HOUSE COMMITTEE ON FOREIGN AFFAIRS
SUB-COMMITTEE ON ASIAN AND PACIFIC AFFAIRS
Chairman Ackerman and members of the Sub-Committee:
I am pleased to have this opportunity to provide the Sub- Committee with information regarding Burma and my views on what United States policy should be towards that country. I am an attorney specializing in international law with an emphasis on human rights and humanitarian (armed conflict) law. For the past eleven years, I have participated at the United Nations Commission on Human Rights and its Sub-Commission on Prevention of Discrimination and Protection of Minorities.
I have worked with International Educational Development (IED) and its Humanitarian Law Project to present the United Nations with the violations of human rights in Burma, especially in relation to the armed conflicts in that country and the regime's dismal record of compliance with minimum humanitarian law norms. We presented Daw Aung San Suu Kyi's case to the United Nations Working Group on Detention at the request of her relatives.
This statement will set out the situation in Burma from the point of view of international law norms. It will also present actions taken at the United Nations and its human rights bodies, including a review of Aung San Suu Kyi's case at the Working Group. It will conclude with recommendations regarding United States policy.
There are three salient features of the situation of human rights in Burma: (1) the current regime is illegitimate; (2) the regime is particularly brutal; and (3) there is wide scale armed conflict, primarily involving the ethnic nationalities who have been fighting against the SLORC regime and its predecessor governments.
ILLEGITIMACY OF SLORC
Burma is now ruled by the State Law and Order Restoration Council (SLORC). After heavy pressure from the United Nations, in particular its Commission on Human Rights, SLORC informed the Commission on January 29, 1990 that elections would be held on May 27, 1990. Election were indeed held on May 27, 1990, overwhelmingly won by the opposition National League for Democracy. However, SLORC refused to turn over power to the winners and remains in power today. The winners of the elections have been killed, imprisoned or forced into internal and international exile. Survivors have formed the National Coalition Government of the Union of Burma (NCGUB).
International human rights law provides that "the will of the people shall be the basis of the authority of government." Under international law, the NCGUB is the only legitimate government of Burma because it is the government chosen by the people. SLORC, having lost at the ballot box, cannot be called and should not be treated as a legitimate government.
Even so, SLORC continues to carry out the governance of Burma and continues to be recognized by the international community, including the United States. Well aware of its own illegitimacy, SLORC has specifically sought activities to "justify" itself in the eyes of its own people and the international community.
One method used by SLORC is to appear to set up a post-electoral process for determining the political future of Burma. For example, SLORC selected some political figures to attend a constitutional convention (called the National Convention) to draft a new constitution as a necessary requirement to any change in government. The National Constitution was suspended after convening briefly in January 1993 and at the time of this writing has yet to be reconvened. Given the past performance SLORC, no credence should be given to this convention even if it reconvenes -- SLORC will annul any outcome not fully in its favor.
Because of its illegitimacy, SLORC "should not be allowed to represent the peoples of Burma in Burma, at the United Nations or anywhere. All acts of the regime are ultra vires and should be given no legal effect, whether these acts purport to ratify treaties, to rename the country or to hold a "convention" in which it will draft a "constitution" for the country."
GROSS VIOLATIONS OF HUMAN RIGHTS
In part because of its loss of legitimacy and the resulting difficulties in maintaining government control, since May 1990 the SLORC regime has been one of the worst violators of human rights in the world. In addition to the complete lack of political freedom the people of Burma suffer summary executions; torture; arbitrary arrest and detention; denial of respect for freedom of the press, religion, association and assembly. Economic, social and cultural rights are also severely violated, and include the ecological plundering of Burma. Literally no human right is unaffected.
