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The main treaty law applicable to the conflicts in Burma is Article 3 common to the four Geneva Conventions of 1949, which Burma has ratified. Common Article 3 sets out minimum standards for the proper treatment of persons within a warring party’s control, namely civilians and wounded and captured combatants.

Q: How are violations of international humanitarian law different from war crimes?

A: States and non-state armed groups can be found responsible for violations of international humanitarian law. War crimes are serious violations of international humanitarian law committed by individuals with criminal intent—that is, intentionally or recklessly. War crimes include a wide array of offenses, among them deliberate, indiscriminate and disproportionate attacks against civilians; committing torture, enforced disappearances and summary executions; and using child soldiers. Individuals also may be held criminally liable for attempting to commit a war crime, as well as assisting in, facilitating or aiding and abetting a war crime. Leaders and commanders may also be found liable as a matter of “command responsibility” if they knew or should have known that serious abuses were taking place but did not act to stop them or punish those responsible.

Q: How do you classify crimes against humanity?

A: Crimes against humanity are prohibited acts committed in a widespread or systematic manner against a civilian population either in war or in peacetime. Specific crimes against humanity include offenses such as murder, torture and forced displacement that are known to be part of a larger attack on a civilian population.

Q: Would it be possible to only investigate Snr-Gen Than Shwe and senior Burmese military officials?

A: War crimes and crimes against humanity can be committed by anyone, not just senior government officials. For a CoI to be credible and conform to international standards, it would need to be impartial—meaning that it would investigate whoever committed serious crimes, regardless of their political affiliation or motivations. 

Q: Do you expect the military government, or whatever government is in power after the November 2010 elections, to cooperate with a UN Commission of Inquiry?

A: Certainly a CoI raised at the highest levels of the UN would make it harder for the Burmese government to resist participation. A CoI that received no cooperation from the Burmese government could still accomplish a great deal. First, the CoI could interview victims and witnesses of abuses outside of Burma. Second, the CoI could review the thousands of pages of UN reports and other information documenting violations in recent years. Third, a CoI could undertake a legal mapping exercise – a detailed analysis of crimes and perpetrators—of alleged war crimes and crimes against humanity that would help a future prosecutor. Finally, a CoI without access to Burma could still provide recommendations to the UN regarding accountability avenues for serious international crimes.

Q: Why is accountability so important?

A: Officials who seek to pit political stability and justice against each other often do so to escape accountability for serious international crimes. Human Rights Watch’s years of reporting in conflict areas has found that justice for such crimes often can yield short and long-term benefits to reaching a sustainable peace. By contrast, impunity far too often carries a high price. Holding individuals accountable is important because it may deter future atrocities, promote respect for the rule of law, and provide avenues of redress for the victims of horrific abuses. It can promote discipline and professionalism by the armed forces and law enforcement officials, encourage responsible command and control, and lead to better relations with the civilian population.

Q: What effect will a Commission of Inquiry have on the upcoming elections in Burma?

A: It shouldn’t have any effect at all, as the elections in Burma are clearly a rigged process to ensure continued military rule but with a civilian face.