Holding Rights Abusers Accountable

Will Burma's ex-military junta chief face justice for abuses committed under his rule?
An analysis by Parameswaran Ponnudurai
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Than-Shwe-305.jpg Former junta chief Than Shwe reviews an honor guard in Myanmar in a file photo.

As Burma unleashes political reforms, the man who may be responsible for one of the world's most brutal human rights abuses in the impoverished nation hardly pops up on the radar screens of the international community.

Ten months after he gave up power, Burma's ex-military strongman Than Shwe is facing little, if any, flak for the widespread rights abuses committed during his two decades of ironclad rule.

The well-documented abuses, including forced labor, killings, torture, displacement of ethnic minority people, and use of rape as a weapon to terrorize them, may amount to war crimes, some U.N. officials and human rights groups say.

But the 78-year old senior general, enjoying comfortable retirement in a luxury mansion in the Burmese capital Naypyidaw, may end up not being held accountable at all for crimes that have been committed.

The Burmese constitution he framed three years before his retirement has entrenched military rule and provided a blanket amnesty to him and all members of the junta for any actions they did in their official capacity.

According to Section 445 in the chapter "Transitory Provisions" of the constitution, "No proceedings shall be instituted against the said [junta] or any member thereof or any member of the Government, in respect of any act done in the execution of their respective duties."

"The constitution has a general jail-free card for all officials in the previous administration who did things in their official capacity," David Steinberg, a Burma expert at Washington-based Georgetown University, told RFA.

He said it was impossible to amend the constitution without the backing of the military.

Any constitutional amendment would require 75 percent of votes in parliament. But 25 percent of parliamentary seats are now reserved for active duty military officers and together, the military, and a military-backed party control more than 80 percent of the seats.

So, Than Shwe may be let off the hook like Southeast Asia's other infamous brutal dictators of recent times, Philippine President Ferdinand Marcos and Indonesia's President Suharto, who were never brought to justice for their bloody human rights record before they died in disgrace.

Burma's neighboring Southeast Asian states are not going to hold the junta leaders accountable for any human rights violations as this will go against the ASEAN group's principle of noninterference in the internal affairs of member states.

Even the United States and other Western nations that have agreed to a U.N. Commission of Inquiry into crimes against humanity in Burma appear to have eased their campaign for accountability.

They also appear eager to consider lifting long-running sanctions as Than Shwe's handpicked successor, President Thein Sein, rolls out reforms—from releasing political prisoners to holding talks with democracy icon Aung San Suu Kyi, who has been allowed to stand in an April by-election.


U.S. Secretary of State Hillary Clinton, who made a landmark visit to Burma last month, has said Washington will normalize ties with the country.

"After Secretary Clinton's visit to Burma, sensitive issues such as accountability for past human right abuses have been downplayed," T. Kumar, Washington-based Advocacy Director with global human rights group Amnesty International, told RFA.

"Even Daw Aung San Suu Kyi did not call for a tribunal [to seek prosecutions of past Burmese leaders]," Kumar said, citing recent comments by the Nobel laureate who had spent most of the past two decades under house arrest until her release about a year ago.

The 66-year-old Aung San Suu Kyi has said she supports a fact-finding commission to probe past human rights abuses in Burma but not a tribunal to seek prosecutions, which could see Than Shwe and other former junta members implicated in war crimes.

Aung San Suu Kyi said any action should serve "to heal wounds of our society rather than open them up further."

But Kumar said Than Shwe and other former generals should be hauled up to face justice in the interest of the victims of the abuses, especially the ethnic minorities who bore the brunt of the junta's actions.

"The overwhelming majority of the Burmese military is Burman and the abuses were believed committed by these soldiers against the ethnic minorities. The question now is whether the leadership compromising mostly Burmans would take any initiatives to hold anyone accountable for the abuses," he said.

Burmans form the largest ethnic group, with other significant groups including the Shan, Karen, Rakhine, and Kachin.

Myra Dahgaypaw, campaigns coordinator at the U.S. Campaign for Burma, said reforms, accountability, and justice have to go hand-in-hand for Burma to progress.

"While we are looking forward to change, we still have to remember to bring about justice and accountability for the people of Burma," said the ethnic Karen, herself internally displaced and a refugee for 20 years because of the military's attacks against civilians in Karen state.

David Clair Williams, a law scholar at Indiana University, said that a U.N. Commission of Inquiry is critical even with reforms being undertaken by the nominally civilian government in Burma.

The commission "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 [military generals] be tried and punished—even if [Burma] were to become wholly free and democratic tomorrow," he said, according to Asia Times Online.


Some wonder whether Than Shwe himself was directly behind the abuses blamed on the military.

"It's very clear that even if he did not know personally about the human rights abuses—I don't know whether he did or not—he didn't take any steps to have people who committed them, or their commanding officers, held responsible," Georgetown University's Steinberg said.

"There may have been a couple of cases of people tried for offenses but this is insignificant compared to the number of abuses."

But Steinberg cautioned against pushing for an inquiry into alleged military abuses now when the government is beginning to embrace political reforms.

"I would not broach this topic because it would jeopardize the reforms that are taking place. I think that is very important."

"What one does not want to do is to give people that kind of ammunition at this stage," Steinberg said.

Seize power

There are some who believe that the military can seize power again.

In 1990, according to reports, the junta refused to recognize the election victory of Aung San Suu Kyi's National League for Democracy (NLD) because the army generals were angered by the mere mention, in a negative sense, of a Nuremberg-style war tribunal against them.

Tin Aye, a former general and now head of Burma's Election Commission, said last year that the NLD was not given power because the party had threatened to bring the then military leaders before a war tribunal, according to the Irrawaddy, an exile online publication.

After the 1990 election, an NLD leader had merely mentioned that “here in Burma, we do not need any Nuremberg-style tribunal,” when asked by reporters if the NLD would require putting the military on trial for past crimes. This angered the generals.

The official reason given by the junta for not handing over power to the NLD then was that the election was only intended to choose representatives to a committee to draft a new national constitution.

Steinberg said the best option, as he would see it over time, is having a "Truth Commission" for Burma to look into previous excesses to provide a sense of closure for the people, based on a post-apartheid South African model.

"You do not try people, but you try and find out what happened and why. That to me would be reasonable—it wouldn't satisfy everybody of course, but that's the best one can hope for."


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Jan 21, 2012 07:21 PM

Any Dictatorship or authoritarian who ruled or governed it own country by persecution, tortured, Killing it owns citizen shall be punished and punishing hard.