Permanent Peoples Tribunal Judgment

PERMANENT PEOPLES’ TRIBUNAL

Founder: LELIO BASSO (ITALY)

President:

FRANCO IPPITO (ITALY)

Vicepresidents:

LUIZA ERUNDINA DE SOUSA (BRASIL)

JAVIER GIRALDO MORENO (COLOMBIA)

HELEN JARVIS (AUSTRALIA)

PHILIPPE TEXIER (FRANCE)

Secretary General:

GIANNI TOGNONI (ITALY)

Session on

State Crimes Allegedly Committed in Myanmar against the Rohingyas, Kachins and Other Groups

University of Malaja, Faculty of Law

18-22 September 2017, Kuala Lumpur, Malaysia

JUDGMENT

General Secretariat:

VIA DELLA DOGANA VECCHIA 5 - 00186 ROME - TEL:0039 0668801468

E-mail:ppt@permanentpeoplestribunal.org

www.tribunalepermanentedeipopoli.fondazionebasso.it

CONTENTS

I. GENERAL HISTORICAL AND JURIDICAL FRAMEWORK

II. THE PROCEDURE FOR THIS SESSION OF THE PPT

III.- PRESENTATION OF THE FACTS

IV.- THE STATE OF MYANMAR AND THE QUESTION OF IDENTITY

V.- QUALIFICATION OF THE FACTS

VI.- RECOMENDATIONS

General Secretariat:

VIA DELLA DOGANA VECCHIA 5 - 00186 ROME - TEL:0039 0668801468

E-mail:ppt@permanentpeoplestribunal.org

www.tribunalepermanentedeipopoli.fondazionebasso.it

I. GENERAL HISTORICAL AND JURIDICAL FRAMEWORK

  1. The competence of the Permanent Peoples’ Tribunal

The Permanent Peoples’ Tribunal (PPT) is an International opinion tribunal, indipendent from any state authority. It examines cases regarding violations of human rights and the rights of peoples.

Promoted by the Lelio Basso International Foundation for the Rights and Liberation of Peoples, the PPT was founded in June 1979, in Bologna, Italy, by a broad spectrum of legal experts, writers, and other cultural community leaders from 31 countries. The PPT is routed in the historical experience of the Russell Tribunal on Vietnam (1966-67) and on dictatorships in Latin America (1974-1976). The importance of strength of decisions by the PPT rest on the moral weight of the causes and arguments to which they give credibility, as well as the integrity and capability to judge the Tribunal members.

While fully recognizing the reference role of the Institutions of the international community of the States and the juridical instruments, the PPT assumed as its Statute (and in its denomination) the Universal Declaration of Peoples’ Rights (Algiers, 1976), which underline its aim: to give visibility and legitimacy to the authority of Peoples when the States and the International Bodies failed to protect their right, due to geopolitical reasons or other motivations.

Complains heard by the Tribunal are submitted by the victims, or by groups or individuals representing them. The PPT calls together all parties concerned and offers the defendants the possibilities to make their own arguments heard. The panel of the judges is selected for each case by combining members who belong to a permanent list and individuals who are recognized for their competence and integrity.

From June 1979 to the present the PPT has held 43 Sessions whose results and judgments are available at: www.permanentpeoplestribunal.org.

The permanent and increasing challenge of the original working hypothesis has been confirmed by the spectrum of cases which requested the competence of the PPT as the instrument which could make visible and qualify the violations of their fundamental rights to self-determination and to life, in the absence of, or denial by, institutional, juridical and political level of response. The verdicts and deliberations of the PPT represent in this sense a narrative of international law as seen from the side of peoples, when their status of victims is translated into that of the only legitimate subjects to whom the public and private powers are accountable, beyond their legal impunity.

