Humble Advice to Professor Sergio Pinheiro

                                      

Mr Sergio Pinheiro, thank you for the great job you are going to do for the Burmese people. Instead of pressing SPDC generals to investigate the fatal crackdown on protesters in September, please may you kindly start an investigation yourself as the Myanmar SPDC top generals had all the knowledge of those and they had ordered the killing. 

We all Burmese people and some of the world observers already know that allowing you, Sergio Pinheiro, Special rapporteur on human rights in Myanmar of the U.N. Secretary General Ban Ki Moon and Mr Ibrahim Gambari are just the stage-shows to deflect the public and international outrage after SPDC Military had brutally suppressed, assaulted, arrested, tortured about six thousand and murdered few hundred of peaceful demonstrators and revered monks.  

SPDC and Than Shwe could be able to defuse the anger of the world and save the faces of their friends; China, Russia, India and ASEAN esp. Singapore and Malaysia, who would applause and go on supporting and exploiting Myanmar for another few decades. Procrastination and buying time is the ultimate goal of the SPDC Junta. At the same time, the SPDC media is repeatedly declaring that Myanmar Military Government   is steadfastly going to continue the cracking down on democratic forces until the opposition is totally eliminated or annihilated or totally uprooted. 

When Mr Ibrahim Gambari was asked by the reporters, why instead of looking around the killing field in Yangon, why did he went to Shan State and other irrelevant places, he replied that he had no  power nor mandate to go anywhere he like to investigate but just a guest of the SPDC and had to follow their arrangement.  

According to the unconfirmed reports, up to 8,000 people may have been rounded up around Yangon. This could not be independently confirmed but dissident groups have said that up to 6,000 people have been arrested since troops put down the uprising on Sept. 26 and 27 when they opened fire on crowds. The government says 10 people were killed but others say up to 200 people died in the crackdown on demonstrators who were largely led by Buddhist monks. Part of the proof is already in the photographs and videos came out from Burma and splashed in all the media worldwide.

But the SPDC Myanmar Military Junta had tried to destroy the evidences, repaired the monasteries, arrested, intimidated or killed the witnesses, confisticated all the films, audio and video evidences. So, to safe time and to make your job easy, instead of investigating all the cases of assaults, brutality and killings, please may you kindly just investigate one case which could represent all the atrocities of the SPDC on the unarmed peaceful civilians without provocation or threat of violence. 

Just investigate the murder of Japanese reporter for Tokyo-based APF News, Kenji Nagai’s case thoroughly from all the angles as if you are the investigation officer for a serious crime. If you could have the help of CIA, FBI or CSI team (Crime Scene Investigators) you could easily bring those Criminal SPDC Junta to the International Criminal Court for cold blooded killing of this Japanese photo-video Journalist.  

Footage capturing the last, terrible seconds of Kenji Nagai’s life has been aired on Japanese television and you could easily get to the root of the truth behind the 50-year old photo-journalist’s murder by Burmese troops.  

You should ask the detailed analysis of that video-clip and photos from the Japanese authorities. You could get the confirmation that the person in the pictures and video was the authentic pictures of Mr. Kenji Nagai.  

You should record the Japanese experts who had examined the footage and contradicted the official Burmese explanation of Nagai’s death – that he was killed by a “stray bullet”. 

You should record the Japanese investigators, who were seen in the news photographs at the crime scene. 

You should investigate how they get those pictures and video. Who shoot them. (You should plan and give the complete witness protection to the whole family of the Burmese photographer by taking the whole family back to
USA immediately.) 

You must record the doctor at the Japanese embassy in Burma who confirmed that a bullet entered Nagai’s body from the lower right side of his chest, pierced his heart and exited from his back.  

You should insist to give a chance to record the interview with the “soldier” who shot Mr Nagai and if possible the squad or platoon involved.  

If you were not allowed to see the killer soldier and his troop, please kindly made sure, you get the black and white reply on paper. Who refused your request? 

