The American Society of International Law, Tillar House
Burma: A Challenge to the International Legal System
December 8, 2005, 6:30 PM- 8:30 PM
Sponsored by ASIL and the ASIL's New Professionals Interest Group
Presentation of Aung Din, Policy Director, US Campaign for Burma
A Burmese Perspective and Efforts by the NLD/ASSK to Engage with the International Community
Introduction
Ladies and Gentlemen,
Let me begin with my appreciation to the ASIL and the ASIL's New Professionals Interest Group for sponsoring this event at very critical time. I would also thank all of you for gathering here today and your interest in Burma. As a Burmese citizen, it is encouraging to see people around the world taking an interest in my country. Thanks Andrew for your kind introduction.
As a Burmese citizen, an activist working for freedom and democracy in Burma and a supporter of our leader Aung San Suu Kyi and her party National League for Democracy, I came here to speak the efforts of Aung San Suu Kyi and NLD to engage with the International Community and the International Legal System to bring justice in Burma.
I believe many of you already knew what is Burma? And what is happening in Burma? For those, who don't know very well, let me say very briefly about Burma. Today Burma can be described as a country of South East Asia, being ruled by the world most brutal dictatorship, which use all forms of abuses, including arbitrary detention, extrajudicial killing, forced relocation and forced labor, use of rape as weapon of war, purposely destruction of villages to oppress the population for its control of power. Burma is also a major producer and trafficker of heroine and illicit drugs. Burma's dictator General Than Shwe is second worst dictator in the world, according to the Parade magazine, just after Kim Jong IL of North Korea. Burma army has forcibly recruited over 70 thousands child soldiers, the most number of child soldiers in the world, according to Human Rights Watch. According to Amnesty International, Burma's regime incarcerated over 1,200 political dissidents, including 1991 Nobel Peace Prize Recipient Aung San Suu Kyi and over a dozen Members of Parliament. According to a recent report produced by Council on Foreign Relations, Burma is the source of unique HIV strain and spreading it to neighboring countries, China, India and South East Asia, through its drug trafficking route. Berlin-based Transparency International in October ranked Burma as the world's third most corrupt country, sharing the same rank with Haiti and Turkmenistan and just above Bangladesh and Chad, out of 159 countries. Over 650,000 people are hiding in the mountains and forests in the Eastern part of Burma, as the internal displaced persons (IDPs) to avoid the killing of the regime's soldiers, while over two millions people of Burma are living in neighboring countries as the refugees or illegal immigrants.
Well. This is my homeland! Clearly, Burma is not in good shape.
Burma: 17 Years of Resistance
17 years after a popular uprising in Burma in 1988, calling for democracy, human rights and an end of military rule, the state of Burma has deteriorated dramatically and particularly for ordinary Burmese. The 1988 popular uprising was crushed brutally by the military ruler. But because of some pressure from internal and external forces including some members of the international community, a multi-party election in Burma was held in 1990. Even though the National League for Democracy party, led by Aung San Suu Kyi won a landslide victory, the party was unable to assume power. To this day, the military regime continues to refuse to honor the election results and the international response to Burma's crisis is still a polarizing issue.
The United States is a leader among democratic countries, including European Union, in pressuring Burmese junta through strong economic sanctions, an arms embargo, ban on financial transaction, freezing the regime's assets in the US, targeted visa restriction and other diplomatic measures. While the U.S. and EU choose to pressure and isolate the regime, neighboring countries choose the opposing way; so-called constructive engagement. China becomes the strongest ally and major weapon supplier of Burmese military junta. It makes another giant neighbor India to worry that it might lose influence over Burma against its arch-rival China. Now, under the "Look East" policy, India is also dealing nicely with Burmese military junta to counterbalance China, by providing some military equipments, military training, soft loans, financial assistance and mutual state leader visits. ASEAN's policy of non-interference among the member States also protects the regime from the international pressure.
Burma: A Challenge to the International Legal System
When non-violence democracy movement is being crushed brutally by the dictator, NLD and the people of Burma cried out loud to international civilized community for help. Aung San Suu Kyi mentioned repeatedly that "Please use your liberty to promote ours."
