special tribunal for myanmar- background guide

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SPECIAL TRIBUNAL FOR MYANMAR

BACKGROUND GUIDE

CHAIRPERSON: SWATI NARNAULIA

DIRECTOR: AISHWARYA PADMANABHAN



SPECIAL TRIBUNAL FOR MYANMAR

The Republic of the Union of Myanmar (popularly referred to as Burma) has lived under

autocratic and repressive military rule for more than four decades. For over twenty years, many

of the organs of the United Nations (UN) have repeatedly denounced the ruling military regime

for failing to cooperate with the international community and to take serious steps to end the

on-going grave violations of international law, including the General Assembly, the Commission

on Human Rights, the Human Rights Council, Office of the Special Rapporteurs on the Situation

of Human Rights in Myanmar, the International Labour Organization, and the Committee on

the Elimination of Discrimination against Women. Some of the violations, as documented by the

UN documents alone, include forced displacement, sexual violence, extrajudicial killings, crimes

against ethnic minorities and torture.

POLITICAL HISTORY

Myanmar‘s recent history has been marked by decades of military rule, widespread human

rights violations, and armed conflict. Since 1962 when General Ne Win staged a coup that began

the era of military rule (which still continues) the Burmese military has repressed political

opposition, including student uprisings most notably in 1974. Human rights abuses by the

military regime in both conflict and

non-conflict zones have been

commonplace, with attacks primarily

aimed at students, political opponents,

and ethnic nationalities. The rights

abuses range from the suppression of

civil and political rights, such as

freedom of expression and assembly, to

arbitrary detentions and problemsassociated with the lack of an

independent judiciary. Violent abuses,

such as extrajudicial killings, torture, and disappearances, along with epidemic levels of forced

labour and discriminatory practices against women and ethnic nationalities have also been

historically widespread.



One of the most appalling evidences of the ethnic undertones of

the conflict is the Four Cuts policy instituted in the 1960s. The

Four Cuts policy aimed at cutting off armed ethnic nationalities

groups from food, money, intelligence, and recruits. The Four

Cuts policy led to thousands of civilian deaths and the

destruction of food, crops, and numerous villages.

In the wake of protests opposing the deteriorating economic situation in the country many

student-led demonstrations emerged, culminating in major

peaceful protests calling for democracy in August 1988. The

regime responded violently, with the army killing thousands of

civilians, including women and children; a conservative estimateof deaths is at 3,000. The military leadership soon thereafter

reorganized itself and took power as the State Law and Order

Restoration Council (SLORC), declared martial law and arrested demonstrators.

However the protests for democracy only grew stronger progressively and world pressure

mounted. In May 1990, the regime succumbed held multi-party elections. Even though many

opposition leaders had been placed under house arrest or imprisoned at the time, the military

suffered a massive defeat in the elections. Daw Aung San Suu Kyi, the daughter of General Aung

San, the leader of the National League for Democracy (NLD)secured 80% of the parliamentary

seats in the 1990 elections. However, the ruling SLORC refused to transfer power. Instead, the

SLORC created a military-led National Convention to draft a new constitution. The suppression

of political opposition continued post the elections. Aung San Suu Kyi remained under house

arrest for almost 15 of the 21 years from 20 July 1989 until her release on 13 November 2010.

General Than Shwe has led the military regime (also popularly known as the Junta) took charge

in 1992. In 1997, the regime again changed its name to State Peace and Development Council

(SPDC). By the late 1990s, the SPDC had largely consolidated control over the country;

however, political freedoms did not follow. The SPDC has continuously placed restrictions on

Daw Aung San Suu Kyi and other politicians. As with the events of 1988, brief periods where

more political space has existed have been followed by clampdowns. For example, in May 2003,

during a time when Daw Aung San Suu Kyi had been released from house arrest and was

attempting to organize NLD activities by traveling outside Rangoon, regime supporters attacked



her supporters, resulting in injuries and deaths. The event has become known as the Depayin

Massacre.

In 2010, elections were held again the Union Solidarity and Development Party (USDP),

overwhelmingly won the elections with 80% of the total votes. The USD is a Junta backed

government and has replaced the SPDC. However, most countries have refused to recognize the

new government and believe that the elections were marred with polling irregularities. A

majority of the international community suspects that the USDP is a proxy for the Junta and

that the military still controls the vast majority of the power in the governments.