You should try your best to get the most important fact, who had given the shoot to kill order? 

You need to make sure whether it is true that that even five generals including Yangon Division General was sacked because they refused to shoot the unarmed civilians and monks. If that was true, it is clear that the person who had given the order was higher than generals and Yangon Division Commander General.

After the incriminating video-proof surfaced, now the SPDC is trying to give excuse like a common criminal, they officially change the shooting to an accident. What did SPDC mean? The SPDC soldiers were trigger happy and are ordered to freely shoot Myanmar citizens but they thought that the Japanese photo-journalist was a local Burmese Chinese? Even if the victim in the shooting video was not a foreigner but local Myanmar citizen, it is still a crime to kill an unarmed civilian without provocation. SPDC Generals and especially Senior General Than Shwe is responsible to answer and clarify at the ICC. You should try to prove that there is Criminal Intent by SPDC.

The doctrine of transferred intent is another nuance of criminal intent. Transferred intent occurs where one intends the harm that is actually caused, but the injury occurs to a different victim or object. For example, SPDC soldier shoot the Japanese Photojournalist “accidentally” because he thought that it was a local Burmese-Chinese.  The concept of transferred intent applies to homicide, battery, and arson. Felony murder statutes evince a special brand of transferred intent. Under a felony murder statute, any death caused in the commission of, or in an attempt to commit, a felony is murder. It is not necessary to prove that the defendant intended to kill the victim.

And the arresting of the local journalists, cutting off the phone lines and internet are also clear case of trying to cover-up their crimes. Searching and confiscation of the cameras and hand phones capable of taking pictures is also part of the cover-up scheme. This is the typical scenario of committing the Eighth Stage of Genocide, cover-up and denial.The whole SPDC from the Senior General Than Shwe to the soldiers who had done the shootings are all equally guilty of this killing

The “soldier” who shot Kenji Nagai was curiously wearing the slippers. May be there is some truth in the repeated rumors that SPDC officers trained the convicted criminals to shoot the rifles (or semi-automatic machine guns) and given the stimulants like Amphetamines or Ecstasy pills to commit the atrocities like killing the monks and civilians. There are also repetitive reports that the SPDC soldiers are given the same stimulants like Amphetamines or Ecstasy pills to commit raping of ethnic minorities. I think this is the first time our world had witness a regular government soldier without boots. If that is true, the one who ordered or give the command would be more guilty then the actual perpetrators. This is a very important point for you as a prosecutor at ICC.  

Command responsibility, sometimes referred to as the Yamashita standard or the Medina standard, is the doctrine of hierarchical accountability in cases of war and serious crimes. The doctrine of “command responsibility” was established by the Hague Conventions IV (1907) and X (1907).  

The “Yamashita standard” is based upon the precedent set by the United States Supreme Court in the case of Japanese General Tomoyuki Yamashita. He was prosecuted, in a still controversial trial, for atrocities committed by troops under his command in the Philippines.

Yamashita was charged with “unlawfully disregarding and failing to discharge his duty as a commander to control the acts of members of his command by permitting them to commit war crimes.”

The Hague Conventions IV (1907) was the first attempt at codifying the principle of command responsibility on a multinational level.

It was not until after WWI that the Allied Powers’ Commission on the Responsibility of the Authors of the War and on the Enforcement of Penalties recommended the establishment of an international tribunal, which would try individuals for “order[ing], or, with knowledge thereof and with power to intervene, abstain[ing] from preventing or taking measures to prevent, putting an end to or repressing, violations of the laws or customs of war.”

Introducing responsibility for an omission (Tomoyuki Yamashita, 1945) Command responsibility is an omission mode of individual criminal liability:

the superior is responsible for crimes committed by his subordinates and for failing to prevent or punish (as opposed to crimes he ordered).

The Yamashita courts clearly accepted that a commander’s actual knowledge of unlawful actions is sufficient to impose individual criminal responsibility.

