A legal evaluation of the use of torture and inhuman treatment against women and children over an extended period of time by Junta Military in Burma.
Chapter One: Abuse and its Context:
Despite the rise and the development of elaborate systems of human rights laws and frameworks which are designed to respect and protect human rights norms domestically, regionally and internationally, the plight of human rights abuse still occur across the globe.[1] In many societies, human rights abuse occur as a systematic apparatus of the state to enforce power and control on citizens in pursuit of what can only be described as selfish national and international governmental agendas.[2] An example of such a society is Burma; a country that has been under the rule of the military junta for more than four decades with all the by-products that can be expected of such a regime; blatant violation of every conceivable human right. This paper is aimed at conducting a legal evaluation of the use of torture and inhuman treatment particularly against women and children within Burma over an extended period of time by the Junta Military. Burma’s reputation on the global stage is conceived within the context of a continuous stream of human rights abuse and atrocities occurring within its borders.[3]The use of torture as an apparatus to enforce the state’s power and control over its citizens has been manifested in a number of ways including torture of women, children and political prisoners.
The focus of this paper is on the use of torture against women and children by the Junta military so as to assess the role played by international law in holding the Burmese government accountable for their atrocities. The defining characteristic of Burma is the fact that little is known about the country with a population of almost 48 million. Although Burma was previously known as the ‘Rice Bowl of Asia’ it is now regarded by the UN as being one the least developed countries in the world despite having a vast array of rich natural resources including oil, gas, wood, rare gems etc.[4] The ruling Junta military spends up to 60 per cent of the national budget in sustaining the military even though Burma faces no direct armed threat.
Since the current military dictatorship acceded to power in 1962 Burma has been blighted by ethnic violence. The Junta military are primarily responsible for campaigns of violence including ethnic cleansing through counter-insurgency schemes including the use of execution, torture, rape, forced labour and displacement of large sections of the population as weapons of control over its citizens. The focus of this paper is twofold: firstly to concentrate on the use of rape against women and secondly the use of forced labour against children as weapons of torture employed against ethnic minority communities in Burma. It has been identified in several reports including the UN Special Rapporteurs reports,[5] Amnesty International Reports,[6] and Human Rights Watch Reports,[7] that the Junta military have since their accession to power engaged in gross sexual acts against women and also for forcing children into the labour market in blatant violation of the provisions of the Convention on the Rights of the Child. These acts have primarily occurred in regions with high levels of ethnic minorities where the Junta military have concentrated their condemnable operations as a form of strategy for targeting ethnic minorities.
The human rights abuse directed against ethnic minority women and children also form part of a much broader scheme of human rights abuse within Burma including arbitrary execution, murder, arbitrary detention and the displacement of ethnic minorities by the ruling Junta.
Despite the fact that Burma in recent times has made moves towards realising greater democracy and respect for human rights principles by developing a new Constitution in 2010 and the holding of ‘democratic’ elections in 2010, there remains evidence of the continuance of human rights abuse and disregard for the rule of law. The primary aim of this paper is to explore the ways in which international law and international organisations such as the United Nationscan intervene and exercise control as well as regulation in holding the Burmese government accountable for its crimes against humanity; an international offence for which there is no defence.
It is important to note that there are two key issues which arise when analysing human rights abusein Burma.
Firstly, Burma is not a party to many international instruments on human rights. This creates a specific difficulty in assessing the accountability of the Burmese government against defined international human rights standards. Therefore, one of the core issues to be addressed relates to the impact as well as role of international law in attempting to effectively command accountability for human rights abuse outside of the traditional human rights frameworks.
Secondly, as little is known about Burma there are a few difficulties in the ability to obtain accurate information as to the practice and operation of the Junta military against Burmese children and women. Although the UN and other international Non-Governmental Organisations (NGOs) such as Amnesty International and the Human Rights Watch have been able to undertake fact finding missions on the extent of the abuse of human rights within the country,[8] the persistent denial by the state in relation to the atrocities which have long become the norm creates a barrier to the establishment of a human rights accountability framework. The Shan Rape Report which dates back a few years for instance, confirms that more than 500 women were raped by Burmese army soldiers in 2002;[9] a report which met with the government’s customary denial of the extent of decadence within its regime.