The situation in Myanmar was placed on the permanent agenda of the UN Security Council

(UNSC) in 2006. In March 2010, drawing the international community‘s attention to the

continuing atrocities in Myanmar Tomás Ojea Quintana, UN Special Rapporteur on human

rights in Burma urged the UN to establish a Commission of Inquiry with a specific fact finding

mandate to address the question of international crimes in Myanmar.

ESTABLISHMENT OF THE SPECIAL TRIBUNAL FOR MYANMAR (The information contained in this section is fictitious. However for the purposes of theconference, participants are to consider the following true. This is to lend legitimacy and legal authority to the proceedings of the committee.)

Recently the UNSC has declared that the situation in Myanmar constitutes a threat tointernational peace and security and initiated a formal investigation through a commission of

inquiry to investigate crimes committed in Myanmar since 2002. 1 The said commission has

gathered evidence of grave abuses, predominantly from the eastern region of Myanmar, in

accordance with all relevant standards of international criminal law. The UNSC has also, on the

recommendation of the commission, established a Special Tribunal for Myanmar (hereinafter

Tribunal) as per its resolution dated July 28, 2011.2 (The permanent members of the UNSC,

China and Russia chose not to exercise their veto in the face of fierce international pressure.)

The Tribunal has been established to investigate, try, and sentence those found guilty of having

1 This is post the establishment of the International Criminal Court. Its temporal jurisdiction being limited to

crimes committed after July 1, 2002. In addition, since 2002, there have been new, major operations by the

Burmese army, particularly in the eastern area against civilians, which would provide a sizeable sample of

data for assessing whether international crimes may have been committed.



committed war crimes and crimes against humanity. The Tribunal shall follow the procedure of

the International Criminal Court as laid out in the Rome Statute, 2002.

TENTATIVE LIST OF THE ACCUSED

The constituting UNSC resolution allows the Tribunal to

amend, as required, the list accused persons as provided

therein, provided there is sufficient evidence to support

such change. The following are a few names of the members

of the SPDC. This represents a non-exhaustive list of

persons requested to be indicted as per the report of the

commission of inquiry.

SENIOR GENERAL THAN SHWE

Senior General Than Shwe is a Burmese military leader and politician who was chairman of theSPDC from 1992 to 2011. During the period, he held important positions of power includingcommander-in-chief of the Myanmar Armed Forces and head of Union Solidarity andDevelopment Association. In 2011, he officially resigned from his position as head of state, infavour of his chosen successor, Thein Sein.

DEPUTY SENIOR GENERAL MAUNG AYE

Vice-Senior General Maung Aye is the former Vice Chairman

of the SPDC, which was until March 2011, the ruling military

Junta.

In 1968, he became commander of the Northeast Region. In

1988, he became commander of the Eastern Region. Two

years later he was promoted to major-general. In 1992 he was made Army Chief. In 1993 he was

named Lieutenant General and the Deputy Commander in Chief of Defense Services.

Maung Aye and Senior General Than Shwe, along with six other top military officers, were

reported to have resigned their military posts on 27 August 2010. He reportedly transferred the

deputy commander-in-chief post to Lt-Gen Ko Ko, head of Chief of Bureau of Special Operation-

3, but remains the country's deputy head of state. The rumours were later to be proven false.

2 A copy of the resolution would be provided to the participants on the first day of the conference.



GENERAL THURA SHWE MANN

Thura Shwe Mann is joint chief of staff of the Burmese Armed Forces, and was the third-highest

ranking member of the SPDC, after Than Shwe and Maung Aye. Shwe Mann earned the

honorific title "Thura" for his bravery in fighting the Karen National Liberation Army in 1989.

He was the Tactical Operations Commander for Light Infantry Division 66, based in Prome,

Northern Bago Division in 1991. Shwe Mann joined the Ministry of Defence in 2001, becoming

joint chief-of-staff. In 2003, he was promoted to general. In November 2008, Mann visited

North Korea to reportedly purchase sophisticated weapons and armament for Myanmar's armed

forces.