Additional Protocol I

The first international treaty to comprehensively codify the doctrine of command responsibility was the Additional Protocol I (“AP I”) of 1977 to the Geneva Conventions of 1949.

Article 86(2) states that:

The fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from …responsibility …

1. if they knew, or

2. had information which should have enabled them to conclude in the circumstances at the time,

3. that he was committing or

4. about to commit such a breach and

5. if they did not take all feasible measures within their power to prevent or repress the breach.

Article 87 obliges a commander to

“prevent and, where necessary, to suppress and report to competent authorities” any violation of the Conventions and of AP I.

In Article 86(2) for the first time a provision would “explicitly address the knowledge factor of command responsibility.”

The term “command” can be defined as_

A.  De jure (legal) command, which can be both military and civilian. The determining factor here is not rank but subordination.

Four structures are identified:

1. Policy command: heads of state, high-ranking government officials, monarchs

2. Strategic command: War Cabinet, Joint Chiefs of Staff

3. Operational command: military leadership; in Yamashita it was established that operational command responsibility cannot be ceded for the purpose of the doctrine of command responsibility – operational commanders must exercise the full potential of their authority to prevent war crimes, failure to supervise subordinates or non-assertive orders don’t exonerate the commander.

4. Tactical command: direct command over troops on the ground

B. De facto (factual) command, which specifies effective control, as opposed to formal rank.

This needs a superior-subordinate relationship. They are:

1. Capacity to issue orders

2. Power of influence: influence is recognized as a source of authority in the Ministries case before the
   US military Tribunal after World War II.

3. Evidence stemming from distribution of tasks: the ICTY has established the Nikolic test – superior status is deduced from analysis of distribution of tasks within the unit, it applies both to operational and POW camp commanders.

Additional Protocol I and the Statutes of the ICTY, the ICTR, and the ICC makes prevention or prosecution of crimes mandatoryThe Nuremberg Charter determined the basis to prosecute people for:

1. Crimes against humanity: murder, extermination, enslavement, deportation, and other inhuman acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

The jurisdiction ratione personae is considered to apply to “leaders, organisers, instigators and accomplices” involved in planning and committing those crimes.

You should also try to prove the Malice of the SPDC. It is a state of mind that compels a person to deliberately cause unjustifiable injury to another person. At common law, murder was the unlawful killing of one human being by another with malice aforethought, or a predetermination to kill without legal justification or excuse.

The whole world knows that you would be able to show the proof of the Motive of SPDC.  As Motive is the cause or reason that induces a person to form the intent to commit a crime. It is not the same as intent. Rather, it explains why the person acted to violate the law. The knowledge that SPDC will receive the permanent dominance of Myanmar Military upon the death of the demonstrators is clearly the motive for those murders or massacres. But anyway the proof of motive is not required for the conviction of a crime. The existence of motive is immaterial to the matter of guilt when that guilt is clearly established. However, when guilt is not clearly established, the presence of motive might help to establish it. If a prosecution is based entirely on circumstantial evidence, the presence of motive may be persuasive in establishing guilt; likewise, the absence of motive might support a finding of innocence.

Instead of proper apology, or an acknowledgment expressing regret or asking pardon for a fault or offense from the SPDC Generals we are getting the excuses, to explain (a fault or an offense) in the hope of being forgiven or understood. SPDC falsely hope to be freed from the crimes, as from an obligation or duty. But sadly those were even not the explanations offered to justify or obtain forgiveness, nor reason or grounds for excusing: Senior General Than Shwe and other top generals must know that Ignorance is no excuse for breaking any law, local or ICC.

An excuse is essentially a defense for an individual’s conduct that is intended to mitigate the individual’s blameworthiness for a particular act or to explain why the individual acted in a specific manner.

