myanmar transitional justice
DESCRIPTION
A short course on transitional justice geared towards Myanmar lawyers.TRANSCRIPT
Goals of Transitional Justice
Final Objective: End the culture of impunity, establish rule of law, and restore victims of former abusive gov't transitioning to democracy
Goals: Stop ongoing human rights abuses• Investigate past crimes by government officials and rebels• Get record of truth of crimes. Teach truth to public• Have public discussion on past crimes• Stop groups denying truth. Stop people saying there were no crimes.• Identify victims and human rights violators• Punish those responsible for crimes (prosecutions)• Remove abusive officials from government and military• Give reparations and support to victims; respect victims' dignity• Prevent and deter future abuses• Reform military & police to avoid future abuses• Restore peace; stop violence• Promote individual and national reconciliation• Establish rule of law and institutional reform• Establish credibility and trust in state and institutions
General Requirements for TJ
- Longterm Plan. Decades.
- Comprehensive. All parts work together.
– Ex. Truth Commission provides evidence for Prosecutions, and Victims have a role in both
- All Stakeholders Participate. Need support.– Military and ethnic groups must be part of process.
- Under Rule of Law. Not for revenge or politics.
Typical Needs for TJ
- Supporting Legislation - Crime prevention
- Judicial development (courts) - Legal education
- Prison reform - Police services
- Prosecutor capacity - Victim/witness protection, support
- Citizenship and identification - Property dispute resolution
- Civil society support - Fill rule of law vacuum
- Political stability - Long time frame
- Public support - Sufficient funding
- Process needs to be independent, not political.
Types of Justice
1. Retributive Justice: Accountability for Past Wrongs by Punishment.
2. Restorative Justice: Restore Victims with Remedies (compensation) and Dignity.
3. Deterrence: Stop Future Violations. Stop Impunity. Make persons afraid to break the law.
Tensions Between Goals
ARGUMENTS:
1. Amnesty encourages perpetrator truth-telling and acknowledging guilt. Victims heal with truth. Perpetrators can turn from corruption
2. Prosecutions respect victims' rights and deter future crimes.Amnesty should never be given for major violations.
Example 1. Sierra Leone. Gov't promised amnesty to disarm rebels. Made future prosecutions difficult and risked new violence.
Example 2. Cambodia. Govt focused on prosecutions but not truth or victims' support or needs. Victims felt neglected.
Types of Courts
- National Courts. Trials in national courts. Ex. Some WWII trials. Iraq.
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- Hybrid National-International Court. International and domestic prosecutors and judges cooperate.
Ex. Cambodia & Sierra Leone TJ.----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
- Ad Hoc International Court International Courts special to case. Jurisdiction for erga omnes. Ex. ICTY (Yugoslavia). ICTR (Rwanda)
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- International Criminal Court (ICC) Existing Court. Treaty or Security Council authorize jurisdiction Ex. Sudan TJ.
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- Informal Justice & tribal courts? Not courts but informal.Ex. S. Africa tribal courts (resolve disputes, not punish)
Courts Pros and Cons
Factors: Facilities, experience, witnesses & evidence, legitimacy, costs & funding, needs of society & victims, reconciliation & accountability ------------------------------------------------------------------------------ National Courts Pros: Near witnesses. Cheap. Local ownership.
Cons: Corruption. Bad facilities. Politicized.------------------------------------------------------------------------------ Hybrid Courts Pros: Near witnesses. Less corrupt.
Cons: Less ownership and control, still politicized------------------------------------------------------------------------------ Ad Hoc International Court Pros: Facilities. No corruption
Cons: Expensive. Far. No local ownership. ------------------------------------------------------------------------------ ICC Pros: Good facilities. No corruption. Cheaper. Cons: No ownership. Far. Lack of knowledge. China vetoes UNSC.------------------------------------------------------------------------------ Informal Justice Pros: Local ownership. Focus on victims and reconciliation
Cons: Not legal process. Bad for rule of law. Impunity.
Non-Court Institutions
- National Human Rights Commission Examples: Afghanistan, Rwanda, Columbia, Indonesia, Nepal, Sri Lanka, Uganda
- International Ad-hoc HR Commissions Examples: Yugoslavia, Rwanda, Burundi, Timor-Leste
Commissions are not courts. They research and collect information and present recommendations. They can have mandate to assist resolving conflicts and document HR violations.
