Report on Burma to the Senate, 1995

TESTIMONY OF
KAREN PARKER, J.D.

BEFORE THE
FOREIGN OPERATIONS SUBCOMMITTEE
SENATE APPROPRIATIONS COMMITTEE

JULY 25, 1995

Chairman McConnell and members of the Subcommittee:

I am pleased to provide the Subcommittee with information regarding Burma. My work has increasingly focused on Burma because as an attorney specializing in international law with an emphasis on human rights and humanitarian (armed conflict) law it has become clear that the regime in Burma is one of the worst violators of both bodies of law. For the past thirteen years, I have participated at the United Nations Commission on Human Rights and its Sub-Commission on Prevention of Discrimination and Protection of Minorities. On behalf of International Educational Development (IED) and its Humanitarian Law Project I have presented violations of human rights and humanitarian law in Burma and, at the request of her relatives, presented Daw Aung San Suu Kyi's illegal detention to the United Nations Working Group on Detention.

In 1993 I presented a statement to the Subcommittee on Asian and Pacific Affairs of the Committee on Foreign Affairs. In that statement I set out the situation in Burma from the point of view of international law norms. I then described actions taken at the United Nations and its human rights bodies, including a review of Daw Aung San Suu Kyi's case at the Working Group. This statement will set out recent events in Burma involving primarily the Karen and Karenni peoples as well as recent United Nations action.
The three features of the situation of human rights in Burma described in my 1993 statement are still valid today: (1) the State Law and Order Restoration Council (SLORC) regime is illegitimate yet continues in power; (2) the regime continues to be particularly brutal; and (3) armed conflict continues, primarily involving the ethnic nationalities who have been fighting against the SLORC regime and its predecessor governments. Violations of armed conflict law, as set out in the Geneva Conventions of 1949 and all customary humanitarian law, continue to be violated. Thus, the SLORC regime continues to commit grave war crimes.

Clearly, the recent release of Daw Aung San Suu Kyi from house arrest is a positive move by SLORC. As this occurred only a few weeks ago, it is not possible to assess the over-all impact of her freedom on political affairs in Burma. Even so, the likelihood that SLORC will voluntarily turn over power to the winners of the 1990 elections and hence to the only legitimate government of Burma seems as remote as ever -- SLORC continues to rely on the National Convention process to retard any real move towards fulfillment of the democratic process. SLORC uses this process to manipulate and play off against each other as many factions as possible to prevent political unity of opponents and to perpetuate a climate of fear and uncertainty. And, as will be clear from the rest of this statement, SLORC has launched renewed attacks on the ethnic nationalities of the area -- actually increasing its violations of armed conflict law from a previously unacceptable high.

1995 began ominously for the Karen and Karenni peoples with mass military build-ups and troop movements towards areas of the ethnic nationalities and student camps despite assurances of SLORC to the United Nations General Assembly in December 1994 that no such build-up was planned or taking place. By mid- Januaury, SLORC troops had neared Karen areas, positioned across from the Htoo Wah Lu refugee village. At the time of the February 1995 visit by the United Nations Secretary-General's Special Envoy Mr. De Soto, an all-out seige of Karen areas was taking place. By mid Winter, the Karen people were essentially driven out of Manarplaw: they either dispersed into the jungle areas or joined the new flow of thousands of refugees to the border areas.

In very recent days, reports indicate more than 100 SLORC battalions in Karen areas. For example, in the Pa-an district, SLORC battalions (light infantry) 204, 209, 203, 210, 207, 201, 205, 202, 339, 338, 317, 335, 208, and battalions (infantry) 10, 28, 38, and 230 have been sighted in rough order of sighting. This author has similar references to SLORC battalions in Shwegin, Kyaukkyi, Mon, Papun, Kawkareik, Moulmein, Tavoy-Mergui, Thanton, Kyaikto, Bilin and Theinzayat townships in Thaton district. On July 1, 1995, the Karen Human Rights Group released compelling testimony from a "village head" indicating gross torture of Karen villagers.

