEF/11/106.html) Carsten Stahn notes:

But we are facing a paradigm shift: in the future, international justice will not be measured by its own performance, but by its actual ability to solve problems. It will be judged by whether, and to what extent, it is able to make domestic jurisdictions work. Some call this ‘positive complementarity’. It is – in fact – ‘problem-solving’.

[…] It means that it is not enough to stand still and deplore the lack of cooperation by a defiant regime. It is the task of the Rome system of justice to develop strategies to overcome this unwillingness.

Likewise, it is too simple to merely recognize international jurisdiction on the basis of the inability of a domestic State. Ultimately, the task of the Court is to help overcome domestic inability. None of this is in the textbooks. It requires creative interpretation and criminal policies in the future.

This approach seems to be compatible with the approach of Mr. Tomas Ojea Quintana, who observes (p4):

Engagement with Myanmar by the international community has improved with some notable shifts from long-standing policies of isolating the Government of Myanmar. With the launch of the new human rights mechanism of the Association of Southeast Asian Nations (ASEAN), namely, the ASEAN Intergovernmental Commission on Human Rights, the Government of Myanmar is presented with another forum to address human rights concerns. The Special Rapporteur hopes that engagement, at all levels, will bring the improvement of human rights in Myanmar.

Admittedly, speculating on the modality of criminal adjudication is still (very) premature. But inquiries such as the one suggested by the rapporteur, do seem to have created their own momentum in similar situations in the past, as can be seen by the inquiries that preceded the criminal tribunals of former Yugoslavia, Rwanda and Darfur. To a certain extent, this may even hold true for the Goldstone report on the Gaza conflict and the current efforts of the Palestinians to accept the jurisdiction of the ICC. Subsequent developments will be followed on this blog of course.