For the purpose of this case on the violations of the rights of peoples of Myanmar, it is useful to refer specifically to the doctrine developed by the PPT in the deliberations where State crimes have been committed against individuals and groups of the same countries, transformed from citizens into enemies, and/or “other”, and as such exposed in full impunity to processes of discriminations leading to a genocide, only too late, or never recognized: Argentine and its desaparecidos, 1980; East Timor, lead case of the first neo-colonial genocide, 1981; Guatemala, and its indigenous populations, 1983; the determinants and the responsible of the Armenian genocide, 1984; the peoples of the ex-Yugoslavia, 1995; victims of Islamic fundamentalism of Algeri, 2004; the communities of Colombia, 2006-8. An even more specific reference must be made to the two Sessions on the case of Tamil (Dublin, 2019; Bremen, 2013) which could be, from the methodological and doctrinal point of view, considered an integration and support of this deliberation.

1.2 The specificity of this Session

The attention of the PPT for the situation of peoples of Myanmar dates back in 2013, when Myanmar was hardly considered, and even less known, as a case where the (already ongoing) violations could be seen as the other face of a state undergoing a militarily controlled democratic transformation, and a woman icon of peace was portrayed as an indisputable guarantee for a future where all the citizens of the country could be recognized as inviolable subjects of their rights to a life in dignity.

The rapidly – not unexpectedly – evolving situation with the dramatic incidents of October 2016, transformed the preparatory phase into a procedure of urgency, even more because of the absolute world invisibility of what appeared to be a dramatic “case”.

An Opening Session of the PPT was convened in London (Queen Mary University, 6-7 March 2017). The reports, the witnesses , the closing remarks of that Session , must be considered and referred to as an integral part of this Judgment. Despite the clear alarm of an evolving genocide, the findings did not however draw the attention of the international community nor of the public opinion.

Only on the eve of this Session, the suffering of the Rohingya peoples finally and belatedly seized world attention, for the consistent accumulation of increasingly dramatic information reports from NGOs and international UN agencies. Within tthree weeks, nearly half a million people crossed the border from western Myanmar into Bangladesh, telling harrowing stories of the carnage they left behind as they crammed into open fishing boats or trudged along muddy paths carrying babies and elderly and bundles of meagre possessions, seeing the plumes of smoke soar into the air as their homes and villages were burnt to the ground.

The consensus of many sources, specifically on the humanitarian crisis of the population of the Rakhine State, in their land and in their search for refuge, could not be clearer, beyond the permanent denial of the civil and military authorities of Myanmar, and it was in this sense openly and repeatedly underlined even by the UN Secretary General António Guterres.

As clearly set out in the indictment which synthesized the available overwhelming written, visual, factual and analytical documentation, the request and the task for the PPT, went beyond giving more visibility to what already known but, according to the terms of reference established in the London Session:

a) to broaden the focus from the most tragically and acutely affected population of the Rohingyas to the general policy of the Myanmar State on Kachins and other ethnic-religious groups;

b) to document and qualify the historical and structural roots and causes of the events, to avoid considering them occasional incidents, and strictly internal affairs of a still young and “fragile democracy” , with no political, strategic, economic interactions and interests with regional and global actors and interests;

c) to qualify juridically the severity and the responsibility of the crimes not only in view of the most criminally pertinent qualification, but to stress and justify with the greatest emphasis the absolute priority of concrete responses to the urgency of the needs of the affected population.

Affected Myanmar people are not victims waiting for – certainly essential, though delayed and partial – humanitarian responses: they are, and must be considered, the central subject of the rights whose recognition and restitution should be the first, structural implication of a judgment based on the inviolable legitimacy of individual and peoples’ rights.

II. THE PROCEDURE FOR THIS SESSION OF THE PPT

2.1 The Panel of the Judges

The Panel of the Judges was composed by:

Daniel Feierstein (Argentina), who chaired the panel

Zulaiha Ismail (Malaysia)

Helen Jarvis (Cambodia-Australia)

Gill H. Boehringer (Australia)

Nursyahbani Katjasungkana (Indonesia)

Shadi Sadr (Iran)

Nello Rossi (Italy)

Two of the judges convened by the Permanent Peoples’ Tribunal could not attend: Denis Halliday (Ireland), for severe and acute health reasons, Bellur Narayanaswamy Srikrishna (India), because of the refusal of his request for Visa.

