A four-year investigation by the International Human Rights Clinic at Harvard Law School has found that the Myanmar military committed war crimes and crimes against humanity in 2005-2006, and that perpetrators, including the current Home Affairs Minister, continue to serve at the highest levels of the country’s government.
On Nov. 7, the clinic released a legal memorandum, War Crimes and Crimes Against Humanity in Eastern Myanmar, which examines the conduct of the Myanmar military during an offensive that cleared and forcibly relocated civilian populations from conflict zones in eastern Myanmar. Through more than 150 interviews with eyewitnesses, the clinic documented how soldiers fired mortars at villages; opened fire on fleeing villagers; destroyed homes, crops, and food stores; laid landmines in civilian locations; forced civilians to work and porter; and captured and executed civilians.
“These are serious allegations that demand a determined, good faith response by the Myanmar government and military,” said Harvard Law Clinical Professor Tyler Giannini, co-director of the clinic. “The abuses perpetrated by the military have been too widespread, too persistent, and too grave to be ignored.”
The memorandum specifically implicates three commanders in international crimes as defined by the Rome Statute of the International Criminal Court: Major General Ko Ko, the current Home Affairs Minister; Brigadier General Khin Zaw Oo, the current commander of the Bureau of Special Operations 4; and General Maung Maung Aye, most recently the Naypyidaw Regional Commander. All three received promotions after the offensive.
As part of its investigation, the clinic compiled more than 1,000 pages of draft affidavits from interviews with individuals in Myanmar and along the Thailand-Myanmar border, including villagers, village leaders, and former Myanmar Army soldiers. Additionally, the clinic collected photographic evidence and solicited expert declarations from four individuals with knowledge relevant to the offensive and the Myanmar military’s structure and policies.
“In interview after interview, villagers described a pattern of military abuse—stories that have been notably absent from the national conversation about reform,” said Matthew Bugher ’09, Global Justice Fellow at Harvard Law School and a principal researcher on the clinic’s memorandum. “It is critical that these voices are heard, especially since a similar pattern appears to be playing out today in Kachin State and northern Shan State.”
The clinic’s evidence is sufficient to satisfy the standard required for the issuance of an arrest warrant against these commanders by the International Criminal Court. Under international criminal law, these commanders could be held accountable for their own actions as well as for crimes committed by soldiers under their effective command and control. Although the Clinic’s memorandum uses the framework of the Rome Statute, international justice is not the only means of addressing past abuses.
“Myanmar faces profound and difficult decisions as it transitions away from military rule and towards meaningful reform,” said Assistant Clinical Professor of Law Susan Farbstein, co-director of the clinic. “Ultimately, it is the people of Myanmar who must decide how to address the legacy of military abuse.”
The IHRC has been examining international crimes in Myanmar since 2008 and released its first major report on the topic, Crimes in Burma, in 2009. In the wake of that report, many asked the clinic whether there was enough evidence to put together an actual criminal case against an officer in the Myanmar military. According to Giannini, clinic staff first started talking about this investigation in early 2010, and they have been at it so long that Bugher—then a student—has graduated and since instructed other students in the clinic during the investgation.
“When we started the investigation, we didn’t know if it would even be possible to gather sufficient evidence for a criminal case, but we thought it was worth trying. If officers knew that detailed investigations could be compiled against them, it might deter them from committing future violations,” said Giannini. “It was a massive team effort with Susan, Matt, and I collaborating with more than two dozen students and a group of outstanding interpreters to compile more than a 1000 pages of draft affidavits. We also had critically important input from Professor Alex Whiting, who is a world expert on international criminal investigations and prosecutions.”
Clinical students played a major role in the ongoing investigation and producing the final report, said Farbstein. “The contribution of dozens of clinical students to this project over the years has been tremendous,” she said. “From interviewing survivors and witnesses, to interacting with NGOs and governments, to analyzing the relevant legal standards, to strategizing about advocacy options, students have been central to every phase of the project.”
Whiting, who served for three years in the Office of the Prosecutor at the International Criminal Court (ICC) in The Hague, first as the Investigations Coordinator, and then as Prosecutions Coordinator, said: “The HLS International Human Rights Clinic has done a careful, thorough, and professional investigation of war crimes and crimes against humanity allegedly committed by the Myanmar military and demonstrates in its report that there exists more than enough evidence to warrant a full-scale investigation into the actions of the military officials involved.”
New York Times: Report Cites Evidence of War Crimes in Myanmar
Radio Free Asia: Report Charges Myanmar Military Leaders with Wartime Atrocities
The International Human Rights Clinic at Harvard Law School has been working on human rights in Myanmar since 2004 and has examined international crimes in the country since 2008. Among its publications, the Clinic released Crimes in Burma in May 2009 and Policy Memorandum: Preventing Indiscriminate Attacks and Wilful Killings of Civilians by the Myanmar Military in March 2014.