(By Professor Michael C. Davis & C. Raj Kumar)
Upon examination of the preliminary report of the Ad Hoc Commission on the Depayin Massacre and various affidavits appended to the report, the authors conclude that the Depayin Massacre is highly likely a “crime against humanity”. It should, as soon as possible, be further investigated through the agencies of the United Nations and its affiliated human rights organisations. Perpetrators of such heinous crimes need to be brought to international justice. To relieve Burma’s political and social circumstances, its political development needs to be more seriously addressed by the UN Security Council and the international community.The factual findings of the Ad Hoc Commission on the Depayin Massacre demonstrate to a sufficient degree of proof a prima facie case that the massacre was a premeditated attack, and substantiate our recommendations herein. The fact of the matter is that on 30 May 2003, civilians, including some leaders of the National League for Democracy (NLD), its many members and sympathizers were massacred. The report has argued that the local authorities had threatened the people living in the villages between Sai Pyin village and Depayin town not to welcome Daw Aung San Suu Kyi and not to appear if something happened. The perpetrators of this heinous crime attacked the motorcade of Daw Aung San Suu Kyi. The victimization that took place because of these attacks was quite serious. It is understood that the villagers around the place where these killings took place had begun taking care of the wounded victims. The statements of the four witnesses appear to demonstrate the gravity of the crime that was perpetrated in Depayin and that it falls within the scope of the definition of ‘crimes against humanity’.The definition of ‘crimes against humanity,’ as it has emerged under international treaties and customary international law, is now contained in article 7.1 of the Rome Statute of the International Criminal Court (ICC):
‘Crimes against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: 1. Murder; 2. Extermination; 3. Enslavement; 4. Deportation or forcible transfer of population; 5. Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; 6. Torture; 7. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; 8. Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; 9. Enforced disappearance of persons; 10. The crime of apartheid; 11. Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
It should be noted that to the extent that the Rome Statute has, in this language, largely captured the content of emerging customary international law, these standards of behaviour would now be binding on states that are not signatories.It needs to be observed that crimes against humanity, as contained in the Rome Statute, do not require an “intent to destroy a group in whole or in part” by the perpetrators, but instead require that such atrocities referred to in the definition, such as murder, extermination and so on, are committed as part of a “widespread or systematic attack directed against any civilian population, with knowledge of the attack”. “Knowledge of the attack” refers to the knowledge of the perpetrators or supporters of the attack, or of those in power situations who have acquiesced to the attack upon any civilian population. The key words in the definition are:a. Widespread or systematic attack;b. Directed against any civilian population; and,c. Knowledge of the attack.a. Widespread or systematic attack:The Depayin Massacre was a case of widespread and systematic attack. These terms were clearly defined by the International Criminal Tribunal for Rwanda (ICTR) in Akayesu:The concept of ‘widespread’ may be defined as massive, frequent, large-scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims. The concept of ‘systematic’ may be defined as thoroughly organized and following a regular pattern on the basis of a common policy involving substantial public or private resources.The fact that there were a large number of people involved as attackers in this crime demonstrates that the attack was widespread. Also, there are enough witnesses to indicate that the attack was premeditated and hence, systematic. The fact that these widespread human rights violations in the form of attacks took place in different “killing fields” further demonstrates the gravity of the matter. The systematic execution of NLD members and other villagers is verified by eyewitnesses who watched the killers drag about twenty dead bodies to be buried in a stream. Finally, a history of suppressing the NLD after its previous success in national elections would likely be submitted as evidence of the widespread and systematic nature of the actions over time, culminating in the Depayin attacks and the arrest of Daw Aung San Suu Kyi.b. Directed against any civilian population:This requirement is mentioned in the statutes of the ICC, ICTR and International Criminal Tribunal for the former Yugoslavia. In the Rome Statute of the ICC, the term is defined in article 7.2.a as “a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack”. The requirements of article 7 vary from the previous position, which was, in fact, “not only that a policy must be present but that the policy must be that of a State”.But the changes and developments of international customary law have necessitated the removal of the requirement that the policy needs to be the policy of a state. Hence, article 7.2.a takes into account “organizational” policies. The policy “does not need to be formalized and can be deduced from the way in which the acts occur”. The NLD members and its supporters, including the villagers from Kyi village, were unarmed and belonged to the civilian population. The attack was targeted against the civilian populace and hence, fulfilled one of the requirements of the definition of crimes against humanity. The systematic suppression of the NLD by the state and the frequent detention of its leader would likewise tend to establish a pattern.c. Knowledge of the attack:The “knowledge of the attack” refers to the mens rea, that is, the knowledge of wrongdoing that constitutes a criminal action. The Trial Chamber in Tadic held that the mens rea for crimes against humanity comprises of the intent to commit the underlying offence, combined with knowledge of the broader context in which that offence occurs. 
The perpetrator must knowingly commit crimes against humanity in the sense that he must understand the overall context of his act. Part of what transforms an individual's act into a crime against humanity is the inclusion of the act(s) within a greater dimension of criminal conduct; therefore an accused should be aware of this greater dimension in order to be culpable thereof. Accordingly, actual or constructive knowledge of the broader context of the attack, meaning that the accused must know that his act(s) is part of a widespread or systematic attack on a civilian population and pursuant to some sort of policy or plan, is necessary to satisfy the requisite mens rea element of the accused.”
Since the SPDC military junta exercises strict control over the entire function of policing, including appointment, dismissal, promotion, transfer etc., there is enough evidence to suggest that they had the requisite knowledge of the attack.Overall, the facts presented by the Ad Hoc Commission on the Depayin Massacre make out a prima facie case of the commission of a crime against humanity. This crime should be investigated and prosecuted for criminal accountability. At the same time, the responsible UN agencies should investigate the event for state accountability.¨ Michael C. Davis is a Professor of Law and Director of the Graduate Programme in Law and Public Affairs at the Chinese University of Hong Kong. He is the editor of International intervention in the post Cold War world: Moral responsibility and power politics (2003). C Raj Kumar is a Lecturer & Deputy Director of the WTO Law and Dispute Resolution Centre, School of Law, City University of Hong Kong.