Ending Impunity

The content of all publicly available sources of information reveals a consistent pattern of widespread and systematic human rights violations in Burma, which constitute crimes against humanity and war crimes, as defined under the Rome Statute. These grave violations have been, and are still being, perpetrated with total impunity.

The policies, structures, and practices of Burma’s legal system contribute to creating a climate in which breaches of international humanitarian law and human rights laws are able to occur with impunity. It seems that the Burmese government is unwilling to prevent crimes against humanity, as well as to prosecute those responsible.

The 2008 constitution provides the military with extensive parliamentary and governmental power, and impunity remains deeply entrenched in key institutions and structures of governance, allowing the Burma Army, the main perpetrator of pervasive human rights abuses and forced displacement for decades, to continue to wield far-reaching power (Burma Partnership et. al., March 2016). Furthermore, the final article in the constitution’s chapter on transitory provisions effectively provides amnesty for the conduct of the SPDC (State Peace and Development Council – as the regime was known from 1997 to 2011) and its predecessors;

“All policy guidelines, laws, rules, regulations, notifications and declarations of the State Law and Order Restoration Council and the State Peace and Development Council or actions, rights and responsibilities of the State Law and Order Restoration Council and the State Peace and Development Council shall devolve on the Republic of the Union of Myanmar. No proceeding shall be instituted against the said Councils or any member thereof or any member of the Government, in respect to any act done in the execution of their respective duties.” (Article 445 in Chapter 14 states)

The clause does not specify which acts would be covered by the amnesty and it is also not clear whether the amnesty is intended to apply only to past actions or present and future actions (for further discussion, see International Centre for Transitional Justice, 2009).

Burmese officials, including the Chief Justice and other justices of the Supreme Court, continue to deny that any challenges and weaknesses exist in Burma’s judicial system. The Burmese government has continuously denied that torture occurs in Burma on the grounds that it is against domestic law. However, neither the 2008 Constitution nor Burmese law explicitly prohibits torture. Furthermore, the act of promulgating a law does not guarantee that it will be enforced, particularly in the absence of an independent, impartial and effective judiciary.

Although President Thein Sein publicly committed to respecting the Rule of Law and to creating an independent and transparent judiciary in his inaugural speeches to Parliament on March 30, 2011, and to cabinet members and Government officials on March 31, 2011, little changed in how Burma’s judiciary is appointed or how it operates. The President established the Myanmar National Human Rights Commission (MNHRC) in September 2011, which so far seems to have been yet another government structure that fails to protect its citizens, and appears rather to be a tool for winning over the international community.

Tomás Ojea Quintana, the Special Rapporteur on the situation of human rights in Myanmar

[Burma] at the time, said in September 2011 that the MNHRC is neither independent nor in a position to credibly pursue justice and accountability (see Burma Partnership, January, 2012). In 2013, a network of 30 NGOs from 17 countries across Asia expressed grave concerns over the latest developments on the founding legislation of the MNHRC. Concerns were raised that the draft bill contains many problematic provisions that will undermine the independent and effective functioning of the MNHRC (Asian NGO Network on National Human Rights Institutions, August 2013). On September 25, 2014, a report authored by Burma Partnership and Equality Myanmar revealed the continuing ineffectiveness of the MNHRC as well as the lack of independence from the government.

Systemic reforms that establish accountability for perpetrators of human rights violations are essential in order to reduce the deep-seated mistrust between the government and ethnic nationalities. In order to embark on a process of true national reconciliation, achieve sustainable peace and development, and ensure a true transition to democracy, institutional protection of universal human rights and the non-recurrence of abuse must be guaranteed for the people of Burma. In 2011, The Special Rapporteur reaffirmed that justice and accountability measures, as well as measures to ensure access to the truth, are essential for the country to face its past and current human rights challenges, and to move forward towards national reconciliation (UN General Assembly, 2011a, p. 19). In October, 2011, the UN General Assembly stated that the Assembly:

“Strongly calls upon the Government of Myanmar to take urgent measures to put an end to continuing grave violations of international human rights and humanitarian law, including the targeting of persons based on their belonging to particular ethnic groups, the targeting of civilians as such in military operations, and rape and other forms of sexual violence, and to end impunity for such acts”. (UN General Assembly, 2011b, p. 5)

Although international crimes continued in Burma, the UN General Assembly’s 2013 resolution was significantly shorter, and softer in tone, as compared to its predecessors. In the resolution in December 2013, the UN General Assembly stated that the Assembly:

“Urges the Government of Myanmar to accelerate its efforts to address discrimination, human rights violations, violence, displacement and economic deprivation affecting various ethnic and religious minorities”. (UN General Assembly, 2014a, p. 3)

Following a ten-day visit to Burma in July, 2014, the Special Rapporteur on the situation of human rights in Myanmar [Burma], Ms. Yanghee Lee, urged the authorities to avoid any backtracking that could threaten the achievements of the past few years and called for more public freedoms (UN Office of the High Commissioner for Human Rights, July, 2014).

