25.02.2007
From UNSC to ICC
Last days of SPDC
_ By Dr San Oo Aung
Sir Winston Churchill once said, “We must fail forward to success. Success is the ability to go from one failure to another with no loss of enthusiasm.”
SPDC was gloating for their “success” at UNSC vote regarding Burma (Myanmar) issue. However, we, the people of Myanmar and opposition had never lost. We were not disappointed because of the delays in getting democracy. We look at the UNSC voting as a win-win situation for all of us. May be SPDC could claim, "The battle is won”, but we strongly warn them that that there are a lot of battles in the pipeline and that one we lost was not the war but just an initial battle. Moreover, the people of Burma would definitely win that decisive war over SPDC in a near future.
The former Superman actor Christopher Reeve also said,”I think a hero is an ordinary individual who finds strength to persevere and endure in spite of overwhelming obstacles.”
We all need perseverance only. We need to do proper analysis to know what went wrong and must try, try and try again. We need to initiate a renewed attack at UNSC and the International Criminal Court as a two-pronged attack.
Trying to push for the UN Resolution on Myanmar is actually a win-win situation for us. See, although SPDC escaped UN action with the help of vetoes from unholy alliance of Russia & China, they were forced to make concessions to UN, like releasing Ko Min Ko Naing & 88 Generation Student Leaders. Therefore, we could claim that we win, although we failed to get a resolution. If SPDC failed to compromise in our renewed attack, UNSC has to take action on them.
The previous UNSC resolution had been vetoed by the Russians and Chinese, by giving the excuse that they did not feel Burma, as a threat in the region and UNSC is not the proper forum or place to discuss Burma/Myanmar issue. As they are holding the veto power, there is no use to argue or reason with them any more. According to the ten ways of Burmese traditional arts of talk, we need to use the method of Kauk_pin Yake_hlee or the way we catch hold of all the paddy plants with one hand and use the sickle in another hand to cut the whole bunch with one stroke!
Yes, we need to tell Russia and China that they were right in stating that the UNSC is not the proper stage to discuss Myanmar issue. Therefore, we all need to request them to support the new resolution of UNSC to submit or propose the (ICC) International Criminal Court to accept the complaints about the alleged accusation of attempted Genocide, Crimes against Humanity and Ethnic Cleansing cases to investigate, start a prosecution and prepare for trial proceedings. In addition, there is some evidence of nuclear weapons programs which SPDC is carrying out with the help of North Korea, Iran, Pakistan and (Russia). (May be we need to drop Russia because once their name is in that accusation, they would start the denial even at the start and would definitely block the resolution.)
Once ICC accepts the attempted genocide case, UNSC must take action, Russia and China cannot veto in such a case. However, the Catch 22 position is although there are thousands of complaints to ICC they would not simply accept the case and there is only three cases under their belt. They have their own criteria to accept the cases.
How cases reach the ICC
There are four methods by which a case may reach the ICC:
1. A state party refers the case;
2. A country that has chosen to accept the Court's jurisdiction refers the case;
3. The United Nations Security Council refers the case; or
4. The three-judge panel authorizes a case initiated by the ICC Prosecutor.
The Court to exercise its jurisdiction only under certain limited circumstances, namely:
1. Where the person accused of committing a crime is a national of a state party (or where the person's state has accepted the jurisdiction of the Court);
2. Where the alleged crime was committed on the territory of a state party (or where the state on whose territory the crime was committed has accepted the jurisdiction of the Court); or
3. Where a situation is referred to the Court by the UN Security Council.
As SPDC is not going to refer its own case or likely to give a voluntary consent, we need the third criteria, to be referred by the UNSC.
Security Council responsibility to protect
UN Security Council Resolution 1674, adopted by the United Nations Security Council on 28 April 2006, "reaffirms the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity". The resolution commits the Council to action to protect civilians in armed conflict.
The International Criminal Court
In 2002, the International Criminal Court (ICC) was established in The Hague (Netherlands) and the Rome Statute provides for the ICC to have jurisdiction over genocide, crimes against humanity and war crimes. Article 7 of the treaty stated about crimes against humanity in detail: _
Crime against humanity
For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
According to the Commentary on the Rome Statute:
Isolated inhumane acts of this nature may constitute grave infringements of human rights, or depending on the circumstances, war crimes, but may fall short of meriting the stigma attaching to the category of crimes under discussion.
On the other hand_
(a) an individual may be guilty of crimes against humanity
(b) even if he perpetrates one or two of the offences mentioned above, or
(c) engages in one such offence against only a few civilians,
(d) provided those offences are part of a consistent pattern of misbehavior by a number of persons linked to that offender (for example, because they engage in armed action on the same side or because they are parties to a common plan or for any similar reason.)
(e) Consequently when one or more individuals are not accused of planning or carrying out a policy of inhumanity, but simply of perpetrating specific atrocities or vicious acts, in order to determine whether the necessary threshold is met one should use the following test:
(f) one ought to look at these atrocities or acts in their context and
(g) verify whether they may be regarded as part of an overall policy or
(h) a consistent pattern of an inhumanity, or whether they instead constitute isolated or
(i) sporadic acts of cruelty and wickedness.
UN Security Council responsibility
UN Security Council Resolution 1674, adopted by the United Nations Security Council on 28 April 2006, "reaffirms the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity".
Therefore, I strongly believe that there are more than enough evidences for the indictment of SPDC Generals with Genocide and Crimes against Humanity.
Depayin massacre alone could be enough for preliminary indictment. If combined with the atrocities in the ethnic minority area and their religious persecutions, our indictments would strongly stand as the castle built on solid rock. SPDC Generals could not have any solid ground of defense and their defense would collapse like a hut built on quick sand.
We just need to push international community to start the lobby for a trial of these SPDC leaders, cohorts and supporters at the ICC. If we could persuade UNSC to refer the SPDC Junta’s attempted Genocide, Crimes against Humanity and Ethnic Cleansing, our case is sure to win. If we could obtain the International Warrants of Arrest for the SPDC Generals, their mobility would be restricted and they may even scared of venturing into the International Air space on the way to their friendly countries.
Moreover, it may be a major moral boost for all of us fighting for democracy and may be a very severe blow morally and physically to SPDC Generals and their soothers, ASEAN, Thailand, China, India, Russia, and North Korea etc. However, those above mentioned pacifiers are actually propping up and defending the SPDC for their own selfish greedy desire to continue exploit profits from Myanmar/Burma. And they would definitely try to block the action of UN, USA, UK, EU and all of us to prosecute the SPDC Generals.
And this definitely is the last chance for the Myanmar SPDC Junta to repent. If they ignorantly miss this last chance, sooner rather than later they will find themselves in the dock facing attempted Genocide and Human-rights crimes charges at International Criminal Court.
Please click here to sign the Petition to UN Security Council to help STOP ATROCITIES in Burma.
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