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
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
(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
(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
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
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.