News
The Global Justice Center calls on France to take measures to end ongoing impunity in Burma
February 10, 2010
In response to the French Foreign Ministry's statement on January 27, 2010, regarding the continued imprisonment of Aung San Suu Kyi, the Global Justice Center wrote and distributed the following letter highlighting France's obligation to pursue a referral to the International Criminal Court for Burma. In the letter, the Global Justice Center highlights the various human rights violations that require urgent action from France.
Below is the text of the letter in English. You can download the letter in English here and in French here. Appendix to the letter available here.
RE: Response to the Ministry's Press Release on Burma, January 27, 2010
Dear Minister Kouchner,
This letter is in response to the public statement by the French Ministry of Foreign Affairs on January 27, 2010, which calls on the military junta in Myanmar/Burma to release political prisoners, including Aung San Sui Kyi, and further to make "concrete gestures" towards reconciliation prior to the junta's planned 2010 elections.
This statement fails to mention that these political imprisonments constitute grave crimes perpetrated at the direction of Senior General Than Shwe. Nor does it mention that the military's upcoming elections are to implement the 2008 constitution, which seriously breaches peremptory norms. The jus cogens crimes and serious breaches perpetrated with impunity in Burma impose non-derogable obligations on France and other countries to take measures to end impunity and to treat the constitution and elections as "null and void."
The Ministry's failure to either call for the junta to cease political imprisonments and other grave crimes or to demand that prisoners be accorded their rights to redress and reparations upon release, flouts both the letter and spirit of jus cogens principles.
We have long admired France's uncompromising stance, as a permanent member of the Security Council, on the need to end impunity for state-perpetrators of gross violations of international humanitarian law (IHL). We particularly note your personal commitment to these issues as reflected in the January 2009 concept paper to Security Council members on increasing accountability measures for violations of IHL.
It is within the context of France's historic leadership on ensuring global accountability that we urge you to personally clarify the position of France in regard to the impunity accorded crimes in Burma, including serious breaches of the Geneva Convention. We respectfully urge you to consider the following points:
- 1. Impunity for Use of Child Soldiers in Burma: During the period that France has served as head of the Working Group on Children in Armed Conflict, the Secretary General listed Myanmar as a consistent violator of prohibitions under Security Council Resolution (SCR) 1612 on the criminal use of child soldiers. Despite commitments to ensure accountability, Burma continues to recruit child soldiers with impunity.
- 2. Impunity for Sexual Violence in Burma's Armed Conflict: France was a strong proponent of the passage of Security Council Resolution 1820 to end impunity for crimes of sexual violence in armed conflict. The Secretary General's first Report on SCR 1820 to the Security Council, on June 15, 2009, listed Burma as a violator country, detailing the lack of criminal accountability for crimes of sexual violence perpetrated by the military against ethnic women in areas of armed conflict. No concrete actions have been taken to enforce SCR 1820 and Burma continues its assaults with impunity.
- 3. The Geneva Conventions and Burma: Burma has been in continuous armed conflict for over 50 years and is required to comply with Article 3 of the Geneva Conventions and other precepts of international humanitarian law. Despite ongoing serious breaches of the Conventions by the military, the global community has failed to take action on Burma necessary to "ensure respect" for the Geneva Conventions. The International Committee of the Red Cross (ICRC) issued a "public condemnation" of Burma's violations of the Geneva Conventions on June 27, 2007. This public call followed a detailed protocol including that all subsidiary measures to protect the victims of armed conflict had failed and that the ICRC had personally observed IHL crimes by the military. The ICRC described the military's violations of the Geneva Conventions as "major and repeated" and called on the international community to follow through with its commitments "to respect and to ensure respect for the [Geneva] Conventions."