The Subcommittee has most certainly been presented with ample evidence of most violations -- evidence also presented to the United Nations Commission and Sub-Commission. For example, at its 1993 session, the U.N. Commission had before it the report of its rapporteur for Burma Mr. Yozo Yokota as well as reports from thematic rapporteurs and working groups. Concerns about the appalling situation in Burma were also presented by a variety of governments, including Australia, Barbados, Japan, Poland, Russian Federation, Finland, Norway, Canada, Chile, France, Sweden, Hungary, Switzerland, the European Communities and the United States and by many other non-governmental organizations. Six Nobel Peace laureates also made an appeal to the Commission, urging, inter alia, action at the Security Council.
At the 1993 Commission session, the Commission's Working Group on Arbitrary Detention issued it opinion regarding the detention of Aung San Suu Kyi in response to our petition, finding:
The detention of U Nu and Daw Aung San Suu Kyi is declared to be arbitrary, being in contravention of Articles 9, 10, 11, 19 and 20 of the Universal Declaration of Human Rights and articles 9, 14, 19 and 21 of the International Covenant on Civil and Political Rights and falling within categories II and III of the principles applicable to the consideration of cases submitted to the Working Group.
The situation in Burma is compounded because of long-standing oppression of the ethnic nationalities in the territory. Many violations of human rights of these nationalities occur in the context of the armed conflict to be discussed below. The UN concern for these issues is reflected in its resolution 1993/73, presented by France, which largely repeats concerns raised by the General Assembly in its resolution 47/144, presented by Sweden.
In spite of the illegitimacy of SLORC and its dismal human rights record, the most serious aspect of the situation in Burma is the armed conflict raging there. This situation is frequently omitted in discussions about Burma in spite of the fact that two of the most frequently raised human rights issues -- the forced labor of porters and large numbers of refugees and internally displaced persons -- arise out of the armed conflict. Because of the gravity of the violations of applicable humanitarian law, the armed conflict in Burma therefore warrants considerable attention now.
Omission of discussion of the armed conflict has helped to foster the notion that all major human rights problems in Burma will be solved with removal of the SLORC regime and the transfer of power to the NCGUB. However, there are underlying problems, especially regarding ethnic nationalities, that had led to armed conflict pre-dating SLORC. For a number of years, the ethnic nationalities -- the Karen, the Mon, the Kachin, the Shan and the Karenni have fought for their rights against successive regimes. While true that the current armed conflict combines the issues of the ethnic nationalities with the opposition Burman political agenda, it is also patently obvious that any future government in Burma will have to address the aspirations of the ethnic nationalities in a genuine and sincere way.
The SLORC regime has sought to keep the international focus on the human rights situation rather than the armed conflict. This has been for several reasons, including the obvious one that it is better to be viewed as a human rights violator than a war criminal. SLORC clearly does not want to be put in the league to which it belongs -- that of the former Yugoslavia. Also, attention to the armed conflict draws attention to the underlying situation of the ethnic nationalities which the regime wants to avoid.
At the United Nations sessions SLORC has heavily resisted any discussion of humanitarian law and the armed conflict in Burma. For example, in response to our testimony at the United Nations, the SLORC right of reply statements refer to the resistance fighters as armed terrorist insurgents. The SLORC delegation has attempted to intimidate me and my organization because we persist in due attention to the armed conflict and humanitarian law violations. At the 1992 session of the Sub-Commission the SLORC representative, answering our allegations, stated
[O]n behalf of my government I should like to lodge a strong protest against the presence of certain individuals in this room. One or two have even taken the floor. These persons are nothing but unsavory elements who have joined forces with armed terrorist groups operating in the remote border areas of Myanmar. These groups have been committing acts of terrorism and atrocities against innocent civilian populations. These characters are being patronized by certain NGOs misusing their prerogative and who wish to fish in troubled waters for their own personal interests.
The SLORC regime also heavily resists any mention of the Geneva Conventions in the various resolutions that the United Nations bodies have tabled, and apparently has tried to severely limit the role of international humanitarian ad to the victims of armed conflict.