On March 21, 1995, SLORC and Karenni negotiators signed a 16 point cease-fire agreement in Loikaw which established SLORC and KNPP-designated areas as part of the agreement. SLORC promised to stop slave porterage in the whole of Karenni and to cease all collection of porterage fees. In spite of that agreement, on June 15, 1995 SLORC began to collect porterage fees and to recruit forcibly new porters. At the same time, a huge SLORC military build-up in Karenni-designated areas began, and by the end of that month, actual armed conflict began again between SLORC and Karenni armed forces. These actions continue today. The combination of reintroduction of slave porterage and resumption of hostilities has created a new flow of Karenni refugees into border camps and into Thailand.

From the perspective of international human rights and humanitarian (armed confict) law, the situation in Burma has deteriorated in Burma in the past year. United Nations' actions on Burma continue to focus on gross violations of human rights and humanitarian law norms and resolution of the political crisis. The Secretary-General's Special Envoy Mr. De Soto has been given a mandate to seek political reconciliation, which is as yet an ephemeral, if not unrealistic hope. However, the more important United Nations' work on Burma is centered the human rights situation, focused in the United Nations Commission on Human Rights which has appointed a Special Rapporteur, Mr. Yozo Yokota. Mr. Yokota, whose mandate has recently been extended again, has reported annually to the United Nations General Assembly and the Commission on Human Rights since 1992.

Mr. Yokota's latest report describes his fact-finding visits to Burma in 1994, which included a meeting with Secretary One of SLORC (Lieutenant General Khin Nyunt) which Mr. Yokota describes in some detail. (Yokota at paras. 25-32). As is glaringly apparent from Mr. Yokota's account of this meeting, General Khin Nyunt has a decidedly different concept of human rights than that as established by international, universal norms. Regarding the many credible and serious allegations of slave labor in development projects and for military porterage, the General claimed the "slanderous stories about forced labour were not true and were only invented by persons who did not want to see Myanmar developed, or by insurgent groups." (Yokota at para. 27). General Khin Nyunt went on to claim that the people of Myanmar are Buddhist, and voluntarily worked on development projects to enjoy better benefits in life after death. (Id). The General dismissed allegations of a more general nature by stating that only a few hundred of Myanmar's over 43 million population criticized the situation and wrote false information. (Id., para. 28). He also accused Daw Aung San Suu Kyi as being manipulated by the Communists and that she did not really understand the political chaos instigated by the Communists. (Id., para. 29). The General claimed that the international community must accept the facts of the human rights situation as he explained them and as he saw them: from his point of view, the people were not severely repressed. (Id., para. 30).

The Rapporteur had not been able to include information in his 1995 report to the Commission on the military action taken against the Karen people in early January. However, in his oral statement introducing his report, he indicated severe preoccupation with renewed slave porterage, continued arbritary execution, severe mistreatment (including rape and confiscation of goods) especially in the course of military actions against the Karen. Mr. Yokota strongly requested the government of Burma to seek a peaceful solution and to take all necessary measures to guarantee respect for human rights and all humanitarian law obligations in the Karen area.

There has also been reporting on human rights and humanitarian law violations in Burma under other mechanisms of the United Nations Commission on Human Rights. For example, Mr. Francis Deng, the representative of the Secretary-General on internally displaced persons, reported that unresolved conflicts have led to large internal and external migrations of people. The Representative estimates over 1 million people have been forcibly relocated, some due to development projects, with no compensation. (Deng, p. 25). They are even forcibly detained in their new farms, villages and relocation camps. (Id.).

The Special Rapporteur on summary executions, Mr. Bacre Waly N'diaye, expressed grave concern "at persistent reports of arbitrary and excessive use of force by members of the security forces who seem to enjoy virtual impunity." The Special Rapporteur on religious intolerace, Mr. Abdelfattah Amor, wrote that Buddhist, Moslem and Christian peoples in Burma continue to be persecuted. He reports over 1000 Buddhist monks are imprisoned and that Buddhist temples are under army supervision, some searched several times a day. (Amor, p. 64). He also reports that Moslems in Bayintnaung are threatened by expulsion and their graves desecrated. (Id.).