LIEUTENANT GENERAL THEIN SEIN

Thein Sein is a Burmese politician and military figure who has been president of Myanmar since

March 2011. Previously he was prime minister from 2007 until 2011. Thein Sein was assigned in

April 2007 by the nation's ruling military Junta as interim prime minister, replacing Soe Win,

who was undergoing medical treatment. Thein Sein became Soe Win's permanent successor on

24 October 2007 after Soe Win's death on 12 October 2007.

Sein held the position of first secretary in the ruling SPDC Junta. He was the country's fourth-

highest ranking general, and also served as the chairman of the government-sponsored National

Convention Convening Commission. Thein Sein carried out high-level negotiations with

Bangladesh and Cambodia. Soon after his official appointment as prime minister, he was

promoted to the rank of general from lieutenant general. On his first official visit outside

Myanmar as prime minister, Thein Sein carried out high-level negotiations with Laos, Vietnam

and Cambodia.



LIEUTENANT GENERAL THIHA THURA TIN AUNG MYINT OO

General Thiha Thura Tin Aung Myint Oo is one of the vice presidents of Myanmar. He is also

chairman of Burmese Trade Council and Minister of Military Affairs. Prior to occupying the

office of the vice-president on 4 February 2011 he was the first secretary of the SPDC, the

military regime which seized power in 1988.

LT. GEN. MAUNG BO

Lt Gen. Maung Bo is the Chief of Bureau of Special Operation-4 and an SPDC member since

1997. The Bureau of Special Operations No.4 is responsible for security, military, political,

economic, and social tasks. In 1992, Maung Bo was a colonel and the Tactical Operations

Commander–2 of the Northern Military Region in Myitkyina, Kachin State, under the command

of Maj-Gen Kyaw Ba, one of the original SLORC members.

Maung Bo served as Deputy Commander in the Northern MR (1993-97) under Brig-Gen Saw

Lwin – BC.8677, Minister for Hotel and Tourism and under Brig-Gen Kyaw Win – BC.10194, the

Training General. He commanded MOC-6 (Pyinmana) and in Nov 1997, he was promoted to

Brig-Gen and became the Eastern Military Region Commander in Taunggyi, Shan State, and

appointed a member of the SPDC.

TENTATIVE GROUNDS OF PROSECUTION

Ethnic crimes

Ethnic crime or ethnic cleansing is the planned and deliberate removal from a specific territory

of persons of a particular ethnic group, by force or intimidation, in order to render that area

ethnically homogenous. Murder, torture, arbitrary arrest and detention, extra-judicialexecutions, rape and sexual assaults, confinement of civilian population in ghetto areas, forcible

removal, displacement and deportation of civilian population,

deliberate military attacks or threats of attacks on civilians and

civilian areas, and wanton destruction of property have all been

used as tool of ethnic cleansing. Further, the Genocide



Convention lays down the broad framework for penal consequences for ethnically motivated

planned extermination of people.

The study of violations in eastern Burma highlights that ethnic nationalities hve been

particularly vulnerable to the systematic abuses reportedly perpetrated by the Burmese military

forces. In general, the different ethnic sub-groups in Burma have been loosely simplified by

anthropologists and linguists into four main families: the Tibeto-Burmese, Mon-Khmer, Shan

(or Tai) and Karen. There has been ethnic resistance to the Junta in the past however the

military regime‘s offensives have weakened the ethnic movements considerably. During the

1990s, the numerous military campaigns against ethnic nationality groups led to a litany of

human rights violations, which included increased displacement— both inside the country and

into neighbouring countries. In early 1992, for example, a mass exodus took place, during which

at least 250,000 Muslims from Burma (the Rohingya) fled to Bangladesh. In the mid- to late1990s, the regime also launched major attacks against the Shan as well as other ethnic

nationalities, which forced hundreds of villages to relocate and hundreds of thousands to flee

their homes, including many to Thailand. There are several other alleged instances of ethnically

motivated crime including waging genocide against ethnic minorities, especially people

belonging to the ‗Karen‘ ethnic group, who are primarily Christian.

Crimes against humanity

Nearly two years prior to recent crises in Myanmar, such as the cyclone Nargis and large

demonstrations in August and September 2007, a military offensive was launched by the

Myanmar army, known as the tatmadaw, against the Karen civilians of Kayin (Karen) State and

Bago (Pegu) Division. More than 140,000 Karen civilians have been killed, tortured, forcibly

displaced, sexually violated, forced to work, or otherwise subjected to widespread and

systematic violations of international human rights and humanitarian law since November

2005. These violations may amount to crimes against humanity.



War crimes

Under international humanitarian law, civilians may only be evicted from their homes

temporarily in order to ensure their safety, or for imperative military reasons. Under the Rome

Statute of the International Criminal Court, it is a war crime to order, in a non-international

armed conflict, ―the displacement of the civilian population for reasons related to the conflict,

unless the security of the civilians involved or imperative military reasons so demand.‖ The

tatmadaw‘s forcible displacement policy also violates the human rights of the individuals

concerned, including the right to an adequate standard of living and the right to choose one‘s

residence.

