Where the Executioners Sue Their Victims

Naw Eh Ywa Paw was nine years old when government soldiers attacked her village in eastern Burma in March 2006. The young girl and her family, members of the Karen ethnic minority, hid in a nearby gully before rushing for the hills. Her father hoisted his ailing 80-year-old mother onto his back as they clambered up a steep ravine towards a clearing in the wilderness.

It was there that they spotted them: a band of Burmese soldiers crouching in the bushes. The troops opened fire, gunning down her father and grandmother at point-blank range. Naw Eh Ywa Paw was shot in the back as she fled into the jungle.

Her story was told by one of more than 300 survivors who recently gave testimony for a landmark report implicating the Burmese army in “widespread and systematic” attacks on civilians during an offensive in Karen State’s Thandaung Township in 2005-2008. The report’s authors, a team of legal experts from the International Human Rights Clinic at Harvard Law School, have collected enough evidence to satisfy the standard required for the issuance of an arrest warrant against three senior Burmese military commanders at the International Criminal Court (ICC) for war crimes and crimes against humanity. One of these men is General Ko Ko, the current home affairs minister.

The scrupulous three-year study, supported by high-level policy documents, indicates that the Burmese army strategically employed scorched earth tactics to displace civilian populations in order to isolate them from the armed ethnic group, the Karen National Union (KNU), which has fought the government for greater autonomy since Burma’s independence. This strategy reportedly involved indiscriminately shelling villages, shooting children on sight, torching homes, destroying livestock and planting land mines in civilian areas to prevent their return. One former Burmese soldier recalled being told to “do whatever you want” to civilians in zones identified as “black areas.”

The Clinic’s findings raise crucial questions about the role of transitional justice mechanisms in Burma, which is slowly emerging from five decades of military dictatorship and ethnic conflict. The quasi-civilian government led by President Thein Sein has released thousands of political prisoners, lifted media pre-censorship and inked tentative peace deals with a patchwork of armed ethnic groups, including the KNU. But to date there has been no effort to acknowledge, let alone redress, allegations of war crimes committed by the former junta. Since Burma is not a member of the ICC, its military commanders could only be prosecuted at the court with the approval of the UN Security Council — a move that could easily be thwarted by China.

Article 445 of Burma’s military-drafted 2008 constitution offers blanket immunity to the perpetrators of crimes committed under the previous regime. It looks increasingly unlikely that this will change. Opposition leader and former political prisoner Aung San Suu Kyi, who is lobbying for amendments to the controversial charter, has focused her energy on a provision that bans her from running for president in next year’s election — but her efforts have so far been rebuffed. The military, which retains an effective veto over constitutional change and a quarter of seats in parliament, has aggressively defended its chokehold on Burmese politics. A government-backed committee on constitutional reform concluded that article 445 should not be revised.

Most government officials have stressed the importance of looking to the future for the sake of national reconciliation. Responding to the allegations of war crimes, Director of the President’s Office Zaw Htay said: “Everyone should be encouraging the reform process rather than putting further obstacles along the way.” Burma’s Deputy Defense Minister Kyaw Nyunt, who met with the report’s authors, bluntly dismissed its findings as “incorrect and one-sided.”

Suu Kyi — once the face of Burma’s pro-democracy movement — has become curiously reticent on the issue of transitional justice since assuming a seat in parliament in March 2012. This marks a significant U-turn from the year before, when she publicly called for a UN-backed Commission of Inquiry (COI) into allegations of war crimes and crimes against humanity. More recently, she has expressed vague support for a “truth commission” to help Burma deal with its past. But no tangible steps have been taken to achieve this goal.

“The silence of so-called reformers and opposition politicians on human rights issues has undermined [Burma’s] transition,” warned Matthew Bugher, lead author of the Clinic’s report. And the reformers are far from alone.

The international community has almost entirely abandoned calls for a COI, in some cases now blithely asking the Burmese government to investigate its own crimes — an unlikely and rather absurd prospect. This appears to be partly driven by concerns about derailing the reform process, often described as “top-down,” along with a conceptual confusion between “transitional” and “criminal” justice. At the local level, some say the anger held onto by many former political prisoners and ethnic communities could further polarize and fracture Burma’s fragile democracy.

