May 21, 2021
Beyond the Coup in Myanmar: The Need for an Inclusive Accountability
Posted by Carmen Cheung
(Editor’s Note: This article is part of a Just Security series on the Feb. 1, 2021 coup in Myanmar. The series brings together expert local and international voices on the coup and its broader context. The series is a collaboration between Just Security and the International Human Rights Clinic at Harvard Law School. This article was first published to Just Security on May 20, 2021).
If the current crisis in Myanmar is one “born of impunity”, any response that is rooted in accountability needs to acknowledge that the Myanmar military’s crimes span decades and across its ethnic regions. Some in the international community may have first learned about “clearance operations” in the context of the devastating attacks in recent years that have destroyed Rohingya villages and forced an exodus into neighboring Bangladesh. For almost sixty years, however, Myanmar’s military has engaged in forced displacement, sexual violence, torture, and extrajudicial killings against civilian populations as part of its ongoing conflict against armed groups in the country’s ethnic regions. A proper accounting in Myanmar must be inclusive of crimes committed against all its people, and inclusive of all the communities who have suffered at the hands of its military.
Decades of Impunity: A Brief History
For close to six decades, Myanmar has suffered from a crisis of impunity, one which the international community has never adequately addressed. Almost immediately after its independence from British colonial rule in 1948, civil war broke out between the Tatmadaw (the Myanmar military) and armed organizations in the country’s ethnic nationality areas. The Tatmadaw overthrew civilian rule in 1962 and cracked down on all threats to its power, from journalists and political dissidents to the armed groups in the ethnic areas. Throughout the period of military rule (1962-2011), serious human rights violations such as extrajudicial killings, torture, arbitrary detention, sexual violence, and forced labor were commonplace.
Following the Tatmadaw’s bloody suppression of anti-government protests in 1988, the international community began to slowly respond to the human rights crisis in Myanmar. In 1991, the U.N. General Assembly adopted its first resolution on the “grave human rights situation in Myanmar” and the United Nations created the mandate of the Special Rapporteur on the human rights situation in Myanmar in 1992.
Successive Special Rapporteurs repeatedly sounded the alarm, with little concrete response from the international community. In 2010, Tomas Ojea Quintana reported to the Human Rights Council that in the ethnic regions in Eastern Myanmar, “[e]ntire communities have been forced to relocate and their houses and food supplies burned to prevent their return.” Between 1996 to 1998, over 300,000 villagers in southern and central Shan State were displaced. From July 2009 to when the Special Rapporteur issued his report in March 2010, the military had forcibly relocated almost 40 villages and burned down over 500 houses and “scores” of granaries in Shan State. The Special Rapporteur ultimately concluded that the gross and systematic human rights violations in Myanmar were a result of State policy and could constitute crimes against humanity and war crimes under the Rome Statute of the International Criminal Court. And yet, neither the Security Council nor the U.N. General Assembly took action to hold Myanmar to account for these violations or to prevent their recurrence.
Elections in late 2010 saw tentative first steps towards democratization, but as Grant Shubin and Akila Radhakrishnan set out in their piece in this series, the Tatmadaw maintained a tight grip on political power. In an election boycotted by the National League for Democracy (NLD), a retired military general was elected as president. The 2008 Constitution shielded Myanmar’s security forces from domestic legal accountability for the crimes of the past and paved the way for the crimes of the future. Notwithstanding a return to quasi-civilian rule, there was virtually no accountability for human rights violations committed under the military junta. And so the human rights violations continued.
In the decade that followed, the conflict between the Tatmadaw and ethnic armed organizations continued amidst broken ceasefires, accompanied by persistent conduct of hostilities and human rights violations. While the world’s longest-running civil war has seen violations committed by all sides of the conflict, reporting by both domestic and international observers leaves little doubt that the Tatmadaw is the primary perpetrator. Documentation collected by Burmese civil society organizations such as ND-Burma, the Women’s League of Burma, and Legal Aid Network describes unlawful killings, torture, sexual and gender-based violence, enforced disappearances, and war crimes. Yet, with hopes tied to democratization, the international community simply watched as abuses continued, including what Human Rights Watch described in 2012 as the ethnic cleansing of the Rohingya, and the mass forced displacement of the Kachin and Shan throughout 2015.