To be excused from liability means that although the defendant may have been a participant in the sequence of events leading to the prohibited outcome, no liability will attach to the particular defendant because he or she belongs to a class of person exempted from liability. In normal circumstances, this will be a policy of expediency. Hence, members of the armed forces, the police or other civil organizations may be granted a degree of immunity for causing prohibited outcomes while acting in the course of their official duties, e.g. for an assault or trespass to the person caused during a lawful arrest. But in the Cases of the Crimes against Humanity, Genocide and Ethnic Cleansing or the Massacre of peaceful demonstrators and the point-blank shoot to killing of the Japanese Photojournalist cases at the ICC the above excuses are not valid at all. 

As a Law Professor, I hope you should told SPDC on their face to understand that they could not claim for the Diplomatic Immunity as they are not diplomats. It is for the exemption from taxation and ordinary processes of law afforded to diplomatic personnel in a foreign country only.

You should warn SPDC Generals that they should also understand that they could not claim for the executive privilege, exemption of the executive branch of government, or its officers, from having to give evidence, specifically, the exemption of the head of the government from disclosing information to inquiries or the judiciary. Claims of executive privilege are usually invoked to protect confidential military or diplomatic operations or to protect the private discussions and debates of the president with close aides. Efforts by various the head of the governments to gain absolute and unqualified privilege have been rejected by the International Criminal Courts.

So, Mr Sergio Pinheiro, as you had made the remark while delivering his annual report on the human rights situation in the country, adding events that occurred since issuing your last written report in August. From Sept. 26-28 when authorities used what you, Pinheiro called “excessive force,” including firing on and beating protesters, to rein in the large crowds. But your good self, Mr Pinheiro, could not present exact figures for how many had been killed and arrested, you cited other reports that between 30-40 monks and 50-70 civilians had allegedly been killed and 200 beaten. “It is difficult at this stage to provide you with accurate numbers of persons killed and arrested as well as those who are still detained,” you had said, adding that you hope to travel to the country to make a more accurate assessment based on witness testimonies and meetings with authorities.In accordance with a resolution passed by the Human Rights Council earlier in the month, you will urge authorities to carry out a set of actions, including conducting “independent and thorough investigations into the killings and enforced disappearances” as well as taking “action against those responsible.”

You said you will also press officials

1. to reveal the whereabouts of missing persons,

2. take steps to unconditionally release all detainees,

3. grant amnesty to those who have been sentenced,

4. allow them access to humanitarian personnel, and ensure for their physical and psychological safety. 

You and others in the international community have repeatedly expressed concerns about the fate of thousands of protesters who have reportedly been detained.

Thank you for calling on officials to “immediately and unconditionally release the detainees and political prisoners” including General Secretary of the National League of Democracy Aung Sang Suu Kyi, who you had noted had been held for exactly 12 years under house arrest.

“The stability of Myanmar is not well served by the arrest and detention of political leaders or by the severe and sustained restriction of fundamental freedoms,” you had further stated. “There will be no progress in Myanmar’s political transition unless ordinary people have space to express their views and discontent peacefully and in public.”

“My task is to offer an honest, complex, objective picture of the crisis … the excessive use of force, what’s happening in terms of detainees, the number of deaths,”you had said.

You  said that you would then present a report with your recommendations to the Geneva-based Human Rights Council on December 11.

According to you, ”I have reports that the chase of bystanders or people involved in the manifestations continues. I think that the situation of fear prevails. I don’t think that the repression has finished,” you said.

You said that reports of deaths, torture and disappearances of those taken into custody continue to come in. “What annoys me is that the repression has not stopped a single moment — this is what annoys me — despite all the universal appeals,” you rightly  told reporters at the United Nations, during a press conference at UN Headquarters, you said: “I don’t think that the repression… has finished,” adding that a “situation of fear prevails” in the country.

“I will ask free access, the secretary general will ask free access,” Pinheiro said, adding that visiting prison cells to speak to detainees was “a requirement.”

We hope you would not forget the above noble quotes and remarks you had given infront of the international media.

We hope and pray that you would not be constrained by the military junta,by hook or by  crook, but be able to go where you want in Myanmar as you had vowed.

 

Thanking You

Yours Humbly

 

Dr San Oo Aung