During 1996 and 2006, when forcible relocations on a massive scale were initiated by the

tatmadaw in Kayin, Shan, and Kayah states, the population of more than 3,000 villages in these

ethnic minority states is believed to have been displaced. The villages had been burned forcing

inhabitants to flee. Many even abandoned their villages fearful for their safety and security while

others were forcibly relocated by the tatmadaw. In 2007 alone, at least 167 entire villages were

displaced, including in Thandaung township (Hpa‘an District, Kayin State), where an estimated

5,000 people were displaced. Some villagers have endured repeated cycles of displacement,

often in trying to evade military attacks on their villages, or demands for forced labour. Kayin

State has the second highest number of displaced persons among the states of Myanmar.

Child soldiers

According to the Human Rights Watch

Burma has the largest number of child

soldiers in the world and the number is

growing. The overwhelming majority of

Burma's child soldiers are found in the

national army, which forcibly recruits

children as young as 11, although armed

opposition groups use child soldiers as well.

Burma's army has doubled in size since

1988, and with an estimated 350,000

soldiers is now one of the largest armies in

Southeast Asia. According to the accounts of former soldiers interviewed by Human Rights

Watch, 20 percent or more of its active duty soldiers may be children under the age of 18.



Use of children in combat is an practice that it internationally

condemned in spirit though the details regarding positions which

qualify as non-combat or age vary across treaties.

Forced labour (Slavery)

Unpaid forced labour contravenes the International Labour Organization‘s (ILO) Convention

concerning Forced or Compulsory Labour, 1930, which the government of Myanmar ratified in

1955. According to Article 1 of this Convention, states parties must ―suppress the use of forced or

compulsory labour in all its forms within the shortest possible period‖. While Article 2(2)(d)

allows for the imposition of forced labour in cases of emergency, including war. The ILO

Commission of Inquiry, appointed specially to investigate reports of forced labour in Myanmar,

concluded as early as 1998 that:

―There is abundant evidence before the

Commission showing the pervasive use of forced

labour imposed on the civilian population

throughout Myanmar by the authorities and the

military for portering, the construction,

maintenance and servicing of military camps,

other work in support of the military, work on

agriculture, logging and other production projects

undertaken by the authorities or the military,

sometimes for the profit of private individuals, theconstruction and maintenance of roads, railways and bridges, other

infrastructure work and a range of other tasks, none of which comes under

any of the exceptions listed in Article 2(2) of the Convention.”

There is evidence which points towards the use of civilian population as forced labour

throughout Myanmar by the authorities and the military for portering, the construction,

maintenance and servicing of military camps, other work in support of the military, work on

agriculture, logging and other production projects undertaken by the authorities or the military,

sometimes for the profit of private individuals, the construction and maintenance of roads,

railways and bridges, other infrastructure work and a range of other tasks, none of which comes

under any of the exceptions listed in Article 2(2) of the Convention. The ILO has noted that the

systematic nature of the use of forced labor may constitute a crime against humanity.



Extrajudicial killings

The issue of extrajudicial killings has been one of the key factors involved in the matter of gross

human rights violations in Myanmar. A Human Rights Watch report claims that the SPDC sends

threatening letters to village leaders that sometimes contain a bullet, chili, and charcoal. These

enclosures are interpreted as being symbolic of the future that awaits residents who do not

cooperate with the terms of relocation (a bullet represent death, the chili means life will be

unpleasant, and the charcoal signifies the burning down of villages). In fact, civilians that have

failed to heed the SPDC orders to relocate have been subjected to extrajudicial killings.

Conditions of detention, torture, custodial deaths

Prison conditions in Burma are poor and well below internationally accepted standards. It is

estimated that prisons in Burma comply with less than 10% of the internationally recognizedStandard Minimum Rules for the Treatment of Prisoners. Prisoners in Burma are susceptible to

a host of detention-related health problems, due to inadequate dietary regime, poor hygienic

conditions, and denial of necessary and timely medical treatment.

