Paul Harris, Barrister, Chairman, Hong Kong Human Rights Monitor
DEPAYIN MASSACRE
OPINION
1. I am asked to advise the Asian Human Rights Commission on matters arising from the preliminary report of the Ad Hoc Commission on the Depayin Massacre (Burma).
PRELIMINARY COMMENTS
2. The present Burmese regime is notorious throughout the world for its appalling record of brutality, human rights abuse, and protracted severe repression of its own people, probably second only to North Korea in the entire world. Because of this record it is at present subject to extensive US and EU sanctions.
3. Against this background reports of a massacre organised by the Burmese Government on 30 May 2003 are inherently credible. A massacre by this Government is nothing new, as it has committed well-documented massacres previously, most notably in 1990 when it seized power after the overwhelming election of Aung San Suu Kyi. The eye-witness reports given to the Preliminary Commission including of attempts to hide bodies and disguise the scene of the massacre, are also credible.
4. However it must be understood that a great deal more evidence will need to be collected for there to be any prospect of any conviction of anyone for planning a massacre of the kind described by the eye-witnesses.
5. In addition a realistic view has to be taken of the prospects of obtaining any kind of tribunal to investigate such a massacre in the near future.
6. I have read the article by Aung Htoo entitled “ Depayin massacre, crime against Humanity, National Reconcilation and Democratic Transition”, and agree with its conclusion that what happened was probably a crime against humanity within the meaning of Article 7 of the Statute of the International Criminal Court (“ICC”), which could be referred to the ICC by the United Nations even though Burma is not a party to the Convention for the International Criminal Court. Specifically there seems little doubt that the murders committed by those who attacked Aung Sang Suu Kyi’s convoy would fall within the definition of the crime against humanity of murder, as defined in the Elements of Crime produced by the Preparatory Commission for the International Criminal Court.
7. However I do not see any prospect of a referral to the ICC in the near future, as the Burmese regime, evil though it is, has powerful friends. Only the United Nations Security Council can refer a matter to the ICC for investigation. The People’s Republic of China is a Permanent Member of the Security Council, is on excellent terms with the Burmese regime, and is sensitive and hostile to international investigations of massacres because of its own recent history. China’s embarrassment over the Tien An Men Square massacre is paralleled by Russia’s defensiveness over some the actions of its armed forces in Chechnya. The United States, although definitely hostile to the Burmese regime, is at least equally hostile to the ICC. Only the UK and France of the 5 permanent Security Council members are likely to support a referral at present. While the US might support an ad hoc tribunal for Burma, this would be equally strongly opposed by China.
8. I therefore consider that there is no prospect of any international tribunal relating to the Depayin massacre or other human rights abuses in Burma in the near future.
9. However this does not of course mean that there will never be such a tribunal. The collapse of the Soviet Union and its empire is a standing reminder of the dramatic and unforeseen changes in world affairs which may occur.
10. My main advice is therefore that every effort should be made now, while the Depayin massacre is still a recent event, to gather sufficient evidence to offer a realistic prospect of convictions of the perpetrators after a fair trial, even if that trial can only take place many years in the future. In the remainder of this advice I consider what further evidence is desirable.
Evidence
11. So far the evidence produced in the preliminary report of the Commission consists of:-
(i) 4 statements by persons who were travelling with Aung San Suu Kyi’s motorcade, in different capacities, when it came under attack;
(ii) a further statement by a driver with the motorcade;
(iii) a list of 18 victims of the massacre. This gives personal details with photographs but does not state which of the victims was killed;
(iv) an interview about the attack with one of the listed victims, Zaw Zaw Aung;
(v) the Government’s exculpatory version of events provided by the Deputy Foreign Minister Kin Maung Win;
(vi) a hand-drawn map of the scene from an unidentified source.
12. It is apparent that this material is completely inadequate for a prosecution now, let alone in 10 or 15 years time when memories have faded and individuals have disappeared.
13. I recognise the difficulties in gathering evidence in a country under extreme repressive rule. It may also be that there are additional documents available in Burmese which have not been included in the English language report which has been published. However whatever the difficulties it is essential that more extensive efforts are made to gather and make available evidence of what happened, both in order to convince sceptical lawyers and hopefully also eventually to mount a prosecution of those responsible which has a chance of success.
14. I now turn to specific items of evidence.
The witness statements
15. These witness statements are on the whole well-drafted and seem credible. However it would be desirable for the testimony of the witnesses to be video-recorded. This is helpful for authenticity, and also means that if in future one or more of the witnesses has died or is otherwise unable to give live evidence, their video-recorded testimony, given within a year of the events while matters were still fresh in their mind, will still be available to a court.
