Myanmar on trial

Fear of prosecution for crimes against humanity is a key factor in Myanmar’s February coup and the international community must take notice, Catherine Renshaw writes.

A variety of reasons have been put forward to explain Myanmar’s recent coup d’etat. For its part, the military claims that it took power because of the Electoral Commission’s refusal to investigate voting irregularities in the November 2020 elections.

Disputing this pretence, analysts have emphasised the structural instability of the power-sharing arrangement between the National League for Democracy (NLD) and Myanmar’s military, and cite the personal ambitions of Commander-in-Chief General Min Aung Hlaing as a key causal factor.

However, these discussions neglect the influence of the extraordinary raft of international legal proceedings currently underway involving Myanmar’s military.

Myanmar’s transition to democracy was a military-led, top-down process, an essential element of which was immunity from prosecution for members of the military, guaranteed by Article 445 of the 2008 Constitution.

In March 2020, an NLD proposal to amend Article 445 was defeated when it failed to achieve the required 75 per cent of parliamentary votes. This result was unsurprising, given that the military hold a mandated 25 per cent of unelected seats in parliament, but by attempting the reform the NLD signalled that it wanted to end military impunity.

While this was happening at home, pressure on the military was growing outside the country, largely through international legal developments.

First, in November 2019, The Gambia brought a case to the International Court of Justice (ICJ), alleging Myanmar’s breach of the Genocide Convention in relation to its treatment of its Rohingya Muslim minority.

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Former State Counsellor of Myanmar Aung San Suu Kyi went to The Hague to present Myanmar’s defence. In January 2020, in its preliminary decision on whether Myanmar must preserve evidence of genocide and prevent genocide from taking place, the Court ruled unanimously in The Gambia’s favour.

Myanmar was ordered to report back to the Court about its compliance with provisional orders, and non-compliance is a matter that can be referred to the United Nations Security Council for follow-up and action.

Myanmar has long relied on the veto power support of China and Russia in the Security Council, but Myanmar’s military knows that this support cannot be guaranteed, and on 23 January, eight days before the coup, Myanmar lodged an appeal challenging the Court’s jurisdiction.

At the same time, another set of international legal proceedings was emanating from The Hague. In November 2019, the Pre-Trial Chamber of the International Criminal Court (ICC) delivered a decision which stated that the Court had jurisdiction over crimes that were committed at least in part on the territory of a State party to the Statute of the International Criminal Court (the Rome Statute).

Myanmar is not a party to the statute, but in response to the military’s attacks of August 2017, Rohingya Muslims fled in their hundreds of thousands across the border to neighbouring Bangladesh, which is party to it.

This meant part of the crime against humanity Myanmar is accused of – deportation – took place in a country that was a party to the Rome Statute, giving the prosecutor the power to investigate the crime of deportation.

The Pre-Trial Chamber’s decision also stated that the prosecutor could go further and investigate crimes related to deportation, such as persecution.

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This meant that, as well as the genocide proceedings being levelled against Myanmar as a state, members of the military now also face personal prosecution for crimes against humanity.

In November 2019, the Burma Rohingya Organisation United Kingdom (BROUK) lodged a case in an Argentinian court under the principle of universal jurisdiction, alleging genocide against the Rohingya and naming Min Aung Hlaing, the army general who currently serves as Chairman of the State Administration Council of Myanmar and is the country’s de facto leader, and Aung San Suu Kyi, among others, as possible perpetrators.

None of these international legal processes are straightforward, nor will they be quick. The ICJ has only made one prior determination of a breach of the Genocide Convention, in the case of Bosnia and Herzegovina v Serbia and Montenegro.

The case took 14 years to conclude from the filing of the initial application in 1993 until judgment was rendered in 2007. This period was punctuated by the massacre in Srebrenica, which took place despite orders by the ICJ.

In relation to Myanmar, the ICC will also be hampered by Myanmar’s non-cooperation and an inability to bring defendants before the court.

For Myanmar’s military leaders, however, even the potential of prosecution is an intolerable insult. What cannot be forgotten is Myanmar’s history and the new leadership’s perception that the honour of the country is tied to the status of its military.

In 1990, the NLD won a resounding electoral victory and the generals refused to hand over power. One of the reasons for this – in popular accounts within Myanmar at least – is because the generals feared they would be prosecuted for crimes committed during the prior years of military rule. That the same could happen now is a neglected reason for why they have taken power again in 2021.

What does this mean for the international community?

Decades of isolation under sanctions regimes sharpened the military’s distrust of the rest of the world and its fear of prosecution. When the military embarked on its roadmap to democracy in 2003, it did everything it could to ensure it was protected from the humiliation of possible criminal trials.

Aung San Suu Kyi, as a key member of the transitional elite, supported the military’s narrative that nobody should be blamed or punished for the events of the past. She understood that to do otherwise would be to threaten the delicate balance of transition.

The international community, however, did not understand – and had less at stake – and so continued to press for accountability. This reality is something it must factor in when pleading for a return to democracy without bloodshed, because that is something that can only happen with the cooperation of the military.

Ultimately, democracy in Myanmar will come at a price, and the international community must decide if it is willing to pay it.