BURMA: IT IS TIME TO PUT THE SITUATION IN BURMA

ON THE SECURITY COUNCIL’S AGENDA

 

 

 

 

 

Research Paper of the BURMA UN SERVICE OFFICE and the BURMA FUND

September, 2003

 

 


Contents

 

Executive Summary

 

The Role of the Security Council Assigned by the United Nations Charter

 

The determination of a ‘threat to the peace, breach of the peace or act of aggression’ under Article 39 of the Charter

 

  1. Internal conflicts as a threat to the peace
  2. Violations of human rights and humanitarian law, and humanitarian crises, as a threat to the peace
  3. Disruption to democracy as a threat to the peace

 

 

Why the Security Council should determine that the situation in Burma constitutes a ‘threat to the peace’

 

Disruption to democracy

Internal conflict and gross violations of human rights and humanitarian law

Dire Humanitarian situation

 

 

The United Nations Secretary-General’s power under Article 99 of the Charter

 

 

Coercive Measures

 

Existing Sanctions Against the Burmese Regime

 

A Model Security Council Targeted Sanctions Regime for Burma



Executive Summary

 

The United Nations exists, among other reasons, for the fundamental purpose of maintaining peace and security in the world. One of its main activities, therefore, is the resolution of conflicts – a task which has become more complex in recent times when many conflicts take the form of internal factional and civil strife, though often with very serious external repercussions” – Secretary-General Kofi Annan.[1]

 

Recent events in has led to calls for the United Nations Security Council to address and take action on the situation in Burma.[2] It is long overdue. Since 1992 the Security Council has increasingly been prepared to define what has essentially been an internal situation as constituting a ‘threat to international peace and security’ under Article 39 of the United Nations Charter. Such a determination can justify enforcement action under Chapter VII of the Charter which is binding on all Member States. Recent practice of the Security Council shows that there is a clear case for the Council to determine that the internal situation in Burma constitutes a threat to international peace and security under Article 39 such as to justify enforcement action under Chapter VII of the Charter. Three classes of situation have been recognized by the Security Council as constituting (at least in part) threats to international peace and security: internal conflicts; violations of fundamental norms of international law such as human rights and humanitarian law, and humanitarian crises; and disruption to democracy. All these classes of situation are present in Burma.

 

This paper will first discuss the role of the Security Council assigned by the United Nations Charter for the ‘primary responsibility for the maintenance of international peace and security’, then explore the recent practice of the Council in determining what constitutes a ‘threat to international peace and security’ under Article 39 sufficient to trigger the coercive powers conferred on the Security Council in Chapter VII. The paper then applies this practice to the situation in Burma to argue that the situation fulfils the substantive requirements of the Council for it to determine that Burma constitutes a ‘threat to international peace and security’. The paper then discusses the potential for the United Nations Secretary-General to use the powers conferred on him under Article 99 of the Charter to bring to the attention of the Security Council any matter which in his or her opinion may threaten the maintenance of international peace and security if Council members do not display the necessary political will to place Burma on the Council’s agenda. The final part of the paper discusses the coercive measures available under Chapter VII of the Charter before proposing a model targeted sanctions regime for Burma.


Recent events

On 30 May 2003, Burma’s military regime, the State Peace and Development Council (SPDC),[3] instigated a brutal ambush on Daw Aung San Suu Kyi and her convoy in Central Burma by pro-government militia,[4] resulting in a large but unknown number of deaths, detentions, arrests and disappearances.[5] The military regime arrested Daw Aung San Suu Kyi after the attack and have insisted to the international community that she is being held in ‘protective custody’ to ‘ensure her safety and for the sake of national security’.[6] However she is being detained under section 10(a) of Burma’s draconian 1975 State Protection Act which allows the detention for up to five years without trial of anyone suspected of committing, or planning to commit, an act which endangers the security of the state. She is being held in an undisclosed location and no timetable has been given by the SPDC for her release despite intense regional and international pressure. Scores of MPs and members of Aung San Suu Kyi’s party, the National League for Democracy (NLD), and other democracy activists, have been arrested by authorities in the months following the attack. The NLD headquarters in Rangoon and its branch offices have been closed. Schools and universities were shut down. Military presence in Rangoon has increased. The May 30 attack, known as ‘Bloody Friday’, and the ensuing crackdown has been the most ruthless and bloodiest attack on the democracy movement in Burma since 1988, when the regime suppressed a popular uprising against the regime and thousands were killed.

 

Ongoing internal conflict

Internal conflict in Burma has been ongoing since independence in 1948. The regime’s troops have battled a variety of ethnic insurgencies since independence. A few groups remain in active revolt – in Shan, Karen and Karenni States - as well as pockets in cease-fire areas where splinter groups have taken up arms against the government due to dissatisfaction with the cease-fire deals which have not addressed political issues.

 

Violations of human rights and humanitarian law

The national army commits a wide range of gross violations of human rights and humanitarian law in the context of its counter-insurgency activities in the ethnic areas. Violence against and large-scale displacement and relocation of civilians has created one of the largest refugee populations in Asia and an unknown number of internally displaced persons. Numerous reports have documented widespread, systematic and flagrant violations of human rights and international humanitarian law, such as forced labour, torture, political imprisonment, forced recruitment of child soldiers, and military rape of women and girls, to the extent which has raised allegations of ‘ethnic cleansing’. 

 

Humanitarian crisis

Burma has been ruled for more than forty years by a succession of military regimes that have systematically impoverished the country. Burma is now facing a dire humanitarian situation. In a letter dated 30 June 2001, leaked to the press in early August of that year, all nine United Nations agency representatives in Rangoon collectively called on their respective headquarters and the international community for a ‘dramatic overhaul of the budget allocations’ for Burma because the country is ‘on the brink of a humanitarian crisis’.[7] In a letter to the United Nations Secretary-General in 1992, UNICEF described the situation facing the children of Burma as a ‘silent emergency’. A lot of time has passed since then. Burma’s healthcare system is in a shambles due to inadequate budget allocations. The regime spends 40% of GDP on military spending while less than 1% on health and education. As a result HIV/AIDS is spreading rapidly, and malaria, TB, leprosy, maternal mortality, infant mortality and malnutrition are pervasive.

 

Disruption to democracy

The Burmese people voted overwhelmingly in favour of democratic governance on 27 May 1990 in the first multi-party elections held in thirty years. The NLD, led by Daw Aung San Suu Kyi, won an overwhelming majority – 82% of the seats. Despite the military regime’s initial promise of a rapid transfer of power, the election results have not been honoured.[8] The recent events are only one hiccup in the disruption of a promised peaceful negotiated transfer to democracy by the regime. Daw Aung San Suu Kyi was placed under house arrest from 1989 to 1995, then again from September 2000 to 6 May 2002, and has been held in custody in an undisclosed location since the brutal attack on her and her convoy in central Burma on 30 May 2003. There are still approximately 1,300 political prisoners in Burma[9] and the level of repression on the general population is extreme. Today, it is one of the most tightly controlled dictatorships in the world.[10]

 

Action by ASEAN

In a historic departure from past practice, the Association of South-East Asian Nations (ASEAN) departed from its strict principle of non-interference in the internal affairs of Member States during the 36th ASEAN Foreign Ministers meeting and the 10th ASEAN Regional Forum meeting in Cambodia in June. In its Joint Communique of the 36th ASEAN Ministerial Meeting on 17 June, ASEAN noted that it had discussed the recent political developments in Burma, particularly the 30 May incident, and that it ‘looked forward to the early lifting of restrictions placed on Daw Aung San Suu Kyi and the NLD members’, and urged the military regime to negotiate with the democracy forces for a political transition.[11] On the 18 June, the Chairman’s statement at the 10th ASEAN Regional Forum stated that the Ministers were briefed about the current situation in Burma ‘[n]oting the importance of strengthening democracy as a fundamental element of regional security’, urged the regime to negotiate with the democracy forces for a political transition and to lift the restrictions placed on Daw Aung San Suu Kyi.[12] Both statements reaffirmed their support for the efforts of the United Nations Secretary-General’s Special Representative Tan Sri Razali Ismail to assist in this regard.

 

Action by the Security Council

The Security Council should recognize the situation in Burma is a threat to international peace and security and take action under Chapter VII of the United Nations Charter.

 

It should demand the release of Daw Aung San Suu Kyi, other detained NLD MPs and members, as well as all political prisoners in Burma.

 

The Council should condemn the military regime’s egregious human rights abuses, its non-adherence to humanitarian law, and its refusal to engage in a substantive political dialogue with the democratic opposition (the NLD and other pro-democracy groups, particularly ethnic groups) toward establishing a democratic government.

 

In determining that the situation in Burma constitutes a ‘threat to international peace and security’ requiring enforcement action under Chapter VII, the Security Council should impose a targeted sanctions regime. Targeted sanctions should include: a comprehensive arms embargo; an assets freeze on the junta, its militia, entities and cronies and their immediate family members; a ban on new investment, loans and grants from international financial institutions and imports; aviation and travel bans; and a ban on diplomatic and other political representation.

 

The fact that Burma has not yet been on the Security Council’s agenda for action illustrates that a determination by the Council that a situation constitutes a ‘threat to international peace and security’ has increasingly become more of a political rather than a substantive hurdle. Political will on the part of the Security Council members, especially the five veto-wielding members, is needed. The momentum for the Security Council to address and take action on the situation in Burma should not halt if Daw Aung San Suu Kyi is released from detention. The situation in Burma is dire and the plight of the Burmese people as a whole deserve the Council’s attention.



The Role of the Security Council Assigned by the United Nations Charter

 

The United Nations Charter confers remarkable powers upon the Security Council. The Security Council has primary responsibility for the maintenance of peace and security. In discharging this responsibility, the Council is required to determine the existence of any threat to international peace and security. The Council may impose measures to maintain and restore international peace and security. These measures may include arms embargoes, financial sanctions, travel bans and the severance of diplomatic relations, or the use of force. Where the Council imposes such measures, all Member States of the United Nations are obliged to observe them. This obligation supersedes conflicting international legal obligations.

 

The primary responsibility of the Security Council[13] for the maintenance of peace and security is contained in Article 24(1):

 

“In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf”.

 

The requirement that the Council shall determine the existence of any threat to international peace and security is contained in Article 39:

 

“The Security Council shall determine the existence of any threat to the peace, breach of the peace or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security”.

 

Security Council practice in determining the existence of a threat to international peace and security is examined below.

 

Where the Council has determined that a threat to international peace and security exists, Articles 39, 41 and 42 of the Charter set out what measures may be taken to maintain and restore international peace and security.

 

Article 41 provides:

 

“The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.”

 

Article 42 provides:

 

“Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.”

 

The obligation on all Member States to comply with these measures is contained in Article 25.

 

“The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter”.

 

The fact that the obligation of Member States to comply with measures imposed by the Security Council under Article 39 supersedes any conflicting international legal obligations is contained in Article 103. Article 103 provides:

 

“In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail”.

 


The determination of a ‘threat to the peace, breach of the peace or act of aggression’ under Article 39 of the Charter

 

“The Security Council shall determine the existence of any threat to the peace, breach of the peace or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security” – Article 39 of the United Nations Charter.

 

The Security Council, in exercising its power under Article 39 to determine whether a threat to the peace, a breach of the peace or an act of aggression exists, has considerable discretion. In the absence of judicial review of Council decisions, the Council has considerable latitude in defining what constitutes a threat to international peace and security.[14] This is compounded by the fact that the Council is under no obligation to make a determination under Article 39, even if it considers that a threat to or breach of the peace exists – Article 39 empowers, but does not oblige, the Security Council to act.[15]

 

Over the past ten years the Security Council has made determinations under Article 39 that a threat to peace and security exists with great frequency, and in a broader range of circumstances, than previously. Political analyst, Simon Chesterman, raises the point made by some commentators that given the difficulty in establishing what substantive meaning (if any) should be attributed to a ‘threat to international peace and security’, that such a determination is, increasingly, being treated as a formal rather than substantive hurdle. Chesterman argues that ‘a more fundamental difficulty in establishing the limits to this concept is the apparent link between such determinations and the political willingness to take measures in response to particular situations’.[16]

 

The meaning of ‘international peace’

The reference to ‘international peace’ has given rise to difficulties with respect to the circumstances under which an internal conflict could constitute a breach of or a threat to the peace. It appears consistent to interpret Article 39 in the context of the goal of the collective security system (Article 1(1)) and the primary responsibility of the Security Council (Article 24), which are both explicitly restricted to the maintenance of ‘international’ peace and security. This interpretation favours the conclusion that a civil war is not in itself a breach of international peace, even though it might lead to such a breach. In recent practice, however, the Security Council has increasingly dealt with internal conflicts as such, regardless of a possible outbreak of inter-state war and of other inter-state consequences. In the 1990s, it has even shown tendencies to incorporate grave violations of human rights into the concept, thereby applying an ever broader notion of a threat to the peace. This development has significantly broadened the scope of action under Article 39.[17]

 

Breach of the peace

Typically, a breach of the peace is characterized by hostilities between armed units of two States. For example, the Security Council regarded the Argentine invasion of the Falkland/Malvinas islands as a breach of the peace. Internal armed conflicts can constitute breaches of the peace once it is accepted that these might pose threats to the peace regardless of any ensuing risk of an international war. If the prospect of a destabilization of the respective country, of human rights violations and of dire humanitarian consequences is considered as the cause of a threat to the peace, a breach of the peace occurs when these consequences manifest themselves. In practice, however, the Security Council has not yet termed such a situation a ‘breach’ but has confined itself to determining ‘threats to the peace’.[18]

 

Aggression

Aggression presumes the direct or indirect application of the use of force. An armed attack constitutes aggression and in several cases the Security Council also qualified short-term military actions as falling into this category.[19] However, the Security Council has not distinctly designated what acts will be regarded as acts of aggression. The determination of an act of aggression by the Council is fundamentally a political rather than judicial finding.[20]

 

Threats to the peace

This is the broadest and least well-defined concept in Article 39. In practice, it is almost the only one used by the Security Council, whereas the existence of breaches of the peace or acts of aggression are usually not specifically determined, even if obvious. The most typical and obvious case of a threat to the peace is that of an impending armed conflict between States, i.e. the imminent danger of a breach of the peace or an act of aggression. Today, however, the range of situations possibly giving rise to a threat to the peace reaches far beyond that ‘traditional’ confine, and is not limited in temporal respect. For example, the Security Council has regarded post-conflict situations as threats to the peace, and on this basis authorized peace-building operations in Bosnia, Kosovo and East Timor. This was on the pragmatic assumption that the cessation of military hostilities usually does not remove the danger of the recurrence of hostilities.[21]

 

The paper will now consider three classes of situation that have been recognized by the Security Council as constituting (at least in part) threats to international peace and security: internal conflicts; violations of human rights and humanitarian law, and humanitarian crises; and disruptions to democracy.

