BURMA DIGEST

BURMA DIGEST

04.03.2007

Editorial: If not the UNSC

Can the ILO, the ICJ or ICC bring about change?

_ By Taisamyone

Last week we considered the possibilities and actions that we might take in order for the ‘situation in Burma’ to be discussed at the UN Security Council with a likelihood of passing a resolution – i.e. persuading China and Russia that action must be taken to bring about democratic change in Burma. We also considered, as many UNSC member states had indicated, the possibility that other UN bodies could take action against the regime. This week, we will consider how the junta may be brought to account by the International Labour Organisation (ILO), the International Court of Justice (ICJ) and the International Criminal Court (ICC).

The ILO was formed in 1919 as part of the Versailles Peace Treaty and seeks the promotion of social justice and internationally recognized human and labour rights. The ILO has engaged with Burma since the 1990s regarding the use of forced labour, in contravention of the Forced Labour Convention of 1930. Burma would have joined as a member of ILO at independence in 1948, along with membership of the UN. The ILO undertook an investigation of the use of forced labour in Burma, collecting witness statements from refugees and others in adjacent countries, as they were not allowed access to Burma until pressure from the ILO and other world bodies following the report in 1998 forced the regime to allow the ILO to set up an office in Rangoon. This report recommended that Burma (i) modify the Town Act and Village Act to make the use of forced labour illegal, (ii) that forced labour practices stop, and (iii) that those found guilty of forcing people to work for no pay were prosecuted with adequate punishment. The junta responded by temporarily suspending the power to requisition labour under the Town and Village Acts.

The ILO has continued to pursue these matters with the junta and to receive complaints directly from members of the public at their office in Rangoon. This was when the junta started to persecute and prosecute those claimants for making ‘false allegations’, claiming that they were politically motivated. The ILO stopped receiving reports of forced labour to protect those affected from further suffering. As the ILO started to increase their pressure, the junta responded with demonstrations by their compliant USDA ruffians and sent anonymous letters to the ILO officer threatening to behead him if he continued to work in Burma.

Despite this attempted intimidation, the ILO has continued to work with the junta wherever possible and the latest announcement is welcome in that the regime says that they will not persecute people who report instances of forced labour to the ILO office. However, the fact is that front line troops take little heed of the law. The recent SHRF report indicates that the regime are using three methods to continue the use of forced labour; (i) by the use of prisoners as porters and labourers for the army, (ii) coercing villagers and townspeople to join one of the government run civil groups (USDA, National Red Cross, Maternity, Women’s Affairs and Fire Fighters, etc.), who then ‘volunteer’ their effort for government projects, and (iii) army patrols take villagers for short term portering jobs, and then threaten to beat them up if they complain to anyone – a beating that can lead to permanent damage or death from the vicious thugs.

The ILO has been active in persuading the junta to move on the issue of forced labour under trying conditions and only very little progress; the recent move by the junta is no doubt aimed at heading off a referral to the ICJ, which is the option that the ILO would have passed at their meeting this month if there had been no response from the junta. Whilst the ILO circulates its findings to member countries and recommends that foreign companies do not work with the regime especially on projects that involve forced labour, it is a matter of voluntary agreement to comply. It seems that the countries vilified as ‘capitalist exploiters’ are the ones who impose sanctions on the regime because of its forced labour record (among other ills), while those who profess to have the democratic socialist governments and the best interests of their workers at heart are the ones who do most business with the regime.

What becomes apparent from this is that the regime wants to continue with its forced labour practices. The junta will make small concessions to the ILO just in time to stave off further punitive action or referral to a higher body. Apart from making recommendations to member countries (e.g. trading sanctions), the ILO can only refer matters up to the ICJ or the UN Security Council if it fails to bring about change itself. The recent announcement does not deal with the remaining issues that the ILO have identified; permanently making forced labour illegal in Burma, taking positive actions to stop the practises, and prosecuting those found guilty of using forced labour. It remains to be seen whether the latest agreement with the ILO does ensure that those who report forced labour issues are not subsequently persecuted by the regime.