2.2 Communication to the parties and right to defence

In strict compliance with its Statutes all the steps and official documents relates to the case of this Sessions – form the results of the London Opening Session, to the first formal convocation of the Kuala Lumpur event to the official program and the Indictment - have transmitted: a) to the representatives of the Myanmar civil and militant authorities; b) to the more directly convened international agencies and governing bodies.

Myanmar authorities notified and invited to present a defence:

• Senior General Min Aung Hlaing, Commander in Chief, The Tatmadaw (Myanmar Armed Forces) Naypyidaw

• Daw Aung San Suu Kyi, Minister of Foreign Affairs and Myanmar State Counsellor

• Vice President Myint Swe, Chair of Myanmar Presidential Investigation Commission on Rakhine, Former Lt-General and former chief of Military Intelligence

• General Myat Tun Oo, Chief of Military Affairs and Security Office of the Commander in Chief

• Win Mra, Chairman, Myanmar Human Rights Commission

UN, EU and others authorities invited

• António Guterres, Secretary-General of the United Nations Executive

• Zeid Ra'ad Al Hussein, United Nations High Commissioner for Human Rights

• Professor Yanghee Lee, Special Rapporteur on Human Rights situation in Myanmar

• Ahmed Shaheed, UN Special Rapporteur on Freedom of Religion or Belief,

• Fernand de Varennes, Special Rapporteur on Minority issues,

• Adama Dieng, United Nations Office on Genocide Prevention and the Responsibility to Protect

• Federica Mogherini, High Representative of the Union for Foreign Affairs and Security Policy /Vice-President of the European Commission

• Kofi Annan, Chair, Rakhine Inquiry Commission

While no answer was received from the Myanmar representatives, a formal acknowledgment of the invitation has been received from various of the above mentioned international agencies, with a request to be kept informed of the results of the Session.

The right to defence, which is central in the Statutes of the Tribunal and has been a carefully observed practice throughout all its proceedings, has been regularly communicated to the concerned parties in due time. As no answer was received, at the beginning of each of the three days of public audiences, the Chairperson of the Panel of the Judges asked if any representative of the Myanmar Government was present in the room and no response was received.

According to the Statutes, in the absence of any response, the PPT procedure of an ex officio defence was activated, and the resulting text was read publicly by the representative of the Secretariat of the PPT. The full text of the speech given by the State Counsellor, Aung San Suu Kyi on 19 September 2017 in an address to the assembled diplomatic corps in Naypyidaw, which had already been listened to collectively by the Panel of the Judges, and which was formally and partially replayed in front of the audience, was assumed to be the most complete and updated expression of the position of the Myanmar authorities. Because of its relevance, it is considered as an integral part of this proceedings (Annexe X).

2.3. The proceedings

The public hearing of the PPT took place in the University of Malaya Faculty of Law in Kuala Lumpur, Malaysia. The program, together with essential information on the Judges, Prosecution and witness and expert testimonies are provided in Annexe X.

2.4 Security measures

The Panel of the Judges assured in camera hearings for those witnesses for whom it was determined desirable to provide a close protection of their identity.

III.- PRESENTATION OF THE FACTS

III.1.- Situation of the Kachin People: “We are still birds in a cage”

So the first Kachin witness before the People’s Tribunal on Myanmar in Kuala Lumpur summarised the condition of his people after reading a long list of specific cases of torture and execution suffered since the 2011 breakdown of the 17-year long ceasefire between the Kachin Independence Army (KIA) and the Burmese Army.

Since achieving independence from the UK on 4 January 1948 the state of Myanmar has been at almost ceaseless war with the approximately 40% of its 55 million people who make up the country’s 135 recognised nationalities as well as minority religions and other unrecognised ethnic groups.

Kachin State, the most northerly state of the country in the foothills of the Himalayas bordering China and India, “is one of the six, later to become seven, ethnic nationality states that were created when Burma became independent in 1948.” In the 2014 Myanmar Population and Housing Census the state’s population was reported as being 1.689 million or 3.3% of the total.