 

 

  1. Internal conflicts as a threat to the peace

 

Chesterman observes that:

 

“[t]he most basic transformation in the use of Security Council powers is that it now appears to be broadly accepted that a civil war or internal strife may constitute a threat to international peace and security within the meaning of Article 39”.[22]

 

In exploring the recognition by the Security Council that internal conflicts may constitute a threat to international peace and security within the meaning of Article 39, Chesterman states ‘it is common to trace the recent preparedness to view internal armed conflicts as threats to the peace back to resolution 688 (1991), which addressed the repression of Northern Iraq’s Kurds’.[23] During the military campaign against Iraq in 1991, Iraqi troops attacked Kurdish villages, forcing up to two million civilians to flee. By 5 April 1991, Turkey estimated that almost a million Kurds were attempting to reach safety by crossing its borders.[24] Security Council Resolution 688 (1991) of 5 April 1991 illustrated the Security Council’s preparedness to view internal strife as a threat to international peace and security, however, it did not explicitly or implicitly state that it was acting under Chapter VII of the Charter, and it restricted its reference to the threat to international peace and security to the trans-boundary effects of the situation. The preamble of Resolution 688 (1991) stated that the Council was:

 

Gravely concerned by the repression of the Iraqi civilian population in many parts of Iraq, including most recently in Kurdish populated areas, which led to a massive flow of refugees towards and across international frontiers and to cross-border incursions, which threaten international peace and security in the region”.

 

The Council clearly perceived that, in this situation, the flow of refugees and cross-border incursions, were a threat to international security. This was repeated in operative paragraph one of Resolution 688 (1991) of 5 April 1991 where the Council condemned ‘the repression of the Iraqi civilian population…the consequences of which threaten international peace and security in the region’.[25]

 

The Council has determined that fighting within a State on a considerable scale, with the possibility of outside intervention, can constitute a threat to international peace and security.[26] In the former Yugoslavia, long before the seceding States were recognized as independent, the Security Council determined the existence of a threat to the peace in its Resolution 713 (1991) of 25 September 1991.[27] The Council referred to two elements in the preamble to Resolution 713 (1991) of 25 September 1991 to support its position that the situation constituted a threat to international peace and security: the ‘heavy loss of human life and material damage, and…the consequences for the countries in the region, in particular the border areas of neighbouring countries’. Chesterman notes that given that the border issue was, at best, a minor one, it is arguable that the Security Council was asserting its ability to intervene in a purely internal conflict.[28]

 

The Security Council has also held that activities by an armed rebel group within a State can constitute a threat to international peace and security. Security Council Resolution 864 (1993) of 15 September 1993, concerning Angola, is noted as a precedent as the Council treated a non-state entity as the object of a Chapter VII resolution. The rebel movement, the National Union for the Total Independence of Angola (UNITA), refused to accept the validity of the results of the 1992 multi-party elections. Fighting broke out but peace negotiations resulted in a Memorandum of Understanding and the adoption of a ceasefire. In 1993 a humanitarian disaster was reported by United Nations agencies and the Security Council adopted resolutions expressing grave concern at the deteriorating situation and condemning UNITA for its continued military actions.[29] On 15 September 1993, the Council unanimously adopted Resolution 864 (1993), which determined, for the first time, ‘that, as a result of UNITA’s military actions, the situation in Angola constitutes a threat to international peace and security’[30] and imposed a mandatory oil and arms embargo against UNITA.[31]

 

The Security Council has since 1992 established a consistent practice in dealing with internal conflicts through its measures in the cases of Somalia,[32] Liberia,[33] Rwanda,[34] Burundi,[35] Zaire,[36] Albania,[37] the Central African Republic,[38] Sierra Leone,[39] and East Timor.[40]

 

Simma notes that while in some of these cases, the Security Council still made reference to transboundary consequences of the conflicts and their effect on regional stability, in a number of others, both the text of the resolutions and the debates preceding their adoption show that the threat to peace, in the view of the Security Council, was founded wholly in the internal situations (e.g. Angola, Rwanda and Albania). It can therefore be assumed that any internal conflict of a considerable scale could constitute a threat to international peace and security.[41]

 

In a report by the International Commission on Intervention and State Sovereignty, the Commission comments that Security Council precedent suggests an emerging guiding principle which the Commission terms ‘the responsibility to protect’. The principle in question is that:

 

‘intervention for human protection purposes, including military intervention in extreme cases, is supportable when major harm to civilians is occurring or imminently apprehended, and the state in question is unable or unwilling to end the harm, or is itself the perpetrator. The Security Council itself has been increasingly prepared in recent years to act on this basis, most obviously in Somalia, defining what was essentially an internal situation as constituting a threat to international peace and security such as to justify enforcement action under Chapter VII of the UN Charter’.[42]

 

  1. Violations of human rights and humanitarian law, and humanitarian crises, as a threat to the peace

 

The notion of a threat to the peace has now come to encompass violations of fundamental norms of international law such as human rights and humanitarian law. This notion and the wide-ranging measures adopted have included such innovations as the establishment of the two international criminal tribunals for the former Yugoslavia and Rwanda.

 

Although the traditional view was that the Security Council should not concern itself with the human rights situation in a State, the Council has rejected this approach in its recent practice. As noted above, the Council expressly considered the human rights situation of the Kurdish population in northern Iraq, and concluded that the ‘consequences’ of the repression of that  population, including refugee flows and cross-border incursions, constituted a threat to the peace. Since then, the Council has displayed an increasing willingness to consider the situation of the population in the State under consideration as a threat to peace in and of itself, and has placed less emphasis on the need for transboundary effects.

 

Somalia was the first instance when the Council authorized military intervention for strictly humanitarian purposes. In Somalia, the Security Council determined that ‘the magnitude of the human tragedy caused by the conflict in Somalia…constitutes a threat to international peace and security’.[43]

 

With respect to both Rwanda and Eastern Zaire, the Council found the threat to the peace in the region was due to the ‘magnitude of the humanitarian crisis’.[44] In the case of Rwanda, the Council authorized France, under Chapter VII, to conduct an operation under national command and control aimed at contributing, in an impartial way, to the security and protection of displaced persons, refugees and civilians at risk, using ‘all necessary means’ to achieve these humanitarian objectives.[45] In the case of Eastern Zaire, the Council adopted successive resolutions – in the first, Resolution 1078 (1996) of 9 November 1996, the Council referred to the magnitude of the humanitarian crisis[46]; in the second, Resolution 1080 (1996),  the Council explicitly acted under Chapter VII, but merely determined that ‘the present situation in eastern Zaire constitutes a threat to international peace and security’.

 

The Security Council determined in Resolution 1101 (1997) of 28 March 1997, that, following Albania’s descent into chaos as thousands of people lost their life savings following the collapse of a number of officially sanctioned pyramid investment schemes in March 1997, the situation constituted a threat to international peace and security. The Council, acting under Chapter VII, authorized Italy to lead a multinational force to, inter alia, ‘facilitate the safe and prompt delivery of humanitarian assistance’. The multinational force departed following the holding of elections and the election of a new government.[47]

 

The Security Council determined  by its Resolution 1264 (1999) of 15 September 1999 that the situation facing East Timor following the outcome of the popular consultation of 30 August 1999 constituted a threat to international peace and security. In the preamble of Resolution 1264 (1999), preceding its determination, the Council, inter alia, expressed its deep concern at the deteriorating security situation and the continued violence against and large-scale displacement and relocation of East Timorese civilians, stated that it was appalled by the worsening humanitarian situation in East Timor, and expressed concern at reports indicating that systematic, widespread and flagrant violations of international humanitarian and human rights law had been committed in East Timor.

 

Security Council practice suggests that severe and widespread suffering of a civilian population in armed conflicts can give rise to a threat to international peace and security.[48] The Security Council has unanimously adopted statements to the effect that ‘the deliberate targeting of civilian populations or other protected persons and the committing of widespread violations of international humanitarian and human rights law in situations of armed conflict may constitute a threat to international peace and security’.[49] However the existence of a situation of an ‘armed conflict” appears to be an important element due to the nature of the Security Council’s power under Chapter VII. It is unlikely that the Council would invoke Chapter VII in response to a humanitarian crisis unless it occurs in a time of conflict. However, the Council’s action in Albania’s case is an example of an exception to this general approach.

 

Chesterman notes that although the initial grounds for the Council’s determination of a threat to the peace in internal armed conflicts were premised on transboundary implications, such as refugee flows (e.g. Iraq, Somalia and Rwanda), the Council has, in the last decade, also determined that ‘serious’ or ‘systematic, widespread and flagrant’ violations of international humanitarian law may contribute to a threat to international peace and security. This is illustrated by the Council’s resolutions establishing the International Criminal Tribunals for the former Yugoslavia and Rwanda[50] and on East Timor.[51] However, from the case studies it appears a determination that a situation constitutes a threat to international peace and security is more likely when the internal armed conflict has transboundary consequences (thus destabilizing the security of another country or the region), and where serious violations of international humanitarian law are taking place.[52] The increased sensitivity of world public opinion with regard to grave violations of human rights allows one to conclude that the Security Council will continue to determine that gross violations of human rights can constitute a threat to international peace and security.

 

  1. Disruption to democracy as a threat to the peace

 

The Security Council has taken action with a view to enforcing democratic principles in two specific instances. In 1993 and 1994, the Security Council determined that Haiti’s failure to reinstate an overthrown government constituted a threat to international peace.[53] Similarly, after 1997, the Council took measures to force the Sierra Leonean military junta to return to constitutional, democratic order and to accept the return of the government-in-exile.[54]

 

In both cases, the undemocratic change of government was part of a dangerous overall situation which included the severe destabilization of the country concerned, a decline in the humanitarian situation, and an increase in refugee flows. The case of Sierra Leone was characterized, in addition, by the outbreak of civil strife, which in itself could be considered as a threat to the peace. Therefore Council practice does not suggest that the violation of democratic principles alone constitutes a threat to the peace. ‘However, if coupled with a crisis which itself constitutes a threat to the peace, undemocratic change might justify Chapter VII enforcement action’.[55] Further discussion on Haiti is set out below.

 

Haiti[56]

Security Council Resolution 940 (1994) of 31 July 1994 was unprecedented in authorizing the use of force to remove one regime and install another. It was the first occasion in which it could be claimed that the Council authorized the use of force in support of democracy.

 

In brief, Jean-Bertrand Aristide was elected President of Haiti in 1990 with 67% of the popular vote in an internationally-monitored ballot. Aristide was removed from office by a coup d’etat on 30 September 1991. The Security Council adopted Resolution 841 (1993) of 16 June 1993 by which it determined ‘that, in these unique and exceptional circumstances, the continuation of this situation threatens international peace and security in the region’ and imposed a mandatory economic embargo. These circumstances included the incidence ‘of humanitarian crises, including mass displacement of population’, and the ‘climate of fear of persecution and economic dislocation which could increase the number of Haitians seeking refuge in neighbouring Member States’.[57]

 

The Security Council’s embargo led the Haitian military junta to accept the Governors Island Agreement (GIA), which provided, inter alia, for Aristide to be returned to power. Sanctions were lifted on 27 August 1993, but the agreement collapsed when violence against Aristide supporters resumed in September and October of that year. The Security Council re-imposed sanctions and authorized a naval blockade.

 

In February 1994, Aristide reversed his previous position and publicly signaled support for an intervention to overthrow the de facto government and restore him to power. On 29 July 1994, the Aristide government-in-exile formally requested ‘prompt and decisive action’ by the international community.[58] On 31 July 1994, the Security Council, acting under Chapter VII of the Charter, adopted resolution 940 (1994) which authorized a multinational force to ‘facilitate the departure from Haiti of the military leadership…[and] the prompt return of the legitimately elected President…’. An invasion was averted when former U.S. President Jimmy Carter secured an agreement with the Haitian military to return Aristide to power.