Truth and Reconciliation Commissions
- Temporary, non-judicial fact-finding bodies to document human rights abuses. Victim-centered. - Victims & perpetrators give testimony. - Comm. also gets evidence and investigates. - Often offers amnesty in return for truth. - Issues final report & policy recommendations. - More than 30 states have used them.
Needs. Public support and trust, enough funding, must be independent.
Purposes: Establish facts, foster accountability, preserve evidence, identify perpetrators, recommend reparations & institutional reform.
Public platform for victim to tell stories to public & begin public debate.
Institutional Reforms. Fill Rule of Law Vacuum
- For prosecutions: new criminal laws; rights of accused; good courts; good jails and police; skilled judges and lawyers
- Must Reform Security Services (Military and Police) to protect civilian rights.
- Reform all gov't agencies to be transparent and accountable.
- Must train staff. Must create new culture to follow “rule of law” and not human discretion. New rules alone are not enough.
Vetting and Lustration of Public ServiceU
Vetting: Gov't workers are screened and removed from gov't posts if they committed HR abuses, or accomplices.
Lustration: Past human rights violators and accomplices are prohibited from holding gov't posts and voting for some number of years.
Goals: Remove abusive officials from government and prevent future abuses by fear of removal.
Vetting and Lustration of Public ServiceU
* Vetting and Lustration do not substitute prosecutions.
* Important for new regime to show respect for rule of law. Symbolic, restores public trust in gov't services, improves gov't services, prevents and deters future abuses, respects victims.
* Vetting and Lustration are formal legal processes to identify and remove violators. Requires due process: Must give notice, right to respond, and right to appeal to accused.
* Risks: Used for revenge. Lose gov't expertise. Ponnya Focus on people, not system. (See Nazi case-study below)
Reparations for Victims
- The State has an obligation to give victims reparations and assurance violations stop. The UN may help. (UDHR Art. 8; UNGA Res. 60/147. Binds Myanmar by customary law.)
- Helps reestablish legitimacy of new government.
- Not always money. Can also have rehabilitation programs, apologies, monuments, etc...
- Tough questions: Who gets money, how much, for what harms?
Reintegrating Conflict Groups
Demobilize, Disarm, & Reintegrate (DDR) Process for reintegrating rebel army back into society. Demobilize: End the military unit. Disarm: Take weapons. Reintegration: Give support to help soldiers become citizens.
- Usually part of peace negotiations. Rebel groups must want to DDR.- DDR in exchange for support and amnesty to former soldiers.
- Positive Peace: Must meet the needs of ethnic groups with dignity, jobs, and support to bring former soldiers back into society. Transition disputes from conflict to politics in Parliament.
- Members of ethnic army may still be prosecuted for major war-crimes. Amnesty should only be for normal soldiers, never for major crimes.
How TJ Helps Reconciliation & Peace
Cycle of Violence and Revenge:Violence → Anger & Distrust → Manipulation by Leaders → Dehumanize “Enemy” → Revenge Violence
Breaking the Cycle: Documentation & education to recognize losses → Control Anger → Understand causes → Humanize the enemy → Teach tolerance → Work on projects together → Trust grows → Gov't Reforms & TJ Processes prevent future violence & abuses→
Final Goal: Groups can live and work together towards better society
“To be social is to be forgiving.” ~R. Frost
Truth, Forgiveness, Reconciliation & Peace Source: Lock and Brecke, War and Reconciliation (2003)
How TJ Helps Democratic Transition and Rule of Law
1. TJ Steps Towards Democratization. Remove corrupt people from gov't → End future impunity with fear of punishment → Institutional reforms for transparency to avoid future abuses → Train staff and have culture-change in gov't → Restores trust in gov't institutions & democracy works better.
2. TJ helps create culture of rule of law (TJ must follow ROL!)
- TJ processes should not be political or under discretion but under laws and followed fairly and independently.
- Teaches people that punishment is not for revenge, but for breaking the law. It's fair. Officials fear breaking the law, and citizens trust the law will be fair to them or restore their rights.
Legal Matters - JurisdictionInternational Jurisdiction. (A court must have it over crimes)
- Agreement. States can agree to jurisdiction for mixed and ad hoc courts. Gov't must support jurisdiction.
- Security Council. UNSC provides ICC and other court jurisdiction under UN Treaty Chp 7. Every state is a member.
- Erga Omnes. Major human rights and war crimes are to humanity. This can provide jurisdiction to int'l courts for major war-crimes and HR violations, even if state disagrees. (See ICTY cases on Jurisdiction such as Radic case.)
