04.03.2007
Junta’s Attempted Genocide & International Courts
_ By Dr. San Oo Aung
Adoption and entry into force of the Rome Statute
Following years of negotiations, the General Assembly convened a conference in Rome, Italy, in June 1998, with the aim of finalising a treaty. On 17 July 1998, the Rome Statute of the International Criminal Court was adopted by a vote of 120 to 7, with 21 countries abstaining.
Crimes within the jurisdiction of the Court
Article 5 of the Rome Statute grants the Court jurisdiction over four crimes, which it refers to as the “most serious crimes of concern to the international community as a whole”: the
1. crime of genocide,
2. crimes against humanity and
3. the war crimes. The statute defines each of these crimes.
4. (I decided to leave the forth without mentioning as its definination was not agreed yet.)
Cases before the Court
As of November 2006, the Chief Prosecutor of the International Criminal Court, Luis Moreno-
Ocampo, had received 1,700 communications about alleged crimes in 139 countries. However, 80% of these communications have been found outside the Court's jurisdiction.
The Prosecutor has so far opened investigations into just three situations only:
(a) Uganda,
(b) Democratic Republic of Congo, and
(c) Darfur.
Genocide
Genocide is the mass killing of a group of people as defined by Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG) as _
"any of the following acts committed - - -
1. with intent to destroy ( in whole or in part),
2. a national, ethnic, racial or religious group, as such:
a. killing members of the group;
b. causing serious bodily or mental harm to members of the group;
c. deliberately inflicting on the group conditions of life,
d. calculated to bring about its physical destruction in whole or in part;
e. imposing measures intended to prevent births within the group;
f. and forcibly transferring children of the group to another group."
Genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a nation.
It is intended to signify _
1. a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups,
2. with the aim of annihilating the groups themselves.
3. The objectives of such a plan would be the disintegration of the political and social institutions :
a. of culture,
b. language,
c. national feelings,
d. religion, and
e. the economic existence of national groups, and
f. the destruction of the personal security,
i. liberty,
ii. health,
iii. dignity, and
iv. even the lives of the individuals belonging to such groups.
According to the Swiss professor Julia Fribourg, the term "genocide" includes displacement of national groups from their homelands with an aim of destroying their cultural and habitational grounds.
SPDC have being blatantly, widely and continuously using this specific term of GENOCIDE, annihilating, in their signboards and billboards.
(i) The objectives of such a plan would be the disintegration of the political parties and SPDC is doing this on NLD and all the opposition parties openly.
(ii) Regarding the social institutions, of culture, language, national feelings, the SPDC is doing this on Mon, Shans, Chins, Kachin, Karens, Rakhines and almost all the Ethnic Minorities.
(iii) Religion. SPDC is committing this on especially on:
(a) Muslims, Burmese Muslims especially on Rohingya Rakhine Muslims,
(b) Christians: especially Karens, Chins, all other Christians in Myanmar
(c) Buddhist Monks in the opposition or Monks who refused the SPDC Generals donation were disrobed, jailed and tortured.
(iv) And regarding the economic existence of national groups, SPDC is committing this on all the people of Myanmar/Burma.
(v) And SPDC is openly doing all what they could for the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to all the above groups.
(vi) The scope of Genocide is broadened at the present time, as it included not only physical genocide, but also acts aimed at destroying the culture and livelihood of the group.
Genocide as a crime under international law
Lemkin successfully campaigned for the universal acceptance of international laws, defining and forbidding genocide. This was achieved in 1948, with the promulgation of the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG).
CPPCG coming into force
The CPPCG was adopted by the UN General Assembly on 9 December 1948 and came into effect on 12 January 1951 (Resolution 260 (III)). After the minimum 20 countries became parties to the Convention, it came into force as international law on 12 January 1951.
It contains an internationally-recognized definition of genocide which was incorporated into the national criminal legislation of many countries, and was also adopted by the Rome Statute of the International Criminal Court, the treaty that established the International Criminal Court (ICC). The Convention (in article 2) defines genocide as "any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such:"
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
SPDC is doing all these on all the above groups or categories eg:
(a) all the people of Myanmar/Burma.
(b) all the Ethnic Minorities eg Mon, Shans, Chins, Kachin, Karens, Rakhines etc
(c) NLD and all the opposition parties open
(d) Muslims, Burmese Muslims, Christians and even Buddhists .
The words "in whole or in part" were inserted in the text to make it clear that it is not necessary to aim at killing all the members of the group. So SPDC junta can be charged with attempted genocide accordingly.
If essentially the total leadership of a group is targeted, it could also amount to genocide. Such leadership includes political and administrative leaders, religious leaders, academics and intellectuals, business leaders and others –
(a) Daw Aung San Suu Kyi and NLD leaders’ arrest,
(b) U Khun Htun Oo and Shan leaders arrested are included in the definition of Genocide.
A. Thus, the intent to destroy the fabric of a society through the extermination of its leadership, when
B. accompanied by other acts of elimination of a segment of society, can also be deemed genocide.
Intent
It is the element of intent to destroy a designated group in whole or in part, which makes crimes of mass murder and crimes against humanity qualify as genocide.
To be accepted as a genocide within the meaning of the Convention_
(a) the crimes against a number of individuals must be directed at their collectivity or
(b) at them in their collective character or capacity. SPDC and Kyant Phut’s attack on Daw Suu, NLD, U Khun Tun Oo and Shan leaders may qualify for this.
Motive and intent may be closely linked, but motive is not mentioned in the Convention. The necessary element of intent may be inferred from sufficient facts.
In certain cases, there will be evidence of actions or omissions of such a degree that the defendant may reasonably be assumed to have been aware of the consequences of his or her conduct, which goes to the establishment of intent, but not necessarily motive.
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Comments:
Maung Maung said _
Very very good article, indeed and definition of GENOCIDE has been explained.
Muslims in Arakan state has to apply for the marriage i.e. one way of stopping
the birth. What SPDC is carrying out is according to 2 ( c and e ) of para 2 of
your article.
Keep up writing and we love to read yours.
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