War Crimes and Crimes Against Humanity

The Burma Army and non-state armed groups are bound by international criminal law, which outlaws both crimes against humanity and war crimes. A fundamental principle of international humanitarian law is that persons taking no active part in hostilities shall in all circumstances be treated humanely. War crimes and crimes against humanity are punishable irrespective of whether they are committed in time of peace or war. Individuals whom deliberately commit serious violations of international humanitarian law are responsible for war crimes. These include deliberate attacks on civilians or indiscriminate attacks, torture, sexual violence, and use of child soldiers and forced labour. Individuals may also be held criminally liable for attempting to commit a war crime, as well as assisting in, facilitating, aiding, or abetting a war crime. Commanders and civilian leaders may be prosecuted for war crimes as a matter of command responsibility when they knew or should have known about the commission of war crimes and took insufficient measures to prevent them or to punish those responsible.

In 2008, The Border Consortium (TBC) argued that there has been an increasing debate about whether violations of human rights and humanitarian law in eastern Burma constitute an international crime (TBC, 2008). Numerous other reports have described the human rights violations committed by the Burma Army as international crimes (e.g. FIDH, ALTSEAN-Burma, & BLC, 2009; KWO, 2010; Partners Relief & Development, 2011). The Burma Army has been responsible for numerous serious war crimes, including deliberate and indiscriminate attacks on civilians, summary executions of civilians, sexual violence against women and girls, torture, use of child soldiers, attacks on populations’ livelihood and food supplies, forced displacement, and use of anti-personnel landmines. In fact, almost all the acts enumerated under Article 7 of the Rome Statute have been repeatedly documented by various independent sources, including both NGOs and human rights organisations as well as UN mechanisms (read more about human rights violations in Burma).

Non-state armed groups in Burma, especially the Burma Army’s proxy armies, have also committed serious abuses, including forced labour, recruitment of child soldiers, and anti-personnel landmine use. These groups have, however, committed these abuses to a far smaller degree than the Burma Army. Furthermore, the government troops have employed counter-insurgency strategies that deliberately target the civilian population in attempts to demobilise support for armed opposition groups; a number of organisations such as Amnesty International (2008), Physicians for Human Rights (PHR) (Richards, Parmar, & Sollom, 2010), Human Rights Watch (2011), and International Human Rights Clinic at Harvard Law School (IHRC, 2012) have also characterised these strategies as war crimes and crimes against humanity. In 2007, the ICRC issued a public denunciation of the government for “major and repeated violations of international humanitarian law.”

Countless UN reports, resolutions, and documents have also called for an end to serious human rights abuses and violations of international humanitarian law in Burma. A report published by IHRC (2012), an outcome of an intensive review and analysis of UN documents, evaluated Burma’s breaches in light of the Rome Statute. According to their findings, there has been a long-term awareness on behalf of the UN of the grave human rights and humanitarian violations occurring in Burma. UN actors have described these violations as both “widespread” and “systematic” as well as “part of a policy,” and UN actors documenting of reported violations have thus been strongly suggesting these violations may constitute crimes against humanity and war crimes under international criminal law. The report focused on violations regarding forced displacement, sexual violence, extrajudicial killings and torture, and found that each separately creates a prima facie case for the existence of violations amounting to possible crimes against humanity and war crimes. Furthermore, these violations were found to take place within a culture of impunity due to the military regime’s failure to provide accountability and justice.  According to the report, all of the necessary elements exist for the UN to take action in Burma.

In March 2010, the Special Rapporteur on the situation of human rights in Myanmar

[Burma], Tomás Ojea Quintana, reported to the UN Human Rights Council:

“Given the gross and systematic nature of human rights violations in Myanmar over a period of many years, and the lack of accountability, there is an indication that those human rights violations are the result of a State policy that involves authorities in the executive, military and judiciary at all levels. According to consistent reports, the possibility exists that some of these human rights violations may entail categories of crimes against humanity or war crimes under the terms of the Rome Statute of the International Criminal Court”. (Tomás Ojea Quintana, see UN General Assembly, 2010, p. 21)

The UN Resolution adopted on December 27, 2013 (UN General Assembly, 2014a), expressed concern about “remaining human rights violations, including arbitrary arrests and detentions of political activists and human rights defenders, forced displacement, land confiscations, rape and other forms of sexual violence and torture and cruel, inhuman and degrading treatment, as well as violations of international humanitarian law.” Similarly to the resolution adopted on December 24, 2012 (UN General Assembly, 2012), it urged the government to step up its efforts to put an end to such violations.

