LexisNexis

Myanmar: coup jeopardises prospect of accountability for crimes against Rohingya

Yola VerbruggenMonday 22 February 2021

Early on 1 February, hours before the first session of the newly elected parliament, Myanmar’s military arrested government officials and lawmakers, and seized control of the country. Citing election fraud, the generals ended the country’s experiment with democracy and declared a year-long state of emergency.

Among those arrested were State Counsellor Aung San Suu Kyi and President Win Myint, as well as prominent activists.

The next day, a civil disobedience movement spurred on by a young, tech-savvy generation persuaded people all over the country to defy the coup. Within days, hundreds of thousands of people took to Myanmar’s streets.

The Tatmadaw loathe interference by the international community and are probably willing to go quite far to keep it at bay

Laetitia van der Assum
Former Dutch Ambassador to Myanmar and Thailand

A general strike joined by medical doctors, academics, lawyers and increasing numbers of civil servants, including members of the police force, is now crippling the government.

By mid-February, over 400 political arrests had been made, according to the non-profit Assistance Association for Political Prisoners in Myanmar. Tanks have rolled into Yangon, Myanmar’s largest city, and the police have cracked down on protests elsewhere, including in the capital, Nay Pyi Taw.

It was in Nay Pyi Taw as police cleared protests that 20-year-old Mya Thwate Thwate Khaing was shot, reportedly by live ammunition; she later passed away in hospital.

The military’s statement that the takeover was constitutional and necessary to protect the country’s nascent democracy has fallen on deaf ears.

‘The military’s claims that their actions are compliant with domestic law appear to be directed towards shifting the narrative away from descriptions of their actions as a “coup”, says Melinda Taylor, Co-Vice-Chair of the IBA Human Rights Law Committee and an international criminal lawyer. ‘This façade of legality is a naked attempt to dampen external critique and allows the military to present themselves as the legitimate authority and interlocutor on the part of Myanmar.’

There has been considerable international pressure to release political prisoners and calls are mounting for the military to refrain from using force to quell the protests, to avoid the bloody crackdowns that followed earlier popular uprisings, in 1988 and 2007 respectively.

The United Nations Special Rapporteur on the situation of human rights in Myanmar, Tom Andrews, and the UN Special Envoy on Myanmar, Christine Schraner Burgener, have warned the military and police against cracking down on the peaceful protestors. ‘Following orders is no defence for committing atrocities’, said Andrews, while Schraner Burgener stated ‘that a heavy-handed response is likely to have severe consequences’.

Myanmar has not cooperated with their requests for access to the country.

The United States has imposed sanctions on military leaders and their business interests, while efforts are being made to block the military’s access to $1bn of government funds held in the US.

But the generals’ economic interests might take a backseat to political power, says Laetitia van der Assum, a former Dutch ambassador to Myanmar and Thailand and a former member of the Advisory Commission on Rakhine State, which was chaired by Kofi Annan.

‘The Tatmadaw [Myanmar’s armed forces] follows its own logic and line of reasoning’, she says. ‘This is built, first and foremost, on fear of their perceived domestic enemies who threaten the military’s objectives, including the country’s sovereignty. They loathe interference by the international community and are probably willing to go quite far to keep it at bay.’

International pressure failed to end the military’s persecution of the Rohingya – conducted on the basis of fighting Rohingya militants – an operation for which it had broad support within the country. Yet, the coup has created a sense of unity between the majority Buddhist population and the country’s persecuted minorities, including the Rohingya, who have joined the protests.

‘There is a sense of unity, the younger generation recognise the ethnic minorities as allies. Times are different now’, says Khin Zaw Win, the Director of Tampadipa Institute in Yangon, which works on policy advocacy around communal issues, land and nationalism.

Defending her country against a charge of genocide in respect of the Rohingya, Aung San Suu Kyi said before the International Court of Justice (ICJ) that some cases of those accused of war crimes against the Rohingya would be prosecuted domestically, including through Myanmar’s military justice system.

Under a military regime, that scenario now seems even more unlikely, says Priya Pillai, an international lawyer and Head of the Asia Justice Coalition secretariat. ‘It’s the military junta who have seized power, and are alleged to have committed these international crimes. To me that means that there is no chance of accountability at the national level’, she says.

Whether the military will continue to engage in the process remains to be seen, yet the case could still continue if the ICJ is satisfied that it has jurisdiction, despite Myanmar opting out of the ability to defend itself if it withdraws, Pillai says.

Meanwhile, the Independent Investigative Mechanism for Myanmar continues to gather information on any international crimes committed in the country since 2011. Investigations have begun for a case before the International Criminal Court.

‘Since the coup, all eyes are on the Myanmar military and there is no doubt that these proceedings, investigations, and fact-finding missions have played a significant role in international responses’, says Danya Chaikel, Secretary of the IBA War Crimes Committee and an international criminal lawyer in The Hague.

She adds however that accountability for past crimes against the Rohingya people, as well as for the current military crackdown against protestors, does not rest on the shoulders of international judicial proceedings alone.

‘In all local and international legal proceedings as well as political interventions, grassroots organisations in Myanmar as well as the Rohingya diaspora must be the central players in these efforts’, says Chaikel.

Header pic: Myanmar people take to the streets to protest against the military coup, February 2021. Shutterstock.com / Robert Bociaga Olk Bon