The lack of an effective legal system respecting the rule of law has led to the specific difficulty of holding the Junta military accountable for these appalling actions against women and children. In particular, the difficulties centre on the lack of human rights framework, inefficient legal systems and a deliberate lack of accurate information regarding the extent and the nature of human rightsabuse and more specifically, the torture and rape of women and the slavery conditions in which children are forced into labour.
Colonialism and the Creation of ‘Ministerial and Frontier Burma’.
An underlying cause of the use of torture against women and children is in part due to the history of Burma. Burma’s colonisation under the British Empire from 1886 led to a division of the country between the administrative central states referred to as “Ministerial Burma” whilst the other less influential states were at the margins of Burma and were known as “Frontier Burma”.[10]This division served to further marginalise the ethnic minority most of who lived in the Frontier Burma. Walton confirms that this division by the British led to a distinction in the treatment of the inhabitants of both states.[11] Burmese independence was eventually attained with the assistance of the Japanese after World War II on the 4th January 1948 when Burma became a republic.[12]However, by 1962 General Ne Win managed to overthrow the democratic system in a coup-d’état in favour of military power.[13]
The removal of the democratic system of power represented the first step towards isolating Burma from the rest of the world in social, political and economic terms.[14] An independent uprising ensued in 1988 when the Burmese people began to demonstrate their opposition to the widespread poverty driven by the way the country was being run by the Junta military. Although the methods of protest were peaceful, it was a level of defiance that the Junta military was not prepared to accept. In culling the independence protests the military reportedly rounded up and machine gunned more than 10,000 protestors as a suppressant to others with a national appetite for independence.[15] The socialist structure of the state has also led to a central but powerful military dictatorship placing the power within the hands of the Junta military. Although the ruling Junta attempted to appease protestors with limited economic, social and political reforms during the 1990s, their grip on power remains strong. Further uprising by the Monks in 2007 has led to the socialist ruling party’s development of a ‘democratic’ constitution in 2010 with ‘democratic’ elections occurring in 2010. However, the process towards democracy has been beset with difficulties and oppositions from within the Junta military and indeed interference from geopolitical countries like India and China.[16] It remains to be seen whether Burma is in fact moving towards a democratic ruler whether these more recent attempts at developing democratic values is merely a smoke screen intended for the relaxation of the international isolationist economic policies or sanctions against Burma.
Burma’s Economy and Human Rights Abuse:
Despite the fact that Burma retains substantial and vast arrays of precious natural resources including the much sought after mineral resources, the country remains in economic depravity with the vast majority of its population living in abject penury; yet another governmental strategy to continue to perpetuate human rights abuse on its helpless people. This suggests that there is indeed a link between poverty and the relentless violation of human rights; a link which will be further explored in this paper. Immediately apparent from the suggested link is the enforcement of child labour on children.
Of utmost importance is the evaluation of the role thus far played by international law in holding the military government in Burma accountable for the rape, torture and other inhuman treatment of women and children within its borders.
Chapter Two: International Law& the Violation of Human Rights in Burma
The central problem in analysing the law applicable to Burma is the fact that the country is characterised by a lack of respect for international law and norms both at the domestic and international levels. Within Burma’s domestic legal system, Order 1/99 specifically prohibits the use of torture and forced labour, but there has been a complete lack of enforcement by domestic officials in the countless of cases of torture, rape and child abuse. Attempting to establish and apply remedies at the national level may therefore constitute an exercise in futility. This prompts the necessity to move to analysing applicable international law in the context of human rights abuse. However, Burma’s record on the international stage in implementing laws of universal recognition and acceptance is equally dismal. To begin with, Burma is not a party to many important international treaties and conventions respecting human rights. In particular, Burma is not a member of International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Committee on the Elimination on All Forms of Racial Discrimination (CERD), the Convention Against Torture (CAT), the Rome Statute or even the Slavery Convention of 1926. These conventions represent the baseline minimum expectation from countries around the world in the treatment of their citizens and others. The very fact that Burma is not a party to these standards creates a central difficulty in achieving accountable human rights standards for the citizens of Burma. Having said that however, the torture imposed on Burmese women and the enforcement of labour on children is repugnant to natural justice, abhorrent and immoral; along with genocide, war crimes and other such inhuman treatment of human beings, it is universally regarded as legally and morally wrong. Does this then nevertheless impose compliance on Burma under customary internal law given its universal recognition and acceptance?
