The recommendation was included in an advance, unedited version of his report submitted to the UN Human Rights Council, which published it on its Web site.
The special rapporteur report said that the “gross and systematic” nature of the abuses and the lack of action to stop them indicated “a state policy that involves authorities in the executive, military and judiciary at all levels.”
It said; “According to consistent reports, the possibility exists that some of these human rights violations may entail categories of crimes against humanity or war crimes under the terms of the Statute of the International Criminal Court.
“UN institutions may consider the possibility to establish a commission of inquiry with a specific fact finding mandate to address the question of international crimes.”
Last week, a panel of judges and Nobel laureates met with UN Secretary-General Ban ki Moon and UN Security Council member-states, to make a case for an international inquiry into the ruling junta’s acts.
After hearing representative testimony about abuses suffered at the hands of the regime from 12 Burmese women at an event organized by the Nobel Women’s Initiative and Burmese women’s groups, the panel said it believed that the regime is guilty of crimes such as forced displacement of people, violence to life and person, sexual violence including rape and sex trafficking, torture, and persecution of people based on religious or ethnic identity, among others.
One of the judges, Prof. Vitit Muntarbhorn of Thailand, told the UN secretary-general that “we find that the Burmese military regime is responsible both individually and as a State for the crimes and violations at issue here based on its acts and policies of commission as well as its not acting to prevent these crimes and violations.” Muntarbhorn was joined by Nobel Peace Prize winners Jody Williams and Shirin Ebadi, as well as fellow judge Heisoo Shin.
However, there are formidable hurdles to be overcome, if any international inquiry using the International Criminal Court (ICC) is to be established for Burma.
Prof. David C. Williams, a constitutional law expert at Indiana University, has worked on Burma issues for many years. He told The Irrawaddy that there are three ways for a case to go before the the ICC. Any State that is party to the Rome Statute, which established the ICC, can refer a case to the Court. However this option is closed as Burma has not ratified the Rome Statute, and in any case would hardly refer itself to the ICC.
The second option is also a non-starter. Anyone can communicate to the ICC prosecutor that international crimes are occurring anywhere in the world, and the prosecutor can initiate an investigation. However the ICC has jurisdiction only over crimes occurring in the territory of a state that has signed up to the ICC, which again rules Burma out.
It is the third avenue that the NWI and others are considering even if it is a long shot given that China and Russia have a history of abstaining from or vetoing UN Security Council resolutions condemning the Burmese junta. Williams explained: “The UN Security Council can refer a case to the prosecutor. When a case begins this way, the Court has jurisdiction even over crimes occurring in states that are not parties to the Rome Statute, such as Burma. This path therefore seems the most promising. Darfur came before the ICC by this route.”
This is partly based on the principle of universal jurisdiction, an aspect of international law whereby states claim jurisdiction over alleged crimes that were committed outside the prosecuting state, irrespective of nationality, country of residence, or any other relation with the prosecuting country. The alleged crime must be considered a crime against humanity, and the case is based on the view that certain international law obligations are binding on all states, regardless of domestic laws or treaty obligations.
The indictment and arrest warrant issued by the ICC for Sudan’s President Omar al-Bashir came after a long and arduous process, in which the UN set up a Commission of Inquiry (CIO) to examine possible crimes committed in Darfur by the Sudanese Army and its proxy militias.
China and Russia abstained in a UN Security Council vote on setting up a COI for Darfur, with China following a policy of “non-interference’” in Sudanese affairs, even as it supplied the regime with oil revenues and weapons enabling it to carry out violence against its own people in Darfur.