 

In Chesterman’s analysis of the action taken by the Security Council against Haiti, he notes that it is arguable whether the disruption to democracy actually constituted the basis for Resolution 940 (1994). The disruption of democracy was only one of several factors identified by the Council in the resolution as contributing to a threat to international peace and security. The other factors, mentioned first, were: the significant further deterioration of the humanitarian situation in Haiti; the desperate plight of Haitian refugees; and, the recent expulsion of the staff of the International Civilian Mission. This, together with Aristide’s invitation to intervene (widely acknowledged to legitimate such action), diminishes the view of Resolution 940 (1994) as a precedent to view disruption to democracy alone as a legitimate ground for Security Council action.[59]

 

 
In sum

 

There is no doubt that the practice of the Security Council in determining situations which constitute a threat to international peace and security has recently broadened to include internal conflicts, gross violations of fundamental norms of international law such as human rights and humanitarian law, humanitarian crises, and disruption to democracy. Most determinations have not rested only on one of these factors; usually the Council relies upon a combination of two or more of these factors.

 

Despite the Council’s broader approach to the determination of threats to peace and security, the Council has not taken action in respect of a number of country situations which would appear to qualify, and which are arguably analogous to those already on the Council’s agenda. This reluctance is  primarily due to a lack of political will on the part of Council members, and/or the obstruction by one or more of the five veto-wielding permanent members.

 

The following section applies the recent practice of the Security Council to the situation in Burma to argue that there is a clear case for the Council to determine that the internal situation in Burma constitutes a threat to international peace and security under Article 39 such as to justify enforcement action under Chapter VII of the Charter.

 


Why the Security Council should determine that the situation in Burma constitutes a ‘threat to the peace’

 

Based on the Security Council’s recent practice, the argument can clearly be made that the Council could and should determine that the current situation in Burma constitutes a threat to international peace and security. There are a number of factors that the Council could rely upon in making such a determination:

 

  • The  failure by the military regime to live up to its commitment to negotiate a peaceful transition to democracy by constantly frustrating the process. The recent detention of Daw Aung San Suu Kyi, other senior members of her party (the National League for Democracy), and the widespread crackdown on democracy activists and activities, illustrates the lack of political will on the part of the regime to honour the results of the 1990 multi-party elections.

 

  • The consequences of the 50-year internal armed conflict, including the widespread forced displacement and relocation of civilians, flows of refugees and drugs to neighbouring countries, and the widespread, systematic and flagrant violations of international human rights law and international humanitarian law.

 

  • The dire humanitarian situation.

 

The essential element is the requisite political will to bring Burma’s case before the Security Council. To date, this element has been missing.

 

Disruption to democracy

 

  • The military regime has not honoured its promise to transfer power following the landslide victory of the National League for Democracy during the 1990 multi-party elections.
  • The recent attack on Nobel Peace Prize Laureate Daw Aung San Suu Kyi, other senior members of the National League for Democracy and its supporters, has halted any progress towards a negotiated peaceful transition to parliamentary democracy.

 

May 27, 2003 marked the thirteen year anniversary of the first multi-party elections held  in Burma for thirty years. The main opposition party, the National League for Democracy (NLD), led by Nobel Peace Prize Laureate Daw Aung San Suu Kyi, won an overwhelming majority – 82% of the seats. Despite the military regime’s initial promise of a rapid transfer of power, the election results have not been honoured.[60] Daw Aung San Suu Kyi was placed under house arrest from 1989 to 1995, then again from September 2000 to 6 May 2002, and has been held in custody in an undisclosed location since the brutal attack on her and her convoy in central Burma on 30 May 2003.

 

The May 30 attack on Daw Aung San Suu Kyi, her convoy and supporters in Central Burma by purportedly thousands of men, the majority from the pro-government militia (the Union Solidarity and Development Association (USDA)), armed with sticks, clubs and rocks resulted in a large but unknown number of deaths, detentions, arrests and disappearances.[61] The military regime arrested Daw Aung San Suu Kyi after the attack and have insisted that she is being held in ‘protective custody’ to ‘ensure her safety and for the sake of national security.’[62] Scores of NLD members and supporters have been arrested by authorities in the months following the attack. The NLD headquarters in Rangoon and its branch offices have been closed. Military presence in Rangoon has increased. The May 30 attack and the ensuing crackdown has been the most ruthless and bloodiest attack on the democracy movement in Burma since the 1988 massacre.

 

Reports received indicate the premeditated nature of the attack and crackdown. United States embassy officials in Rangoon visited the scene of the attack and upon return on 5 June reported that they had found signs of ‘great violence’ and believed the attack was premeditated: ‘Clearly, orders were given for a violent attack’ - weapons were ‘clearly prepared before the fact.’[63] Responsibility for the attack can be attributed directly to the top general in the junta - Senior-General Than Shwe, who is also the chairman of the USDA.[64] Senior-General Than Shwe has held the positions of prime minister, head of state, SPDC chairman, minister of defence and supreme commander, since 1992. He recently ceded the position of prime minister to another member of the SPDC, General Khin Nyunt.[65]

 

Despite the outcry and condemnation by the international community of the military regime’s treatment of Daw Aung San Suu Kyi, her colleagues and supporters, the regime has refused to release, grant access or confirm where she is being held. The Special Envoy of the Secretary-General for Burma, Mr. Razali Ismail, and a representative of the International Committee of the Red Cross, are the only outsiders who have managed to meet with Daw Aung San Suu Kyi since her arrest.[66] United Nations Secretary-General Kofi Annan has, several times, ‘strongly urg[ed] the government of Myanmar to release [Aung San Suu Kyi] and other NLD leaders from the continued detention immediately and begin a dialogue aimed at national reconciliation without further delay’.[67]

 

Daw Aung San Suu Kyi is being detained under section 10(a) of Burma’s 1975 State Protection Act. The statute allows the detention of anyone for up to five years without trial who is suspected of committing, or planning to commit, an act which endangers the security of the state. To date, no timetable has been given by the military regime for her release.

 

In a historic departure from past practice, the Association of South-East Asian Nations (ASEAN) departed from its strict principle of non-interference in the internal affairs of Member States during the 36th ASEAN Foreign Ministers meeting and the 10th ASEAN Regional Forum meeting in Cambodia in June. In its Joint Communique of the 36th ASEAN Ministerial Meeting on 17 June, ASEAN noted that it had discussed the recent political developments in Burma, particularly the 30 May incident, and that it ‘looked forward to the early lifting of restrictions placed on Daw Aung San Suu Kyi and the NLD members’, and urged the military regime to negotiate with the democracy forces for a political transition.[68] On the 18 June, the Chairman’s statement at the 10th ASEAN Regional Forum stated that the Ministers were briefed about the current situation in Burma ‘[n]oting the importance of strengthening democracy as a fundamental element of regional security’, urged the regime to negotiate with the democracy forces for a political transition, and to lift the restrictions placed on Daw Aung San Suu Kyi.[69] ASEAN has firmly resisted past entreaties from the United States and Europe to take a stand against the military regime. The turn-around signifies that ASEAN governments are disillusioned with the results of their attempts at ‘constructive engagement’ with the military regime and that the issue has become a blight on ASEAN itself.

 

The disruption of a promised peaceful negotiated transition to democracy by the military regime in Burma is but one reason why the Security Council should determine that the situation in Burma constitutes a ‘threat to international peace and security’. The others will be discussed below.


Internal conflict and gross violations of human rights and humanitarian law

 

  • Ongoing civil war;
  • Violence against and large-scale displacement and relocation of civilians resulting in refugee flows and other transboundary consequences;
  • Widespread, systematic and flagrant violations of human rights and international humanitarian law which arguably constitutes ‘ethnic cleansing’.

 

Since independence in 1948, the regime’s troops have battled a variety of ethnic insurgencies. Ethnic insurgent groups have sought to gain greater autonomy or, in some cases, independence from the ethnic Burman-dominated State. Since 1989, 17 groups have concluded cease-fire agreements with the regime. Under the agreements, the groups have retained their own armed forces and performed some administrative functions within specified territories inhabited chiefly by members of their ethnic groups. However, a few groups remain in active revolt – especially in Shan, Karen and Karenni States, as well as pockets in cease-fire areas where splinter groups have taken up arms against the government due to dissatisfaction with the cease-fire deals which have not addressed political issues.

 

The Burmese army commits a wide range of human rights violations in the context of its counter-insurgency activities in the ethnic areas. There is a strong correlation between militarization, human rights abuses and lack of adherence to humanitarian law in Burma which has led to allegations of “ethnic cleansing”.[70] The last two decades has witnessed a plethora of reports by international human rights organisations documenting the multifarious human rights abuses perpetrated by the Burmese army against the civilian population, particularly in ethnic areas. The United Nations General Assembly, since 1991, and Commission on Human Rights since 1992, have annually adopted by consensus a resolution condemning the situation of human rights in Burma. Civilians have been forcibly relocated, displaced, used for forced labor and portering of military equipment to frontline areas, for laying landmines and acting as human minesweepers, and are subjected to torture and or extrajudicial killing if suspected of having links with anti-resistance forces. Women and girls are vulnerable to rape and other forms of gender-based violence, such as sexual slavery, by Burma army soldiers.[71]

 

Widespread displacement and relocation of civilians

Government displacement programs have taken place at least since the late 1960s. Known as the ‘Four Cuts’ policy to cut links between civilians and armed groups, supplies of food, funds, recruits and intelligence to opposition forces are cut thereby reducing the impact of armed resistance groups. Villages and food supplies are burnt in areas where resistance forces are active, and civilians are forcibly relocated into Burma army-controlled sites or are ordered to simply leave the area. To prevent villagers from remaining or returning, villages are burnt down and designated ‘free fire zones.’ Civilians found in these areas are shot on sight.

 

Since 1996, over 2,500 villages are known to have been relocated or burnt down in the States and Divisions adjacent to the Thai border (Shan, Karen, Karenni and Mon States and the Tenasserim and Pegu Divisions).[72] Estimates of the total number of displaced persons in Burma range between 600,000 to one million.[73] There are at least 633,000 displaced persons still either living in hiding or in more than 176 forced relocation sites in the border areas adjacent to Thailand.[74] The forced relocations are often accompanied by rapes and other forms of sexual violence, executions, and demands for forced labor to build infrastructure for villagers and army units. Independent monitoring or assistance to displaced persons has not been authorized by the regime.

 

Displaced persons hiding in the jungle and in relocation sites lack basic necessities such as food, appropriate shelter, medicine, access to basic health services, education and security. Rates of malnutrition, infant mortality and deaths from preventable diseases such as malaria, respiratory infections and diarrheal diseases are high.[75] The military launches regular patrols, aimed at seeking out internally displaced persons, destroying their temporary shelters and rice supplies and subjecting them to further serious human rights abuses.[76]

 

Flows of refugees and drugs into neighbouring countries and the region

Forced relocations have generated large refugee flows to neighboring countries or to parts of the country not controlled by the regime. An estimated 400,000 Burmese asylum seekers and refugees are currently living in neighboring countries (Thailand, India, and Bangladesh). At least 135,000 Karen, Mon, and Karenni reside in refugee camps in Thailand. In addition, there are tens of thousands of Shan refugees in Thailand not living in camps. Over 1,000 new asylum seekers cross the Thai border every month. On the country's western border, 22,000 Rohingya Muslims remained in refugee camps in Bangladesh. More than 100,000 Rohingyas lived outside the refugee camps in Rakhine State with no formal documentation as refugees.[77]

 

Another transboundary consequence of Burma’s instability is the flow of drugs into neighbouring countries and the region. According to the U.S. Bureau for International Narcotics and Law Enforcement Affairs report, “International Narcotics Control Strategy Report”,[78] Burma alternates with Afghanistan as being the world’s largest producer of illicit opium. Burma is also the primary source of amphetamine-type stimulants (ATS) in Asia, producing an estimated 800 million tablets per year. ATS has flooded Thailand and is trafficked to other countries around the globe. Burma’s opium is grown predominantly in Shan State, primarily in the areas of Shan State controlled by the United Wa State Army which the regime has a cease-fire agreement with. With the exception of seizing modest amounts of tablets and closing a few production labs, the regime has not made a concerted effort to stop ATS production and trafficking. The Thai government, frustrated by the regime’s lack of effort to address the flow of ATS across its border, announced an all-out assault on drug traffickers earlier this year.[79]

 

Widespread and systematic use of forced labour

The forced use of citizens as porters by the Burmese army - with attendant mistreatment, illness, and sometimes death - remains a common practice.

 

In 2000 the International Labour Organisation (the ILO) determined that the regime had not taken effective action to deal with the "widespread and systematic" use of forced labor in the country and, for the first time in its history, called on all ILO members to review their relations with the regime and to take appropriate measures to ensure that the regime would not be able to take advantage of such relations to perpetuate or extend the system of forced labor. In February 2002 an ILO team visited the country and an agreement was reached to establish a permanent ILO office in Rangoon to assist in dealing with continued problems of forced labor.

 

Human rights groups and the ILO continue to receive allegations of forced labor from around the country, including Rangoon division, Rakhine State, and areas along the Thai border.[80] In an October 2002 report, the International Confederation of Free Trade Unions (the ICFTU) reported that the military continued to use forced labor on a massive scale.[81] The ICFTU report echoed allegations contained in a July 2002 report by Amnesty International,[82] which contained a number of specific allegations of human rights abuses by the armed forces, including forced labor. The Amnesty International allegations related primarily to areas of Shan, Karen, and Mon States, and Tenassarim division.