The Kachin people number between 1 to 1.5 million, are largely resident in Kachin State but also form a substantial part of the population of the northern section of Shan State. Under British colonial rule, many of the previously animist people became Christian, now especially Baptist.

War and increasing marginalisation have been the dominant features of life for the Kachin people since at least the early 1960s. The KIA was established in 1961, and the 1962 military coup by General Ne Win ushered in more than three decades of war during which time it is estimated that many previously Kachin towns and villages were destroyed and people were killed, and under the national policy of Burmanisation and inwards migration the Kachins have progressively lost many of their customs and traditions, including competence in the six Kachin languages.

The ceasefire from 24 February 1994 until 9 June 2011 brought an end to the hot fighting, but led paradoxically to an ever increasing militarisation of the region (with the stationing of many Burmese/Myanmar central army battalions) and the introduction of an oppressive developmental model involving massive alienation of traditional lands and natural resources (notably their precious jade), accompanied by increasing dispersal and marginalisation of Kachins through significant urban immigration of lowland Burmese people, including replacing many Kachin animist or Christian or sacred places with Buddhist shrines or pagodas, generating demoralisation and a debilitating drug scourge. This shift is reflected in the findings of the Myanmar 2014 census that 64% of the population in Kachin State reported as Buddhist, and just 34% Christian.

Since fighting resumed in Kachin State and northern Shan State with the indiscriminate targeting of civilian areas and military airstrikes, it is estimated that 10% of the population has been displaced, with at least 120,000 people now in IDP camps (at least two-thirds are under KIO control which have faced numerous restrictions and denials of humanitarian aid).

Written and oral testimony was presented to the Opening Session of the Tribunal by the Kachin Women’s Organisation (KWO) . The Kuala Lumpur session received both written and oral testimony from further witnesses from the Kachin National Organisation (KNO) and the Kachin Women’s Association of Thailand (KWAT). Expert testimony, including original video footage of the military attacks was also presented.

In addition, a number of witnesses who testified in camera of crimes that they had suffered personally and who had felt compelled to leave their homeland in fear of their lives, following forced labour serving as porters for the Myanmar Army, beatings, torture, execution or jailing and enforced disappearance of friends and relatives and/or military attack on their villages.

The direct testimony presented to the Tribunal corroborated information given in a number of substantial written reports by various human rights organisations and researchers that were also submitted to the Tribunal by the Prosecution.

III.2.- Persecution of Rohingya- a summary

The Rohingya are an ethnic minority of Burma/Myanmar which who have been subjected to prolonged, institutionalised and systematic denial of identity and rights for decades.

The integral and fundamental parts of their identity, such as language, culture, religion and history have been criminalised, prohibited to be educated, suppressed and contradicted.

The government of Myanmar has denied progressively the right to nationality of Rohingya through different laws and policies which has subsequently caused the deprivation of civil, political, economic, social and cultural rights.

The gross human rights violations in Myanmar/Burma have been massively documented by the UN, International NGOs and Myanmar human rights and civil society organisations. The Prosecution presented several fact-finding reports to the Tribunal as evidence. They confirmed the testimonies which were heard by the Tribunal in London and Kuala Lumpur hearings as the following crimes:

1. Arbitrary detention and torture

The Tribunal both in London and Kuala Lumpur sessions heard several accounts of the arrests of civilians by the armed government forces. They included children and young people.

Several witnesses testified before the Tribunal about the different types of physical and mental torture which they had been subjected to while in detention.

2. Enforced disappearances

Both the fact and expert witnesses testified before the Tribunal about many cases of those who had been arrested by the government forces have been disappeared since then and the families do not know their fate or whereabouts. The survivors of the recent crisis have also reported about missing family members.

3. Rape and other forms of sexual abuse

The Tribunal heard first-hand horrific accounts of Rohingya women who had been raped in their homes, their villages and the IDP camps by the military forces. They also witnessed the other women were raped or gang-raped in front