There are actually several armed conflicts in Burma: one is between the SLORC army and the opposition forces under command of members of the National Democratic Front (NDF) or one of several other groups controlling armies that with the National Democratic Front are part of the Democratic Alliance of Burma (the DAB). The other armed conflict is between the SLORC army and the military forces of Karenni State.
The NDF/DAB-SLORC War
The NDF/DAB-SLORC armed conflict meets the customary international law test for civil war -- armed conflict between government forces and opposition forces who, under responsible command, exercise sufficient control of territory to carry out military operations and to be able to carry out obligations under humanitarian law. The SLORC forces clearly carry out military actions against the NDF/DAB forces. The NDF/DAB has a clear chain of command and is able to sufficiently control and govern liberated areas now totalling 20% of Burmese territory. The NDF/DAB leadership and forces accept the rights and duties of humanitarian law in all aspects of their armed resistance to the illegal SLORC regime. Accordingly, all humanitarian law rules applicable to civil war apply to this armed conflict. And, the SLORC characterization of the combatants as terrorists is legally incorrect.
The SLORC forces are among the worst offenders of humanitarian law norms in recent times -- literally all of the most egregious war crimes are everyday occurrences in the course of the SLORC war. Violations occur against POWs and the civilian population alike: torture and execution of protected POWs; slavery, forced labor, torture of porters, rape, forced relocations, military actions carried out against the civilian population, destruction of the means of subsistence of the civilian population. These acts, violating the Geneva Conventions and customary humanitarian law, are grave breaches (war crimes) and should be treated accordingly.
The Democratic Alliance of Burma has recently requested international assistance in addressing three urgent problems arising from the war: (1) the situation of combatants of the armed forces of the SLORC regime that DAB forces are currently holding as prisoners of war; (2) combatants of DAB forces that the SLORC regime has captured and is severely mistreating; and (3) the renewed attacks the SLORC forces are carrying out against civilians in the liberated areas.
The NDF/DAB armed forces are currently holding a number of combatants captured from the SLORC forces. Some of these POWs are severely wounded, and medical personnel have provided emergency treatment for them in conformity with Geneva Convention obligations. However, these wounded need continued care. They seek to turn them and the other non-wounded POWs over to a third party, such as another government, in order to best ensure their safety and in order to comply with the mandates of humanitarian law. These combatants cannot be turned over to the SLORC forces because there are no assurances that the SLORC regime will care for and protect their own returned combatants.
The SLORC regime is ready to carry out renewed extensive military operations against civilians. These new operations represent a major escalation of the savage actions carried out in previous offensives. During last year's offensive, 20,000 villagers were used as slave porters, and 100,000 to 200,000 civilians fled the well armed SLORC troops who relentlessly attacked Manerplaw. Nearly 70,00 sought refuge in Thailand. At the Manerplaw front, poorly-trained teenage SLORC conscripts were sent in human waves against the Karen positions. During that time, the SLORC forces also attacked the Arakanese Muslim areas, resulting in 300,000 Rohingya refugees in Bangladesh.
More recently, SLORC forces have again targeted the civilian population. For example, on October 27, 1992, the Karen village of Ler Moo Plaw was bombed by fixed wing aircraft belonging to SLORC forces at a time when many residents were in the fields harvesting crops. Twenty (20) were killed and sixty (60) wounded in this illegal military operation. Then, on November 1, 1992, the village of Htee Moo Kee was similarly attacked, leaving seven (7) dead and two (2) injured. Similarly, the SLORC forces have begun a fierce offensive against the Kachin people, and have attempted to use chemical weapons. New shipments of arms are arriving, especially form China.