In Customary International Law, grave, repeated and systematic violations of human rights are forbidden. There are norms banning slavery, racial discrimination, tortures and genocide. There are norms prohibiting forcible denial of the right of peoples to self-determination .These rules bind the Nations regardless of whether they have rectified the specific conventions or not. Now, there is legal entitlement for any State or International Organization competent in area of human rights to request States where gross and large-scale violations of human rights are occurring to stop such violations. If they are not ended, International Community has authority to impose the measures to enforce the ending of such violations. Intervention in the affairs of individual State is fully justified, so long as serious and large-scale violations had been committed by its ruler, regardless of whether they amounted to a threat to the peace or not. Burma is such a case now. International Legal System is being requested by the people of Burma and human rights activists around the world to organize International Intervention in Burma. This is a great challenge for International Legal
System.
Burma and the UN General Assembly
Three weeks ago, on November 18, 2005, the UN General Assembly adopted a resolution on Burma, in which the General Assembly expressed grave concern over the extension of house arrest and consistent harassment of senior leaders of the National League for Democracy, particularly Aung San Suu Kyi and Vice Chairman U Tin Oo. The Assembly strongly called on the Burmese regime to end systematic human rights violations, bring human rights abusers to justice, immediately release political prisoners, enable human rights defenders to safely pursue their activities, and end recruitment of child soldiers, rape and sexual violence by the armed forces, and systematic enforced displacement that led to refugee flows to neighboring countries. The General Assembly also urged the Burmese regime to become a party to all international human rights instruments and fully cooperate with the Special Envoy and the Special Rapporteur to bring the country towards civilian rule.
This is the 15th resolution adopted by the UNGA in 15 years in a row. As usual, the Burmese regime declared that it would not associate with the resolution and rejected it as it did in the past 14 years. The regime's Ambassador called on all developing countries to stand with his government in the name of the spirit of the Non-Aligned Movement and the unity of developing countries, and to defeat the European Union drafted resolution. The representative of Cuba proposed a motion of non-action to kill the draft resolution on Burma and urged all delegates to vote for it. After the vote, Cuba's proposal was defeated by 54 in favor, 77 against and 35 abstentions. Later, the resolution on the situations of human rights in Burma was adopted by consensus.
This is the dangerous message for all of us. People like us, who are being ruled and abused by the brutal dictatorship, have expected and believed for many years that United Nations is an important venue in international legal system to complain our unbearable sufferings, ask for help and get support. In this 60th General Assembly, all, except one, country specific resolutions on Burma, Iran, Sudan, Democratic Republic of Congo, Uzbekistan and Turkmenistan were challenged with "No Action Motions" proposed by these tyranny regimes with the support of many other countries. Although six resolutions were passed after these motions were defeated by majority in votes, the resolution on the human rights situation in Sudan was killed. Over 50 countries from developing world and Non-Aligned Movement, notably and ironically with including South Africa, a country which was free from the Apartheid rule after decades of freedom movement and successful international campaigns and India, the so-called largest democracy in the world, aligned with the dictators to stop addressing human rights situation of unfortunate people. We now know that in this world, rhetoric and reality are often opposites.
I would say that this is a big challenge for the International Legal System and International Law Society. Imagine that if the resolution on Burma is killed. What will happen? There will be no legal international concerns on the situation in Burma; no legal denunciation from international community on Burmese military junta for its systematic human rights violations; no more mandate for Secretary-General to use his offices for assisting realizing of political dialogue in Burma; no more UN Special Envoy; no more UN Special Rapporteur; and no more UN involvement. We will have no place to cry. And dictators like Burmese regime will be out of the scope of International Legal System or International Legal System will be irrelevant to those who run the country with iron fists and are conducting crimes against humanity.
Since last year, we knew that there were growing numbers of countries, trying to kill the country specific resolutions in UN General Assembly. This year they proved that they are becoming stronger than before and they might have sufficient numbers to kill all country specific resolutions in the next year, if international law society and democratic countries are unable to reform to address this ongoing challenge.
