When I delivered my Gresham lecture on Burma in May 2014 concerns about the Rohingya Muslims were slowly becoming a matter of public concern. I used events in Burma to demonstrate a general point about international criminal law being selective in its application and reach – ‘Avoid The Law Unless Convenient’ – and at that time it was not convenient for the international community to apply the law in sanctioning the Burmese regime.

In the same month I co-authored an article suggesting that at least one standard pre-existing indicator of genocide was present in Burma. 30 months later, in November 2016, my co-author Francis Wade and I went further with a second article reminding readers that for decades scholars of genocide and politicians have known what were the indicators of mass killings to come and that several – not just one – of those were clearly in evidence in western Rakhine:

The systematic dehumanization of the target group; their isolation inside camps and barricaded ghettos; and violent attacks on them involving the participation of security forces. These trends have intensified in recent weeks with the amplification of a narrative that singles out the Rohingya as a menacing alien presence in Burma…. [Aung San] Suu Kyi should know that inactivity in the face of genocidal actions can carry moral, legal, and even criminal responsibility.

The suffering of the Rohingya of recent months that has been seen on television has had some effect, but even Pope Francis cannot bring himself to name the group of victims in the state many have lived in with their forebears for generations. Perhaps it would have proved inconvenient, not least to Catholics in Burma, to name the Rohingya and credited them with an identity barred by law in that country. But as my lecture suggested, the rights of one set of humans are often at the whim of what is convenient to others.
Sir Geoffrey Nice, QC

Burma has been the scene of appalling human rights violations, state-sponsored many would say, for decades. Since at least the 1990s there has been forced labour, the recruitment of tens of thousands of child soldiers, widespread sexual violence, extra-judicial killings and torture; more than a million people have been forcibly displaced; over 3,000 villages with ethnic populations regarded as hostile by the government have been burned to the ground. The ruling Burma military junta and its leaders have avoided justice and accountability and look set to continue to do so.

It would be easy enough to give descriptions of some of the crimes committed in the period spoken of – but better to do what the Harvard Law School’s International Human Rights Clinic Report of May 2009 did and to rely on authorised documents of the UN itself in order to explain what happened.

The UN Special Rapporteur for Burma/Myanmar has listed human rights violations in every year between 1993 and 2008: forced displacement (every year); sexual violence (every year except 2001); extra-judicial killing (every year except 2001); torture (every year except 2001); arbitrary detention (every year). The UN Commission on Human Rights and the Human Rights Council has listed human rights violations for each of those offences every year between 1992 and 2008, except for 2006 and 2007. General Assembly resolutions listed these violations – all of them – for every one of the same years except for 2007 and 2008 (where one or two categories were not identified).

In consequence, human rights abuses committed by Burma’s military regime, and already documented by the United Nations, include human rights violations listed under Article 7 of the Rome Statute as ‘crimes against humanity’ including murder, enslavement, torture, rape, sexual slavery, enforced prostitution and others, along with human rights abuses listed under Article 8 of the Rome Statute, Section 2 (c) and (e) as ‘war crimes’: mutilation, cruel treatment and torture; intentionally directing attacks against the civilian population; conscripting or enlisting children under the age of 15 years.

The Harvard report concluded that Burma has lived under autocratic and repressive military rule for more than four decades. The commissioners explained that, each of them having dealt directly with severe human rights abuses in the international system and having seen the painful consequences of inaction:

We have seen how severe human rights abuses are not simply condemnable acts, but require concerted efforts to achieve some semblance of accountability and justice … We have been struck by the finding that for years the United Nations (UN) has been on notice of severe, indeed widespread and systematic abuses that appear to rise to the level of state policy … we call on the UN Security Council urgently to establish a Commission of Inquiry to investigate and report on crimes against humanity and war crimes in Burma. The world cannot wait while the military regime continues its atrocities against the people of Burma. The day may come for a referral of the situation in Burma to the International Criminal Court or the establishment of a special tribunal to deal with Burma.

Was a commission of inquiry established? Certainly not. Such commissions may require further action and what happens can be unpredictable. What did the lawyers and the law do instead to safeguard the interests of all those victims? There was, in fact, little they could do if the UN did not act. But let there be no doubt there have been thousands and thousands of victims of crimes, some dead, many still alive.

What happened next?
The UN Special Rapporteur on Human Rights in Burma, Tomás Ojea Quintana, recommended that the UN consider establishing a commission of inquiry into war crimes and crimes against humanity in Burma stating that the ‘gross and systematic nature of the abuses and the lack of action to stop them indicates a state policy that involves authorities in the executive, military and judiciary at all levels’.

Following the release of Aung San Suu Kyi from house arrest and with modest reforms in train, Western countries changed their approach from maintaining sanctions and supporting UN condemnation to dealing amicably with the government and sending business delegations. They did this notwithstanding the well-known record of human rights abuses in general and in particular the suffering of the Muslim Rohingya people, which has attracted increasing international concern since at least 2012. The military junta’s former head, Than Shwe, was always acutely fearful of international punitive action – believed to be a key reason why he began reforms. Western leaders now actively court the government, probably largely for economic reasons and to dilute China’s regional standing. They may also fear that any mention of the International Criminal Court, to which Burma might have been referred by the Security Council, would affect these budding relations. Perhaps a silent agreement was made that if the government pushed ahead with the transition then the international community generally would pull back from earlier threats to engage the ICC, such as that made by the European Parliament in 2008.

Aung San Suu Kyi, who never agreed with an ICC referral, is clearly calling all the shots for Western action on Burma – the chance of anything of this magnitude being done without her approval is slim. She has chosen to take a role in government and work with the military, rather than remaining in opposition to them; her language is about moving on and working together. There has been international concern about the plight of the Rohingya people but it seems the majority of Burmese are hostile towards Rohingya and a very significant part of her support base would feel betrayed were she to speak out in their defence.

The international community has stopped calling for a commission of inquiry or a referral to the ICC. What other legal remedies are there? Some devoted lawyers working pro bono make applications to the United Nations Working Group on Arbitrary Detention where they plead – always successfully, I believe – that their clients have suffered breaches of the UN Declaration of Human Rights, namely breach of basic rights: right to freedom of thought, freedom of association, freedom of conscience, right not to be discriminated against, and so on. But once Aung San Suu Kyi was released from house detention and the governments of the world chose to treat the generals’ new regime as worthy of attention and some respect it became hard for NGOs and individuals to do much. There is a sense of palpable disenchantment, almost disillusion, among well-intentioned, well-informed activists.

As a result of the new enthusiasm for Burma as a place to make money and as a tourist centre it begins to look as though all those arguments in favour of having a commission of inquiry or of referring the regime leaders to the ICC will come to nothing. This is more unfortunate and more important than politicians might think. Putting past violations on one side is leaving the victims without a champion, without even the prospect, however remote, of seeing accountability. They will have their history written by the enemy or by no one at all. We will never know how much better or worse things would have been had the international community had the nerve to keep the human rights and legal interests of victims in Burma at the top of its agenda, by having a formal inquiry and a referral to the ICC. We – or future generations – may discover whether leaving these issues of accountability unresolved for now will, as on occasions elsewhere, bring them back with a vengeance this year, next year, sometime or – as those deaf and blind to victims may hope – never.

Text by Sir Geoffrey Nice, excerpt from ‘Justice for all and how to achieve it: Citizens, lawyers and the law in the age of human rights’ .