Burma, the Geneva Conventions and Customary International Law:
Customary international law aside, against the context of a dismal human rights record, Burma voted in favour of the Universal Declaration of Human Rights (UDHR), the Declaration of the Right to Development and the Declaration of the Rights of Indigenous People. Furthermore, as Burma is party to the UN Charter the country and its government are obligated “to promoting and encouraging respect for human rights and for fundamental freedoms.”[17]Therefore, at a minimum, Burma is under an obligation to respect and observe the most fundamental of human rights including right against torture and the Rights of the Child regardless of race, ethnicity, religion etc. and is obligated to investigate thoroughly any violations of human rights norms.
It is also noteworthy that Burma is obligated under ‘the first three Geneva Conventions of 1949’, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the Convention on the Rights of the Child (CRC), the Convention on the Prevention and Punishment of the Crime of Genocide (The Genocide Convention) and the International Labour Organisation’s (ILO) Forced Labour Convention 29. However, a central problematic issue which arises in using these conventions and treaties to evaluate Burma’s use of torture against women and children is that whilst Burma has signed up to realising these standards, it has nevertheless failed to implement them within its domestic legal system. Therefore, whilst Burma has international obligation to respect these rights it is more of a façade as their realisation within Burma is non-existent. Therefore, as already mentioned above, perhaps the most effective yard stick with which Burma performance or otherwise in terms of its compliance with fundamental human rights is through the country’s obligations under universally recognised and accepted norms and values; customary international law
Article 38(1) of the International Court of Justice Statute (ICJ) establishes the applicability of international customary and peremptory norms binding upon all states regardless of whether states have chosen to accept these standards or not.[18] The ICJ has held that customary international law can be considered an unwritten binding set of international norms which have become binding upon all nations by virtue of state practice and the international belief of their existence as fundamental norms of human rights through Opinion Juris.[19] In essence customary international law forms part of international customary practice which is considered a minimum standard of state practice required for the treatment of citizens within a country’s borders.[20] In relation to torture, a fundamental part of customary international law is jus cogens principle which forms part the general norms of customary international law from which no derogation is permitted and the norms are applicable to all nations.[21]Jus cogens norms prohibit the use of any form of torture by the state, its agents or non-state actors.[22]
Therefore Burma’s obligations under customary international law include the prohibition of crimes against humanity; which in turn encompasses crime of murder, torture, slavery, child labour, arbitrary detention and related offences which are equally repugnant to natural justice. Additionally, Article 1 of the Geneva Convention prohibits genocide in all its forms and Article 3 of the Geneva Convention also prohibits summary executions and torture. Rounding up and machine gunning over 10,000 people of ethnic minority therefore as was the case in the Rwanda genocide can also be seen as a crime against humanity. Furthermore, the UDHR provides specific protection for the ‘right to life’ and the freedom from ‘summary execution’, the ‘right to security of the person’ and ‘the freedom from torture’.[23] Children are also protected within the CRC requiring that they receive an adequate level of nutrition, clothing and housing[24], the protection from sexual abuse,[25] the protection from being child soldiers[26] and the right to health.[27]
Therefore, it is possible to map out a minimum level of international norms that apply to Burma in the context of the torture of women and children. However, an important point to consider is the position of the abuse under discourse within the context of international law. This section will now turn to examining where the abuse of women and child fit internationally as a human rights abuse.
