UN, US, EU and ASEAN must consider for the Restitution to Myanmar/Burmese Citizens

UN, US, EU and ASEAN

must consider

for the Restitution 

to Myanmar/Burmese Citizens

Dr San Oo Aung

During the dialogue for the democratization of our country, before forming a transitional interim government and drawing the new constitution, we definitely need a reconciliatory talks.

Now, if the SPDC Junta refuses the demands of UN, US, EU and Burmese opposition, they should be threatened with the ICC. But if they give in and start a reconciliatory process and allow Daw Aung San Suu Kyi led NLD and opposition, UN, US, EU and all the opposition should guarantee the safety of Myanmar Tatmadaw and SPDC Generals. Facts to offer as carrots to the military during reconciliatory talks_Burmese opposition esp. NLD must promise and guarantee the safety of all the SPDC Generals, soldiers, USDA, Swan Arrshin and their families.

1.      U Kyi Maung’s speech of sending Military Generals esp. General Khin Nyunt to Nuremberg had made the Generals scared to death and refused any negotiation.

2.      Daw Aung San Suu Kyi also failed to convinced the Generals. She said that she could forgive and forget but whether to take action on the perpetrators of atrocities, it is up to the victims and Burmese people. In stead of those words, she should give very strong guarantee by saying that if anyone wants to revenge the Myanmar Tatmadaw Generals and personals, she would personally defend. Even should use the words, over her dead body.

When I mentioned about the granting carpet amnesty and formation of Interim government together, some of my shortsighted comrades are angry and even accused me as SPDC admirer. They pointed about the sufferings of activists who sacrificed their lives, jailed, tortured, wounded, crippled, lost jobs etc. Instead of punishing the alleged criminals or alleged offenders we should look at the Restitution process.

1.      I just pointed out to them that if they are powerful enough and could overthrow SPDC by force, go ahead. Now we are powerless, weak and we are not in any position to impose our will on SPDC by force. If we want them to transfer the power peacefully, we must negotiate and guarantee their safety.

2.      And what is the use of hanging or punishing the dethroned dictators if we ignored the sacrificed activists. Just see Iraq. We must try to forget the incidence and give up the attempt to punish them even if we could not forgive the perpetrators.

3.      Like the no fault compensation in some insurance schemes, the State of Burma/Myanmar should compensate all the sufferers, with lump some rewards, monthly pensions, giving employment, projects, land, shop-lots, interest free loans etc.

4.      Then only it will be a win-win situation for all of us, including SPDC and Tatmadaw. After all we could not disband the 400,000 strong Myanmar Tatmadaw. Just look at what happens in Iraq. Not only the jobless ex-military could give trouble, our country’s security would be compromised. We need them to protect us from foreign aggressors and hard-line separatists to prevent the total disintegration of Burma/Myanmar.

Restitution process

In some of the developed countries’ criminal laws, there are new victim-oriented, or aims for the restitution of the victims. Its goal is to repair any hurt inflicted by the offender on the victim through state authority. It is commonly combined with other aims.

1.      Restitution process is the act of restoring to the rightful owner something that has been taken away, lost, or surrendered. You could call in any name: Reparation, compensation, damages, amends, reimbursement, recompense, indemnification, offset, quittance, redress, reparation, repayment, satisfaction, setoff, substitute, reward, repay, recompense, remunerate, repayment, refund or better call as rewards for the sacrifices for the country.

2.      The act of making good or compensating for loss, damage, or injury; indemnification.

3.      A return to or restoration of a previous state or position.

4.      Act of making good or of giving the equivalent for loss, damage, or injury.

We should avoid using any local or International (ICC) criminal law if SPDC agrees for a dialogue under auspices of UN combined with other countries, e.g. ASEAN, China and India etc. No need to formally abide by the body of law local and international, that defines criminal offenses, regulates the apprehension, charging, and trial of suspected offenders, and fixes punishment for convicted persons.

We all must be willing to waive the rights of indictment of any person in and affiliated to SPDC and Myanmar Military according to any Laws. (Indictment means, a written statement charging a party with the commission of a crime or other offense, drawn up by a prosecuting attorney and found and presented by a grand jury.)

But if SPDC refuses for a proper dialogue_We all have enough evidences to charge the accused, SPDC and affiliated parties and Myanmar Military. They all must be prepared to be the defendant or defendants in the criminal cases, Crimes against Humanity, Genocide and Ethnic Cleansing etc. at ICC.We could 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.

We all could 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 and we all could 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.“Don’t make excuses, make good.“

“Two wrongs don’t make a right, but they make a good excuse.” Thomas Szasz.