International Crimes: forced labor, torture, extrajudicial killings, disappearances, rape in war, etc.
Major legal principles: See Nuremberg Principles below.
Legal Matters - Crimes- International Crimes. Crimes must exist under international law for an int'l court to try it. (Domestic courts can try domestic & int'l crimes.)
- Myanmar is bound to these crimes by customary int'l law.
- Int'l crimes are not just any crime, but serious human rights violations and crimes against humanity:
- Examples. killing a prisoner without a fair trial; disappearances; torture; rape by soldiers; forced labor.
- ICTY and ICTR cases list these crimes.
- These crimes ensure that there is no “ex post facto” laws. A crime must exist under law before someone violates it, not after.
- But these crimes do exist before the perpetrator did them, in int'l law.
Legal Matters - Obligation
Issue: Myanmar's Constitution Art 445 gives gov't workers amnesty.
Two reasons Myanmar & officers are still bound to international crimes and the amnesty clause does not apply to int'l crimes:
1) Jus Cogens and Non-derogable Crimes. A state cannot deny serious int'l crimes. They are considered so serious, a state and officers are always bound, even if they claim they are not.
2) Nuremberg Principle 2 (Customary Int'l Law). Domestic law does not excuse any international crime.
- Thus Myanmar's constitution does not apply to these crimes. People who commit these crimes are still responsible under int'l law
Challenges to TJ
- Identifying victims; - Punishing middle-agents and not leadership;- Getting resources (money) for compensation, trials, and reforms; - Risk of new violence; - Existing judiciary may be weak; - Finding the value of “truth”.
How much effort to find truth? What does it gain?- Peace vs. justice debate – Priority?
Case Studies
TJ in Other States
- 56 States have had some TJ process.
- Every case is unique. Myanmar needs its own TJ plan. But it can learn from other states.
What to Look For
1. Look at source of past conflict & victims for plan. Can be:
– Ideological. (E.g. communist vs liberals. Cambodia)
– Ethnic conflict. (Different groups. S. Africa; Yugoslavia)
– Post-military gov't. (Indonesia)
2. Look at use of mechanisms for examples:
– Trials, Truth Commissions, Reforms, Lustration, etc.
Case Studies
- WWII Germany & Japan. First TJ. Political. About vetting, reforming government, and revenge. Not victims
- Latin TJ. Spain and S. America. Focus on truth & victims. Conflict was ideological.
- African TJ. S. African Truth Commission. Sierra Leone Mixed Court. Sudan and ICC. Rwanda and ICTR. Ethnic conflicts.
- Post Communist. Former USSR and E. Europe. Yugoslavia and ICTY. Ideological and Ethnic Conflicts.
- Asian TJ. Cambodia mixed court. East Timor truth commissions. Indonesia post-military. Philippines post-Marcos.
De-Nazification, Germany 1945-1951
Program by US while occupying Germany to get rid of Naziinfluences in new government.
- 5 Categories of people: exonerated, followers, less incriminated militants, and major offenders. People ranked & punished.- Detentions. 90,000 detained for some period. - Lustration. 1.9 million forbidden to work as anything but manual labor.- Trials. Later trials were summary, without evidence, questionable.
Criticisms: ineffective, US-led & not trying to rehabilitate Germany, became a “witch hunt”. New West German government granted amnesty
to lesser offenders and ended the program in 1951.
Had value as a learning example, but counterproductive in implementation.
Nuremberg Trials 1945
* Tried leaders of the German Nazi regime for abuses in the war.
4 indictments: conspiracy / aggression, war crimes, crimes against humanity. Emphasis of trials was on aggression & war crimes, not on holocaust and victims... Because the Soviets had their own victims in the USSR.
Nuremberg Principles:1. A person who commits an int'l crime is responsible & liable to punishment.2. Legality under internal [domestic] law does not excuse the crime.3. Acting as a government official does not excuse the crime.4. Following an order does not excuse the crime [if they know it's a crime].5. Any person charged has the right to a fair trial on the facts and law.6. Crimes under international law: against peace, war crimes, humanity7. Complicity (assisting) with a crime under #6 is also a crime under int'l law.
Influential to int'l criminal law, many conventions, and transitional justice.
Chile & Argentina
Objectives: vet security services; help victims cope with “disappeared”
Introduced truth commissions. Offered amnesty to perpetrators that gave information for victims on disappeared relatives.
Pros: First TJ process to focus on victims with compensation and truth
Cons: Criticism that victims were being “paid” for silence, but perpetrators were not being punished.