The Working Group on Arbitrary Detention decided that the use of military courts to try civilians opposed to the regime in power and for acts related to their opinions was a violation of Article 19 (freedom of opinion) of the Universal Declaration of Human Rights and Article 19 (freedom of opinion) of the International Covenant on Civil and Political Rights. In another case from Burma, the Working Group decided that the detention of:

(1) doctors Ma Thida and Aung Khin Sint, sentenced to 20 years for endangering public security, for having contact with unlawful associations and for distributing unlawful literature;
(2) Moe Tin, journalist and advisor to Aung San Suu Kyi sentenced to 4 years;
(3) Kyaing Ohn, linked to the National League for Democracy (NLD) sentenced to 7 years hard labor

were all arbitrary because based on protected exercise of the right to freedom of opinion and expression.

At the 1995 session of the United Nations Commission on Human Rights, a number of countries and non-governmental organizations also spoke on the situation in Burma. For example, the government of Australia demanded that SLORC cease all military action in Karen areas and against all opponents and questioned the regime's so-called commitment to national reconciliation. Australia also commented on the continued serious human rights abuses, especially forced labor, and called for complete access of the International Committee of the Red Cross to relevant areas. Norway referred to the SLORC regime's "harsh and repressive policies and practices . . . manifest through recent military attacks on the headquarters of the democratic opposition and the resulting flood of refugees in Thailand." The statement made by this author on behalf of International Educational Development/Humanitarian Law Project said:

IED/HLP welcomes the excellent report of Mr. Yozo Yokota (E.CN.4/1995/65) and commends him for his diligent and careful work for the past four years. Nonetheless, we must recognize the United Nations is at an impasse in its efforts in Burma as the situation has indeed worsened. We reiterate yet again that the representation of Burma seated by the United Nations does not reflect the will of the people expressed in democratic elections in May 1990. We also reiterate that the military regime that illegally occupies Burma is carrying out wars against the people of Burma and its ethnic nationalities in which it commits massive war crimes and crimes against humanity. In January 1995, the SLORC army forced the withdrawal of the Karen National Union from Manerplaw. The resulting military onslaught has sent thousands of new refugees across the border and displaced many thousands more in Burma. Other ethnic nationalities are at risk now, including the Karenni. We join the Karen National Union in urging that true peace in Burma cannot be achieved without addressing the underlying political problems of Burma. We urge the Commission to strenghthen its resolve regarding Burma and to make strong recommendations regarding compliance with the Geneva Conventions and the ultra vires nature of the regime in power.

The government of Burma (Myanmar) answered the allegations made against it at the Commission on Human Rights in predictable fashion: persons or governments alleging violations of human rights in Burma have "misconcenptions and unfounded allegations." The SLORC regime made it very clear that the Tatmadaw (armed forces) would continue to play a strong role. SLORC also circulated a letter to the Commission in which it set out unsubstantiated claims that the Karen National Union (KNU) targeted civilians, defended forced labor as "justified" because of the economic needs of the country, and reiterated again the prominent role of the Tatmadaw.

The United States did not make a statement regarding Burma at the 1995 session of the United Nations Commission on Human Rights. France and Sweden continue to present resolutions on Burma (Myanmar) at the Commission on Human Rights and at the United Nations General Assembly. The recent Commission resolution 1995/72 on Burma is, nonetheless very strong, and invokes not only human rights but humanitarian law.

It is important that this Subcommittee and indeed all legislators keep in mind the gravity of the violations of human rights and humanitarain law now occurring in Burma. For example, because the slave porterage occurs in the context of an armed conflict, it constitutes a serious war crime. Even before the post-World War II ennumeration of humanitarian norms in the Geneva Conventions of 1949, slave porterage and other violations of SLORC against the peoples of Burma and Karenni were considered war crimes. During World War II these acts were determined by international legal experts and scholars to be violations of international law binding on all nations at that time. They were identified as war crimes and crimes against humanity in the Control Council Law No. 10, (Control Council Law, Official Gazette of the Control Council for Germany, No. 3, Jan. 1946, reprinted in 1 The Law of War: A Documentary History (L. Friedman, ed., 1971)), the Charter of the International Military Tribunal (Charter of the International Military Tribunal, annexed to Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, in force Aug. 8, 1945, 3 Bevans 1238, 1240 (Nuremberg Charter)), and the Charter of the Military Tribunal for the Far East (The Charter of the Military Tribunal for the Far East, 4 Bevans 20, 27 (Tokyo Charter)). The definition of war crimes and crimes against humanity in the Nuremberg Charter reads:

(b) war crimes: namely, violations of the laws and customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation for slave labour or for any other purpose of the civilian population of or in occupied territory . . ..