Burma and the UN Security Council
Last Friday, the UN Security Council, for the first time in the 17 years, agreed to invite senior officials from the UN Secretariat to brief the situation in Burma, in a close door meeting. This is a compromise between the U.S-led countries that believe the involvement of Security Council in Burma is long overdue and another group of China, Russia, Algeria, Brazil and Japan that believe that situation in Burma is no immediate threat to the international peace and security. Anyway, we welcome this decision and we hope that Secretary-General Kofi Annan will be able to convince all members of the Council that this is the time to act in Burma.
Actually, the National League for Democracy (NLD) has called for UN Security Council intervention in Burma since 2003. After the Depeyin Massacre, in which scores of NLD members were beaten to death by the regime's militia in Upper Burma, in which Aung San Suu Kyi and U Tin Oo were narrowly escaped from mass assassination, but subsequently arrested and detained to this day, NLD party requested the UN Security Council to intervene in Burma.
One day after the launch of the report "Threat to the Peace; A Call for the UN Security Council to Act in Burma", on September 21, 2005, NLD issued a statement, special appeal to international community to support the President Vaclav Havel and Bishop Desmond Tutu's call for Security Council to Act in Burma. In that statement, NLD leaders appreciate President Havel and Bishop Tutu, express their desire and commitment for peaceful change in Burma through meaningful dialogue, urge all member states of Security Council to address the situation in Burma and especially request permanent member states of the Council to refrain from exercising use of veto powers. NLD's strong endorsement for Security Council action in Burma is overwhelmingly echoed by the people from all walks of life in Burma, including veteran politicians, ethnic national parties, student and youth leaders and even some ceasefire ethnic groups.
Again, on October 28, 2005, NLD issued another statement, in which it repeated the request of all member states of Security Council to agree to act in Burma. At the same time, rank and file members of NLD tried to meet with respective Embassies in Rangoon and make personal appeal directly. We deeply appreciate the U.S, especially to those officials from the Congress, State Department, the White House and US's Mission in New York, who have been working tirelessly to raise Burma at the Security Council. Now, the ball is in Kofi Annan's court.
Now, the Ball is in Kofi's Court
It is sure that Russia and China have no intention to follow up any action after the briefing. We understand that U.S. and United Kingdom, together with many other members have decided to bring Burma on the Security Council's formal agenda. The briefing of Kofi Annan or his representative will weigh in to one side to win.
Russia and China are repeatedly saying that human rights situation mentioned in the report are exaggerating and current situation in Burma is nothing more than domestic problem. But Kofi Annan can prove that these facts mentioned in the report are exactly mentioned in his reports to General Assembly in this year and in the past years as well as the 28 consecutive resolutions adopted by consensus by the UN General Assembly and Commission on Human Rights in 15 years. Consensus means that they, Russia and China also included in decision making. How can they say these are exaggerating?
By comparing with the previous cases which Security Council decided to involve, Jared and a group of smart and dedicated lawyers, pointed out that the situation in Burma constitute the threat to the Peace. Kofi Annan also can truly say that all 28 resolutions are ignored by the regime and effort of his offices to mediate in Burma is totally ineffective, not because of his lack of will to work out, but because of his lack of powerful backing from Security Council. He should ask the Council to empower him with the Council's mandate to vigorously engage in the national reconciliation and democratization in Burma. We hope that he knows he can do more than expressing disappointment again and again. We also hope that he will use this rare opportunity effectively and seriously. By having strong empowerment from the Security Council through a binding resolution, his effort of assisting democratization in Burma will be more effective and he may practically expect the changes in Burma in the first half of 2006, a dead line set by himself in his report to UNGA on October 10, 2005...
Finally, I would like to make clear that we are not just wishing; but we are working continuously and tirelessly to bring about changes in Burma through international legal system. Let me conclude with the remark of Aung San Suu Kyi, "In a country like ours which is totally crushed by a military regime, justice is a dream. But it is a dream that we are determined to realize."
Thank you.
Aung Din
Policy Director
US Campaign for Burma
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