Over the past three decades sexual violence has become recognised as an international crime of torture, as a constituent element of genocide, as a grave crime against humanity and as a breach of the 1949 Geneva Convention. Traditionally, sexual violence and abuse was conceived as being an attack against the honour and dignity of the person but not as a serious act of violence or torture. However, in the development of international law, sexual abuse has been increasingly recognised as being a crime of violence constituting torture. For example, the Statute of the International Tribunal for Rwanda(ICTR) expressly incorporates rape or forced prostitution or any indecent assault as being within Article 3 of the Geneva Convention. The first international judgement to characterise rape as being torture came in the trials under the International Tribunal for Yugoslavia (ICTY).[28]
Furthermore, the crime of rape has also been defined as being a constituent element in the crime of genocide.[29] The ‘Genocide Convention ‘bans acts which are “committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group …”[30] Although the Genocide Convention does not expressly refer to the crime of rape, the decision in Prosecutor v Akayesu[31] held that sexual violence can be prosecuted as being part of the crime of genocide.
The widespread use of sexual violence against women and children has also been viewed as grave crimes against humanity alongside other serious crimes of murder, torture, slavery, imprisonment etc. The Akayesu judgement of the ICTR articulated a broad definition of rape to allow it to be defined and prosecuted as a crime against humanity. This approach was approved in Tadic by the ICTY in 1997 where systematic rape and torture of women and children were used as an apparatus of the state to force control and power over its citizens in Yugoslavia.[32]
Finally, the spate of sexual torture, slavery/forced labour, trafficking and violence visited on the Burmese women, girls and children in general is repugnant to all that natural justice stands for in any country and in any language. Rape assumed the status of a war crime in the ICTY in the Furundzija judgement.[33] It also transpired during the International Tribunal of Crimes Against Women of Burma held in New York in March 2010 that not only were Burmese women and girls of ethnic minority violently sexually assaulted, raped and tortured sexually, they were also trafficked across geopolitical borders into countries like China and India as sex slaves, last visited 11th May 2012).
Therefore in summary it can be concluded that despite Burma’s dismal record of compliance or no-compliance with international human rights law, it is nonetheless far from exonerated from the violent and sexual torture of women and children as well as child labour by the Burmese soldiers under customary international law. However, it is no secret that one of the major problems facing the international community is the enforceability or lack thereof of customary international law. The next logical step in this research is therefore to examine the application of the relevant laws by the international community as a mechanism to control and regulate the conduct of the Junta military in Burma.
Chapter three: UN’s Response:
Democratic rule effectively came to an end in Burma in 1962 following the coup staged by the military. Along with the end of democratic rule came an equal end to the fundamental human rights of the people of Burma. The military junta has since ruled the country with what is best described as an iron fist; breaking down oppositions, heavy oppression of the people and most despicable of all, sexually torturing, violence against women and girls, forcing g them into the sex trade, selling them on to the highest bidder in the case of women and child trafficking. The Burmese soldiers have visited all manners of highly illegal, abhorrent and amoral acts against the ethnic minority; most notably women and children. When General Saw Maung staged the country’s second coup d’état over two decades ago and renamed Burma as Myanmar, hopes of a better treatment of the people were soon dashed as the previously widespread human rights abuse under the first regime soon went up even higher under the new military junta. Since then, several thousands of children have been forcefully recruited as child soldiers,[34] the fundamental human rights of ethnic minorities and political dissidents continue to be habitually violated, women and girls are violently raped, sexually tortured and sold into sex slave trade. These atrocities and crimes against humanity have not gone unnoticed by the international community as the resounding and powerless voices of the victims; both at home and the lucky few who managed to make it abroad, continue to call for assistance from the international community. NGOs such as Amnesty International as well as Human Rights Watch as well as other private reporters have continued to uncover cases of extreme disregard for human rights and crimes against the citizens of Burma. None of this is news to the international community. The pertinent question therefore is; what is the United Nations prepared to do to put a stop to the reign of terror in Burma; or in light of the country’s recent move towards democratisation; what actions have been taken by the UN and the international community as a whole to assist the people of Burma and to put a stop to the sexual torture, violence against women and children and forceful recruitment of child soldiers.