 

The ICFTU reported that women, children (including orphans and street children), and elderly persons were required to perform forced labor; that porters often were sent into dangerous military situations, rarely received medical treatment, and almost never were compensated; that forced laborers frequently were beaten; and that some women performing forced labor were raped or otherwise abused sexually by soldiers. There were no accurate estimates of the number of citizens forced to provide labor each year but the practice was common. The regime has taken some limited measures toward eliminating the practice; however, the measures did not appear to have reduced significantly the use of forced labor, especially by the military.[83]

 

Largest user and recruiter of child soldiers in the world

According to a 220-page report published in October 2002 by Human Rights Watch, “My Gun was as Tall as Me: Child Soldiers in Burma”, 20% or more of active duty soldiers in the Burmese army may be children under the age of 18. Although there is no way to precisely estimate the number of children in the army, it appears that the vast majority of new recruits are forcibly conscripted and there may be as many as 70,000 soldiers under the age of 18. This makes Burma the largest recruiter and user of child soldiers in the world. Recruiters typically staked out railway, bus, and ferry stations; the street; marketplaces and festivals; and threaten boys who cannot produce identity cards with long prison terms or military enlistment. Boys who resist recruitment are often beaten or detained. The boys are given no opportunity to contact their families, and are sent to camps where they undergo weapons training, are routinely beaten, and brutally punished if they try to escape. Human Rights Watch received several accounts of boys who were beaten to death after trying to run away. Once deployed, boys as young as 12 are forced to engage in combat against Burma's ethnic minorities and other opposition forces; and to participate in human rights abuses against civilians, including rounding up villagers for forced labor, burning villages, and extrajudicial executions. Child soldiers who have deserted had few options, and typically either joined armed opposition forces or fled to neighboring countries.[84] The findings of this report were substantially corroborated by a  UNICEF report published in October 2002[85] and a November 2002 report by the Coalition to Stop the Use of Child Soldiers.[86] The regime has denied any recruitment or use of child soldiers.

 

Following a full-day debate on children and armed conflict on 14 January 2003, the Council decided to broaden its scrutiny of parties to armed conflict that recruit or use children as soldiers named not just in the annex to the Secretary-General’s report[87] to the Council pursuant to resolution 1379 (2001) of 20 November 2001, but also to the other parties named within his report, which included Burma. The Council requested the Secretary-General to report by 31 October 2003 on progress made by such parties.[88]

 

Sexual violence against women and girls, disproportionately from ethnic groups

Women and girls from ethnic groups remain highly vulnerable to gross human rights violations in Burma. A June 2002 report alleged the military used rape as a systematic weapon of war against the ethnic populations in Shan State. The report entitled “License to Rape”, by the Shan Women’s Action Network (SWAN) and the Shan Human Rights Foundation (SHRF), documented 173 cases of rape and sexual violence involving at least 625 women and girls committed by soldiers from 52 military battalions between 1992 and 2001. Given the stigma surrounding rape, this is probably the tip of the iceberg. Most of the rapes took place in Central Shan State where over 300,000 villagers have been forcibly relocated from their homes since 1996 as part of an anti-insurgency campaign.[89] Given the brutality of the rapes, (the report stated that over half were gang-rapes and 25 percent of the rapes resulted in death), the incidence of rapes by officers (83 percent), that the crimes often took place within military bases and in forced relocation sites, and the impunity with which they were carried out,[90] the report concluded that the rapes were condoned by the military regime in order to terrorize and subjugate the Shan. There were corroborating reports on rapes and sexual violence, by the military in Shan State and elsewhere, including first hand accounts from rape victims documented by credible foreign observers. According to a report by Refugees International, rape of ethnic women by the SPDC troops similarly was prevalent in Karen, Mon, and Karenni regions.[91]

 

The regime denied the report and ordered three internal reviews. In August 2002 the junta claimed that no soldiers were involved in the rapes. In October 2002 the regime stated it continued to investigate the allegations and had found evidence of five cases of rape similar to those described in the SHRF/SWAN report. The regime stated it provided copies of its report on the investigations to the international community and to the United Nations Special Rapporteur, Paulo Sergio Pinheiro. However, according to Pinheiro, the investigations were undertaken by military and other regime personnel with no special skills or experience in investigating human rights allegations. The investigations reportedly consisted of prearranged, large, collective, and public meetings with local officials, organized by military personnel. There has been continued international pressure on the regime to allow an independent assessment of the allegations and to take appropriate actions to prevent rape and sexual abuses by the military.[92] Reports continue to be received by human rights organisations of rape and other forms of sexual abuse perpetrated against women and girls by soldiers in the Burmese army.[93]

 


Dire Humanitarian situation
[94]

 

In a letter dated 30 June 2001, leaked to the press in early August, all nine United Nations agency representatives in Rangoon collectively called on their respective headquarters and the international community for a ‘dramatic overhaul of the budget allocations’ for Burma because the country is ‘on the brink of a humanitarian crisis.’[95] In a letter to the United Nations Secretary-General in 1992, UNICEF described the situation facing the children of Burma as a ‘silent emergency’. A lot of time has passed since then.

 

The discussion below will outline the current humanitarian situation in Burma.

 

Poverty

Four decades of military rule and mismanagement have resulted in widespread poverty, poor health care, and low educational standards. Burma was officially designated a ‘least developed country’ in 1987. The World Bank estimates, based on a national government survey of household income and expenditures in 1997, that about one fourth of the population, or thirteen million people, are living below minimum subsistence level, with another five million living precariously just above it.[96] Since this household survey was conducted the economic situation has worsened; an even greater proportion of the population is now living below the minimum subsistence level.

 

Burma is ranked 131th in the UNDP Human Development Index 2003,[97] placing it in the lower portion of medium human development countries in the region. Its score of 0.549, which measures health status, educational attainment, and general standard of living, places it second from bottom in Southeast Asia, just above Laos. However this figure is based on the official literacy rate of 85%. A recent UNICEF survey found that the real functionary literacy rate is only about 53%. With this estimate the HDI value would be lower, roughly the same as Laos.[98]

 

Health

Burma’s healthcare system is in a shambles due to inadequate budget allocations. Since 1985, public expenditure on health has shown a dramatic downward trend. Government spending on health care declined from 0.38% of GDP in 1995/6 to 0.17% in 1999/2000, one of the lowest levels in the world.[99] In 1999, the regime’s per capita expenditure on health care was US$0.60 per annum. The World Bank’s recommended minimum is twenty times that amount.[100] The regime claims that its health expenditure in 2000/1 has increased to 0.305% of GDP,[101] which is still completely inadequate.

 

The rates of infant mortality and malnutrition among children are very high, comparing unfavorably with its neighbors. In each of these areas, the trend within Burma over the last 15 years is one of stagnation or deterioration. According to UNICEF, of the 1.3 million children born every year, more than 92,500 will die before they reach their first birthday and another 138,000 children will die before the age of 5. The main causes of premature death are malaria, tuberculosis, HIV/AIDS, acute respiratory infections, and diarrheal diseases.[102] More than 1 in 3 children aged under 5 will become malnourished, most probably when they are between 1-3 years old.[103]

 

The maternal mortality ratio in the country is high, with estimates ranging between 230 and 580 per 100,000 live births. Contraception is largely unavailable and it is estimated that the consequences of unsafe abortion account for around 50 per cent of maternal deaths.[104]

 

Burma’s healthcare system is the most discriminatory in the South-East Asia, with responsiveness likely to depend upon an individual’s ethnic group, income level, or civilian versus military status. The health problems are exacerbated by the on-going armed conflict, which disproportionately affects ethnic groups. Children from ethnic groups have extremely limited access to health care, hospitals and immunization. Rural and border areas need increased immunization and inoculation coverage.[105] Conditions are particularly harsh in areas of open conflict, where the population is under pressure from both regime and resistance forces. Landmines and military violence directly affect the health of the populace, while displacement and forced relocations along with inadequate budget allocations are the main causes of malnutrition and other related illnesses.

 

The border areas score lower than the national average on most social indicators, with Northern Rakhine (Arakan), Chin and Karenni States being the worst affected.[106] International aid agencies do not have access to large populations in these States. Internally displaced persons suffer the most as the regime refuses to acknowledge or allow official assistance to this most vulnerable population, the majority of which are women and children. For more information about displacement, see above section.

 

HIV/AIDS

Burma stands perilously close to an unstoppable epidemic.[107] In June 2000, UNAIDS estimated that 530,000 people were infected by HIV.[108] This translates into one in 50 (2%) of the population in the most sexually active age bracket of 15 to 49. Some 180,000 of those infected were women, and another 14,000 were children. According to one estimate there were anywhere from 42,000 to 58,000 HIV-positive children born in Burma between 1988 and 1998.[109] There are at least 43,000 AIDS orphans. With around 50,000 new AIDS deaths a year, the total number of children deprived of one or both of their parents is rising sharply.[110]

 

Official HIV surveillance data in Burma, while imperfect, clearly indicates a serious epidemic that has spread from known high-risk groups into the general population. HIV prevalence of pregnant women receiving antenatal care, averaged 2.2% across the country and in some sites (border areas) was as high as 5.3%. A prevalence of 1% among pregnant women is used by UNAIDS/WHO as the benchmark of a generalized epidemic, where HIV has “bridged” from high-risk populations to the general population.[111]

 

Included among the major direct human factors contributing to this incidence are: injecting drug use (around 60% in 2000), direct and indirect commercial sex (38% in 2000), and male and female STI infections.[112] Overall, HIV levels in blood donors have been rising slowly but steadily over the past decade.

 

The known impact of HIV/AIDS is most severe along the north, Eastern and Southern border areas of Burma neighboring China and Thailand (Kachin, Mon, Shan States, Tenasserim Division) and Rangoon.

 

An increasingly high number of young girls are being trafficked to Thailand to work in the sex industry. These girls are at high risk of contracting HIV as many of them are sold and re-sold a number of times as ‘virgins.’[113]

 

Specific challenges to effective HIV/AIDS control and prevention in Burma include: risk factors associated with mobile and transient populations; limited condom use and availability (condoms were outlawed until 1992 and usage remains very low due); limited access to high-risk and at-risk populations, the inadequate involvement of people living with HIV/AIDS; inadequate behavioral research; limited supportive laboratory capacities; and limited resources to support blood safety programs.[114] Only recently has the regime publicly acknowledged concern about HIV/AIDS and publicly named the epidemic as one of the top three priority public health issues, along with malaria and TB.[115]

 

In the absence of any significant bilateral and multilateral donors, the United Nations system in Burma is the principal source of external funding for HIV/AIDS prevention and control efforts. The newly implemented two-year United Nations Joint Plan of Action aims to achieve a more coordinated approach by the United Nations agencies working on HIV/AIDS.

 

Several international NGOs have been subcontracted by the United Nations or have their own programs on HIV/AIDS prevention and care.[116] All of the United Nations co-sponsors have funded and partnered with at least one of these NGOs for HIV projects. Though international NGOs are reported to be generally effective, their geographical and population reach is very limited.[117]

 

Education

Burma was once considered one of the most literate countries in the world. Unfortunately the education system at all levels is decaying – and along with it the future of Burma’s next generations. The regime has neglected the education of children, allocating minimal resources to public education. In 1999, the World Bank found that state spending on education is among the lowest in the world, equivalent to 28 cents per child annually. Of the national budget, 40.1% is used for the military forces while less than 1% is used for all civilian education.[118]

 

Low educational attainment is a serious social, economic and political problem. Only three out of four children enter primary school, and of those only two out of five complete the full five years. In other words, only 30% of Burmese children get proper primary schooling, let alone secondary and tertiary education.[119]

 

According to a study conducted by UNICEF and the regime, the single greatest obstacle to school attendance in Burma is cost: 57.6% of households cannot afford basic education for their children.[120] Female students are disproportionately affected by high dropout rates. Fewer than one third of all girls who enroll make it through primary school.[121] Those children who are able to attend school rarely receive quality education. Textbooks, equipment and school supplies are outdated and in short supply. Teachers salaries are far below subsistence wages and have forced many teachers to quit out of economic necessity. Increasingly, only prosperous families can afford to send their children to school, even at the primary level.

 

Access to primary education is highly politicized. In many townships, NLD members are prohibited from participating in Parent Teacher Associations. Therefore, aid projects implemented through Parent and Teacher Associations invariably exclude on the basis of extraneous political considerations – the children of families the regime considers to be supporters of the democracy movement.

 

In addition to dropping out of school for financial reasons, thousands of children are forced to drop out, or interrupt, their education for reasons associated with conflict due to: lack of an educational infrastructure; few teachers; security concerns; constant transience due to forced relocation; and ‘Burmanization’ policies that force the closure of non-Burman schools in ethnic areas. Other factors include: forced labor requirements; burning of villages by the military and subsequent free-fire zones; extra-judicial killing or arbitrary arrest of parents; and the general disruption of village life by military authorities who view all civilian activities as subordinate to military and state interests. [122] 

 

Reports from Karen State and an education study in Mon State provide evidence that the education policy of the regime promotes ‘Burmanization’ throughout the education system to the detriment of ethnic groups. Burmese is the only medium for instruction permissible for state primary and secondary schools. Children from ethnic groups rarely get the opportunity to study in their own language or topics related to their cultural heritage.[123] 

 

Food Insecurity

While Burma is self-sufficient in food production at the national level, many people do not have food security (defined as sustainable access to safe food of sufficient quality and quantity, including energy foods, protein and micro-nutrients). According to the United Nations and other sources, since the World Bank’s national government survey in 1997, which found that only about 40% of households consumed calories at or above recommended daily allowance, and only 55% consumed enough protein, conditions have worsened: ‘Widely scattered reports of spontaneous emergency feedings, purchase of rice water for food, and reliance on inferior cereals such as millet all suggest increasing stress…The conclusion must be that consumption of many families is less than usual, less than needed, and under increasing pressure’.[124]

 

The Burmese army continues to be directly responsible for the most severe violations of the right to food. Violations of the right to food in Burma are systemically linked to the ongoing expansion of militarization. Counter-insurgency operations randomly destroy food stocks and crops, relocate civilian communities, and expropriate cash and materials. Reports indicate that in some areas military operations directly target rural food supplies and crops without distinction, displace people from villages, scatter them into hills and jungles or force them into relocation sites. Standing between these people and starvation is nothing more than their extraordinary tenacity. Widespread dislocation is resulting in serious and long-term structural food scarcity, not mere seasonal hunger due to occasional military incursions. Evidence of growing malnutrition among Burmese children is of particular concern.