(c) crimes against humanity: namely, murder . . . enslavement, deportation or other inhumane acts against the civilian population, before or during the war. (Nuremberg Charter, art. VI (b) & (c)).

The Tokyo Charter duplicates this language in the definition of crimes against humanity and does not list any examples under the definition of war crimes. Tokyo Charter, art. 5 (b) & (c). Control Council Law 10 lists some inhumane acts: "(c) crimes against humanity [are] atrocities and offenses, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape or other inhumane acts committed against the civilian population." Control Council Law 10, art. II (c).

United States policy regarding the situation in Burma depends a great deal on the willingness of the United States to make its foreign policy conform to international human rights and humanitarian norms and its interest in protecting American-owned business for potential international liability due to SLORC's war crimes. If it chooses to, the United States can have a significant role in assuring a just settlement of the conflicts with the ethnic nationalities and SLORC, in bringing about democracy to Burma and in assisting the democratically-elected government fulfill its obligations to its people.

To date, at the United Nations, the US position regarding Burma continues to be lukewarm at best. Regardless of the reasons (deference to China, the realities of the ethnic conflict are the most commonly cited), this author continues to insist that US policy should and can change as follows:

1. The United States should recognize the National Coalition Government of the Union of Burma (NCGUB) as the legitimate government of Burma.

2. The United States should focus its attention on the armed conflicts in the area and the many violations of armed conflict law being carried out by the SLORC forces. Such a focus, besides being legally and logically sound, can also help were the United States to seek further economic sanctions against SLORC. There should be a Special Envoy to study the conflicts in light of international humanitarian law norms and report back to the Administration and Congress. The United States should provide other humanitarian assistance to victims in conformity with the Geneva Conventions. All effort should be made to prevent arms from reaching SLORC forces.

3. The United States can alone or with others present Burma at the Security Council for action by that body. The United States should not be deterred by any maneuvers to protect SLORC. Issues raised at the Security Council should include at least war crimes, the arms trade and meaningful sanctions against SLORC. In the event that the United Nations credentials SLORC, the United States should invoke Article 32 to assure participation of the National Coalition Government of the Union of Burma (NCGUB) and the Karenni State in any discussion of Burma. The United States should also play a more prominent role at the United Nations Commission on Human Rights and work to enlarge the mandate of the Commission's rapporteur to enable him to more fully address the armed conflicts in Burma, to respond on short notice to the increasing crises, and to monitor reconciliation efforts.

4. The United States should cooperate with the United Nations Secretary-General and his good offices in seeking immediate resolution of the situation in Burma, including the armed conflicts. The United States should encourage formulation of a clear mandate for the envoy of the Secretary-General and the facilities for carrying out that mandate.

5. The United States should call on its businesses to refrain from any economic activity in Burma that favors SLORC. United States businesses are in aggregate the second largest investors in that country, and many of these businesses may be unaware of the humanitarian law implications for them.

6. In addition to diplomatic ties with the NCGUB, the United States should seek regular and cooperative support for the combined opposition groups and for the Karenni State and should consult with them on a regular basis.

7. To foster adequate human rights reporting at the United Nations regarding the situation in Burma, the United States should make a voluntary contribution to the United Nations Human Rights Division and provide any impartial assistance the Special Rapporteur or other UN functionaries require. The United States should forward relevant communications to the Rapporteur and the Human Rights staff. The United States should also make a substantial voluntary contribution to the United Nations High Commission for Refugees to aid the many victims.

8. The United States should provide emergency humanitarian aid directly to those most effected by gross violations of humanitarian law -- the ethnic nationalities of Burma and Karenni.