Constitutional Impunity for Generals in Burma

There are many more stories of generals or self-proclaimed leaders who meet ignoble ends: Gen Noriega of Panama, Gen Pinoche of Chile, Gen Saddam Hussein of Iraq, Slobodan Milošević of Serbia and countless others in Africa continent. 

Another reason the Burmese generals are trying to protect themselves is the fear of being indicted for “crimes against humanity” or “war crimes” committed during their rule. 

In a report by the International Human Rights Clinic of the Harvard Law School titled “Crimes in Burma,” five of the world's leading international jurists analyzed scores of UN documents and reports from several different UN special rapporteurs, and suggested that abuses in Burma are potential crimes against humanity and war crimes and called for the UN Security Council to establish a Commission of Inquiry.

In August, 2009, a Paris-based INGO called the International Federation for Human Rights together with ALTSEAN Burma and the Burma Lawyer Council issued a report titled “Burma/Myanmar International Crimes Committed in Burma: The urgent need for a Commission of Inquiry,” which presented an overview of existing documentation on human rights violations perpetrated by the military regime.

In the report, the organizations called for the establishment of an international Commission of Inquiry mandated by the United Nations Security Council to investigate allegations of crimes against humanity, war crimes and other widespread systematic human rights violations.

In another report released in September by the International Center for Transitional Justice titled “Impunity Prolonged: Burma and its 2008 Constitution” called for the  international community to work with the Burmese government to establish an independent Commission of Inquiry into serious human rights violations, including sexual violence, the recruitment and use of child soldiers and forced labor. 

The reason for calling for a  Commission of Inquiry is because the only way to get the case to the ICC is through a UN Security Council referral, since Burma is not a signatory to the ICC statute.

To date, Uganda, the Democratic Republic of the Congo, and the Central African Republic which are member State Parties have referred cases occurring on their territories to the court. In addition, the Security Council has referred cases in Sudan, which is a non-State Party. 

However, the Burmese generals may have an alternative to such trials should they attempt national reconciliation in the manner of South Africa, which established a truth and reconciliation commission.

After the abolition of apartheid, a Truth and Reconciliation Commission was set up and witnesses, victims and perpetrators of human rights violations were invited to give statements about their experiences. Most of the people who committed abuses during the apartheid era were granted amnesty.

However, the Burmese generals are hedging their bets through the Constitution, which also grants them the right, during a State of Emergency, to abolish and take over the elected government.

In paragraph 432 of the Provisions on State of Emergency, it states  that no legal action can be taken against the generals or  any administrative body or any of its members  when sovereign power are exercised by the National Defense and Security Council.

The generals are doing everything possible through the Constitution to prolong their hold on power and to protect them from the consequences of human rights violations and war crimes.

But clearly, if history is the judge, such efforts offer no real protection for those who abuse the rights of their fellow countrymen. The generals would be wise to pursue a course of national reconciliation as quickly as possible, including the establishment of a truth and reconciliation commission.