The International Court of Justice (ICJ) is the principal judicial organ of the United Nations. It began work in 1946, when it replaced the Permanent Court of International Justice which had functioned since 1922. It operates under a Statute largely similar to that of its predecessor, which is an integral part of the Charter of the United Nations. The Court has a dual role: to settle in accordance with international law the legal disputes submitted to it by member States, and to give advisory opinions on legal questions referred to it by duly authorized international organs and agencies.

The ICJ has a wide remit to settle issues of International law; for instance it spends time on settling frontier and maritime disputes, such as the matter regarding ‘Maritime Delimitation between Nicaragua and Honduras in the Caribbean Sea’. The ICJ has also recently announced its decisions regarding the crimes of genocide against Serbia. Reading the adjudication makes it clear why the process is long and difficult; the court has to establish that it has the authority to proceed – something that Serbia challenged – and to assess a number of specific claims. In this case, many claims that Serbia was guilty of, and complicit in, acts of genocide were not accepted by the court, but specific cases against individuals and the failure of Serbia to prevent genocide occurring were upheld.

As I understand the working of the ICJ, only member states or the UNSC and other UN organisations such as the ILO may make appeals to the ICJ for legal opinion and for investigation and judgement over any issue, and this will only proceed if all member states subject to the accusation or dispute agree to the process.

There is a significant case for taking the junta to the ICJ on the charge of genocide. However, before this case is heard, there will probably need to be referral from one of the UN bodies – the Security Council, or the Council of Human Rights would be most appropriate. This issue needs to be pressed hard by those who have collected evidence over many years of the acts of genocide against ethnic groups – in particular the Human Rights groups such as SHRF, KHRG, CHRO, etc. One word of caution though – all of these UN councils have governing bodies on which our friends and enemies sit. We can expect heated debates taking place with the US and UK representatives battling (diplomatically) with China and Russia, to get Burma’s regime in the dock.

I looked briefly at the International criminal Court (ICC) to see what they do. And yes, they investigate cases of genocide and war crimes, but for ‘big’ cases, involving ‘1,000s’ of deaths. The killings over the years could bring Burma into this category – but there is a ‘but’ to deal with. The ICC will only review cases after 2002 when it was formed (no problem there), and only for countries that have signed agreement to the Rome Statute of 2002 – which Burma hasn’t signed – so we can be sure that the junta wish to continue acts of genocide, war crimes and acts of aggression that the statute seeks to stop. ‘Aggression’ hasn’t been properly defined by the UN yet, but I’m sure when it is the junta will be committing it. One more way of initiating investigations by the ICC is when cases are referred to it by the UNSC – another ‘catch 22’! The ICC are investigating claims of genocide, etc. in Darfur – “the mass murder, summary execution, and mass rape of civilians who were known not to be participants in any armed conflict. The strategy included the forced displacement of entire villages and communities.” Although recounting events in Darfur, this description covers life in Burma over the last six decades! The ICC has stated that “Our work sends a signal: those who commit atrocities can not do so with impunity.” This is exactly the message that needs to be sent to the junta – only UNSC vetoes have prevented this so far. Let us work with the ILO and the UNCHR to ensure that they get the message loud and clear.

For further information

¨ International labour Organisation (ILO)

¨ International Court of Justice (ICJ)

¨ International Criminal Court (ICC).

¨ UN Human Rights Council

¨ Convention on the Prevention and Punishment of the Crime of Genocide

¨ Rome Statute of the International Criminal Court

¨ Shan Human Rights Foundation (SHRF)

¨ Karen Human Rights Group (KHRG)

¨ Chin Human Rights Organisation (CHRO)

¨ Human Rights Foundation of Monland (HRFM)

¨ Human Rights Education Institute of Burma (HREIB)