28 Sep Symposium on the Current Crisis in Myanmar: Untangling Myanmar’s Credentials Battle and the Implications for International Justice
[Grant Shubin is the Legal Director at The Global Justice Center (GJC).]
Of the many perspectives offered by outside observers in the wake of the Myanmar military’s (Tatmadaw’s) attempted coup, the UN High Commissioner for Human Rights cogently cut to the core of it: “This crisis was born of impunity.”
As if to tacitly acknowledge this fact, in his first speech since illegally deposing democratically elected officials, Tatmadaw Commander-in-Chief Min Aung Hlaing told the people of Myanmar that, “no one is above the law”. He went on, “no one or no organization is above the national interest in state-building and nation-building.” But, of course, the Tatmadaw and Min Aung Hlaing have for a generation been above the law.
This impunity, which finds its roots in the military’s privileged position baked into Myanmar’s 2008 Constitution as well as in the international community’s mortgage on Aung San Suu Kyi’s ability to politically navigate the country out of the military’s grips, was nevertheless beginning to show cracks. And it is these cracks that make the crisis within the crisis—the question of who is credentialed to represent Myanmar at the UN General Assembly, the representative of the National Unity Government or the junta—so urgent.
Specifically, the cracks in the Tatmadaw’s impunity were certain actions taken by Myanmar’s National Unity Government and the international community seeking accountability for the Tatmadaw’s international crimes, both before and as part of the coup. Namely, the resolution, or lack thereof, of the credentials questions could bear on the ongoing processes at the International Criminal Court and the International Court of Justice. More generally, the implications for justice and accountability emanating from the credentials dispute are difficult to understate—at stake is the world’s foremost political body bestowing a measure of legitimacy on an extra-Constitutional coup that was performed through the commission of massive scale human rights abuses.
“Credentialing” is the process whereby a state’s diplomats are authorized to represent the government at a UN office or meeting. This process is governed by Rules 27, 28 and 29 of the Rules of Procedure of the General Assembly. Under these rules, diplomats must get new credentials every year for each new session of the UN General Assembly (UNGA). “Credentials” are documents from a UN Member State, issued by the Head of State, Head of Government, or Foreign Minister, that designate the people authorized to show up for, speak for, negotiate on behalf of, and vote for that state. These documents are evaluated by a nine-member “Credentials Committee” of the UNGA, customarily including the USA, China, and Russia, which “examine[s] the credentials of representatives” and reports to the UNGA “without delay” with recommendations to accept, reject or defer the credentials documents of all Member States.
Ordinarily, this examination is a highly routine process wherein the Committee confirms each Member State’s credentialling documents are in proper order. However, from time to time issues arise concerning whether the entity issuing those credentials actually speaks for the Member State in question. In situations like this, the Credentials Committee must do a slightly more substantive inquiry into the issuing entity.
To guide them in that project is UNGA Resolution 396(V), on “Recognition by the United Nations of the representatives of a Member State”. Passed in the wake of the UN’s first instance of two different claimants purporting to speak for a state (in that case, China), the resolution notes that, “it is in the best interest of the proper functioning of the Organization that there should be uniformity in the procedure whenever more than one authority claims to be the Government entitled to represent a Member State.” Accordingly, the resolution establishes that, “the question should be considered in the light of the Purposes and Principles of the Charter and the circumstances of each case.”
In other words, in situations of rival claimants, the Credentials Committee undertakes a highly fact-based analysis that gives lots of leeway to the prevailing politics at the time in question. Nevertheless, an analysis of the facts on the situation in Myanmar measured against the Purposes and Principles of the Charter, make a very compelling case for rejecting the junta’s credentials and accepting those of the National Unity Government.
The UN’s “purposes” articulated in Article 1 include respecting “principles of justice and international law,” and “promoting and encouraging respect for human rights.” The centrality of human rights in the Charter’s architecture is further reflected in the Charter’s preamble, and Articles 55 and 56. Notably, the International Court of Justice in the United States Diplomatic and Consular Staff in Tehran case and the Namibia Advisory Opinion recognized that human rights violations violate the “purposes and principles” of the UN.