The 2015 election of the NLD-led government and Daw Aung San Suu Kyi as the State Counselor, had a strong impact on the annual UN General Assembly resolution. The European Union announced it would cease to submit the resolution in the future, in recognition of the positive political changes in the country. The 2015 human rights situation resolution welcomed all the positive steps occurring in Burma, however, the General Assembly still “[called] upon the Government to take necessary measures to ensure accountability and end impunity” (UN General Assemby, 2015 Resolution, Situation of human rights in Myanmar). The June 2016 Report of the United Nations High Commissioner for Human Rights also specifically addressed accountability and impunity, and stated that:

“In accordance with the State’s obligations under international norms and standards, the authorities of Myanmar should ensure that all past and ongoing allegations of human rights violations and abuses are investigated promptly, thoroughly, impartially and independently.” (Human Rights Council, Report of the United Nations High Commissioner for Human Rights, 2016)

The November 2016 wave of repression and abuse committed by Burmese security forces in Arakan State contributed to increased national and international awareness regarding the importance of ending military impunity in Burma. During her visit to Burma in January 2017, Special Rapporteur Yanghee Lee addressed the ‘climate of impunity’ encountered during her trip to Kachin, Shan and Arakan States:

“It would be crucial for the Government to combat the apparent climate of impunity that seem to have emboldened certain extreme elements by taking the law into their own hands and meting out their own justice. There must be accountability and justice must be done and seen to be done to reassure the ordinary people that no one is above the law.” (Yanghee Lee, End of Mission Statement. January 20, 2017).

In response to the event, the Annan Kofi-led Advisory Commission on Rakhine/Arakan State has called for an independent and impartial investigation ensuring the accountability of human right violation perpetrators (Advisory Commission on Rakhine State, Interim Report March 2017; Final Report August 2017). The Interim report led to the creation of the Investigation Commission in Maungdaw, however a full report regarding the numerous allegations of killings, rape and torture has yet to be released.

In Burma politics, military and government impunity is regularly demonstrated through their usage and manipulation of the law. The continued application of the Section 17/1 of the Unlawful Association Act, often used to target and detain those who interact with or support ethnic minorities, is a clear example of how the government and the army selectively apply the law (read more: Burma Campaign UK, Burma’s Repressive Laws – Unlawful Association Act (1908)). When questioned on the use of the Unlawful Association Act by the Burma Army during a press briefing, Daw Aung San Suu Kyi stated:

“It is not for us to comment on…how the various cases should be tried in the court – that’s for the justice sector to take care of.”

“Rule of law means that they have to have first of all just law. Our term for rule of law in Myanmar is not rule of law but rule of just law. So we actually make sure that the laws are just. And if any … sectors of the public feel that the laws are unjust then these laws can be amended by the parliament.”

(Aung San Suu Kyi speaking at press briefing in Naypyidaw on July 6, 2017; reported by Frontier Myanmar.)

While she insinuates that legal change may be necessary in the country, her statement illustrates how the government still refuses to condemn the military’s actions. This is one of the many examples of how the army and the government manipulate laws and the concept of Rule of Law with entrenched impunity. Numerous rights groups, media members and lawyers regularly highlight that despite the principle of ‘equality before the law’, the government and the military continue to act above the law (Burma Partnership, January 26, 2016; Legal Aid Network, June 29, 2017).

Despite these UN resolutions and the recognition of the existence of these violations by many UN organs for over 15 years, the UN Security Council has failed to act to ensure accountability and justice in Burma (more on the role of the United Nations). The perpetrators in Burma continue to avoid both. The International Criminal Court (ICC) was founded to address the impunity of serious crimes and violations against international humanitarian law, such as genocide, crimes against humanity, and war crimes. It is time that the perpetrators in Burma are held accountable and systematic impunity is brought to an end.

Updated September 5, 2017

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