Symposium on Myanmar and International Indifference: A Deeper Dive Into International Criminal Liability for Internet Shutdowns – The Case of Myanmar (Part 1)

[Caroline Stover is a lawyer focusing on human rights and refugee law and is currently the acting Head of Asia Programme at ARTICLE 19. Michael Altman-Lupu is a human rights lawyer working with ARTICLE 19 to protect and defend freedom of expression in Southeast Asia.]

Introduction

Across the world, the rise of internet-based communications has facilitated the documentation of evidence of violations of international criminal law. Increased access to the internet has made possible the transmission of information from countries in which war crimes and crimes against humanity occur to those in which prosecutions are possible. It has also provided a vast trove of data upon which open-source investigations can be based. In Ukraine and Syria, for example, social media has played a vital role in documenting atrocities and preserving evidence for future criminal prosecutions.

At the same time, internet shutdowns—and their use to facilitate and cover up the commission of crimes—have become all too common. Iran,  Uganda, Sudan, and the Central African Republic have all shut down access to the internet during periods of brutal state violence in an attempt to not only restrict access to information for people within the countries but also to prevent people from sharing evidence of any human rights violations with the rest of the world. The Myanmar military, also known as the Tatmadaw, engaged in these practices before the February 2021 coup and has continued the practice ever since. Since that day, the use of internet shutdowns in Myanmar has consistently preceded acts that likely amount to war crimes and crimes against humanity, raising the question of the extent to which officials who order internet shutdowns themselves could be held criminally liable.

Despite their increased use, international and domestic courts and tribunals have to date paid relatively little attention to the extent to which internet shutdowns relate to the commission of international crimes. This article seeks to set out a few possibilities for the prosecution of those responsible for internet shutdowns, using the example of internet shutdowns in Myanmar since the coup.

It is in this context important to note that the International Criminal Court (“ICC”) does not currently have jurisdiction over all of the atrocities committed in the territory of Myanmar. Although the National Unity Government of Myanmar—Myanmar’s civilian government—issued an Article 12(3) declaration on 17 July 2021, accepting the ICC’s jurisdiction over crimes committed in Myanmar since 1 July 2002, the ICC’s decision regarding the declaration remains pending. The ICC has concluded that it has jurisdiction over certain crimes committed partly in Myanmar, specifically those relating to its investigation into violence leading to the flights of thousands of Rohingya to Bangladesh, but currently not over other crimes in the country. This article in the main does not address these crimes given the specific jurisdictional limitations of that investigation, instead focusing on the interplay between internet shutdowns and atrocity crimes in the aftermath of 1 February 2021.

Beyond the ICC, cases against Myanmar military personnel may be brought in multiple jurisdictions around the world, based on universal jurisdiction. In either case, since national courts dealing with international crimes will always consider closely the jurisprudence of the ICC under the Rome Statute, the present analysis will focus on the liability regime under the Rome Statute to assess the potential liability of military officials for the internet shutdowns in Myanmar.

Internet Shutdowns and International Crimes in Myanmar Since the 1 February 2021 Coup

In the early hours of 1 February 2021, the Myanmar military detained hundreds of democratically-elected politicians and military critics and illegally declared itself the rightful government of the country. In the face of a widespread civil disobedience movement, the military has failed to consolidate total control over the country or international recognition, but the military continues to brutally suppress any dissent. Since that day, human rights organizations, the United Nations Office of the High Commissioner for Human Rights, and the Independent Investigative Mechanism for Myanmar have been fastidiously documenting crimes against humanity, war crimes, and other international crimes. In its most recent report to the Human Rights Council, the Office of the High Commissioner for Human rights concluded that the acts including, “murder, forcible transfer of population, imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, torture, persecution against any identifiable group or collectively on political grounds, enforced disappearances, and other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health” were carried out as part of a “widespread and systematic attack directed against civilian populations, and in apparent pursuance of an organisational policy”.

The OHCHR further reasoned that conditions in Myanmar suggested the existence of several non-international armed conflicts, including those that pre-date the coup as well as “various post-coup armed elements.” As a result, it concluded that some of the acts described above, in addition to the use of human shields and forced labor, may amount to war crimes where they occurred in the context of an armed conflict.

When viewed in conjunction with the military’s restrictions on internet access across the country, it appears likely that restricting the internet has become a key tool for the Tatmadaw.

In the immediate aftermath of the coup, the military imposed total restrictions on mobile internet access for fixed periods of time. Immediately following 1 February, the military blocked access to social media platforms such as Twitter and Facebook as well as access to several Virtual Private Networks (VPNs). Starting on 6 February 2021, the military blocked all mobile data access as anti-military protests increased across the country. In less than two weeks following the coup, the military ordered telecommunications operators to refrain from disclosing any internet shutdown orders. Throughout early March, mobile internet access was shut down every evening. By mid-March, authorities also began temporarily blocking public Wi-Fi services.  

