‘Myanmar Needs to Talk About How to Deal With Its Past’

By Andrew D. Kaspar 29 November 2014

A report released earlier this month by Harvard University’s International Human Rights Clinic lays out damning allegations accusing three senior Burmese generals of war crimes and crimes against humanity.The three men, including current Home Affairs Minister Lt-Gen Ko Ko, still hold senior positions in Burma’s quasi-civilian government, prompting questions from some quarters about President Thein Sein’s reformist credentials.

The report is the product of a three-year investigation by the clinic that found sufficient evidence for the issuance of arrest warrants by the International Criminal Court. The clinic’s work focused on a Burma Army offensive in eastern Karen State from 2005-08 that displaced more than 40,000 civilians, many of whom were subject to a variety of human rights abuses at the hands of soldiers.

Matthew Bugher, the report’s principal author, spoke with The Irrawaddy about the clinic’s findings and their implications for transitional justice in Burma, officially known as Myanmar, even as some of the alleged abuses continue to be reported in other conflict theaters.

Question: Why did you release this report, and why did you decide to release it at this time?

Answer: There were a number of reasons, and ultimately we thought that our memo represented a positive contribution to discussions about reform and transition in Myanmar. One of the reasons that we thought this needed to be public was that current commanders need to know that they could also be held to account and that the human rights community is committed to ensuring that we identify perpetrators and ensure that they’re held accountable for abuses.

We also believe that there are longstanding military policies and practices that are still being implemented. And we believe that human rights issues are not being discussed enough in conversations about transition in Myanmar and that this transition will be stunted unless it addresses human rights abuses.

And finally, we think that the people of Myanmar need to have a conversation about how to deal with the past. These abuses that we documented are very serious concerns for the Karen population, and people throughout the country have similar concerns. Ultimately we hope that this memo will draw attention to those issues and help facilitate those conversations.

Q: Since the report’s release, have you seen signs that those conversations are happening?

A: Sure, there’s been a lot of media coverage about the report, and we’ve seen indications that there are conversations about these things. Sometimes they’re very hard conversations and people don’t always agree, but we are happy that people are talking about this.

I would also note that the government’s response was that both sides of the conflict might have committed human rights abuses. We would go one step further and say both sides have committed human rights abuses, but that acknowledgement by the President’s Office is a positive step; that ‘yes, human rights abuses are occurring.’

I think we have a fundamentally different perspective on how to approach that fact: We believe that this needs to be talked about openly and that accountability is part of the solution and the government’s rhetoric is saying that now is not the time to address these things.

Q: As your report states, ‘abuses occurred on both sides of the conflict.’ Why did you limit your inquiry to abuses perpetrated by the Burma Army?

A: When we began this investigation, it was a very different context in Myanmar. The Human Rights Clinic had previously published a report called ‘Crimes in Burma,’ and that was in 2009, which called for the creation of a UN commission of inquiry to look into international crimes that had occurred in Burma. The genesis of this current project was an endeavor to show that you could actually build a criminal case against individual perpetrators. And whereas a run of the mill human rights report would take a bird’s eye view of a conflict and look at all the elements, building a criminal case is something different, where you actually try to establish evidence that’s related to specific perpetrators. And that’s what we’re setting out to do.

Q: You’ve said that because Burma is not party to the Rome Statute, any International Criminal Court case would involve UN Security Council involvement. Can you talk more about that?

A: For a case to go before the International Criminal Court, there’s a political process. Because Myanmar is not a party to the Rome Statute, for a case to move forward in relation to Myanmar would require UN Security Council action. And that would include having to get past the veto powers of the permanent members of the Security Council.

We have decided not to get involved in that political conversation. What we’re trying to do is give the people of Myanmar and the human rights community the evidence they need to have this conversation. International justice is one way to address the kinds of abuses that we documented, but there are other ways: domestic prosecution, a truth commission, documentation efforts by civil society, removal of perpetrators from office. There’s a lot of ways to address these kinds of abuses. International justice is one option and I think it’s something that people should be talking about, but we are not going to be the ones to make a statement on which particular path Myanmar should take.

Q: You met Burma’s deputy defense minister last week. What was his reaction to the report?

A: First of all, I would say the fact that I was able to have a meeting with the deputy minister, who is an active duty military officer, is a very positive sign. Years ago we wouldn’t have been able to get that meeting.

That said, on the particular findings of our memo and our investigation, we didn’t come to agreement. He thought that our findings were one-sided and were inaccurate, and so on the specific issues that I raised, including military policies and practices, the specific facts of what happened in 2005 and 2006, and what should happen about accountability, we disagreed on all of those things.

Q: You’ve called for further investigation into the allegations laid out in the report; was there any indication that the government would consider taking this task upon itself?

A: We have not seen any indication that the government plans to investigate these things. The Myanmar National Human Rights Commission has a mandate that could include looking at these things, and we would encourage them to do that, but we haven’t seen any signs that this is going to happen soon. Our recommendation for further investigation is not only to the Myanmar government. We think that there’s a role for civil society to play, for ethnic groups to play, for human rights community to play, for the international community. And we’re encouraging all parties to begin a conversation about Myanmar’s past and about accountability for ongoing abuses.

Q: Aung San Suu Kyi has herself said that she is not interested in pursuing legal action against members of the former junta. How do you explain your clinic’s divergence with her on this issue?

A: We understand that there are opinions, including Suu Kyi’s opinion, that now is not the time to take legal action against individuals who perpetrated crimes in the past. And we think that’s an opinion that needs to be heard. What we’re concerned about is that that’s the dominant opinion being heard, at the expense of voices of a lot of other people who have different opinions.

I’ve spoken with more than 100 individuals who’ve had their lives destroyed or [have been] displaced by military conflict, and that’s a drop in the bucket. There are thousands of communities like the one that we’ve worked in and millions of people who’ve had their lives disrupted by armed conflict. Their opinions are much different than Suu Kyi’s, and I believe that their opinions are not being heard enough right now.

Q: These three men presumably are not the only government leaders who could be tried for the crimes you allege. Do you think there is a fear that any prosecution of these men could open a kind of Pandora’s Box, setting a precedent that people still in power don’t want?

A: I don’t know whether that fear exists or not, I haven’t spoken to people that would be in a place to tell me whether they’re fearful or not. What we do say is that there needs to be wider investigation. These three individuals are not the only ones that could be held accountable for similar things.

Q: Have you been in contact with groups in Kachin and northern Shan states about government offensives over the last few years there? Is a similar pattern playing out against those populations?

A: To be clear, the clinic has not investigated military conduct in the northern part of the country. But we’re very closely reviewing reports that are coming out of that area and speaking with people who have done research in those areas, and we’re concerned about the reports of attacks on villages, opening fire on villagers as they flee, torture, sexual violence, the use of civilians as human shields and forced labor. The patterns of violence and human rights abuses that we’re seeing in Kachin State and Shan State are strikingly similar to the abuses that we documented in the eastern part of the country in 2005 and 2006.

Q: What are some of the risks associated with this report’s release?

A: Certainly there are those who are saying now is not the time to be presenting information like this, but we believe that this memo and other human rights reporting are the kinds of things that will help drive forward reform. I think those who are saying that this is a risky endeavor, those concerns are overblown. What we’re trying to do is support reform efforts.