The Tatmadaw is nothing if not a persistent violator of the human rights purposes of the UN Charter. In the aftermath of the coup the UN Human Rights Council mandated International Investigative Mechanism for Myanmar determined that a preliminary examination of information indicates that the Tatmadaw has carried out “a widespread and systematic attack on the civilian population since seizing power.” This is a wordier way of saying that in suppressing anti-coup protests the Tatmadaw likely perpetrated crimes against humanity against Myanmar’s people. Included in these violations are murder, disproportionate use of force, arbitrary detention, and restrictions on freedoms of expression, assembly, association, and privacy. Layer on top of these crimes the Tatmadaw’s decades-long practice of using sexual and gender-based violence as a weapon against Myanmar’s ethnic communities without consequence—to the extent that the practice was labelled by a UN Fact-Finding Mission as a hallmark of Tatmadaw operations to deliberate strategy to intimidate, terrorize, and punish civilian populations. If the “Purposes and Principles” prong of Resolution 396(V) is to mean anything, it must be that the junta cannot have its representative credentialed to the UNGA.
A review of past instances of credentials disputes shows that the weight of UNGA and credentials committee practice is to refuse to accept credentials of regimes that seize power through military force, even where they exercise territorial control, as well as favoring credentials for democratically legitimate representatives. For example, in the wake of the 1991 coup in Haiti in which the democratically elected government of President Jean Bertrand Aristide was deposed by the Haitian military, the UNGA continued to accept without objection the credentials of the representatives of the Aristide government, even though the military commanded effective control of the nation. Relatedly, in 2009 the UNGA opted to reject the credentials of the representatives put forward by Guinea’s military junta, instead permitting the representative of the former democratically elected government retain Guinea’s seat provisionally. Finally in 1997 regarding the coup in Sierra Leone, the de facto military government did not submit credentials documents and the General Assembly instead accepted credentials of the democratically elected government.
In the end, the criteria set out in UNGA Resolution 396(V), namely the “Purposes and Principles” of the UN Charter and the “circumstances of the case”, very strongly require the rejection of the junta’s credentials and suggest a strong claim to be made by the National Unity Government’s representative.
But, what does this all mean for justice in Myanmar and ending the Tatmadaw’s impunity?
In August, the National Unity Government followed through on a promise to accept the International Criminal Court’s jurisdiction by way of a Article 12(3) declaration. Notably, the declaration accepts the Court’s jurisdiction going back to 2002, covering the full scope of Tatmadaw crimes arising from the 2017 clearance operations and many more atrocities against Myanmar’s ethnic communities. Naturally the question arises, Does the National Unity Government have sufficient capacity to make such a declaration? The resolution of the UN Credentials issues won’t dispositively answer that question, but as indicated by the Pre-Trial Chamber’s analysis in the Palestine decision, the orientation of the UN General Assembly to a state (or in this case a government) is probative as to whether it has such legal capacity. Of course, if it does, it would be a step forward to ending Tatmadaw impunity.
The outcome of the credentials process may also have reverberations in The Gambia’s case against Myanmar in the International Court of Justice alleging violations of the Genocide Convention. The Tatmadaw’s seizure of power took place only a few days after Myanmar had filed Preliminary Objections to The Gambia’s case. Given that seven months have past since then, and at least four months have elapsed since The Gambia filed its response to those objections, it is a bit conspicuous that the Court has not yet scheduled a hearing on this issue—possibly indicating lack of certainty of who represents Myanmar to the Court. Importantly however, representation to the ICJ is an entirely separate question that representation to the UNGA. The Court’s jurisdiction in this case comes from Article IX of the Genocide Convention and is completely independent of the UNGA, which is a political body of the UN. This is to say that the Court is not bound by whatever the UNGA decides with respect to credentials, and indeed does not have to take into consideration Resolution 396(V) in determining who speaks for Myanmar. And in some ways, it is better for the functioning of the court’s processes, especially in a contentious case, wherein grievous international crimes have been alleged, for the entity allegedly responsible for the violations of international law be the one who actually shows up to court and answers for those alleged violations.
At the time of writing, Myanmar’s credentials dispute has yet to be resolved despite the opening of the UNGA and convening of the Credentials Committee. Though this comes as no surprise, the UN has shown an extremely high tolerance for allowing credentials issues to drag out, sometimes deferring decisions or provisionally seating delegates for years. As the international community continues to wade into this process, one thing is true: because this crisis was born of impunity, accountability has to be part of the response. Owing to lack of possibilities for justice in the country, women’s human rights defenders have called on the international community to take action for years, which finally began to get traction. That call must finally be heeded, beginning with the rejection of the junta’s attempt to launder its blood-soaked image through the UN General Assembly.