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Legal Memorandum LEGAL MEMORANDUM: War Crimes and Crimes against Humanity in Eastern Myanmar November 2014 hrp.law.harvard.edu International Human Rights Clinic at Harvard Law School Legal Memorandum: War Crimes and Crimes against Humanity in Eastern Myanmar International Human Rights Clinic at Harvard Law School The International Human Rights Clinic at Harvard Law School (“the Clinic”) works to protect the human rights of clients and communities around the world. The Clinic undertakes projects focusing on fact-finding, litigation, legal and policy analysis, report drafting for international oversight bodies, and the development of advocacy strategies. Through supervised practice, students learn the responsibilities and skills of human rights lawyering. International Human Rights Clinic Harvard Law School 6 Everett Street, 3rd Floor Cambridge, MA 02138 USA Website: hrp.law.harvard.edu Acknowledgements The Clinic would like to thank the many people who shared their stories for this investigation and legal memorandum. The Clinic would also like to thank the team of interpreters; without their dedication, this investigation would not have been possible. Four individuals provided invaluable expert declarations, and along with many reviewers, they greatly improved the memorandum’s many earlier iterations. For safety reasons, all of these individuals’ names do not appear. ii International Human Rights Clinic at Harvard Law School Legal Memorandum: War Crimes and Crimes against Humanity in Eastern Myanmar TABLE OF CONTENTS Preface ................................................................................................................................. iv Executive Summary ............................................................................................................. 1 Major Findings .................................................................................................................... 3 Acronyms .......................................................................................................................... 10 Maps .................................................................................................................................. 11 I. Background ................................................................................................................... 13 II. Methodology and Sources of Evidence ........................................................................ 15 III. The Myanmar Military: Command Structure and Counterinsurgency Policies ....... 21 IV. The Offensive ............................................................................................................. 30 V. Crimes .......................................................................................................................... 42 VI. Perpetrators: Units and Commanders ....................................................................... 58 VII. Conclusion and Recommended Investigation Strategies ......................................... 74 iii International Human Rights Clinic at Harvard Law School Legal Memorandum: War Crimes and Crimes against Humanity in Eastern Myanmar PREFACE The International Human Rights Clinic at Harvard Law School has worked on issues relating to Myanmar1 for almost ten years. In 2009, we published Crimes in Burma, a report that reviewed United Nations (“UN”) reports relating to armed conflict in eastern Myanmar and concluded that there was a prima facie case for violations of international criminal law that took place in the area.2 In the report, we recommended the formation of a UN Commission of Inquiry to investigate abuses in Myanmar. In the year following the release of Crimes in Burma, policymakers often asked us whether international crimes had occurred and whether a criminal case could be built against individual perpetrators. Although abuses occurred on both sides of the conflict, we were asked most often about the viability of cases against specific individuals in the Myanmar military. With this in mind, we initiated our own investigation into human rights abuses associated with a Myanmar military offensive in eastern Myanmar, which began in late 2005 and continued until 2008 (“the Offensive”). From the decades of conflict in the country, we chose this particular offensive because it was one of the largest in recent memory and was widely condemned by the international community. To facilitate the assessment of the viability of a case against specific perpetrators, we narrowed the scope of our investigation by focusing on military conduct that occurred in one specific township in 2005 and 2006. Over a period of three years, we conducted eleven missions to Myanmar and along the Thailand-Myanmar border to collect evidence relating to the Offensive and to consult with local partners. To our knowledge, our investigation is the most in-depth examination to date of international crimes committed during a military campaign in Myanmar. We applied a framework of international criminal law and employed a research methodology appropriate for satisfying the higher evidentiary standards associated with criminal prosecution. We hoped that by demonstrating the feasibility of building a criminal case against specific perpetrators, we would help deter future abuses and promote a culture of accountability in the Myanmar military. The political landscape in Myanmar shifted significantly during the course of our investigation. More than 1,000 political prisoners were freed, many media restrictions 1 The ruling military regime changed the name of the country from “Burma” to “Myanmar” in July 1989. 2 International Human Rights Clinic, Harvard Law School, “Crimes in Burma,” May 2009, http://hrp.law.harvard.edu/wp-content/uploads/2013/02/Crimes-in-Burma.pdf. iv International Human Rights Clinic at Harvard Law School Legal Memorandum: War Crimes and Crimes against Humanity in Eastern Myanmar were lifted, Aung San Suu Kyi was elected as a Member of Parliament, and public officials engaged in debate about the reform and repeal of controversial laws. Additionally, the Government signed preliminary ceasefire agreements with many non- state armed groups. In the context of these developments, we sought to utilize the findings of our investigation in a way that was responsive to new opportunities for dialogue, while still addressing persistent human rights concerns. To this end, in March 2014, we published a documented titled Policy Memorandum: Preventing Indiscriminate Attacks and Wilful Killings of Civilians by the Myanmar Military.3 That document identified Myanmar military policies and practices that lead to unlawful attacks and killings, and recommended a practical program of reform. This present document, Legal Memorandum: War Crimes and Crimes against Humanity in Eastern Myanmar, sets forth the findings of our criminal investigation. It concludes that war crimes and crimes against humanity were committed by Myanmar military personnel in the context of the Offensive and identifies senior military officers who could be held accountable for those crimes. Countries in transition face profound and difficult questions about how to address past abuses. This memorandum brings into focus those questions facing Myanmar at this time of transition. While this memorandum concludes that international crimes have been committed, international criminal law is not the only means of addressing Myanmar’s legacy of abuse. The people of Myanmar should have the opportunity to discuss these difficult questions and craft a meaningful response that allows them to address their past and to move the country forward. As the investigation progressed over the past several years, we consulted with many relevant stakeholders. We discussed how identifying senior military officers as perpetrators of international crimes could affect democratic reforms, the peace process, and the security situation in Myanmar. The following themes featured consistently in our discussions: First, discussions focused on deterring Myanmar military personnel from committing abuses in the future. The unlawful forms of military conduct that we have documented continue to be employed with impunity in places like Kachin State and northern Shan State. This memorandum informs senior military officers and enlisted soldiers that they could be held accountable for unlawful actions. It also demonstrates that local activists and the international human rights community are able to document abuses to an extraordinary level of detail and are committed to ensuring that perpetrators are held to account. 3 International Human Rights Clinic, Harvard Law School, “Policy Memorandum: Preventing Indiscriminate Attacks and Wilful Killings of Civilians by the Myanmar Military,” Mar. 2014, http://hrp.law.harvard.edu/wp-content/uploads/2014/03/2014.03.24-IHRC-Military-Policy- Memorandum-FINAL.web_.pdf. v International Human Rights Clinic at Harvard Law School Legal Memorandum: War Crimes and Crimes against Humanity in Eastern Myanmar Second, many questioned the limited space given to human rights issues in current conversations about reform and transition in Myanmar. To date, dialogue has often focused on political developments in Yangon and Naypyidaw without addressing the continued threat that the military’s conduct and role in governance pose to the country’s citizens, peace process, and long-term stability. This memorandum highlights the problems that can arise absent human rights protections and suggests that such issues cannot be swept aside during conversations
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