The United Nations and Burma:
As the custodian of world peace and security, the United Nations and in particular, the Security Council could have done more to curb the excesses of the Burmese soldiers long before now.[35] This is yet another criticism that the international body has been levied with along with its slow rise to assist in the Rwanda genocide and other such failures. Forsythe however confirms that as far back as the 1990s, the United Nations and its agencies had launched attempts to arrest the violation of human rights and the appalling conditions to which women and children were subjected in Burma.[36] The United Nations and its agencies attempted to persuade the Burmese government; the SLORC/SPDC, to mend their ways and to bring Burma into more conformity with the expectations of international law in terms of the respect for human rights. The SPDC in particular had become renowned for its violent targets of ethnic minorities and blatant abuse of their human rights. Not only did the military forces brutally rape the women, forcible relocation of ethnic groups, torture and beatings of women persisted.[37]Although some progress was recorded, such progress did not in any way make any significant difference. Even though the country signed up to the Convention on the Right of the Child as far back as 1991, it has been more of a superficial rather than significant development as children continue to be exploited sexually, are forced into sex trade and/or sold into the neighbouring countries and the forceful recruitment of child soldiers persisted. Children as young as 11 were being recruited forcefully into the Tatmadaw with Burma arguably training more child soldiers than any other war torn country in the history of international politics.[38] Child soldiers younger than 11 were nevertheless held against their wish until they were 11; no visits to or from family members allowed; they were sent into neighbouring villages to steal or engage n labour, and there were reportedly children as young as four being held at the training ground.[39]It is even more hypocritical of Burma that it signed up to the Convention on the Discrimination against Women (CEDAW) in 1997 and yet, its women were being regularly raped or worse. Rape, the victims revealed, was indeed used by the Burmese military as a as a strategy of war in Karen state.[40]Taking more of an observatory step initially, the General Assembly Third Committee of the UN deliberated over the human rights abuse in Burma on an annual basis and passed, each year, a resolution which was largely non-binding citing several human rights abuses within the country, including but not limited to the sexual torture of women and young girls, forced labour on children and detention without due process.[41] The UN Commission on Human Rights (CHR) based in Geneva also became involved in the fight to make Burma conform to the norms of international law and to desist from violating the most fundament of human rights. As far back as 1992, the CHR passed a resolution with a mandate for the appointment of a special rapporteur on human rights in Burma under Yokota Yozo of Japan. Since this time, more than 47 visits have been made to Burma by UN Envoys and Rapporteurs on fact finding missions and the Secretary General has also visited twice.[42]Each of these visits confirmed continued non-compliance with international law with regards to the observance and respect of human rights. Any intended progress was truncated with the government’s blatant refusal to grant access to the victims of human rights violation; the sexually tortured and violently raped women and children as well as the forcefully recruited child soldiers.[43] Also of significant disadvantage to the possibility of any progress in Burma was the fact that the neighbouring countries such as India and China did very little, if anything, to assist the UN in effecting the economic sanctions and resolutions placed on the Burmese government for its brutal treatment of the women and children within its territory. The United Nations nonetheless succeeded in getting the regime’s attention and registering the international community’s dissatisfaction with the relentless violation of human rights within the country. It was not, regrettably, until the end of 2005; more than 40 years after military occupation and systemic rape, torture and a stream of other inhuman treatment of women and children among other violated human rights, that the United Nations took decisive action against the SLORC/SPDC.Recognising the threat Burma spelt for peace not only within its sovereign walls but possibly beyond, the UN Security Council decided to step up the efforts of both the General Assembly and the HRC.[44] The report commissioned by the former President of Czech Republic and the world famous religious leader; Archbishop Desmond Tutu referred to the country as Burma rather than the Myanmar it was christened following the second coup. Confirming that the international community and UN’s interest in Burma dated back many years, the report identified that perhaps even now beyond the violation of fundamental human rights; which in itself is a grave offence, Burma appeared to have become a potential problem of regional and international proportions.[45]