“And oftentimes excusing of a fault doth make the fault the worse by the excuse.” William Shakespeare.  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.But SPDC Generals are adamant, impervious to pleas, appeals, or reason; stubbornly unyielding. They stood firmly, often unreasonably immovable in purpose or will: They are inflexible, not easily bent; stiff or rigid. Incapable of being changed; unalterable nor unyielding in purpose, principle, or temper; immovable. They are not exorable or capable of being moved by entreaty; pitiful; tender. They are stubborn, unreasonably, often perversely unyielding; bullheaded. Or firmly resolved or determined; resolute, obstinate, characterized by unnecessary perseverance and persistent. They are difficult to treat or deal with; resistant to treatment or effort: stubborn soil; stubborn stains.

SPDC Generals should 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.

SPDC Generals 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, though the local remain inclined to support most claims of executive privilege. Where criminal charges are being brought against the head of the government, the claims of executive privilege are weakest.The International Court of Justice (ICJ) (also known as World Court) is the judiciary organ of the United Nations. It settles disputes submitted to it voluntarily by states (only), and gives advisory opinions on legal questions submitted to it by other organs of the UN, such as the General Assembly or Security Council. A recent development in international law is the International Criminal Court (ICC), the first ever permanent international criminal court, which was established to ensure that the gravest international crimes do not go unpunished. The ICC treaty was signed by 139 national governments, of which 100 ratified it into law by October 2005.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 “Medina standard” is based upon the prosecution of US Army Captain Ernest Medina in connection with the My Lai Massacre during the Vietnam War. It holds that a commanding officer, being aware of a human rights violation or a war crime, will be held criminally liable when he does not take action. In The Art of War, written during the 6^th BC, Sun Tzu, argued that it was a commander’s duty to ensure that his subordinates conducted themselves in a civilized manner during an armed conflict.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). Following In re Yamashita courts clearly accepted that a commander’s actual knowledge of unlawful actions is sufficient to impose individual criminal responsibilityAdditional Protocol IThe 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

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

2. 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.

3. 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.Restitution process to consider for all the Myanmar/Burmese citizens abroad.

Although there are some sympathetic considerations for the Burmese/Myanmar citizens by few countries, most of us unfairly discriminated even amongst foreigners in many countries.

Except for the US and EU countries, ASEAN, China and India etc. countries wish to continue their trade ties with the SPDC Junta. In their own local countries’ laws and international laws, those who try to cover up the crimes, protect the criminals or accepting the ill-gotten property or money is illegal criminal offence, many countries are willing to continue the relations with those SPDC Criminals. And they are the ones who are punishing the Burmese/Myanmar citizens because of the acts of the successive military leaders.

 

Because the military government refused to sign visa free status to their citizens, esp. ASEAN governments, they denied the ordinary Myanmar/ Burmese these rights of visa free status. But with the excuse of government to government dealing, they granted visa free for the military authorities of Myanmar.

Although they (esp. ASEAN governments) signed the double taxation agreement with the military government they refused (esp. ASEAN governments) denied the rights of the Burmese citizens after Myanmar Embassies illegally taxed their citizens abroad.

We are not asking for special favors or the facilities that are reserved for your citizens only. But please kindly treat all of us with the same privileges or chances or favors you all reserved to your most favored foreigners from your most favored countries.

Why US, EU, Australia, Canada, Singapore and other developed countries could give training jobs for the SPDC selected and sent specialists but not the individual, private Myanmar/Burmese doctors, engineers etc. Especially UK, US and Singapore not only refused to recognize the Myanmar Medical degrees but also refused the privately applied individuals for the training posts but always ready to grant to the SPDC doctors.

EU especially UK Medical Council, Immigration etc. are also giving special privileges to the fellow EU countries’ workers, professionals and doctors. EU and UK should give the same privileges to the Burmese/Myanmar citizens as a special arrangement as part of the restitution process.

UK professional governing bodies such as GMC stop Burmese Medical degree recognition because the military government ignored their supervision process. And the other professional bodies and other countries such as Singapore, Hong Kong, Brunei follow the UK trend and derecognize as. All the countries are punishing Burmese/Myanmar professionals because of Myanmar Military Juntas’ action. At least you all should allow all the Burmese professionals after supervision/temporary registrations as internships (House Surgeons, House Officers etc.) for few years. ASEAN scholarships and many other training and scholarships given out by e.g. other government, semi-government and private big companies’ (PETRONAS, IJN etc.) are usually given to SPDC selected candidates.

If ASEAN wish to keep Myanmar SPDC in ASEAN, do not wish to jeopardize their cozy relation relationships, they could continue given them as G to G arrangement but they all should offer the same amount of scholarships and training posts to the private individual Burmese/Myanmar citizens.

In some of the developed countries’ criminal laws, there are new victim-oriented, or aims for the restitution of the victims. Its goal is to repair any hurt inflicted by the offender on the victim through state authority.