Yet military impunity is a fundamental obstacle to genuine democratic reform in Burma. The armed forces remain largely outside of the purview of the civilian judicial system, something that is especially problematic for conflict-ravaged ethnic minority communities. This issue is doubly relevant as the Burmese army continues to escalate its offensive in northern Kachin state, where ceasefire talks have crumbled in the wake of the deadly shelling of 23 rebel cadets in late November.

The Myanmar National Human Rights Commission, a state-backed organ with little capacity for independent adjudication, has failed to investigate reports of atrocities in Burma’s periphery. The father of a 14-year-old Kachin girl allegedly executed by government soldiers is now being sued by the military for filing a “false charge” about the attack with the Commission. Witness accounts emerging from Kachin state are eerily similar to those recorded in the Harvard report, according to Bugher, who says the calmer situation in eastern Burma is the result of a reduction in fighting and “not a change in policy.”

All this begs a crucial question: How can Burma move towards transitional justice when abuses are ongoing and the people responsible are still in charge?

“Those who committed crimes against my people are not only free but still in government,” said Zoya Phan. She’s an ethnic Karen activist with Burma Campaign UK (BCUK), who fled her home in Manerplaw, eastern Burma, when it was invaded by the Burmese army in 1994. She was 14.

President Thein Sein, a former junta strongman, was a senior commander stationed in eastern Shan State from 1996-2001, where myriad human rights violations, including sexual violence, forced labor, and mass displacement, were reported at the time. A 2004 U.S. embassy cable described Thein Sein as a “loyal follower” of then-dictator Than Shwe and described him as an active participant in the crackdown against the 1988 pro-democracy uprising that killed over 3,000 civilians. (The photo above shows a survivor of the crackdown in a hospital in August, 1988.) The government has denied his role in the clampdown, but refused to publish his military service record.

On 16 December, a group of Karen community based organizations repeated calls for an international COI into alleged war crimes in Burma. According to a small preliminary study conducted by BCUK in 2012, the vast majority of ethnic minority refugees in Thailand want to see criminal procedures as well as compensation for the destruction of their lands and property. There is a possibility of future conflict between the Burman-majority opposition leadership and ethnic minority populations over transitional justice mechanisms.

“In our consultations with Karen, Shan, Karenni and Kachin organizations and individuals, justice and accountability is a top issue, but in our consultations with many ethnic Burman leaders this was not one of their priorities,” said Zoya Phan.

Western eagerness to economically re-engage with Burma presents additional challenges, compounded by reports that an influx of foreign investment in ethnic minority regions has already exacerbated human rights violations at the hands of the military. The International Finance Corporation and the U.S. government were recently criticized for their role in drafting a set of laws and regulations that appear to erode state accountability for land grabs. Even Thandaung Township, the reported site of war crimes, is being eyed for large-scale tourism development by the Burmese government.

Another concern is the lack of dialogue on transitional justice mechanisms within the internationally funded ethnic ceasefire process. According to sources familiar with the peace talks, it is widely viewed as “too soon” to broach this sensitive subject, despite an overall acknowledgement that it will eventually need to be addressed.

“The risk, of course, is that the reluctance to deal with the past, the assertion that it’s not yet time, will persist,” said Patrick Pierce, an independent consultant and former head of the Burma Program at the International Center for Transitional Justice. “Then at some point down the road ‘reconciliation’ and transitional justice will come up on the agenda and no one will be prepared, communities will not have been consulted in a meaningful way, and poor decisions will be made.”

It seems improbable that a UN-backed COI will be established in the current political environment, or that the culprits of past abuses will be brought to account as long as the military clings to power. But the international community has a responsibility to boost dialogue on transitional justice mechanisms nonetheless, and to help ensure that affected communities are given a platform to be heard. Addressing past atrocities will be pivotal to the success of Burma’s reforms, and this process should be steered by the survivors — not the perpetrators of that abuse.

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