Development Strategies: Mounting Up the Pressure:
The Report commissioned by the former President of Czech Republic and Archbishop Desmond Tutu confirmed that Burma was indeed ripe for UN Security Council intervention given its long history of human rights abuse, crimes against its women and children and human trafficking among several others.[46] Amidst speculations that this belated response to the Burmese situation from the UN Security Council and the unmistakable support of the USA and British government had more to do with the progressive development China had been recording in recent years and the threat this held over the West than genuine concern for a country that had been ravaged by war, human rights violations, displacement of ethnic minority groups, sexual torture of women and girls as well as forced labour in minors, the UN Security Council formally placed Burma on the agenda by the 15th of September 2006.[47]Concurrently, while one fraction called for more stringent sanctions on the Myanmar or Burmese military junta for it violation of human rights, others were more in favour of a democratic movement and argued that the West and its sanctions was doing very little to make this a reality.[48] The most conspicuous oppositions against a Security Council intervention came from China and Russia in January of 2007; resulting in the failure to adopt a draft resolution. Meetings and attempts to reason with the military regime leaders therefore continued until 2007. Matters began to come to a head, ironically with very little input from the UN when in February 2007, the human rights group; Karen Women Organisation accused the Burma military, not for the first time, of killing, raping and torturing ethnic Karen women.[49]Similar reports were received by the UN Special Rapporteur on Violence Against Women and Girls in Burma for the extraction of information and bribes from female members of the ethnic minority group.[50]The pressure began to mount from here onwards and it was evident, not only to the international community but also to the Burmese military junta that the pressure was getting tougher and higher both within and outside its walls. A phenomenal incident on the 24th of September 2007 would, as they say, clinch the deal, and mark the country’s move towards a much awaited transition.
Democratic Development:
Following a couple of botched attempts at democratic rule, Burma citizens were at the end of the proverbial road with the military junta they had been stuck with for almost half a century. The final straw came later in 2007 in what was initially a protest about yet another hike in fuel prices, close to a hundred thousand protesters; such figure as had never been seen since the massacre of 1988, flooded the streets in Ragoon in a demonstration which more or less told the government that enough was enough. The last democratic or pro-democracy movement in 1988; the 8888 uprising when thousands of students, professionals and housewives took to the streets to protest against the stifling rule of the military junta, had been so violently repressed by the Burmese military. Nevertheless, in May 1990, so-called democratic elections were held by the government and the party of Aung San Suu Kyi won more than 80% of the available seats. National League for Democracy however never got to assume power which had been rightfully vested on it by the members of the public, instead, the State Peace and Development Council assumed power right to the end of its military rule in 2007. It can be argued that the natural disaster of 2008, the Cyclone Nargis also played its part in the eventual meltdown within the Burma Military camps. As defiant as ever, the Burmese military rejected Washington’s and the West’s offer of assistance and delivery of aids for the homeless.[51]A few months therefore, the people again mounted a formidable opposition against the government. Minority ethnic groups in Han Chinese, and Va were amongst the protesters which saw a full blown war break out necessitating some refugees crossing into neighbouring China.[52]Thus began the countdown to democratic rule in the war torn, country where violations of human rights, forced labour, rape, sexual torture of women and girls, women and children trafficking as well as sex slavery had been had been ongoing for well over 40 years. In 2010, general democratic elections were held under a surprisingly peaceful atmosphere. There were however arguments at the time; mainly from the West, to the effect that the elections had been rigged.[53] Rigged or not, the fact of the matter is that so much has changed and there are movements towards national reconciliation, mixed economy and eradication of the violation of human rights. It would therefore appear that at long last, the women and children of Burma can live a life free of fear of daily sexual torture and violent rape; a novel experience to the large majority of them given the 40 year rule of the military junta.