- 4. Prevention of Genocide in Burma: The International Court of Justice (ICJ) decision in 2007 clarified that, "separate from the obligation to punish", the Genocide Convention imposes an obligation on all state parties to "employ all means reasonably available to them, so as to prevent the genocide" once a risk of genocide is made known. This "obligation of conduct," regardless of its likelihood of success, has been triggered with regard to Burma including by: the authoritative global indices listing Burma as one of eight "red alert" states at risk of genocide; the inclusion of Burma as a state monitored by the UN Special Advisor on the Prevention of Genocide; and the fact that the UN Under-Secretary has initiated at least one confidential briefing in which he raised concerns on Burma to the Security Council.
In addition, on February 3, 2010, the Appeals Court of the International Criminal Court clarified that the level of proof on genocidal intent sufficient to support an arrest warrant is lower than proof of intent required at trial. Given the decades of the military strategically perpetrating crimes against the ethnic people in Burma, we urge France to reconsider its position on Burma in light of this opinion.
- 5. Burma's Constitution and the Duty of Non-Recognition: The 2008 Burma constitution embodies serious breaches of peremptory norms. First, by providing the military junta with amnesties for all ICC-covered crimes, the constitution precludes any accountability in violation of treaty law and jus cogens principles. Second, by removing all military courts from any civilian oversight, including by the President, Parliament or Supreme Court, the constitution violates Article 3 of the Geneva Conventions. The International Law Commission's Draft Articles on the Responsibility of States for Internationally Wrongful Acts is clear that in response to these breaches France has a duty of non-recognition and must treat both the constitution and elections as null and void. The Security Council applied these precepts in SCR 554, mandating that states regard the 1983 South African apartheid constitution and elections as null and void.
- 6. The Ministry's statement on January 27 calling for "concrete gestures," without further action, is inappropriate in the context of addressing a situation arising out of serious breaches of peremptory norms. The Ministry's statement fails to address Burma's ongoing violations of Security Council mandates, including under SCRs 1325, 1820, 1888, and 1889, which not only prohibit amnesties but call for lustration and vetting. The constitution, however, turns the concept of vetting on its head by ensuring that key positions in any new government will be occupied by men who are potentially criminally culpable for committing war crimes, crimes against humanity, or genocide. If the French Ministry decides to cooperate in these elections, it could present complications for the government, particularly, since French law, under universal jurisdiction principles, acknowledges the gravity of torture and provides an avenue for prosecuting office holders from Burma who present on French territory. Prosecutions for torture could encompass rape used as a weapon of war (See appendix on French legal obligations).
- 7. The Ministry's January 27, 2010 statement should take into account the May 22, 2008 Resolution of the European Parliament on Burma. This Resolution called for members to reject the "the sham constitution, and...the implausible outcome" and urged EU members to press for a Security Council referral of Burma to the International Criminal Court.
We call upon France to take leadership on the issue of Burma at the Security Council and to call for a Chapter VII resolution declaring the 2008 constitution and elections null and void and referring Burma to the ICC. Such action would demonstrate the vitality of France's commitments as expressed on November 11, 2009 by Gerard Araud, Permanent Representative of France to the UN: "...States must prosecute and punish those responsible for violations of human rights and international humanitarian law. That requires carrying out impartial and independent investigations. Should there be a failure to do so, international criminal justice systems must try the most serious crimes. France calls upon all States to accede to the Rome Statute and to cooperate with the International Criminal Court. Without real punishment there can be no prevention or discouragement of such crimes...."
Burma's continuing impunity for crimes of concern to the global community encourages dictators everywhere, threatens the fundamental precepts of our world order, and perpetuates the suffering of the people of Burma who have known no life other than being prisoners in their own country.
We urge France to act now.
If not France, then who?
Sincerely,
Janet Benshoof
The Global Justice Center is a New York based international human rights organization that provides leaders with legal tools and strategies for enforcing human rights law.
To arrange interviews or for more information on the situation in Burma, please contact Janet Benshoof at jbenshoof@globaljusticecenter.net or Phyu Phyu Sann at psann@globaljusticecenter.net.