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Paul
Harris, Barrister, Chairman, Hong Kong Human Rights Monitor
DEPAYIN MASSACRE
OPINION
1.
I am asked to
advise the Asian Human Rights Commission on matters arising from the preliminary
report of the Ad Hoc Commission on the Depayin Massacre
(Burma).
PRELIMINARY COMMENTS
2.
The present
Burmese regime is notorious throughout the world for its appalling record of
brutality, human rights abuse, and protracted severe repression of its own
people, probably second only to North Korea in the entire world.
Because of this record it is at present subject to extensive US and EU
sanctions.
3.
Against this
background reports of a massacre organised by the Burmese Government on 30 May
2003 are inherently credible. A massacre by this Government
is nothing new, as it has committed well-documented massacres
previously, most notably in 1990 when it seized power after
the overwhelming election of Aung San Suu Kyi. The eye-witness reports given to
the Preliminary Commission including of attempts to hide bodies and disguise the
scene of the massacre, are also credible.
4.
However it
must be understood that a great deal more evidence will need to be collected for
there to be any prospect of any conviction of anyone for planning a massacre of
the kind described by the eye-witnesses.
5.
In addition a
realistic view has to be taken of the prospects of obtaining any kind of
tribunal to investigate such a massacre in the near future.
6.
I have
read the article by Aung Htoo entitled “ Depayin massacre, crime against
Humanity, National Reconcilation and Democratic Transition”, and agree with its
conclusion that what happened was probably a crime against humanity within the
meaning of Article 7 of the Statute of the International
Criminal Court (“ICC”), which could be referred to the ICC by the United Nations
even though Burma is not a party to the Convention for the International
Criminal Court. Specifically there seems little doubt that the murders committed
by those who attacked Aung Sang Suu Kyi’s convoy would fall within the
definition of the crime against humanity of murder, as defined in the Elements
of Crime produced by the Preparatory Commission for the International Criminal
Court.
7.
However I do
not see any prospect of a referral to the ICC in the near future, as the Burmese
regime, evil though it is, has powerful friends. Only the United Nations
Security Council can refer a matter to the ICC for investigation.
The People’s Republic of China is a Permanent Member of the Security
Council, is on excellent terms with the Burmese regime, and is sensitive and
hostile to international investigations of massacres because of its own recent
history. China’s embarrassment over the Tien An Men Square massacre is
paralleled by Russia’s defensiveness over some the actions of
its armed forces in Chechnya. The United States, although
definitely hostile to the Burmese regime, is at least equally hostile to the
ICC. Only the UK and France of the 5 permanent Security Council members are
likely to support a referral at present. While the US might
support an ad hoc tribunal for Burma, this would be equally strongly opposed by
China.
8.
I therefore
consider that there is no prospect of any international tribunal relating to the
Depayin massacre or other human rights abuses in Burma in the near future.
9.
However this
does not of course mean that there will never be such a tribunal.
The collapse of the Soviet Union and its empire is a standing reminder of
the dramatic and unforeseen changes in world affairs which may occur.
10.
My main advice
is therefore that every effort should be made now, while the Depayin massacre is
still a recent event, to gather sufficient evidence to offer a realistic
prospect of convictions of the perpetrators after a fair
trial, even if that trial can only take place many years in the
future. In the remainder of this advice I consider what
further evidence is desirable.
Evidence
11.
So
far the evidence produced in the preliminary report of the Commission consists
of:-
(i) 4 statements by
persons who were travelling with Aung San Suu Kyi’s motorcade, in different
capacities, when it came under attack;
(ii) a further statement by a
driver with the motorcade;
(iii) a list of 18 victims
of the massacre. This gives personal details with photographs
but does not state which of the victims was killed;
(iv) an interview about the attack
with one of the listed victims, Zaw Zaw Aung;
(v) the Government’s exculpatory
version of events provided by the Deputy Foreign Minister Kin
Maung Win;
(vi) a hand-drawn map of the scene
from an unidentified source.
12.
It is apparent
that this material is completely inadequate for a prosecution now, let alone in
10 or 15 years time when memories have faded and individuals have disappeared.
13.
I recognise
the difficulties in gathering evidence in a country under extreme repressive
rule. It may also be that there are additional documents
available in Burmese which have not been included in the English language report
which has been published. However whatever the difficulties it is essential that
more extensive efforts are made to gather and make available evidence of what
happened, both in order to convince sceptical lawyers and hopefully also
eventually to mount a prosecution of those responsible which has a chance of
success.
14.
I now turn to
specific items of evidence.
The witness
statements
15.
These witness
statements are on the whole well-drafted and seem credible.
However it would be desirable for the testimony of the witnesses to be
video-recorded. This is helpful for authenticity, and also means that if in
future one or more of the witnesses has died or is otherwise unable to give live
evidence, their video-recorded testimony, given within a year of the events
while matters were still fresh in their mind, will still be available to a
court.
16.
