A decommissioned inquiry on Myanmar

By Simon Roughneen 

When United Nations human-rights rapporteur Tomas Ojea Quintana recommended that the UN consider the establishment of a Commission of Inquiry (COI) into alleged crimes against humanity committed by the country’s military rulers, the proposal was widely supported by Western countries, including the United States, that maintained economic sanctions against the country. 

Depending on the proposed commission's findings, Myanmar's former ruling generals and current governing ex-generals could some day be tried in some form of international tribunal or at the International Criminal Court. The proposed COI would determine whether or not charges should be brought against Myanmar's rulers and would likely focus on the Myanmar army's well-documented abuses in the ethnic minority-populated borderland regions. 

The establishment of a COI seemed a remote possibility at the outset, given that UN Security Council unanimity would likely be needed to authorize it. China and Russia have vetoed past motions against Myanmar. However, Myanmar's recent reforms - including the establishment of a domestic human-rights commission - and a growing Western desire to engage with Myanmar's nominally civilian government, means that realpolitik will likely trump any purely legal basis for a COI. 

David Clair Williams, a law scholar at Indiana University who has testified at US congressional hearings on Myanmar, told Asia Times Online that "a COI should be all about guilt or innocence in the past, not reform now, and the integrity of international law and justice for the victims demand that they be tried and punished - even if [Myanmar] were to become wholly free and democratic tomorrow." 

Elections held in November 2010 saw a landslide win for the Union Solidarity and Development Party, a political front for the military, in a poll dismissed by Western governments as fraudulent and where the main foreign observation work on the day was led by the North Korean Embassy. 

Subsequently, a civilian administration was formed in March 2011, albeit one comprising only four non-army ministers out of a total of 30, and headed by President Thein Sein, a former general and prime minister under the outgoing military junta. A decree budget announced after the elections and two months before the government was inaugurated allocated 25% of annual spending to the army. 

Thein Sein surprised many observers with his reforms, including a relaxation of some of the world's strictest censorship, new allowances for citizens to stage public demonstrations and form unions, as well as the release of some of the country's hundreds of political prisoners. 

In turn, recent months have seen a procession of high-profile international diplomatic visitors to Myanmar, with US Secretary of State Hillary Clinton being the highest-profile. Her arrival was followed by visits from her British counterpart, William Hague, last week and in between by financier-speculator George Soros, a long-time funder of exiled Myanmar opposition groups. 

Despite the recent reforms and exchanges, Myanmar is still far from a functioning democracy. In retrospect, the army devised budget was partially aimed at waging war against Kachin insurgents in the north - a continuation of the type of conflicts that warranted Quintana's suggestion that a COI be established. 

There are now rumors of a behind-the-scenes tussle between hardliners and reformers inside the government, with a swing constituency of fence-sitters waiting to back whoever appears to have the upper hand, according to leaked US Embassy cables dating from the pre-reform era. 

Hints that this internal struggle continues came as recently as last week with a January 4 Independence Day speech by President Thein Sein extolling the military and channeling ghostlike the speeches of past dictators. Over 200 political prisoners were freed last October, but last week another prisoner amnesty saw only 34 political detainees released, leaving anywhere between 500 and 1,500 still in jail. 

With the threat of backsliding still looming large - de facto opposition leader Aung San Suu Kyi said last week that the army could yet derail Myanmar's nascent reforms - some observers say that it is important to encourage Thein Sein's reform process and not play into the hands of hardliners by pushing for the creation of a COI. 

Assessing the situation, Williams said that "the promise of warmer relations with the West is apparently working to cause flickers of progress. The threat of a COI might thus undercut progress. So, yes, I think that the international community is likely to put it on the back burner for now." 

Aung San Suu Kyi - another beneficiary of reforms in that her previously banned National League for Democracy party will run in upcoming by-elections set for April - said in June 2011 that she supported the establishment of a COI. But both Clinton's and Hague's visits have seen an apparent retreat from those countries' previous strong support for the COI. 

During Hague's visit last week, a spokesperson for the Foreign and Commonwealth Office told Asia Times Online by e-mail, "We share concerns over continuing human-rights abuses in [Myanmar], and we have consistently pushed for the strongest resolutions possible on human rights in [Myanmar] at the UN General Assembly. 

"The last resolution was arguably the strongest yet, and passed with a record majority. We agree that mechanisms must be found to deliver a credible response to allegations of human-rights abuses in [Myanmar], and a Commission of Inquiry would be one means of achieving this goal." 

During her early December 2011 visit to Myanmar, Clinton signaled to the Myanmar government that the COI would be shelved in the hope that Myanmar's reforms would include "an internal mechanism accountability". 

She said that the US wanted "to give the new government and the opposition a chance to demonstrate they have their own approach." In an e-mail to Asia Times Online, a US State Department spokesperson confirmed that Clinton's stance remained the US position. 

But exiled Myanmar opposition groups and human-rights organizations are unlikely to drop the issue, which optimists believe might be raised in future if Myanmar ever has a functioning democratic government with some form of peaceful settlement in ethnic regions. 

Whether there can be "peace without justice", as in countries such as South Africa, Sierra Leone and the former Yugoslavia, where either truth commissions or war crimes trials or both were used to dispense justice and play a part in post-conflict political transitions, is still unclear. 

That said, other places such as Northern Ireland have not gone down the transitional justice path, leaving it a moot point for now whether Myanmar will ultimately have to "exhume the ghosts of the past and consolidate a democratic future", as academic Williams puts it. 

Simon Roughneen is a foreign correspondent. His website is www.simonroughneen.com

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