Landmines

Landmines are now believed to affect 9 out of 14 of the states or divisions of Burma, in areas near its borders with Bangladesh, India and Thailand, with a heavy concentration in eastern Burma.[125] Mines are laid close to areas of civilian activity by the Burmese army, allegedly to prevent people from returning to their native villages after a forced eviction during counterinsurgency campaigns. Burma still produces mines and is not a party to the Mine Ban Treaty. In addition, no systematic marking of mined areas is done within Burma and no humanitarian demining activities have been implemented. Civilians are known to be used as human minesweepers by the Burma army in anti-resistance campaigns.[126]

 

Although landmine casualties appear to be increasing, especially during the last five to six years, the total number of landmine casualties in Burma remains unknown as information is limited.[127] There is currently no centralized agency collecting statistics on landmine incidents or survivors within Burma.

 


Underlying causes of the humanitarian situation

 

“The problems of Burma are due to bad government…So it is like pouring water into a bucket with a hole in it” – Daw Aung San Suu Kyi on ‘aid and investment’, TIME Magazine, 19 November 1999

 

Vital indicators – health, education, development status and the human rights situation – have all deteriorated under the successive military regimes that have ruled Burma as discussed above. ‘The underlying cause of the social, political and economic crises which have created untold hardships for the people is the lack of good governance.’[128]

 

There is no evidence of sufficient political will within the regime to address the underlying causes of the crisis. The causes underlying the crisis situation are well-known and well documented. This paper has already highlighted a few of the major causes – the on-going conflict which has resulted in violence against and large-scale displacement and relocation of civilians, flows of refugees and gross human rights abuses and violations of international humanitarian law. One of the other major causes which has not yet been discussed is the military regime’s economic mismanagement.

 

Economic mismanagement

The Asian Development Bank (ADB) stated in a report on the Burmese economy in November 2001 that the country's economy is on the verge of collapse, as the military government struggles to provide basic services. It reveals a country that has suffered from massive economic mismanagement, instability and stagnation under decades of military rule. The report argues that Burma's economy needs thorough reform and without it there is little prospect of reducing the widespread poverty in the country. Government expenditure on education and health is amongst the lowest in the world, while the country's state economic enterprises are inefficient and a drain on the economy.[129]

 

The ADB’s Asian Development Outlook 2002 report criticized the SPDC for delaying reforms and pursuing haphazard economic policies. The report states: ‘There are no clear prospects for the introduction of necessary widespread economic reforms by the government of Myanmar to correct macroeconomic imbalances and reduce poverty. It lacks the necessary policies, and its strategies are ad hoc and respond to a variety of problems in, at times, contradictory ways. Moreover, the capacity to implement policies is lacking’.[130]

 

Among the military regime’s policy mistakes is its decision to dedicate scarce resources to military acquisitions, rather than to providing essential services to the people of Burma. Military spending soaks up at least 40% of Burma’s estimated public sector spending, and the regime continues to expand its army despite an absence of external enemies. This is exemplified by the fact that the regime decided to spend U.S. $150 million on twelve MiG fighter planes and a nuclear reactor from Russia in 2001.[131] Meanwhile there has been a steady decline of government expenditures for education and healthcare on a per capita basis. Spending on healthcare and education is one of the lowest in the world at under 1%. This has led to serious humanitarian repercussions as illustrated by the WHO report 2000 grading Burma’s overall health system performance as 190th of 191 countries. The last thing the world needs is another pariah regime with lots of radioactive material on hand. The expansion in military capacity is not compatible with the national reconciliation process.[132]

 

As the ADB has stated in previous reports, Burma’s economy needs thorough reform. Without it, there is little prospect of reducing the widespread poverty and the dire humanitarian situation in the country.[133] This is not going to happen under the current military regime.

 


Summary

 

An analysis of the Security Council’s recent practice illustrates that the severe and widespread suffering of a civilian population in a situation of armed conflict can give rise to a threat to international peace and security. As illustrated above, the civilian population in the ethnic areas in Burma has been deliberately and violently targeted by Burma’s national army and the population at large faces an extreme level of repression. Massive displacement and relocation programs have left an untold number of persons in need of assistance. The regime refuses to allow independent monitoring and assistance to those affected. Numerous reports have documented past and ongoing widespread, systematic and flagrant violations of international humanitarian and human rights law by Burma’s army which arguably constitutes “ethnic cleansing”. There has been significant transboundary affects, including the flow of refugees and narcotics. The humanitarian and economic situation is deteriorating rapidly due to the lack of good governance. The recent detention of Daw Aung Suu Kyi, members of her democratic party and supporters, and the ensuing crackdown which has been the most ruthless and bloodiest attack on the democracy movement in Burma since the 1988 massacre, is worthy of the Security Council’s attention.

 

Recent events signify that the fragile political progress witnessed last year has stalled and the regime has once again reneged on its promise to negotiate a peaceful transition to parliamentary democracy. The situation is at an impasse. Either the country will implode, which could result in a blood bath, or will be subject to further repression (if that is possible). The people of Burma deserve the international community’s attention. Security Council members should find the political will to address Burma’s situation and the five veto-wielding members should not obstruct this course of action. The Council, should in all conscience, put Burma on its agenda and take appropriate action to endorse the will of Burma’s people as determined by the results of the 1990 multi-party elections.

 

If the Council cannot or does not put Burma on its agenda for action, then another possible course is for the United Nations Secretary-General Kofi Annan to utilize his authority under Article 99 of the Charter to ‘bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security’. This course of action will be discussed in the following section.

 


The United Nations Secretary-General’s power under Article 99 of the Charter

“The Secretary-General may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security”.

 

Article 99 of the United Nations Charter empowers the Secretary-General to bring to the attention of the Security Council any matter which in his or her opinion may threaten the maintenance of international peace and security. Commentators have noted that the Secretary-General has formidable but much underutilized authority under Article 99.[134] In practice, Article 99 has been invoked in respect of matters which in the opinion of the Secretary-General constituted a direct or imminent threat to international peace and security. That having been said, successive Secretaries-General have rarely invoked Article 99 expressly or by implication.[135] However, the Secretary-General has been encouraged by Member States to utilize the powers conferred upon him under Article 99. If the Security Council fails to act in the case of Burma, then the Secretary-General should consider using Article 99 to bring to the Council’s attention the situation in Burma – Daw Aung San Suu Kyi, other senior officials and members of the NLD, and the other approximately 1,300 political prisoners,[136] must be released and the process of national reconciliation and transition to democracy resumed.

 

On 29 and 30 November 1999, the Security Council discussed its role in the prevention of armed conflicts. During the debate, a number of Member States referred to the rights conferred upon the Secretary-General under Article 99 and encouraged him to utilise those rights. For example, China noted that it was please to see the Council had undertaken a series of positive measures aimed at resolving conflicts peacefully,

 

“[i]ncluding sending fact-finding missions to conflict regions, holding more open debates on specific issues and continuing to put Article 99 of the Charter into practice by encouraging the Secretary-General to play his due role. All these commendable practices have, in one way or another, enriched the Council’s experience in handling issues bearing on international peace and security and should be affirmed”.[137]

 

Malaysia noted that

 

“there should be greater recourse to the use of preventive diplomacy and the good offices of the Secretary-General…The Secretary-General is well placed to bring to the attention of the Council early evidence of threats to international peace and security, genocide and other manifestations of systematic and widespread human rights violations and other developments affecting international peace and security for its consideration and for appropriate action.

 

“This particular role of the Secretary-General in providing information to the Council is in conformity with the provisions of Article 99 of the Charter.”[138]

 

The Netherlands strongly encouraged the Secretary-General

 

“to make liberal use of his authority under that Article [99], including when the matter he wishes to bring to the Council’s attention has not yet reached its cross-border potential”.[139]

 

Australia also encouraged the Secretary-General to make ‘greater use of his authority under Article 99’[140] as did Sudan.[141] Liechtenstein went further calling for an enhanced role of the Secretary-General noting that Article 99 of the Charter gave ‘a legally and politically sound basis for such an enhanced role’.[142]

 

On 30 November 1999, following consultations among Council members, the President made a statement on behalf of the Council:[143]

 

“The Security Council emphasizes the important role of the Secretary-General in the prevention of armed conflicts. The Council expresses its readiness to consider appropriate preventive action in response to the matters brought to its attention by States or by the Secretary-General and which it deems likely to threaten international peace and security. It invites the Secretary-General to present to the members of the Council periodic reports on such disputes, including, as appropriate, early warnings and proposals for preventive measures. In this regard the Council encourages the Secretary-General to improve further his capacity to identify potential threats to international peace and security and invites him to indicate any requirements to fulfil these capacities, including the development of the Secretariat’s expertise and resources”.

 

Secretary-General Kofi Annan has made one explicit reference to Article 99 in a recommendation to the Security Council in his 1999 report on the protection of civilians in armed conflict. The Secretary-General recommended, in his section on conflict prevention, that the Council

 

“13.      …strengthen the relevance of Article 99 of the Charter by taking concrete action in response to threats against peace and security as these are identified by the Secretariat”.[144]

 

 

Coercive Measures

 

When the Security Council determines there is a ‘threat to the peace, breach of the peace, or act of aggression’ within the meaning of Article 39, the powers conferred to the Security Council under Chapter VII of the Charter are extremely far-reaching and subject to few express limitations. Such action could consist of making recommendations or ordering provisional measures (Article 40), or of such measures as embargoes, sanctions and the severance of diplomatic relations (Article 41), or it may resort to or permit the use of military force (Article 42). Measures taken under these articles are binding on Member States if the Security Council so decides.[145] For the purposes of this paper, the measures taken under Article 41 will be discussed as military force will only be used when all other avenues have been exhausted. It is therefore premature in Burma’s case to explore this avenue.

 

Article 41 provides the legal basis for all non-military enforcement measures:

 

“The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations”.

 

The list of measures included in Article 41 is illustrative and does not preclude other measures that the Security Council may wish to decide upon short of committing the use of armed force. As sanctions measures may run counter to domestic legislation in Member States, the primacy of States’ obligations under the Charter is made clear in Article 103.[146] In other words, these measures override other treaty obligations.

 

The first part of this section will discuss coercive measures generally – the evolution of the Security Council’s practice under the article, the concern over effectiveness and the humanitarian consequences which has led to ‘targeted’ sanctions, and features of sanctions regimes. The second part of the paper will develop a model targeted sanctions regime for Burma.

 

Evolution of Security Council practice under Article 41

Since the end of the Cold War, enforcement action under Article 41 has become a common instrument of peace maintenance. It is used as an action ‘between words and wars’.[147] Starting with the Iraqi invasion of Kuwait, economic sanctions were used in 14 cases between 1990 and mid-2002. In the beginning, notably in the cases of Iraq, the former Yugoslavia, and Haiti, comprehensive economic embargoes, backed by military enforcement, appeared to be the most effective tool to force reluctant governments to comply to the will of the international community.

 

While this approach had some success, the unintended side-effects on the civilian population became increasingly evident.[148] Sanctions produced unintended humanitarian, social and economic consequences for the civilian population of the targeted country. The toll exacted upon the civilian population by such sanctions tended to be greatly disproportionate to the likely impact of the sanctions on the behaviour of the principal players. Concerns about the appropriateness and effectiveness of comprehensive economic sanctions in general were most widely and vocally expressed in response to the disastrous humanitarian situation of the Iraqi people (arguably aggravated by the Iraqi government). This situation led the United Nations Secretary-General to call sanctions a ‘blunt instrument’.[149]

 

The international community was clearly unwilling to tolerate the unintended negative effects of comprehensive economic sanctions. Since the mid-1990s economic embargoes were used much more cautiously and in a more limited way, and attempts were made to develop ‘targeted’, or ‘smart’ sanctions. In 1999 the Security Council declared that in the area of sanctions, special attention should be given to their effectiveness ‘while avoiding negative humanitarian consequences as much as possible’.[150] Although easier said than done, it provides for a general weighing of the interest in peace maintenance and the humanitarian consequences, and thus for a general proportionality test. This has led to the adoption of more ‘targeted’ instead of comprehensive sanctions, and of improved procedures and time-frames for their termination.[151] Simma notes that recent resolutions also include an explicit reference to mechanisms for the review of the humanitarian impact of measures under Article 41, and they pay specific attention to the access of humanitarian organisations to the population of the target State.[152]

 

 The purpose of targeted sanctions is to modify the behaviour of specific actors which have been determined by the Security Council to threaten international peace and security. The key features of targeted sanctions are their focus on:

 

  • Specific actors in a target State, including political organisations (parties, branches, leaders and members), military organizations (guerillas as well as conventional armed forces), and other ruling elites, non-state actors, entities (public and private firms) and individuals (as well as family members), that support the primary targeted actors, and

 

  • The specific resources used by these actors to advance their policies (may relate to their property, freedom of movement and ability to access or sell particular goods and services).[153]

 

Possible measures

The wording in Article 41 leaves open the range of possible measures that can be taken against an offending Member State. Efforts to target sanctions more effectively so as to decrease the impact on innocent civilians and increase the impact on decision makers have been focused in three different areas: military, economic and diplomatic.