The 2015 election of the NLD-led Government headed by the State Counselor Daw Aung San Suu Kyi saw the birth of new hope for Burma human rights activists and the international community. While the December 2015 human rights resolution still “Urges the Government of Myanmar to step up its efforts to end remaining human rights violations and abuses, […] and violations of international humanitarian law in some parts of the country, and repeats its call upon the Government to take necessary measures to ensure accountability and end impunity”, the UN General Assembly also welcomed the political change in Burma and national reconciliation efforts. In recognition of this positive step, it was decided by the European Union to cease the annual submission of human rights resolutions to the General Assembly from 2016 onwards. This move was, however, loudly criticised by human rights organisations worldwide (e.g. Members and Observers of the European Burma Network, September, 2016; ALTSEAN-Burma, Amnesty International, ARTICLE 19, Civil Rights Defenders (CRD), Forum-Asia, and the International Federation for Human Rights (FIDH), September, 2016; see also Myanmar Times, September, 2016). ALTSEAN-Burma et al. called it “premature” and pointed out that none of the key recommendations in last year’s resolution had been fully implemented, and major human rights concerns raised in past resolutions continued. Despite mounting criticism, the submission of a UN resolution criticising Burma’s human rights record was abandoned. Unsurprisingly to many observers, the NLD has thus far not been able to prevent human rights violations that may constitute crimes against humanity and war crimes, including the systematic use of sexual violence, torture, and extra-judicial killings in both ceasefire and non-ceasefire areas. The military remains constitutionally immune from prosecution by civilian court, and speaking of past abuse continues to be silenced.

In November 2016, a military crackdown on Rohingya people following an attack killing nine police officers in Arakan State the previous month, reignited concerns about grave human rights abuses as well as ethnic and religious targeting. Over the course of two weeks, the military and border guard forces committed mass gang rapes and brutal beatings, killed hundreds of villagers and destroyed hundreds of houses in the northwestern part of the State.

In December, 23 Nobel laureates and world leaders proceeded to draft and address an open letter to the United Nations Security Council, warning of crimes against humanity in Arakan State. The letter highlighted numerous human right violations and lack of humanitarian access. The November crackdown led the OHCHR to publish a report in February 2017, in which the UN office interviewed around 220 Rohingya refugees and reported it was “very likely” that the actions of Burmese security and military forces amounted to crimes against humanity and ethnic cleansing. According to the report, 66,000 civilians had fled the persecution to Bangladesh. Amnesty International and Special Rapporteur Yanghee Lee also stated that the events of November could amount to crimes against humanity.

The desire and necessity to ensure “full accountability for perpetrators and justice for victims” led the European Union to draft and support a resolution calling for an international fact-finding mission to investigate allegations of killings, rape and torture by Burmese security forces. The Resolution was adopted by the UN Human Rights Council in March 2017. Although the resolution directs the mission to look at Arakan State “in particular,” it also gives a mandate to consider all “recent” allegations of human rights violations and abuses across the country, including violations in Kachin and Shan States. The Burma Government has, however, announced that it would not accept the UN-mandated mission, declaring it would not grant visas to staff in question and would not cooperate with the mission. Criticism has gathered against Daw Aung San Suu Kyi for failing to take effective action in order to stop ongoing abuses and human rights violations across the country.

In June 2017, an Amnesty International report entitled “’All the Civilians Suffer’ – Conflict, Displacement and Abuse in Northern Myanmar” evoked the occurrence of war crimes in Kachin and northern Shan States. Amnesty International Senior Crisis Advisor Matthew Wells declared that similar patterns of targeting could be observed between the Rohingya community and ethnic nationalities in other parts of Burma, despite lower mediatic coverage and international attention. The June report states:

The Myanmar government has yet to ratify most international human rights and humanitarian law treaties, but the vast majority of violations documented by Amnesty International contravene customary international law norms. Many amount to war crimes. Myanmar authorities must ensure the soldiers involved, as well as any commander who orders or fails to take action to prevent, stop, or punish such violations, are held to account. They should also immediately end restrictions on humanitarian access throughout the country, including to non-government controlled areas. And they should guarantee unfettered access to the UN Human Rights Council’s independent, international fact-finding mission, mandated to investigate human rights violations and abuses across the country. (see Amnesty International, ’All the Civilians Suffer’ – Conflict, Displacement and Abuse in Northern Myanmar, 2017a, p.9)

As of today, Burma is not a signatory of the Rome State. It can, however, be subject to an International Criminal Court (ICC) investigation upon a referral by the UN Security Council. While growing allegations of crimes against humanity and war crimes lead some to call for an investigation by the ICC, the situation in Burma seems stranded at the issue of sovereignty. While the international community is increasingly inclined to step in, Daw Aung San Suu Kyi continues to refuse the UN-mandated fact-finding mission. In Arakan State, the State Counselor prefers to rely on the Kofi Annan-led Advisory Commission, claiming that international involvement would contribute to fueling tensions between the different communities and that a domestic investigation is both sufficient and preferable.

As the international community becomes involved in the situation in Burma, finding an understanding with the Burma Government will remain important. If the government does not accept the UN mission, it risks being assimilated to ‘human rights pariah countries’ like North Korea, Syria, or Burundi. Provided the international community pursues investigations into allegations of crimes against humanity and war crimes, difficult access to local populations will make it hard to amass clear information and facts. Ending impunity for the serious crimes committed against ethnic and religious minorities in Burma will be all the more challenging.

Updated August 24, 2017

Continue to Ending Impunity