16. However far more witness statements are needed. Although 5 may seem substantial, it will be easy for the Burmese regime to produce another 5 statements describing the events quite differently. Large numbers of witness statements by persons who were actually present will make a critical difference. If these people are still in Burma and the only way to obtain them is clandestinely then that is the only approach which offers a prospect of success. Such clandestine statements may be more difficult to video record, but whether by video, audio-tape or written record the best evidence available must be obtained.
17. It is to be hoped that Aung San Suu Kyi will not herself remain in detention indefinitely in view of her international standing. At some point it may be possible for Aung San Suu Kyi to give her own eye-witness evidence of what happened. If this can be video-recorded, so much the better. The same goes for Tin Oo.
18. It might be possible to broadcast an appeal for witnesses through a medium such as the BBC World Service ( if this has not already been done). However such an appeal is likely to be monitored by the Burmese regime and to lead to renewed repression against those who were present at the massacre. It is probably therefore preferable to defer such an appeal until all other methods of obtaining evidence have been tried and exhausted.
Victims
19. In addition to eye-witnesses, witness-statements are needed from relatives of those who died, disappeared or were injured.
20. A systematic attempt should be made to tabulate numbers of killed, injured and missing.
21. The regime will clearly take all possible steps to prevent this information being obtained. However over a period of time it may be possible from clandestine interviews and reports from refugees to build up a fairly reliable database.
22. It should be borne in mind that (a) mass graves are some-times unearthed years after atrocities; (b) with modern DNA technology it may be easier to identify even a very decayed corpse by comparing its DNA with that of suspected relatives. In these circumstances, if funds at some point become available for such work, relatives of the missing might be invited to provide DNA samples.
23. Attempts should be made to obtain the names of the staff on duty at Depayin Hospital on 30 and 31 May 2003. Most will be too frightened to talk, but in time some of them may move to other locations where they are less vulnerable.
24. Gathering the names of the victims will be a slow and incomplete process. Professor Ding Zhi Lin, whose son was killed in the Tien An Men Square massacre in Beijing, has spent many years trying to obtain the names of those who died. After about 12 years of effort, Professor Ding has obtained about 200 names, although most experts believe that the number of those who were killed by troops in Bejing on 4/5 June 1989 was over 1000. The difficulties Professor Ding has encountered illustrate the difficulty of this kind of work. However gathering this information is an essential part of preparation for a prosecution.
The perpetrators
25. At present the only evidence of the identity of the perpetrators is that some of them were apparently identifiable as members of the Union Solidarity and Development Association, a puppet organisation of the State Peace and Development Council.
26. The most detailed possible organisation database must be built up, containing as many names as possible of the members of USDA on 29 May 2003, especially those who may have been in leadership positions. Data should also be obtained about members of any other organisations which may also be implicated in the massacre. Particular attention should of course be paid to the identity of members in the Depayin area but it should not be limited to those from this area as the perpetrators may have been brought in from outside.
27. In addition to organisations like USDA it is likely that local government officials in the Depayin area were involved in the planning of the massacre and the names of all such officials should be obtained and recorded, including police, locally based Army units, and civil local authorities.
28. In due course it may be that some of those involved in the massacre become willing to give statements about their involvement and how they were organised. Such statements, even if given under a formal agreement as to immunity from prosecution, may prove to be some of the most valuable evidence. I note from the statement of Wunna Maung ( paragraph 12) that his group of refugees after the massacre were accompanied by two of the attackers who were remorseful and no longer wished to associate with those who had sent them. They may be other such individuals from whom evidence could be obtained.
Photographs
29. It is clear that there were cameras in use among the NLD supporters present at the scene. Maung Po Zaw at paragraph 6 of his statement describes an attempt to video the beatings by the light of car headlights.
30. An archive should be prepared of all available photographic evidence including any videos. Even if these are not sufficient to identify perpetrators directly, they are likely to provide other useful evidence of what happened. Even photographs of vehicle licence plates may be useful.
Similar fact evidence
31. I do not know whether there have been previous or subsequent similar ambushes of convoys and/or beating up of NLD supporters. If this is the case, and the incidents show a similar pattern or similar characteristics, evidence should also be gathered of such other incidents, as this will strengthen the case that the incidents were systematically planned.
CONCLUSION
32. All indications are that the Depayin massacre was systematic large-scale murder of people because of their political views or affiliations, and as such a crime against humanity under ICC Statute Article 7.
33. Much more evidence is needed for there to be any chance of bringing the perpetrators to account. Obtaining this evidence will require at least one and probably several full-time workers over several years. Approaches should be made to grant-giving organisations to obtain funding so that this worthwhile work can be carried out, and evidence obtained and preserved in the hope that those responsible can be identified and eventually tried.
34. I will be happy to help further with this work in future insofar as my other commitments permit.
PAUL HARRIS
10 January 2004