 

In the military area:[154]

 

  • Embargoes on arms and related material (for example, spare parts) are the most frequently used tools.[155]

 

  • The termination of military cooperation and training programmes is another commonly used measure.[156]

 

In the economic area:

 

  • Financial sanctions may target the foreign assets of a country, or a rebel movement or terrorist organization, or the foreign assets of particular leaders.[157] Where individuals are targeted, these efforts have increasingly been expanded to include members of that individual’s immediate family.

 

  • Restrictions on income generating activities such as oil,[158] diamonds[159] and logging and drugs, have become to be regarded as one of the most important types of targeted sanctions, because such activities are generally easier to control than the funds that they generate, and because the profits from such activities are often not just a means to start or sustain a conflict but in many cases the principal motivation for the conflict.

 

  • Restrictions on access to petroleum products can be an important way of restricting military operations, though such restrictions may also have a broad and possibly devastating impact on civilians and the local economy.

 

  • Aviation bans have been used in a number of cases and generally prohibit international air travel to or from a particular destination.[160] These have included prohibitions on specific airlines.[161]

 

  • Travel bans – listing of specific individuals from government, groups or entities.

 

In the diplomatic area:

 

  • Restrictions on diplomatic representation, including reduction of staff.[162] This measure has increasingly come to be seen as a relevant and useful measure in efforts to limit illicit transactions – whether for the sale of illicit commodities such as illegally mined diamonds or drugs or for the purchase of arms and other military related material, or with respect to the movement of funds.

 

  • Restrictions on travel.[163]

 

  • Suspension of membership or expulsion from international or regional bodies – entails not only loss of national prestige but also of technical cooperation or financial assistance countries may receive from such bodies.

 

  • Refusal to admit the State to membership of a body.

 

Implementation

The Security Council has established a Sanctions Committee for each sanctions regime (except in the case of Sudan). The Sanctions Committees consist of representatives of all Security Council members. They meet in closed sessions and make decisions by consensus. Their primary tasks are to examine the Secretary-General’s reports on the implementation of the measures in question, to seek information from member States on their efforts of implementation, to decide on exceptions on humanitarian and other grounds, and to examine ways and means to render the sanctions regime more effective, including recommendations to governments. If so authorized, they may also grant exemptions from the application of sanctions. Some also deal with requests for assistance of third States affected by the application of sanctions.[164] The Sanctions Committees may publish their findings and report on a regular basis to the Security Council on alleged violations, including the identification of persons or States allegedly violating the sanctions and the assets transferred in such violation. The punishment of such persons will usually be left to the State(s) concerned.[165]

 

Simma notes that ‘implementation of measures under Art. 41 has proven to be generally unsatisfactory…[as] their actual enforcement depended upon the will and capabilities of the member States concerned. Centralized mechanisms were mostly weak, but began to be strengthened by the end of the 1990s’.[166] The Security Council took several initiatives in the mid-1990s to address implementation concerns. It has encouraged on-site visits, established specific bodies such as expert panels for advice and inquiry, and in several instances has charged the Secretary-General or subsidiary organs to administer its measures instead of leaving the implementation to member States.[167] The Security Council established an informal Working Group on General Issues on Sanctions to develop general recommendations on how to improve the effectiveness of United Nations sanctions. This was in response to a note by the President of 29 January 1999[168] which contained a number of practical proposals to improve the work of United Nations sanctions, and the existence of recent scholarship on this subject that merited consideration by the members of the Council.[169] The working group was requested to report its findings to the Council by 30 November 2000, however it remains deadlocked.[170]

 


Existing Sanctions Against the Burmese Regime

 

Before outlining a ‘model’ sanctions regime for Burma, it is worthwhile surveying national sanctions or measures already in place. The United States and the European Union have maintained sanctions on Burma since the early 1990s and have strengthened these measures periodically.

 

            United States

 

Before the 30 May 2003 incident, United States (U.S.) sanctions included an arms embargo; a ban on all new U.S. investment in Burma since 1997;[171] the suspension of all bilateral aid, including counter-narcotics assistance; the withdrawal of Generalized System of Preferences (GSP) privileges; the denial of Overseas Private Investment Corporation (OPIC) and EXIMBANK programs; visa restrictions on Burma’s senior leaders; and a vote against any loan or other utilization of funds to or for Burma by international financial institutions in which the U.S. has a major interest. The U.S. downgraded its diplomatic representation from Ambassador to Chargé d'Affaires in 1990.[172]

 

Following the 30 May 2003 incident, the United States has strengthened its sanctions regime against the regime. President George W. Bush signed into law on 28 July the ‘Burmese Freedom and Democracy Act of 2003’ which came into force 30 days after enactment on 28 August 2003. The law effectively bans all imports from Burma,[173] has frozen the overseas assets of the SPDC, prohibits financial transactions with entities of the regime, prohibits the regime's leaders and their associates from travelling to the U.S., blocks loans and grants from the International Monetary Fund and the World Bank to the regime, and has increased U.S. support for Burma's democracy movement.

 

According to President Bush's executive order, such steps are necessary due to the military junta's ‘continued repression of the democratic opposition in Burma’ and the national emergency declared in Executive Order 13047 of May 20, 1997.[174]

 

The import ban will continue until the President determines and certifies to Congress that the SPDC has made ‘substantial and measurable progress to end violations of internationally recognized human rights including rape’.[175] The bill also requires that the Secretary of State consult with the ILO's Secretary General and relevant nongovernmental organizations and report to the appropriate congressional committees that the SPDC ‘no longer systematically violates workers rights, including the use of forced and child labor, and conscription of child-soldiers.’ It also requires the President to declare that the SPDC has made ‘measurable and substantial progress toward implementing a democratic government.’ Benchmarks for lifting the ban on Burmese products would include: ‘releasing all political prisoners; allowing freedom of speech and the press; allowing freedom of association; and permitting the peaceful exercise of religion.’ Finally the SPDC would have to reach an agreement with the NLD and other democratic forces in that country, including Burma's ethnic nationalities, ‘on the transfer of power to a civilian government accountable to the Burmese people through democratic elections under the rule of law’.[176]

 

            European Union

 

The EU Common Position on Burma was first adopted in October 1996. The Common Position, while confirming already existing sanctions - an arms embargo imposed in 1990, the suspension of defence co-operation since 1991 and the suspension of all bilateral aid other than strictly humanitarian aid - introduced a visa ban on the members of the military regime, the members of the SPDC, senior military and security officers and members of their families (widened in 1998 to explicitly include transit visas), as well as the suspension of high-level governmental visits to Burma. Separately, GSP privileges were withdrawn from Burma because of forced labour.

 

In April 2000, the Council strengthened the Common Position, by (a) adding a ban on the export from the EU of any equipment that might be used for internal repression or terrorism, (b) publishing the list of persons affected by the visa ban, and (c) imposing a freeze on the funds held abroad by the persons named in the list.

 

On 28 April 2003 a new Common Position was adopted. It is a consolidated version of the original 1996 Common Position, subsequent amendments and new measures decided on 28 April. The Common Position was strengthened through an extension of the scope of existing sanctions to target more persons linked to economic or political activities of the SPDC - other individuals, groups, undertakings or entities associated with the military regime who formulate, implement or benefit from policies that impede Burma's transition to democracy - for the visa ban and asset freeze, and through amending and strengthening the arms embargo. The strengthened arms embargo prohibits technical training or assistance related to the provision, manufacture, maintenance or use of arms, munitions and military equipment.

 

The Common Position was strengthened when the EU found no credible reasons for the regime not to agree on a definite timetable for the return of democracy to the country and found that the positive steps taken so far were insufficient to address the economic, humanitarian and political problems in the country. However the EU decided to suspended the implementation of the new expanded sanctions until on or before 29 October 2003, in the hope that substantive progress may have been made on a number of ‘key issues’ by that date.[177]

 

After the 30th May incident and subsequent events, the EU decided on 16 June 2003 to impose the new expanded sanctions, decided on 28 April, without delay. The EU has also reiterated its call for the immediate release of Daw Aung San Suu Kyi.[178]

 

The EU does not have a ban on investments and imports.

 

Japan

 

Japan froze all financial aid to the country on 23 June 2003, to punish the regime for detaining Daw Aung San Suu Kyi. The Japanese government extended about 2.1 billion yen of grants-in-aid to Burma in fiscal 2002, but has not made any payments during the 2003 fiscal year.

 


A Model Security Council Targeted Sanctions Regime for Burma

 

Any targeted sanctions regime implemented by the Security Council must target senior officials of the military regime and the State Peace and Development Council (SPDC) (and former members of the State Law and Order Restoration Council (SLORC)), officials of the Union Solidarity Development Association (USDA), the United Wa State Party, managers of state enterprises and other groups, entities or individuals linked to the economic or political activities of the SPDC associated with the military regime who formulate, implement or benefit from policies that are impeding Burma's transition to democracy.

 

In brief, the following model could be implemented.

 

In the military area:

 

  • Imposition of a wholesale arms embargo.

 

  • A prohibition on military cooperation and training programmes, including technical training or assistance related to the provision, manufacture, maintenance or use of arms, munitions and military equipment.

 

In the economic area:

 

  • Imposition of a freeze on the assets of all former members of the SLORC and current members of the SPDC (including immediate family members), members of the military regime, senior military and security officers and members of their families, officials of the USDA (including immediate family members), leaders of the United Wa State Army, individuals with close ties to the regime (including immediate family members), and state entities such as the Myanma Economic Bank (a.k.a. Myanmar Economic Bank), Myanma Foreign Trade Bank (a.k.a. Myanmar Foreign Trade Bank), and Myanma Investment and Commercial Bank (a.k.a. Myanmar Investment and Commerce Bank).

 

  • Imposition of a ban on new investments by persons or entities and the importation of goods.

 

  • Imposition of a ban on loans and grants from international financial institutions.

 

  • Suspension of all multilateral and bilateral aid other than strictly humanitarian aid channeled through international nongovernmental organisations and United Nations agencies whose projects do not go through the regime’s ministries.[179]

 

  • Imposition of restrictions on oil and gas (state enterprises include, Myanma Oil and Gas Enterprise (MOGE), Myanma Petrochemical Enterprise (MPE) and Myanma Petroleum Products Enterprise (MPPE)), gems such as jade and pearls (Myanmar Gems Enterprise; Myanmar Pearls Enterprise), logging and drugs as profits or cuts from these resources fuel the ongoing civil strife and repression in Burma.

 

  • Imposition of restrictions on access to petroleum products.

 

  • Imposition of an aviation ban to Burma and against the national airline.

 

  • Imposition of a travel ban on members of the SPDC and their immediate families, government ministers and other senior Burmese government officials and their immediate families members, all officials of the USDA and their immediate families, military above the rank of colonel and their immediate families, civil servants above the rank of Director-General and their immediate families, managers of state-owned enterprises and their immediate families, managers of other groups and undertakings and individuals associated with the military regime who formulate, implement or benefit from its policies and their immediate families.

 

In the political/diplomatic area:

 

  • Implement restrictions on diplomatic representation, including reduction of staff, in all overseas embassies/missions.

 

  • Implement restrictions on travel by representatives.

 

  • Suspension of membership of ASEAN and downgrade representation at the United Nations.

 

  • Non-admittance of Burma as a member of any regional or international body.

 

 

 

 



[1] Foreword in, Democracy and Deep-Rooted Conflict: Options for Negotiators, (Institute for Democracy and Electoral Assistance, 1998).

[2] See e.g., Senate Leaders Demand UN Security Council ‘Take Up’ Burma! (Burmanet news, 16 Jul. 03);

“Burma: A Time for Change”, Report of an Independent Task Force Sponsored by the Council on Foreign Relations, (June 18, 2003), p. 11, available online at: http://www.cfr.org/pdf/Burma_TF.pdf; ALTSEAN-Burma, “Briefing: Black Friday & The Crackdown on the NLD”, 24 June 03, available online at: http://www.ibiblio.org/obl/docs/BlkFriupdatejun24.doc; and the Joint Statement of the National Coalition Government of the Union of Burma and the National Council of the Union of Burma,

‘'The Political Intervention of the International Community is Critical’', 7 July 03.

[3] The military staged a bloody coup during the pro-democracy demonstrations in Sept. 1988 and established a new dictatorship under martial law called the ‘State Law and Order Restoration Council’ (SLORC). In Nov. 1997, the SLORC renamed itself the ‘State Peace and Development Council’ (SPDC) – the three most senior members of the SLORC retained their posts in the SPDC. The change was viewed largely as cosmetic.

[4] Purportedly thousands of men armed with sticks, clubs and rocks were part of the attack. The majority were members of the SPDC’s ‘civil’ organization, the Union Solidarity and Development Association (USDA). Chairman of the USDA is the most powerful general in Burma, Senior-General Than Shwe.