South Africa, 1994-
- Past Apartheid gov't legally separated whites & blacks. 1994 elections transition to demo.
- Created Peace and Reconciliation Commission. Offered amnesty for truth telling. Emphasis on peaceful transition.
- Objectives: Stop race tensions. Reconciled blacks and whites in society for new government. Document abuses on both sides conflict, but emphasize justice.
- Informal Justice. Local tribes used informal justice by custom. Tribe leaders gave non-legal process and decisions for their own people.
International Criminal Tribunals for Yugoslavia/Rwanda (ICTY/ICTR)War crimes against civilians in civil wars. After wars ended, new country would not (Serbia) or could not (Rwanda) prosecute.
* Trials in Int'l Courts in Hague by int'l prosecutors and judges. Convicted held in Hague prisons.
Objectives: Hold perpetrators of genocide accountable. Establish int'l crimes and courts to try them.
Focus on: establishing jurisdiction over criminals (erga omnes), proper procedure, evidence, accountability. Establish rules for int'l criminal courts. Use these rules!Less focus on: vetting, transitioning new gov't, local needs.
Pros: Good facilities, personnel, funds, effective, accountable. Cons: Expensive, probably cannot repeat. distant from state, distant from victims, no local ownership
Mixed Court for Cambodia
International and local prosecutors and judges prosecuted members of Khmer Rouge for killings, torture.
Pros. Cheaper, nearby, local ownership compared to ad hoc
Criticisms: - Parliament interfered with prosecutions. Political interference. e. - Lack of expertise on Cambodian side.- Ignored victims, rehabilitation, “truth”.- Technical challenges: little funding & training.
Mixed Court for Sierra Leone
Story about Justice vs. Peace.
When negotiating a peace, rebel forces expected total amnesty as a condition for peace, but a small footnote in peace agreement (certain crimes cannot get amnesty) made domestic trials difficult.
Led to creation of mixed court (int'l and domestic cooperation) to try worst criminals.
Cons: Peace threatened by trials.
Pros: Relatively cheap, less corruption than Cambodia case.Led to convictions & accountable.
Mixed Court Pros and Cons
Pros: Near to victims and evidence, international help and local ownership, less expensive.
Cons: Hard to maintain funding, poor facilities, difficult relationship between local and int'l, questions of accountability, possible political interference by local government.
If Myanmar has a TJ process, a Mixed Court may be likely because of costs and need for expertise and support.
Barriers to TJ in Myanmar Now
- Constitution. Art 445 Amnesty Clause
- Courts. Corrupt Courts. Poor facilities.
- Politics. USDP will not vote for it. Ethnics distrust. Activists don't want to upset reform government.
- International support. Not from China (blocks ICC)
Not West (they don't want to punish current reforms)
- Institutional. Myanmar needs new institutions, money, training, and rule of law.
- Conflicts ongoing. Need ethnic participation
Q. What is the solution for each barrier?
Ideas for Solutions to Barriers
- Constitution. Amend Article 445. Recall Art. 445 does not stop int'l crime or jurisdiction (Nuremberg)
- Courts. Court, judge, prosecutor, defense reform.
- Politics. Amend the 25% Rule OR pressure USDP to distance itself from past. Elections. Political pressure. Advocate to ethnic groups.
- Int'l. Make West & UN care about TJ & victims
- Institutional. Institutional reforms.
- Conflicts ongoing. Peace negotiations. New Panglong Conference.
Things Possible to do Now - Education & Training – legal, political, technical, practical.
- Researching TJ strategies (foreign case studies) applied to Myanmar- Preparing a TJ Plan in advance: new laws, institutional reform, vetting procedures, etc. (Here you can be piecemeal; low-hang fruit)- Documenting abuses and Archiving for Researchers/Cases to use (Network for Human Rights Documentation--Burma)- Training for documenting (consistent format so comparable, teach legally key categories such as “systemic” and “widespread”, etc.)- UN May call a Commission of Inquiry (need int'l pressure)- Building international pressure on specific issues (1997 ILO Report on Forced Labor pressured Myanmar law change)- Institutional Reform to prepare them for later TJ (legal procedures)- Unofficial Truth-Seeking initiatives (2007 “Open Heart Campaign”)- Ethnic Group Integration Programs (Columbia Univ. Interethnic Conflict Resolution Program)- 2nd Panglong Conference (like 1947 conference)- Resettlement of IDPs & Refugees- Other ideas?