The Karenni - SLORC War
The SLORC war against the Karenni forces must be addressed separately because the Karenni State is not now part of the NDF/DAB. The Karenni State has historically maintained itself independent of Burma and has consistently invoked the right to self-determination. The state, comprising approximately 4,800 square miles alone the Thai border, has formed a government with a President, Mr. Kawkasa Saw Maw Reh, a Prime Minister, General Mahn Aung Than Lay, a Foreign Minister, Mr. Abel Tweed, and numerous other officials for internal affairs, agriculture, finance and the like. The government has a legislature of district representatives. From the Karenni legal point of view, the Karenni armed conflict against SLORC is either an international armed conflict or a war of national liberation/self-determination.
According to the Karenni, the SLORC regime is attempting to deprive the Karenni of their sovereignty -- a right granted to them in the Burmese Constitution of 1947. In violation of that Constitution, the regime refers to them as a minority within the political domination of the government of Burma.
To support the Karenni claim of independence, the Karenni show that they have maintained themselves sovereign for several thousand years in spite of long periods of oppression by the Burmese, who attempted to subjugate them under their rule; the British, who tried and failed to incorporate them into British- ruled Burma; and by the succession of post-colonial regimes including SLORC. Accordingly, the Karenni are not a minority within the domination of Burma -- they are an independent people meeting every international test for self-determination.
The right to self-determination has been subject to careful scrutiny in reports prepared by two United Nations Special Rapporteurs, Hector Gros Espiell and Aureliu Critescu. Although each rapporteur addresses the issue from different mandates, they concur regarding the basic elements of the right to self-determination -- elements that the Karenni claim to meet:
(1) historical independence;
(2) an identifiable territory;
(3) a distinct culture, language and traditions; and last but not least,
(4) a strong national commitment to independence and a demonstrated willingness to fight for it.
The following statement by the Karenni Ambassador at Large See Sein illustrates the Karenni position:
"Our willingness to fight for our sovereignty is clearly demonstrated by the fact that we have been in a continuing war against successive Burmese regimes since 1948 and we have never ceded that sovereignty. Our military commanders have been brilliant against seemingly overwhelming odds. Our armed forces now receive instruction in the Geneva Conventions of 1949 and the Protocols Additional of 1977 which we have ratified. We solemnly pledge to the international community that while we will never abandon our quest for independence, we will comply with the international standards for war when we must defend ourselves militarily. We also pledge that we will seek out the S.L.O.R.C. perpetrators of war crimes against our people and will try them in our already established military courts.
Karenni seeks recognition and support for our sovereignty and our rightful place as a member of the United Nations. We also ask the international community to come to the aid of the people of our fellow state, Burma, to overcome the long years of oppression by the illegal S.L.O.R.C. regime. We are deeply moved by the sufferings of the ethnic nationalities in Burma as well as those of the Burmese political opposition. We long for the day when a free Burma and a free Karenni stand side by side as full partners."
As in the NDF/DAB armed conflict, the SLORC forces are particularly gruesome in the war with Karenni forces, violating every principle of humanitarian law set out in the Geneva Conventions and other international instruments. The SLORC forces enslave Karenni civilians as porters for their army, they torture and kill captured Karenni combatants, and carry out military operations against Karenni civilians and communities. Many Karenni have been forced to flee their traditional areas and live in refugee camps across the border in Thailand.
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. If it chooses to, the United States can have a significant role 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 has been lukewarm at best, and other governments have taken the leadership in sponsoring action. Regardless of the reasons (deference to China, the realities of the ethnic conflict are the most commonly cited), US policy should and can change as follows:
1. The United States should recognize the National Coalition Government of the Union of Burma as the legitimate government of Burma. It should accept the credentials of the NCGUB Ambassador and should credential the US Ambassador to the NCGUB. The United States should lead or support efforts at the United Nations to accredit the NCGUB as the true representation of the people of Burma. The United States should encourage other states to accredit the NCGUB.
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 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 assist opposition forces regarding captured POWs and 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 Chinese 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 the NCGUB and the Karenni State in any discussion of Burma.
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.
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. A voluntary contribution should also be made to the United Nations High Commission for Refugees to aid the many victims.