[5] The regime claims 4 were killed and 50 injured. The Assistance Association for Political Prisoners, Burma has documented: the death of 11 people; the continued detention, house arrest or disappearance of 21 MPs; the arrest and/or sentencing of 109 NLD members and others; the disappearance of  112 persons; and, the release of 19 persons (including 6 MPs). This is not an accurate assessment given the difficulty of collecting information inside Burma: see http://www.aappb.org/.

[6] Washington Post (10 Jun 03) Where Is She?

[7] Copy of letter is with author.

[8] The General Assembly has consistently called on the regime to honour the results of the 1990 election in its annual resolution on the human rights situation in Burma adopted by consensus since 1991, as has the Commission on Human Rights since 1992.

[9] See Amnesty International Report 2003: Myanmar.

[10]Burma: A Time for Change”, Report of an Independent Task Force Sponsored by the Council on Foreign Relations, (June 18, 2003), p. 9, available online at: http://www.cfr.org/pdf/Burma_TF.pdf [hereinafter, “Burma:  A Time for Change”].

[11] Para. 18, available online at: www.aseansec.org/14833.htm.

[12] Para. 21, available online at: www.aseansec.org/14846.htm.

[13] See http://www.un.org/Docs/sc/unsc_background.html for general background information about the Security Council.

[14] See the Report of the International Commission on Intervention and State Sovereignty, “The Responsibility to Protect”, December 2001, p.50 [hereinafter “The Responsibility to Protect”].

[15] See Bruno Simma, The Charter of the United Nations: A Commentary, (Vol. I), OUP, 2002, at p. 719.

[16] See Simon Chesterman, Just War or Just Peace? Humanitarian Intervention and International Law, (OUP, 2001), Chapter 4, p. 211.

[17] Simma, commentary on Article 39, op cit, p. 720.

[18] Ibid, p. 721.

[19] See for example, the condemnation of the Israeli air raid on PLO targets in Tunisia as an ‘act of armed aggression’, in SC Res. 573 (1985) of 4 Oct 1985, and the demand that South Africa cease ‘all acts of aggression’ against Angola, in SC Res. 577 (1985) of 6 Dec. 1985.

[20] Simma, op cit, p. 722.

[21] Ibid, pp. 722-723.

[22] Chesterman, op cit, p. 212. See also Simma at p. 723, “it seems now widely accepted that extreme violence within a State can give rise to Chapter VII enforcement action”.

[23] Op cit, p. 215.

[24] S/PV.2982 (1991) 6 Turkey, in ibid, p. 216.

[25] See Chesterman, op cit, pp. 215-219 for detailed discussion of the Iraqi treatment of the Kurds in 1991.

[26] Op cit, p. 723.

[27] Confirmed in SC Res. 724, Dec. 15, 1991 and later resolutions.

[28] Op cit, p. 221.

[29] SC Res. 834 (1993) of I June 1993 and SC Res. 851 (1993) of 15 July 1993.

[30] SC Res. 864 (1993) B, preamble.

[31] Chesterman, op cit, pp. 226-228.

[32] SC Res. 733, Jan. 23, 1992.

[33] See SC Res. 788 of 19 Nov. 1993.

[34] SC Res. 918 of 17 May 1994 and SC Res. 929 of 22 June 1994.

[35] SC Res. 1072 of 30 Aug. 1996.

[36] SC Res. 1078 of 9 Nov. 1996.

[37] SC Res. 1101 of 28 Mar. 1997 and SC Res. 114 of 19 June 1997.

[38] SC Res. 1125 of 6 Aug. 1997 and SC Res. 1136 of 6 Nov. 1997.

[39] SC Res. 1132 of 8 Oct. 1997, SC Res. 1289 of 7 Feb 2000 and SC Res. 1306 of 5 Jul. 2000.

[40] SC Res. 1264 of 15 Sept. 1999 and SC Res. 1272 of 25 Oct. 1999.

[41] Simma, op cit, pp. 723-724.

[42] “The Responsibility to Protect”, op cit, p. 16.

[43] SC Res. 794 (1992) of 3 Dec. 1992.

[44] SC Res. 929 (1994) of 22 June 1994 (Rwanda) and SC Res. 1078 (1996) of 9 Nov. 1996 (Zaire).

[45] SC Res. 929 (1994), preamble and operative paras. 2 and 3. See Chesterman, op cit, pp. 237-243 for detailed analysis of the Council’s handling of the genocide in Rwanda.

[46] See Chesterman, ibid, pp. 243-244.

[47] See ibid, pp. 244-246.

[48] Simma, op cit, p. 725.

[49] SC Res. 1296 (2000) of 19 April 2000 and SC Res. 1314 (2000) of 11 Aug. 2000.

[50] SC Res. 808 (1993) of 22 February 1993 (former Yugoslavia); SC Res. 827 (1993) of 25 May 1993 (former Yugoslavia); SC Res. 955 (1994) of 8 Nov. 1994 (Rwanda).

[51] SC Res. 1264 (1999) of 15 September 1999.

[52] Chesterman, op cit, pp. 249-250.

[53] SC Res. 841 (1993) of 16 June 1993, SC Res. 917 (1994) of 6 May 1994 NS SC Res. 940 (1994) of 31 July 1994.

[54] SC Res. 1132 (1997) of 8 Oct. 1997, SC Res. 1270 (1999) of 22 Oct. 1999, SC Res. 1289 (2000) of 7 Feb. 2000 and SC Res. 1306 (2000) of 5 July 2000.

[55] Simma, op cit, p. 725.

[56] This section is a summary of Chesterman, op cit, pp. 251-256.

[57] SC Res. 841 (1993) of 16 June 1993, preamble.

[58] S/1994/905, Annex. This was regarded as insufficient, however, and so a letter was sent stating the ‘agreement’ of the Aristide Government with the draft resolution: S/1994/910 (1994).

[59] Ibid, p. 262.

[60] The General Assembly has consistently called on the regime to honour the results of the 1990 election in its annual resolution on the human rights situation in Burma adopted by consensus since 1991, as has the Commission on Human Rights since 1992.

[61] The regime claims 4 were killed and 50 injured. The Assistance Association for Political Prisoners, Burma has documented: the death of 11 people; the continued detention, house arrest or disappearance of 21 MPs; the arrest and/or sentencing of 109 NLD members and others; the disappearance of  112 persons; and, the release of 19 persons (including 6 MPs). This is not an accurate assessment given the difficulty of collecting information inside Burma: see http://www.aappb.org/.

[62] Washington Post (10 Jun 03) Where Is She?

[63] U.S. Reports Signs of Deliberate Attack on Burmese Activist's Motorcade (State Department news release), 5 June 2003. Available online at: http://usinfo.state.gov/regional/ea/burma/ambush530.htm.

[64] The military regime and its sponsored civil organization, the Union Solidarity and Development Association (USDA), steadily increased its harassment of the NLD on Daw Suu Kyi’s tours throughout the country and threatened civilians not to support her or the NLD. The patron of the USDA is Senior-General Than Shwe. In the weeks prior to the attack, the regime increased riot and weapons training and increased surveillance on NLD members. On May 24, the War Office in Rangoon issued a directive putting all armed organizations in the country on a state of emergency. The attack was carried out by USDA members, police, armed soldiers and prisoners: see ALTSEAN-Burma, ‘Briefing: Black Friday & the Crackdown on the NLD’, updated June 24, 2003. Available at: http://www.ibiblio.org/obl/docs/BlkFriupdatejun24.doc.

[65] 25 August 2003.

[66] UN Special Envoy Razali Ismail met with Daw Aung San Suu Kyi for half an hour at a military location under close military supervision on the last day of his visit (10 June). A representatives of the ICRC was granted access to Daw Aung San Suu Kyi on 29 July.

[67] SG/SM/8747 (10 June 2003) Secretary-General welcomes report from Myanmar Envoy that Daw Aung San Suu Kyi is uninjured; urges her release. See also UN PR (31 May 2003) Annan urges dialogue in Myanmar as envoy prepares to visit Yangon; SG/SM/8733 (2 June 2003) Secretary-General ‘worried’ by continued detention of National League for Democracy leaders in Myanmar; SG/SM/8729 (2 June 2003) Secretary-General concerned about situation in Myanmar, renews call for dialogue between Government and the National League for Democracy; SG/SM/8738 (6 June 2003) Secretary-General’s Special Envoy arrives in Myanmar; SG/SM/ 8760 (23 June 2003) Secretary-General gravely concerned at report concerning detention of Daw Aung San Suu Kyi in Myanmar; and SG/SM/8783 (16 July 2003) Secretary-General emphasizes need for immediate release of Daw Aung San Suu Kyi in meeting with Myanmar’s deputy Foreign Minister.

[68] Para. 18, available online at: www.aseansec.org/14833.htm.

[69] Para. 21, available online at: www.aseansec.org/14846.htm.

[70] According to the report of the International Commission on Intervention and State Sovereignty, “The Responsibility to Protect”, different manifestations of “ethnic cleansing” include the systematic killing of members of a particular group in order to diminish or eliminate their presence in a particular area; the systematic physical removal of members of a particular group from a particular geographical area; acts of terror designed to force people to flee; and the systematic rape for political purposes of women of a particular group (either as another form of terrorism, or as a means of changing the ethnic composition of that group), (December 2001, p. 33). These manifestations are present in Burma.

[71] See Shan Women’s Action Network & Shan Human Rights Foundation report, “Licence to Rape”, June 2002 and Refugees International, “No Safe Place: Burma’s Army and the Rape of Ethnic Women”, April 2003.

[72] See Burmese Border Consortium, “Internally Displaced People and Relocation Sites in Eastern Burma”, September 2002.

[73] UN General Assembly, 22 August 2000, Situation of Human Rights in Myanmar (UN symbol: A/55/359); U.S. Department of State, Burma Country Report on Human Rights Practices, March 31, 2003, section 2(d).

[74] See Burmese Border Consortium, “Internally Displaced People and Relocation Sites in Eastern Burma”, September 2002. See also, U.S. Department of State, Burma Country Report on Human Rights Practices, March 31, 2003, section 2(d).

[75] Burma UN Service Office, “Humanitarian Assistance to Burma: How to establish good governance in the provision of humanitarian aid – ensuring aid reaches the right people in the right way”, March 2003, p.10.

[76] Ibid, p. 15.

[77] U.S. Department of State, Burma Country Report on Human Rights Practices, March 31, 2003.

[78] Released in March 2002, available online at: www.state.gov/g/inl/rls/nrcrpt/2001/rpt/8483.htm.

[79] Since May 2003, 2,500 people have been killed in Thailand’s war against drug dealers. See “Drug lords must hustle their stash” (The Nation, 26 Aug. 2003)

[80] See for example, ICFTU, “Burma – Forced Labour: ICFTU submission to ILO Committee of Experts, November 2001” (29 November 2001); EarthRights International, “We are not Free to Work for Ourselves: Forced Labour and Other Human Rights Abuses in Burma”, June 2002; Human Rights Documentation Unit of the NCGUB, “Burma Human Rights Yearbook, 2001-2002: Forced Labour”, September 2002; EarthRights International, “Forced Labour and the Shwe Gin River in Burma”, 13 September 2002; EarthRights International, “Entrenched: An Investigative Report on the Systematic Use of Forced Labour by the Burmese Army in a Rural Area”, June 2003. EarthRights International reports can be found at: www.earthrights.org/pubs.

[81] ICFTU Annual Survey of Violations of Trade Union Rights 2002, Burma chapter.

[82]Myanmar: Lack of security in counter-insurgency areas”, 17 July 2002.

[83] ICFTU Annual Survey of Violations of Trade Union Rights 2002, Burma chapter. See also U.S. Department of State, Burma Country Report on Human Rights Practices, March 31, 2003, section 6(c).

[84] The report is available online at: http://hrw.org/reports/2002/burma/.

[85] “Adult Wars, Child Soldiers: Voices of children involved in armed conflict in the East Asia and Pacific Region”, 30 October 2002, available online at: http://www.reliefweb.int/library/documents/2002/unicef-childsoldiersasia.pdf.

[86] “Child Soldiers 1379 Report”, available online at: http://www.child-soldiers.org/.

[87] S/2002/1299 – 26 Nov 2002.

[88] See Human Rights Watch press release, “U.N. Spotlights Child Soldiers”, (New York, 30 January 2003).

[90] Of the 173 documented incidents, in only one case was a perpetrator punished by his commanding officer. More commonly, the complainants were fined, detained or tortured by the military. These crimes have been committed with impunity.

[91]No Safe Place: Burma’s Army and the Rape of Ethnic Women”, April 2003. See also State Department's Bureau of Democracy, Human Rights, and Labor (DRL), “State Department Condemns Burma Military's Use of Rape as Weapon”, 16 Dec. 2002, available at: http://usinfo.state.gov/regional/ea/burma/burmarape.htm.

[92] See General Assembly resolution 57/231 of 18 December 2002, para. 5(c), “Strongly urges the Government of Myanmar…To facilitate and cooperate fully with an independent international investigation of charges of rapes and other abuse of civilians carried out by members of the armed forces in Shan and other states;”

[93] See for example, ALTSEAN-Burma, “Women’s Report Card on Burma: Abused Bargaining Chips”, March 2003, pp. 13-14. Available online at: http://www.ibiblio.org/obl/docs/womrptcard2003.pdf.