Please kindly allow me to request world leaders, UN, US, EU, ASEAN, Japan, Korea etc to kindly consider to help made it easier for the various Myanmar/Burmese migrants to work, study, settle or take refuge in your countries.

Singapore should give Myanmar professionals and others as the same privileges for allowing to work and practice, as those from Hong Kong, Taiwan and other western countries.  Malaysia should accept the Myanmar professionals and citizens with the same fast tract that they had accorded to their brothers, Indonesians.

We could even see a lot of Indonesian sweepers, toilet cleaners holding the Malaysian Red and Blue ICs. Some of the MPs, Ministers, Chief Ministers are also Indonesian Malaysians. Some are just second generation migrants only, e.g. the present Selangore Chief Minister. His father was reported in the Malaysian English daily to be an Indonesian migrated into Malaysia as a lorry driver! But it is very difficult even for a Burmese professional to get a PR. It is almost impossible to get the citizenship because of red tapes and conditions and requirements imposed on all others except for Indonesians.  

We all know the very special status and support given by Malaysia on Bosnia and other refugees. Talking about refugees, the western democracies are also rumoured to have secretly instructed the UNHCR to accept ONE ETHNIC MINORITY professing ONE RELIGION only. It is difficult to prove but all of us could see very clearly.

If Singapore and Malaysia wish to continue to accept Myanmar SPDC, they should seriously consider compensating Myanmar/ Burmese citizens with the special privileges they used to extend other preferred foreigners. 

At first many leaders around the world could not believe or some of them closed their eyes or look away from our country and blatantly claimed that there is no war in Myanmar, no atrocities committed on various minority religious groups and ethnic minorities. Even those practising the same religion or descended from the same ethnic groups denied or brushed off that there was no ethnic cleansing, racial and religious in Myanmar, just to easily deny a helping hand to those who migrated and requested to easy resettlement or refuge in their countries.It is a blessing in disguised that the stupid or dumb SPDC military generals decided to use force on peacefully demonstrating revered monks and the Burmese civilians. Now the SPDC’s real natured is exposed and the whole world had witness with their eyes about the cruel Myanmar Military. And it is clear that they are defiant and never give a dam care to the UN, UNSC, world political and religious leaders’ appeals.

We, Burmese expartrites, wish to look forward and prepare for the future of our whole family and our relatives.  We don’t want to look back over our shoulders with fear nor maintain the umbilical cord with the Myanmar, we left. 

As it now stands, we cannot plan for our future because of the ASEAN governments’ very strict policy of citizenship rules.  Our wish to give undivided full loyalty to our adopted new home cannot be fulfilled.We could not sponsor even our closed relatives; parents, brothers, sisters etc.

ASEAN governments should kindly reconsider this present ruling. After all, if our parents and near relatives are here, out of Myanmar, no need to send our money back home to Myanmar but need to spend in your own country!

The Myanmar Embassies around the world are so happy to collect income taxes (obviously double taxation for all the Myanmar PP holders) and all the various exuberant fees to endorse, renew and for issuing of new Passports.           

When the Malaysian government announced that they are building 3000 (three thousand) schools for the INDONESIAN MIGRANTS’ children, they put out the order that other MIGRANTS’ are not allowed to attend the government schools. This includes the legal workers, professionals and doctors working even for the Malaysian government. Even the highest pay migrant professional doctors’ salary in Malaysia is less than the ambulance driver’s salary in the west, they could not afford to send to the very expensive private schools. I am worried about the emergence of illiterate Myanmar refugees in a dozen of year from now in Malaysia, giving social problems as they are denied schooling because their parents came from Myanmar but not from INDONESIA.

And UIA or IIU (International Islamic University) had accepted Burmese students in their Medical Faculty before. But now they totally refused to accept Burmese Students in Medical course.

 The funniest and shameful thing is that the Islamic College in Malaysia tried to refuse Myanmar students (even the Muslim students) because they don’t have the agreement with the SPDC atheist government. But they are willing to accept even the Hindu students from India because Indian government signed an agreement with them. They seems to be out of touch with foreign news, even failed to watch the Al Jazeera TV channel about SPDC atheist government soldiers beating and killing of monks. I hope that the college authorities are not glued to MTV and TVB all the time and are ignorant about the ethnic cleansing and Genocide of Muslims in Myanmar/Burma.

 

No wander all of their OIC leaders used to shamelessly ignore the plights of discriminated downtrodden minority Muslims from Myanmar/Burma, Kashmir, Chechnya, Xingan, Yunnan, and from all over the world but KEEP ON DENOUNCING ISRAEL and US. And KEEP ON SUPPORTING PALESTINES and IRAQ uselessly as parrots.