A Letter to Ban Ki-moon
by Aung Htoo and Janet Benshoof
Dear Secretary General Ban Ki-moon,
Your upcoming visit to Myanmar is a historic opportunity to underscore to Senior General Than Shwe the utmost seriousness with which the United Nations regards Myanmar’s failure to address violations of international humanitarian law. You should make clear that ending impunity is necessary to ensure the maintenance of peace and security.
Under the direction of Gen. Than Shwe, the regime’s use of the judiciary to eliminate political opponents constitutes a crime against humanity. The arrest and imprisonment of Daw Aung San Suu Kyi and other political prisoners must be addressed in this context in order to ensure that the cycle of crime is not perpetuated.
International law clearly imposes a duty on the United Nations, and you as its representative, to abstain from any discussion of the 2010 elections, which arise out of a constitution that includes “serious breaches of obligations under peremptory norms of general international law.” Specifically, Article 445 of the Myanmar 2008 Constitution grants general amnesty, including for the most serious crimes of concern to the international community, and as such is a breach. States have an obligation not to “recognize as lawful a situation created by a serious breach … nor render aid or assistance in maintaining that situation.”
The Security Council applied an earlier form of this doctrine in 1984 when denouncing the constitution drafted by the apartheid government of South Africa. The Council declared that the “so-called ‘new constitution’ is contrary to the principles of the Charter of the United Nations … that the results of the referendum…are of no validity whatsoever,” and rejected the subsequent elections as “null and void.” As you stated on the 10th anniversary of the Rome Statute of the International Criminal Court, “[I]mpunity for crimes can never be tolerated: amnesties for international crimes are unacceptable.”
Further, as Myanmar is the site of one of the world’s longest running internal armed conflicts, it falls under the legal requirements of Security Council Resolutions 1325 and 1820, which impose additional obligations including criminal accountability and exclusion of amnesty provisions for sexual violence as a tactic of war.
We urge you to make clear to Gen. Than Shwe that impunity for international crimes inflicted on the people of Myanmar has now come to an end. You should call upon the Security Council to address the situation of ending impunity as a threat to peace in Myanmar and urge the government to accept the jurisdiction of the International Criminal Court and cooperate with any ensuing investigation.
Sincerely,
Aung Htoo & Janet Benshoof
Aung Htoo is general secretary of the Burma Lawyers’ Council. Janet Benshoof is president of the Global Justice Center. This article was adapted from an open letter sent to Ban Ki-Moon on July 1, 2009.