Chapter Four – Alternative Strategies
The new Burma, which has now been renamed the Republic of the Union of Myanmar is indeed a changed and better governed people with the observance of fundamental human rights unlike the previous regime. Political prisoners have been released, the leader of the pro-democracy party NLD, had also been released from house arrest and many other positive changes have been recorded in Burma. Freedom of speech and less gagging of the press, introduction of reforms which are aimed at effectively rectifying the mistakes of the past and re-integrating Burma into the ASEAN as well as international communities are also some of the developments under the new democracy. Amidst the euphoria of the transitional government however, lingers fear that this might be a short lived victory; after all the military remains somewhat involved in the country’s politics. The international community is gazing intently at the developments within the country as is the regional community. In a rare show of partisan, China had voiced out at the time of the civil war preceding the democratic rule that it hoped Burma would resolve its domestic affairs without rendering the region vulnerable.[54] It is fair to say therefore that all eyes are on the new Burma for continued observance of all the values and ethics it has sworn to as a democratic government. In the spirit of national reconciliation and restitution however, and for any chance of lasting peace, it would be impossible for the victims of such horrendous crimes perpetuated by members of the dissolved military junta to find any form of closure without the criminals being brought to book. Petitions have been submitted to the international community to this end; helping the victims of the grave brutalities, some of who are scared for life, many of who are dead, to bring the military junta and most notably its leader, Than Shwe, to justice.[55] Of the crimes listed on the petition are war crimes and crimes against humanity both of which comprise of the sexual torture of women and children, forced labour on children and death through violent sexual attacks. Granted there are already very encouraging developments such as the vital support that the international community is providing to the country and the fact that the economic and political sanctions previously imposed have been lifted. America’s Secretary of State, Hillary Clinton,[56] visited Burma in 2011 in a show of the country’s support for the new government. The pertinent issue however remains the measures through which the international community can hold the previous regime accountable for its actions. Not unlike the case of Rwanda, Cambodia (even though these were cases of genocide, other crimes against humanity such as the sexual torture and enforced child labour Burma witnessed was also rampant), the International Court of Justice should investigate the authenticity of the reports from various groups as to the extent of the crimes committed against women and children in Burma. To date, the United Nations has failed to bring charges of crimes against humanity to any member of the military junta despite the pleas of the Burma Democratic Concern (BDC) to this effect. Criminal accountability is sought by the people and it is important to building the future.[57] However, as history evidences, the collection of relevant information necessary for a successful trial, rallying of victims together and other related actions might take a while. In the meantime however, measures must be put in place to ensure the continued smooth running of the new democratic government; to dissuade potential planners of another coup d’état (another crucial reason to ensure that the previous ones are brought to book for their criminal acts) and to assist in integrating Burma into the world’s economic and global village. After all, as a country with vast resources which have hitherto been squandered, a free Burma stands to contribute positively to the world’s economy.
The Delivery of Justice for the Crimes of War and Crimes Against Humanity; the sexual torture of women and children in Burma:
In March 2011, the UN confirmed that it had extended the mandates of the Special Rapporteur on the human rights as well as Special Rapporteur on Torture situations in Burma. It was agreed that more information was needed and that as such a fact finding operation should be launched for the next year.[58] There are already hundreds of reports about the systematic sexualized violence unleashed on women of ethnic minority during the military junta’s reign of terror. Many women reported being kept as house helps cooking, cleaning, washing and undertaking general duties by day and being gang raped by Burmese soldiers at night.[59] The junta legitimised rape and all but gave licenses to its soldiers to enslave and rape women and girls. Justice for this must be delivered by the international community if future occurrences are to be deterred. Special Rapporteur McDougall reported systematic rape, sexual slavery and slavery like practices during armed conflict in Burma. This is a job for the International Criminal Court (ICC) formed under the Rome Statute. On the backdrop of the knowledge that there is no development without justice,[60] the United Nations and the international community in general must bring Burma’s military rulers to book. Human Rights activist groups and NGOs across the globe such as Amnesty International, Human Rights Watch, Human Rights Asia, Women Under Siege, Karen Women Organisation, Women of Burma and many others are calling for justice.
