The Long Road to The Hague

Jame Ross

Question: Civil wars in Burma have been going on since the late 1940s. Why are there calls for a UN inquiry now?

Answer: The recent calls for an international Commission of Inquiry (CoI) into alleged war crimes and crimes against humanity in Burma stem from the March 2010 report by the UN Special Rapporteur for Human Rights in Burma, Tomás Ojea Quintana. Quintana outlined a pattern of serious crimes that he said could indicate “a state policy that involves authorities in the executive, military and judiciary at all levels” and called on the UN to consider an inquiry with a fact-finding mission to investigate international crimes.

The United Nations has issued highly critical human rights reports on Burma annually for nearly 20 years, describing widespread, egregious and systematic abuses by government security forces. The UN should make use of these reports as a basis for establishing an impartial international CoI that can conduct investigations into abuses by both government forces and non-state armed groups, determine whether international crimes have been committed and suggest a mechanism for bringing justice to the victims and holding perpetrators to account.

Q: What is a Commission of Inquiry and how would it work?

A: There is no one single way to conduct an international CoI, but certain basic principles are crucial. It can be established through resolutions adopted by the UN General Assembly, the Human Rights Council in Geneva, or the UN Security Council—or the UN secretary-general, Ban Ki-moon, could establish it on his own initiative. We are proposing a CoI that is mandated to investigate reports of violations of international humanitarian law and human rights law in Burma by all parties. The commission should be comprised of highly regarded individuals, including experts in international law, forensics experts and others with past experience investigating armed conflicts.

Q: Could a UN inquiry lead to the International Criminal Court?

A: That’s way down the track, if at all. The first steps are to have a CoI that establishes clearly the patterns of international crimes in Burma and the alleged perpetrators—basically what took place, what international law was violated and who was responsible. The commission could then make recommendations on moving the process forward for criminal prosecutions.

People should not underestimate the difficulties of getting the situation in Burma before the International Criminal Court (ICC) in The Hague. The court investigates and prosecutes individuals alleged to be responsible for war crimes, crimes against humanity and genocide when states are unwilling or are unable to do so. Burma is not a party to the Rome Statute of the ICC, which was adopted in 1998 and went into effect in 2002. That means that the ICC can only become involved in the situation in Burma if the Burmese government makes such a request—don’t hold your breath—or if the UN Security Council refers the situation to the court. A Security Council referral would require a positive vote by nine of the 15 council members and no veto by any of the five permanent members.

Q: What international law applies to the conflicts in Burma?

A: The armed conflicts between the Burmese government and several non-state armed groups are governed by the laws of war, which have their source in international treaties and the rules of customary international law.