GUY HORTON, "The man who uncovered the truth about Burma"

 
Aung San Suu Kyi released from house arrest. (13 November 2010)…      The EU Parliament demands, amongst other things, an investigation into crimes against humanity and the provision of aid to internally displaced people.(May 2010)...       UN High Commission for Human Rights calls for a UN Commission of Inquiry into alleged possible crimes against humanity in Myanmar.(March 2010)...       UN Call supported so far by Australia (March 2010), Czech Republic & Slovak Republic (April 2010), the United Kingdom (April 2010), the United States of America (August 2010), Canada (September 2010), Hungary (September 2010), France (September 2010), New Zealand (September 2010), The Netherland (September 2010), Ireland (September 2010) and Lithuania (September 2010)...       Global Centre for the Responsibility to Protect affirms the applicability of pillar three of the concept the need for "A timely and effective response" to the situation in Myanmar/Burma...       US and Saudi Arabia commit themselves to providing large scale aid and development skills to displaced Rohingya refugees and local communities in Bangla Desh...
   
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  1. GENOCIDE

The crime of Genocide as incorporated into article 6 of the Rome Statute of the International Criminal Court[1] and expressed in the Genocide Convention which Burma signed and ratified in 1956. It should be noted that article 6c, footnote 4 of the Rome Statute, specifically identifies, amongst other things,

“Deprivation of food, or medical services or systematic expulsion from homes[2]

as acts of genocide, provided  they are part of an attempt to destroy an ethnic group in whole or in part. At the time of writing (2009) over three thousand villages have been recorded as destroyed in eastern Burma alone since 1996.Everyone of these villages are ethnic minority villages targeted for destruction on the basis of the ethnic identity of their inhabitants.

There is, however, disagreement as to whether genocide can be applied to Burma because in the case of this law it is necessary to establish not just the evidence, but that there is also an underlying intention to destroy ethnic groups in whole or in (substantial) parts. It should be noted note however that the Rwanda Tribunal has ruled that proof of explicit intention is not now needed to prove genocide. Intention can be inferred from the evidence:

"Intent can be inferred from either words or deeds and may be demonstrated by a pattern of purposeful action"[3].

 

The following acts express genocide. It is only necessary to prove one of the following for a conviction of genocide:

         Article 6 (a)  Genocide by killing

         Article 6 (b) Genocide by causing serious bodily or mental harm

         Article 6 c) Genocide by deliberately inflicting conditions of life calculated to bring about physical destruction in whole or in part

         Article 6 d) Genocide by imposing measures intended to prevent births

         Article 6 e) Genocide by forcibly transferring children

The law of genocide prevents and punishes not just its committal, but attempting it, inciting it, conspiring to do it and being complicit with it. 

  1. CRIMES AGAINST HUMANITY

Crimes against Humanity are defined by article 7 of the Rome Statute[4] Please note that this category of crimes came into effect on July 2002 when the International Criminal Court was established.  Violations must target civilian populations and be either systematic and/or widespread to be considered crimes against humanity. In Burma some are self-evidently both, as confirmed by the Harvard group of leading jurists in 2009[5]. The Junta can be prosecuted and convicted for inflicting these violations. This category of crimes protects the whole population of Burma including political, ethnic and religious groups. It cannot, however, be used to prosecute crimes at the International Criminal Court if they were inflicted before July 2002.

          Article 7 (1) (a) Murder

          Article 7 (1) (b) Extermination

          Article 7 (1) c)  Enslavement

          Article 7 (1) (d)  Deportation or Forcible Transfer of Population

Homes burned in K'Dee Me Der Village
Children sleep in hiding place
New born baby being delivered by medics
Mother giving birth in hiding place

          Article 7 (1) (e) Imprisonment of severe deprivation of physical liberty

          Article 7 (1) (f) Torture

          Article 7 (1) (g)-1 Rape

          Article 7 (1) (g)-2 Sexual Slavery

          Article 7 (1) (g) -3 Enforced Prostitution1) (g)-4 Forced Pregnancy

          Article 7 (1) (g)-5 Enforced Sterilisation 

          Article 7 (1) (g)-6 Sexual Violence

          Article 7 (1) (h) Persecution

          Article 7 (1) (i) Enforced Disappearance of Persons

          Article 7 (1) (j) Apartheid

          Article 7 (I) (k) Other Inhumane Acts

  1. THE GENEVA CONVENTIONS

Article Three of the Geneva Conventions, included in the Rome Statute under article 8 c protects civilians taking no active part in hostilities in a situation of internal armed conflict. A situation of internal armed conflict has existed in eastern Burma for decades. (It does not however apply to lowland Burma  or any areas where there is no armed conflict.)

The Burmese Junta signed and ratified the Geneva Conventions in 1992 so this law protecting civilians is applicable from at least this date. The Junta can certainly be convicted for this category of crime. Please note that taking no active part in hostilities means  villagers in eastern Burma, even if they are providing assistance to resistance groups, are protected by article three of the Geneva Conventions:

“Violence to life and to person, in particular murder of all kinds, mutilation, cruel treatment an torture; Committing outrages upon personal dignity in particular humiliating and degrading treatment; Taking of hostages; The passing of sentences and the carrying out of execution without previous judgement pronounced by a regularly constitute court, affording all judicial guarantees which are generally recognised as indispensable[6].”

It should be noted that these laws apply to not just the Junta, but all groups, including resistance and opposition ones. In particular it should be noted that executions without judgement of a properly constituted court violates article three of the Geneva Conventions.


[1]  The Rome Statute of the International Criminal Court:A Commentary, Oxford University Press, pp. 148-150, 2002.

[2]  Footnote 4 Article 6 c:  “The terms conditions of life may include but is not necessarily restricted to, deliberate deprivation of resources indispensable for survival, such as food or medical services or systematic expulsion from homes.”(ibid. my italic)

[3]  International Criminal Tribunal for Rwanda, Prosecutor v Kayishema and Ruzindana Judgement, 95-5-T, May 1999.

[4]  Article 7, Rome Statute of the International Criminal Court: A Commentary, pp. 151-158, Oxford University Press, 2002.

[5]  “Crimes in Burma,” Harvard Law School, May 2009.

[6]  Article 8 c, p. 8, The Rome Statute, p.8, OUP, pub. 2002.