SPDC prison official often torture prisoners. Methods of torture include being shackled, beaten,

and forced to perform pounzan (a squatting

position, in which prisoners have to put their

clenched hands on their knees). Reports

periodically surface regarding the beating of political prisoners by prison gangs. The beatings

are encouraged and condoned by the SPDC prison

authorities. Since 1988, at least 138 political prisoners have died in prisons across Burma as a

result of torture, ill-treatment, and lack of healthcare. In December 2005, the International

Committee of the Red Cross suspended prisons visit throughout Burma because of interference

by regime-backed Union Solidarity and Development Association.

Issue of civil rights

The military persecutes not only students and politicians but other actors including religious

institutions. For example, the military regime targeted Buddhist monks during the 2007 events,

which have become known as the Saffron R evolution (a reference to the color of the monks‘

robes). The military regime‘s sudden removal of fuel subsidies in August 2007 triggered peaceful

demonstrations, which led to the detention of several 1988 generation student activists, and the



beating of several monks. Throughout September 2007, demonstrations grew under the

leadership of Buddhist monks and spread across the country. The regime responded with a

harsh crackdown, using the tools of violence, arbitrary detention, a curfew and the banning of

public gatherings.98 The UN Special Rapporteur reported fatalities and numerous arrests. The

UN Security Council responded by issuing its first ever-Presidential Statement on Burma that

deplored the violence used against protestors, urged the release of all political prisoners, and

called for the military regime to ―create the necessary conditions for a genuine dialogue . . . with

all concerned parties and ethnic groups.‖ The military regime ignored the UN Security Council,

as it has other calls from the UN to protect civil and political freedoms. Instead, it has pursued

its own course. In May 2008, one week after Cyclone Nargis hit Burma and left an estimated

134,000 dead, the SPDC held a referendum on a new constitution, which would institutionalize

its power after elections. The international community, including UN actors, have condemned

the new constitution and its drafting process for lacking real participation (as well as legitimacy and reconciliation) For example, one of the reasons the Constitution is condemned is that those

who criticize the process may be sentenced and imprisoned. The continuation of political

suppression is also evidenced by the fact that between June 2007 and late November 2008, the

military nearly doubled the number of political prisoners in the country to over 2,100.



TRIBUNAL’S RESPONSIBILITY

UN actors have described violations in this region as both ―widespread‖ and ―systematic,‖ as

well as part of a ―policy‖. The Special Rapporteur whose mandate is to focus on the human rights

situation in Burma has highlighted in particular the persistent nature of the violations and their

―widespread and systematic‖ pattern. Moreover, he has come to the conclusion that these

violations take place within a culture of impunity due to the military regime‘s failure to provide

accountability and justice. These concerns are echoed by other UN actors, such as the thematic

Special Rapporteurs, when acting within their specific focus areas.

In short, the Tribunal must determine by examining UN actors documenting of reported

violations and other permitted sources whether these violations may constitute crimes against

humanity and war crimes under international criminal law.

If the international community and the Tribunal fail to take action the grave humanitarian

situation in eastern Burma and elsewhere in the country will continue unchecked. The

perpetrators of serious human rights and humanitarian violations will remain unaccountable. A

culture of impunity will persist that is highly conducive to the continuance and escalation of

violations.



LINKS FOR FURTHER RESEARCH

Repositories of UN Resolutions on Burma

http://www.altsean.org/Research/UN%20Dossier/UNGA.htm

http://www.altsean.org/Research/UN%20Dossier/UNSC.htm

http://www.un.org/News/Press/docs/2007/sc9139.doc.htm

Articles for overview

http://www.un.org/children/conflict/english/myanmar.html

http://www.reuters.com/article/2008/02/14/us-olympics-spielberg-

idUSN1231478420080214 http://www.reuters.com/article/2007/06/22/us-un-war-civilians-

idUSN2219294820070622

http://www2.ohchr.org/english/bodies/hrcouncil/docs/13session/A-HRC-13-48.pdf







http://www.reuters.com/article/2008/02/14/us-olympics-spielberg-idUSN1231478420080214



http://www.reuters.com/article/2007/06/22/us-un-war-civilians-idUSN2219294820070622













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