However far
more witness statements are needed. Although 5 may seem substantial, it will be
easy for the Burmese regime to produce another 5 statements describing the
events quite differently. Large numbers of witness statements by persons who
were actually present will make a critical difference. If
these people are still in Burma and the only way to obtain them is clandestinely
then that is the only approach which offers a prospect of success.
Such clandestine statements may be more difficult to video record, but
whether by video, audio-tape or written record the best evidence available must
be obtained.
17.
It is to be
hoped that Aung San Suu Kyi will not herself remain in detention indefinitely in
view of her international standing. At
some point it may be possible for Aung San Suu Kyi to give
her own eye-witness evidence of what happened. If this can be video-recorded, so
much the better. The same goes for Tin Oo.
18.
It might be
possible to broadcast an appeal for witnesses through a medium such as the BBC
World Service ( if this has not already been done). However
such an appeal is likely to be monitored by the Burmese regime and to lead to
renewed repression against those who were present at the massacre. It is
probably therefore preferable to defer such an appeal until all other methods
of obtaining evidence have been tried and
exhausted.
Victims
19.
In addition to
eye-witnesses, witness-statements are needed from relatives of those who died,
disappeared or were injured.
20.
A systematic
attempt should be made to tabulate numbers of killed, injured and missing.
21.
The regime
will clearly take all possible steps to prevent this information being
obtained. However over a period of time it may be possible
from clandestine interviews and reports from refugees to build up a fairly
reliable database.
22.
It should be
borne in mind that (a) mass graves are some-times unearthed years after
atrocities; (b) with modern DNA technology it may be easier to identify even a
very decayed corpse by comparing its DNA with that of suspected
relatives. In these circumstances, if funds at some point
become available for such work, relatives of the missing might be invited to
provide DNA samples.
23.
Attempts
should be made to obtain the names of the staff on duty at Depayin Hospital on
30 and 31 May 2003. Most will be too frightened to talk, but in time some of
them may move to other locations where they are less vulnerable.
24.
Gathering the
names of the victims will be a slow and incomplete process. Professor Ding Zhi
Lin, whose son was killed in the Tien An Men Square massacre in Beijing, has
spent many years trying to obtain the names of those who died. After about 12
years of effort, Professor Ding has obtained about 200 names, although most
experts believe that the number of those who were killed by troops in Bejing on
4/5 June 1989 was over 1000. The difficulties Professor Ding has encountered
illustrate the difficulty of this kind of work. However gathering this
information is an essential part of preparation for a
prosecution.
The perpetrators
25.
At present the
only evidence of the identity of the perpetrators is that some of them were
apparently identifiable as members of the Union Solidarity and Development
Association, a puppet organisation of the State Peace and Development
Council.
26.
The most
detailed possible organisation database must be built up, containing as many
names as possible of the members of USDA on 29 May 2003, especially those who
may have been in leadership positions. Data should also be obtained about
members of any other organisations which may also be implicated in the
massacre. Particular attention should of course be paid to
the identity of members in the Depayin area but it should not be limited to
those from this area as the perpetrators may have been
brought in from outside.
27.
In addition to
organisations like USDA it is likely that local government officials in the
Depayin area were involved in the planning of the massacre and the names of all
such officials should be obtained and recorded, including police, locally based
Army units, and civil local authorities.
28.
In due course
it may be that some of those involved in the massacre become willing to give
statements about their involvement and how they were organised. Such statements,
even if given under a formal agreement as to immunity from prosecution, may
prove to be some of the most valuable evidence. I note from the statement
of Wunna Maung ( paragraph 12) that his group of refugees
after the massacre were accompanied by two of the attackers who were remorseful
and no longer wished to associate with those who had sent them. They may be
other such individuals from whom evidence could be obtained.
Photographs
29. It is clear that there were
cameras in use among the NLD supporters present at the scene.
Maung Po Zaw at paragraph 6 of his statement describes an attempt to
video the beatings by the light of car headlights.
30.
An archive
should be prepared of all available photographic evidence including any videos.
Even if these are not sufficient to identify perpetrators directly, they are
likely to provide other useful evidence of what happened. Even photographs of
vehicle licence plates may be useful.
Similar fact evidence
31.
I do not know
whether there have been previous or subsequent similar ambushes of convoys
and/or beating up of NLD supporters. If this is the case, and
the incidents show a similar pattern or similar characteristics, evidence should
also be gathered of such other incidents, as this will strengthen the case that
the incidents were systematically planned.
CONCLUSION
32.
All
indications are that the Depayin massacre was systematic large-scale murder of
people because of their political views or affiliations, and as such a crime
against humanity under ICC Statute Article 7.
33.
Much more
evidence is needed for there to be any chance of bringing the perpetrators to
account. Obtaining this evidence will require at least one and probably several
full-time workers over several years. Approaches should be
made to grant-giving organisations to obtain funding so that this worthwhile
work can be carried out, and evidence obtained and preserved in the hope that
those responsible can be identified and eventually tried.
34.
I will be
happy to help further with this work in future insofar as my other commitments
permit.
PAUL HARRIS
10 January 2004
Posted on 2004-01-12
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