The international community continued to stand by and watch while the beginnings of the Rohingya genocide unfolded. In early October 2016, three police posts in northern Rakhine State were attacked. Bordering Bangladesh, the area was home to primarily Rohingya Muslims. The military responded swiftly and brutally, sending a flood of refugees to Bangladesh. By late November, 30,000 Rohingya had been displaced. By early January 2017, over 65,000 people had fled to Bangladesh. In February 2017, the UN released a report documenting mass gang-rape, enforced disappearances, and killings – including of infants and children. In March 2017, the Human Rights Council agreed to establish a fact-finding mission and in late 2018, the U.N.’s Independent International Fact-Finding Mission on Myanmar (FFM) published its 441-page report, detailing the extensive violations of international human rights and humanitarian law committed by the Tatmadaw in Kachin, Rakhine, and Shan States since 2011. At the same time, the Human Rights Council adopted a resolution establishing the Independent Investigative Mechanism for Myanmar (IIMM). By then, the genocide of the Rohingya was already in its second year, and there were over a million Rohingya refugees in Bangladesh.
A Partial Accounting
It wasn’t until 2019 that the international community finally took steps to hold the perpetrators of at least some of the atrocities in Myanmar to account. First, the Prosecutor of the International Criminal Court submitted a request in July 2019 to open an investigation into international crimes committed against the Rohingya. Several months later, The Gambia initiated proceedings against Myanmar at the International Court of Justice for breaching its obligations under the Genocide Convention, based on the Tatmadaw’s operations against the Rohingya. These were welcome developments after almost 60 years of impunity.
Yet, these responses were incomplete. By focusing exclusively on legal accountability for the violations committed against the Rohingya, the international justice community effectively ignored the serious crimes committed against other ethnic groups by the Tatmadaw. It further entrenched impunity for the sexual violence, unlawful killings, and enforced disappearances that had become a hallmark of the Tatmadaw’s operations against ethnic groups across the country. It exacerbated ethnic and social divisions in a dismal – if unwitting – echo of colonial-era divide-and-rule tactics. It turned a seeming deaf ear to human rights defenders in Myanmar demanding accountability for crimes committed against all ethnicities and religions.
If nothing else, however, the devastating events unfolding across Myanmar since Feb. 1, 2021 have made clear that when it comes to maintaining its grip on power, the Tatmadaw ultimately does not discriminate. The brutality with which it has engaged armed groups in the ethnic regions is now on full display in city streets against peaceful protestors. Slowly, Myanmar’s Bamar majority is beginning to understand what ethnic nationalities have endured for decades under the Tatmadaw, and the reckoning necessary for the country to succeed as a democracy.
An accountability that reflects the full scope of the Tatmadaw’s crimes is both necessary and possible. But it cannot be achieved without commitment by the international justice community to respond to the needs articulated by the people of Myanmar themselves. For years, Myanmar civil society has documented and reported on violations committed by the Tatmadaw, often at great personal risk. Well before the United Nations established its FFM, human rights defenders in Myanmar were collecting evidence of systematic human rights violations in the ethnic regions and demanding accountability for crimes committed against all ethnic nationalities. Many of these same groups are now engaged in the dangerous and critical work of documenting the unlawful killing of protestors, the enforced disappearances of journalists and human rights defenders, and the torture of political prisoners. International justice funding must be made available to support Myanmar civil society engaging in frontline documentation, which forms the basis of any future accountability process.
Those of us working in international justice must also act with intentionality to support a comprehensive accountability for crimes against all ethnic and religious groups in Myanmar. Already, the IIMM is mandated to collect evidence of serious international crimes and violations of international law committed in Myanmar since 2011, which includes crimes against the Shan, the Kachin, and all the other ethnic nationalities who have been brutalized by the Tatmadaw. This is a good first step towards a more inclusive accountability. But just as we know the Tatmadaw’s crimes go beyond the genocide of the Rohingya, we also know the human rights and international humanitarian law violations go back even earlier than 2011. A comprehensive accountability may require us to consider justice for historical wrongs as well. Again, this is where engagement with Myanmar civil society is critical. Given the scope of violations committed by the Tatmadaw over decades and the relatively limited resources for accountability, it is important that Myanmar civil society play a central role in determining where international justice processes should direct their attentions. Similarly, accountability can take many forms, from prosecutions to memorialization to reparations. The international community should take an expansive view of accountability and justice, but it should be the people of Myanmar who set the policy agenda.
Going forward, accountability for the atrocities committed in Myanmar needs to be inclusive in the broadest sense: inclusive in recognizing the Tatmadaw’s crimes in their totality, and inclusive of impacted communities and creating opportunities for them to be active participants in justice. Only then can we begin to end the impunity that has brought us to this point.
Carmen Cheung is the Executive Director of the Center for Justice and Accountability. She has acted as counsel in public interest cases in the U.S. and Canada, including litigation over the use of torture and extraordinary rendition by the U.S. government, and an inquiry into the transfer of Afghan detainees by Canadian Forces to risk of torture. Carmen has made submissions at all levels of federal court in the U.S., including the Supreme Court of the United States, and has also appeared before the Supreme Court of Canada. In addition, she has testified on matters relating to security, anti-terrorism and human rights before committees of the Canadian Parliament and the Inter-American Commission on Human Rights.