[94] This section is extracted from the Burma UN Service Office’s report, “Humanitarian Assistance to Burma: How to establish good governance in the provision of humanitarian aid – ensuring aid reaches the right people in the right way”, March 2003, pp. 5-16 (written by this author). Information has been updated where information is available.

[95] Copy of letter is with author.

[96] See, International Crisis Group humanitarian assistance report at page 9 quoting World Bank, Myanmar: An Economic and Social Assessment, 1999 [draft], p. 11.

[98] ICG humanitarian assistance report, at p. 10, citing UN Country Paper. Laos’ HDI rank was 135th.

[99] ADB Nov 2001 report, at p. 6.

[100] See ICG HIV/AIDS report, at p. 8.

[101] See, ‘Report on the situation of human rights in Myanmar, prepared by Mr Paulo Sergio Pinheiro, Special Rapporteur of the Commission on Human Rights, in accordance with Commission resolution 2001/15’, UN Doc. E/CN.4/2002/45 [hereinafter ‘Pinheiro’s CHR 2002 report’], at para. 94.

[102] ICG humanitarian assistance report, at p. 10 quoting UN Country Paper, January 2002.

[103] See UNICEF, Children and Women in Myanmar, April 2001, found at http://www.unicef.org/myanmar/pages/a3.html, at p. 2.

[104] See UNFPA 2001 report, para. 5 and UNAIDS/WHO 2000 (revised) report, p. 3.

[105] ADB Nov 2001 report, at p. 6.

[106] ICG humanitarian assistance report, at p. 11.

[107] See ICG HIV/AIDS report, overview.

[108] UNAIDS, Report on Global HIV/AIDS Epidemic, June 2000.

[109] Dr C Beyrer, ‘War in the Blood: Sex, Politics and AIDS in Southeast Asia’, 1998.

[110] ICG HIV/AIDS report, at p. 2 and UNAIDS/WHO 2000 (revised) report, p. 3.

[111] UNAIDS, “United Nations Response to HIV/AIDS in Myanmar: The United Nations Joint Plan of Action 2001-2”, at 5-6; and ICG HIV/AIDS report, at p. 2.

[112] UNAIDS Joint Plan of Action, id, at 6 and ICG HIV/AIDS report, at 2.

[113] See U.S. State Department, ‘Victims of Trafficking and Violence Protection Act of 2000: Trafficking in Persons Report’, (Released by the Office to Monitor and Combat Trafficking in Persons) June 5, 2002, available at: http://www.state.gov/g/tip/rls/tiprpt/2002/. Also see U.S. Department of State, Burma Country Report on Human Rights Practices, March 31, 2003, section 6(f) on trafficking in persons.

[114] UNAIDS Joint Plan of Action, at 6.

[115] USAID HIV/AIDS 2002 report, at page 6.

[116] The UN agencies are: UNDP, UNFPA, UNICEF, WHO, UNDCP. All UN agencies are coordinated through UNAIDS. The INGOs are: the ICRC; World Vision; CARE; Save the Children (UK); Population Service International; Medecins du Monde; Medecins sans Frontieres (Holland); Marie Stopes International; World Concern, and; the Population Council.

[117] See ICG HIV/AIDS report, at p. 6.

[118] See U.S State Department’s 2002 human rights report, section on children.

[119] ICG humanitarian assistance report, at p. 9.

[120] UNICEF and Myanmar Department of Labor, Report on Working Children and Women in Myanmar’s Urban Informal Sector, 1997.

[121] UN Working Group, Human Development in Myanmar (Yangon: UNDP, 1998), at p. 7.

[122] Human Rights Documentation Unit of the NCGUB, Human Rights Yearbook Burma 2000-2001, 326-7.

[123] Ibid, at 328.

[124] ICG humanitarian assistance report, quoting UN/Myanmar, Food Security in Myanmar: A Proposal to Deal with Natural Shocks, January 2000, internal report, and the People’s Tribunal on Food Scarcity and Militarization in Burma, ‘Voice of the Hungry Nation’, (found at: www.hrschool.org/tribunal/index.htm), at p. 10.

[125] See Landmine Monitor 2002 Report (Burma) available at: http://www.icbl.org/lm/2002/burma.html#Heading14707.

[126] See Report of the Commission of Inquiry appointed under article 26 of the Constitution of the International Labour Organization to examine the observance by Myanmar of the Forced Labour Convention, 1930 (No. 29), Geneva, 2 July 1998, at paras. 300, 319, 327-9, 300 found at: http://www.ilo.org/public/english/standards/relm/gb/docs/gb273/myanma3a.htm#(1)%20Portering. See also Landmine Monitor reports 1999-200.

[127] Landmine Monitor 2002 report, quoting Handicap International, “Mine Casualties Survey Report; Tak Province Thailand,” August 2001; Nonviolence International, “Analysis of the Impact of Landmines in Burma,” Internal Report, 2002; and reports from KNU medical unit submitted to Landmine Monitor in November 2001.

[128] Daw Aung San Suu Kyi, Foreword to the Working Paper prepared for the Workshop on Humanitarian Aid to Burma, May 24, 1999 (Rangoon, May 1999).

[129] See Asian Development Bank report found at http://aric.adb.org/aem/myanmar.pdf and ‘Myanmar teeters on the verge of collapse’, ASIA TIMES, 13 December 2001.

[131] Roger Mitton, ‘The Arms Deals: Burma and Thailand Go Shopping’, Asiaweek, 10 August 2001.

[132] Burma UN Service Office, “Briefing Paper on the Current Political and Human Rights Situation in Burma 2002”, 13 February 2002, p. 3.

[133] See Asian Development Bank 2001 report found at http://aric.adb.org/aem/myanmar.pdf and ‘Myanmar teeters on the verge of collapse’, ASIA TIMES, 13 December 2001.

[134] Report of the International Commission on Intervention and State Sovereignty, “The Responsibility to Protect”, December 2001, p. 35.

[135] These rare occasions include the Korean operation in 1950, the Congo crisis in 1960, the Indo-Pakistani situation in 1971, the hostage-taking of the United States embassy in Iran in 1979 and the situation in Lebanon in 1989.

[136] See Amnesty International Report 2003: Myanmar, available online at: http://web.amnesty.org/web/web.nsf/print/mmr-summary-eng.

[137] S/PV.4072, p. 14.

[138] Ibid, p. 20.

[139] Ibid, p. 29.

[140] Ibid, p. 40.

[141] Ibid, p. 41.

[142] S/PV.4072 (Resumption 1), p. 6.

[143] S/PRST/1999/34.

[144] S/1999/957 of 8 September 1999.

[145] Simma, op cit, p. 705.

[146] Department of Peace and Conflict Research, Making Sanctions Effective: Guidelines for the Implementation of UN Policy Option, Uppsala, 2003, p. 8 (the ‘Stockhom Process’) [hereinafter, Making Sanctions Effective].

[147] Ibid, p. iii.

[148] Simma, op cit, p. 738.

[149] See Supplement to and Agenda for Peace, UN Doc. A/50/60-S/1995/1, 5 Jan. 1995, para, 70; similarly the Millenium Report, UN Doc. A/54/2000, 3 Apr. 2000, p. 50.

[150] UN Doc. S/PRST/1999/34, 30 Nov. 1999; see also SC res. 1265 of 17 Sept 1999, and SC res. 1325 of 31 Oct. 2000 (’16. Reaffirms its readiness, whenever measures are adopted under Art. 41….,to give consideration to their impact on the civilian population, in order to consider appropriate humanitarian exemptions;’).

[151] See “Making Targeted Sanctions Effective” and papers covering the debate on smart sanctions available at www.smartsanctions.ch.

[152] Simma, op cit, p. 746, referring to SC res. 1302 of 8 June 2000, on Iraq; SC res. 1333 of 19 Dec. 2000, on Afghanistan; and the reports of the Secretary-General on the humanitarian impact of the latter resolution, UN Doc. S/2001/241 of 20 Mar. 2001 and S/2001/695 of 13 Jul. 2001.

[153] Making Sanctions Effective, p. 9, 91 & 97.

[154] This section has been taken from “The Responsibility to Protect”, p. 30-31, and Simma, op cit, p. 741.

[155] Simma, op cit, p. 741. Arms embargoes were adopted in the cases of Southern Rhodesia, South Africa, Iraq, the former Yugoslavia, Libya, Somalia, Liberia, Haiti, Angola, Rwanda, Sierra Leone and Afghanistan. For a typical measure, see SC res. 864 (1993) of 15 Sept. 1993 on Angola. See also United Nations, Department of Political Affairs, The Experience of the United Nations in Administering Arms Embargoes and Travel Sanctions (Jan. 2001), available at www.un.org/sc/committees/sanctions/background.pdf.

[156] “The Responsibility to Protect”, op cit, p. 30.

[157] See SC res. 841 of 16 June 1993 on Haiti; SC res. 883 of 11 Nov. 1993, on Libya; SC res. 1173 of 12 June 1998, on Angola; SC res. 1267 of 15 Oct. 1999, and 1333 of 19 Dec. 2000, on Afghanistan.

[158] For prohibitions on the import of oil – Southern Rhodesian and the Haitian case – see SC res. 232 (1966) of 16 Dec. 1966; for restrictions on the import of oil equipment, see SC res. 883 (1993) of 11 Nov. 1993 in the case of Libya.

[159] For export prohibitions on diamonds, see the cases of Angola, Sierra Leone and Liberia, SC Res. 1173 of 12 June 1998; SC Res. 1306 of 5 Jul. 2000; SC Res. 1343 of 7 Mar. 2001.

[160] See SC Res. 748 of 31 Mar. 1992, on Libya; SC Res. 917 of 6 May 1994, on Haiti; SC Res. 1127 of 28 Aug. 1997, on Angola; SC Res. 1333 of 19 Dec. 2000, on Afghanistan.

[161] See SC Res. 1267 of 15 Oct. 1999, on Afghanistan.

[162] See SC Res. 748 of 31 Mar. 1992, on Libya; SC Res. 757 of 15 May 1992, on Yugoslavia; SC Res. 1054 of 26 Apr. 1996, on Sudan; SC Res. 1333 of 19 Dec. 2000, on Afghanistan.

[163] See SC Res. 917 of 6 May 1994, on Haiti; SC Res. 1132 of 8 Oct. 1997 and 1171 of 5 June 1998, on Sierra Leone; SC Res. 1343 of 7 Mar. 2001, on Liberia.

[164] Sanctions often severely affects third States, particularly neighbouring States, when trade relations with the targeted State are restricted.

[165] See Simma, op cit, pps. 548-550, for table of the Sanctions Committees and general overview, and p. 748.

[166] Ibid, p. 746.

[167] For example, with the UN Compensation Commission for Iraq, with the international criminal tribunals for the former Yugoslavia and Rwanda and with the UN administrations in Eastern Slovakia, Kosovo, and East Timor.

[168] S/1999/92 of 29 Jan. 1999.

[169] S/2000/319 of 17 Apr. 2000. Switzerland initiated the scholarship on targeted sanctions by focusing on financial sanctions, known as the Interlaken Process. This was followed by the initiative of Germany, the Bonn-Berlin Process dealing with arms embargoes, aviation sanctions and travel bans. Sweden held a third process, the Stockholm Process, concentrating on the implementation of targeted sanctions. The report from the latter process has been referred to in this paper as “Making Targeted Sanctions Effective”. The reports of the other processes are available online at: http://www.smartsanctions.ch/start.html. 

[171] Since May 1997, the U.S. Government has prohibited new investment by U.S. persons or entities (Executive Order No. 13047). However, a number of U.S. companies exited the Burma market even prior to the imposition of sanctions due to a worsening business climate and mounting criticism from human rights groups, consumers, and some shareholders because of the Burmese Government's serious human rights abuses and lack of progress toward democracy.

[172] Bureau of East Asian and Pacific Affairs , “Conditions in Burma and U.S. Policy Toward Burma for the Period September 28, 2002 – March 27, 2003”, April 11, 2003, available online at http://www.state.gov/p/eap/rls/rpt/burma/19554.htm.

[173] 80% of garments made in Burma goes to the U.S., worth US$400 million per year, see Washington Post (13 June 03) U.S. Sanctions Bill Would Ban Burmese Imports.

[174] See Department of State, ‘U.S. Imposes Financial Services Freeze on Burmese Regime’, 29 July 2003, available at: http://usinfo.state.gov/xarchives/display.html?p=washfile-english&y=2003&m=July&x=20030729170328euqcoral0.3353388&t=usinfo/wf-latest.html.  

[175] Department of State, ‘Bush Applauds Passage of Burmese Freedom and Democracy Act’, 16 July 2003. Available online at: http://usinfo.state.gov/xarchives/display.html?p=washfile-english&y=2003&m=July&x=20030716191456relhcie0.549328&t=usinfo/wf-latest.html.

[176] Ibid.

[177] Such as the start of a substantive dialogue with Daw Aung San Suu Kyi and the NLD, the release of political prisoners, and a reduction of violence and human rights violations - particularly in ethnic minority areas.

[178] See EU’s relations with Myanmar/Burma available online at: http://europa.eu.int/comm/external_relations/myanmar/intro/ and 16 June 2003: Burma/Myanmar - Council Conclusions, available at http://europa.eu.int/comm/external_relations/myanmar/intro/gac.htm. 

[179] See Burma UN Service Office’s report, “Humanitarian Assistance to Burma: How to establish good governance in the provision of humanitarian aid – ensuring aid reaches the right people in the right way”, March 2003.