Alternative Strategies:
By virtue of the Vienna Declaration and Programme of Action, of 1993, which lays emphasis on the Universal Declaration of Human Rights, Burma’s call upon the international community for redirecting itself to ensure that the discrimination women continue to experience, the enslavement, sexual violence and torture comes to an end by serving justice to those involved is justified. While the additional information and more concrete evidence requested by the General Assembly for the preparation of a case to be presented to the ICC is ongoing, there are other alternative strategies that can be adopted to ease the burden of the women and children who have been tortured and enslaved for the past forty years. First and foremost, all those who have been displaced or forced to relocate by the military junta must be reassigned their old properties if they are still available or adequately compensated by the government. Needless to say, any case of rape reported going forward under the new regime must be effectively punished to teach others a valuable lesson. Children who were forced to join the army should be returned to schools. It may however prove necessary first and foremost to provide some of them with psychological assistance prior to their return to their families and to school. Victims in general should be compensated. The ultimate compensation of course, comes when Than Shwe and his officers are brought before the ICC in the Hague for their war crimes, crimes against humanity, sexual torture and violent rape of women, systematic enslavement and the use of violent sexual attacks as a weapon during the interminable rule of the military junta.
The United Nations, the United States, international community as a whole and NGOs, some of the prominent ones have already been mentioned, can assist Burma or indeed the people of the Republic of the Union of Myanmar to realise their new goals of social, political, economic, educational and political stability. Of paramount importance to the survival of the young democratic rule however, as can reasonably be imagined, is the establishment, implementation and sustenance of a new human rights strategy after the intention of the Universal Declaration of Human Rights as well as the Vienna Declaration. To this end, the emulation of Western human rights policies may be helpful at this point in time. The sanctions and restrictive parameters as well as embargoes placed on Than Shwe and his officers by the international community should also be lifted to afford the new government a much needed flexible economic, social and political play ground. All measures which promote the freedom, security and welfare of the people of the Republic of the Union of Myanmar should collectively be afforded the country by the international community.[61]
Conclusion:
Without a shadow of doubt, Burma is one of the countries in the world with the longest reign of the military junta which lasted well over 40 years. The deplorable state of the economic, social and political sectors of the country are indicative of the kind of leadership the military junta ran. Even more indicative is the evidence of the blatant disregard for the international community, lack of respect for the rule of law and by principle of association, due process of law, extreme violation of fundamental human rights, particularly against women and children. Not only were young girls also victims of systematic rape and sexual torture but children as young as 4 or 5 were reportedly held at the training camp without any contact allowance between them and their parents. Many of these child soldiers were reportedly aged 11 and under. Despite sanctions being levied against the country and its officials, numerous visits from members of the UN and subsequently Special Rapporteur, the Burmese army continued to unleash terror, torture and slavery on the women and children of minority ethnic groups within the country. Other violation of human rights identified include imprisonment without due process, massacre; which can very easily be referred to genocide and as such escalating the offences of the military junta to the same scale as that of the officials in Rwanda and Cambodia; war criminals who committed crimes against humanity. It remains unclear at this stage, given the deliberately inaccurate information the government passed on at the time and the gagging orders on the media, just how many thousands of people lost their lives between 1962 and 2011 when the military junta was finally dissolved. Records vigorously and relentlessly sought by the international community and NGOs however evidence that more than 3000 students were killed during the 8888 uprising alone; that 10, 000 protesters were also lined up and machine gunned for daring to protest against the military government and that hundreds of women or more were brutally raped, violently assaulted sexually and sold across the borders as sex slaves on occasion. As pressure mounted both within and outside Burma, the military junta began to crumble and there was also a little force majeure assistance in the form of the Cyclonic Nargis in 2008. Thanks to the collective efforts, Burma, the new Myanmar, is today a democratic country where, hopefully, violation of human rights in general will no longer form any debate but where also the women and children will be adequately protected as per the provisions of the Convention on the Protection of the Child and CEDWA; both of which the country is a signatory to. The current government, the NLD, is presently enjoying some of the international benefits that were otherwise unavailable to the military junta and these include the vital support of the West and the international community as a whole. In economic terms, it is only a matter of time, one political and economic stability are achieved, before international investors begin to flock to the resource rich country as the in and outflow of foreign direct investment multiplies. Be all this as it may however, a crucial part of the transition and indeed future of the country remains perched on the international community’s responsibility to ensure that those reasonable for the unimaginable torture and rape of the women and children as well as child labour are singled out and brought to book in the near future; there is, after all, no development without justice.
