Symposium on the Current Crisis in Myanmar: New Communication to the International Criminal Court Calls for Justice for Victims and Survivors of Crimes Committed by Myanmar’s Military over Past Two Decades

[Antonia Mulvey is the Executive Director of Legal Action Worldwide (LAW).]

On 13 September 2021, Legal Action Worldwide (LAW) – with international law firm, Debevoise & Plimpton – filed a ground-breaking communication with the Prosecutor of the International Criminal Court (ICC) on behalf of 500 Rohingya clients victims of the 2017 so-called “clearance operations, in which thousands of Rohingya were killed, tortured and subjected to brutal sexual violence by Myanmar’s military. 

The communication follows on from and supports the July 2021 declaration by the National Unity Government (NUG) of the Republic of the Union of Myanmar accepting the jurisdiction of the ICC over international crimes committed in Myanmar since 2002. 

In addition to arguing that the ICC Prosecutor can and should recognise the NUG as representatives of Myanmar, LAW’s communication calls for an extension of the existing investigation into the situation in Bangladesh/Myanmar currently limited to “continuing crimes”, such as the crime against humanity of forced deportation of the Rohingya. 

Should the Prosecutor uphold the communication, it would allow the investigation to consider crimes committed since the unlawful military coup in February 2021, as well as the crimes perpetrated inside Myanmar against the Rohingya prior to the 2017 ‘clearance operations,’ and against other ethnic minority groups since 2002. 

NUG’s Declaration and LAW’s Communication are significant opportunities to “turbo-charge” existing efforts to secure justice for the list of crimes alleged against Myanmar’s military. By accepting the NUG’s declaration as the only legitimate representatives of the state of Myanmar, the ICC would be fulfilling its mandate to investigate and prosecute the most serious crimes, some committed nearly 20 years ago, and whose perpetrators remain unaccountable and unchallenged. 

This post outlines the key arguments that should inform the ICC’s decision on the validity and legitimacy of the declaration submitted by the NUG on Myanmar’s behalf under Article 12(3) of the Rome Statute.

Background

On 1 February 2021, Myanmar’s military (the “Tatmadaw”) attempted an unlawful coup d’état against the elected civilian government, which led to the detention of President Win Myint and State Counsellor Aung San Suu Kyi. The Tatmadaw alleged electoral irregularities to unconstitutionally  declare a state of emergency. 

On 16 April 2021, in accordance with the Federal Democracy Charter, the Committee Representing Pyidaungsu Hluttaw (CRPH) – a committee of parliamentarians elected in 2020- appointed the NUG, led by Vice-President Duwa Lashi La as acting president while President Win Myint is in military detention, and State Counsellor Aung San Suu Kyi. 

On 17 July 2021, Acting President Duwa Lashi La submitted a declaration on behalf of the NUG recognising the jurisdiction of the ICC under Article 12(3) of the Rome Statute. 

Determining Myanmar’s Legitimate Representation before International Institutions

Since the Coup, Myanmar’s representation before the UN has been in dispute – with both the Tatmadaw and the NUG claiming to represent the country. 

However, under closer scrutiny, the consistent practice of the United Nations (UN) and the de facto situation in the context in Myanmar provide a much clearer answer; only the NUG can legitimately claim to represent Myanmar. 

While traditionally ‘effective control’ is a starting point in determining the government of a state, where there has been significant upheaval, such as a coup d’état, – the UN General Assembly (UNGA) and the UN Credentials Committee have, on multiple occasions, for example Haiti, Afghanistan, and Libya, based their determination on other factors. They have considered the authority’s democratic legitimacy and prospects that it will comply with international law. Applying this approach to the context of Myanmar, LAW argues that the NUG has a significantly stronger claim to be the country’s government.

Three factors are especially relevant:

First, the UNGA will almost certainly reject the Tatmadaw as Myanmar’s legitimate representatives at the UN. Resolution 75/85, adopted by the UNGA on 18 June 2021 by 119 votes against one (with 36 abstentions) expressed “grave concern” over the actions that Myanmar’s military had taken against the “elected civilian Government” and called on the Tatmadaw “to respect the will of the people as freely expressed by the results of the general election of 8 November 2020.” Choosing to recognise the Tatmadaw following this resolution would be a shocking reversal, not to mention one of the only times in recent history that the UNGA would recognise a party that had implemented an unlawful coup.

Second, while the Tatmadaw have seized government offices and arrested civilian leaders, they have not established clear control over Myanmar territory, including over multiple states and regions where ethnic armed organisations exert their own military capacity. Some have aligned themselves with the NUG against the Tatmadaw. Myanmar military also faces widespread civilian opposition, which raises doubts that the military will be able to consolidate power or stabilise an economy in freefall. The junta lacks the territorial control, habitual obedience of the population or prospect of permanence required to enjoy ‘effective control.’ 

Third, electoral legitimacy and compliance with international law unequivocally point to the NUG as Myanmar’s legitimate representative. The NUG’s authority is rooted in the electoral legitimacy of the CRPH. Notwithstanding the failings of Myanmar’s civilian government to date, since its establishment, the NUG has indicated that it seeks to comply with international law and engage with international justice mechanisms. Article 12(3) declaration to the ICC is an example of this. In stark contrast the Tatmadaw’s attempted coup d’état has no lawful basis and does not meet the constitutional standard on which it seeks to rely. The Tatmadaw has operated with blatant disregard for international law for decades and boasts a shameful track-record violating the human rights of Myanmar’s citizens and perpetrating international crimes –including the crime of genocide against the Rohingya in northern Rakhine state.

In sum, LAW’s communication argues that the NUG has a significantly stronger claim to be the legitimate representative of Myanmar and that the Prosecutor should accept the NUG’s declaration recognising the jurisdiction of the ICC.

The ICC has a unique opportunity to fulfil its mandate by addressing the near total impunity that the Tatmadaw has enjoyed for almost half a century, and to bring justice to the millions of victims and survivors of horrific crimes in Bangladesh/Myanmar.