Starting in August 2021, the military appears to have switched to more geographically-specific shutdowns, blocking all mobile data services and, in some cases, also cellular services, in a specific area. The shutdowns have tended to coincide with areas under attack from the Tatmadaw. For example:

• In September 2021, the military shut off internet access in Falam, Kanpetlet, Matupi, Mindat, Paletwa, Tedim, Thantlang, and Tonzang in Chin State. In early October, the UN High Commissioner for Human Rights and UN Special Rapporteur on the situation in Myanmar rang the alarm about increasing troop deployments and warned against mass atrocity crimes in the above regions. In October 2021, reports of intensive and indiscriminate shelling in civilian areas in Chin State, as well as the burning of more than 200 houses, emerged.
• In November 2021, the Chindwin reported that Kayah State was suffering military attacks amidst an internet shutdown. Myanmar Now later reported that internet and phone shutdowns continued, with a lack of service reported in February 2022 in Hpasawng and Bawlakhe, in addition to Demoso, Loikaw, and Hpruso. Amnesty International documented war crimes and likely crimes against humanity in Kayah State from January to April 2022—during the communications shutdowns in the region—including murder, torture, forcible transfer, and persecution on ethnic grounds.
• The military reportedly ordered an internet shutdown starting from 3 March 2022 in all of the Sagaing region apart from the cities of Kalay, Monywa, Sagaing, and Shwebo. Reports later emerged that dozens of civilians had been murdered by the Tatmadaw in Sagaing at the time of the shutdown.
• The Kachin Women’s Association Thailand documented airstrikes on civilian areas in Hpakant, Kachin State on 4 and 5 February 2022. According to KWAT, as “there was no active fighting in the targeted villages at the time of the airstrikes, the bombing clearly served as collective punishment, aimed at deterring further resistance attacks.” A blanket internet shutdown has reportedly prevented access to the internet in the area since August 2021.

It is important to note that the post-coup internet restrictions have been preceded by a lengthy internet shutdown in Chin and Rakhine States from June 2019 to early 2021, justified by “disturbances of peace and use of internet services to coordinate illegal activities.” During the period of the shutdown, the military was accused of war crimes and crimes against humanity, including killings, enforced disappearances and torture. Conversely, the military has lifted internet restrictions in Rakhine State post-coup, coinciding with an informal late 2020 ceasefire agreement between the Tatmadaw and the Arakan Army.

Case Law on Communication Shutdowns

Case law relating to international criminal liability for internet shutdowns is limited, likely due to the time it takes to bring forward cases and the relatively recent global proliferation of the internet as a service. However, one decision is particularly useful in guiding our understanding of how internet shutdowns could be tried as part of crimes against humanity: “Decision on the Prosecutor’s Application Pursuant to Article 58 as to Muammar Mohammed Abu Minyar GADDAFI, Saif Al-Islam GADDAFI and Abdullah AL- SENUSSI.” By way of reminder, a crime—such as murder or persecution—may qualify as a crime against humanity if it was committed as part of a widespread or systematic attack directed against the civilian population, in furtherance of a State or organizational policy to commit such an attack.

On 27 June 2011, the Pre-Trial Chamber, on the application of the ICC prosecutor, issued warrants for the arrest of former Libya Head of State Muammar Gaddafi as well as Saif Al-Islam Gaddafi and Abdullah Al-Senussi. The three men were charged with crimes against humanity of murder and persecution after attacks against the civilian population during the Arab Spring protests and the First Libyan Civil War. These attacks were punctuated by telecommunications cuts and internet shutdowns both during and after, the attacks. Though none of the cases have yet led to a decision on the merits (only the case against Saif Al-Islam Gaddafi remains in the Pre-Trial stage), the court’s analysis of the role of telephone and internet shutdowns in the commission of crimes against humanity is useful when looking towards potential future prosecutions.

First, the court used communication cuts as evidence of a widespread or systematic attack pursuant to a state policy. The court viewed communications cuts, including internet cuts, as evidence of both a state policy to silence dissenters at all costs, including through the use of lethal force and a widespread and systematic attack on the population. In both instances, the prosecution pointed to the targeting of journalists to prevent them from reporting, the blocking of satellite transmission of television channels, the disruption of internet and telecommunications services, and the confiscation of laptops, phones, and SD and SIM cards to show that the state intended to cover up its crimes.

Second, the court noted that communications were monitored by state authorities to identify individuals to arrest, providing evidence that there were acts of persecution.

Third, the court used evidence of communication cuts to infer the existence of a coordinated plan, as the prosecution proceeded on the basis of indirect co-perpetration, which requires the “existence of an agreement or common plan between two or more persons”. The court found that a “plan was effected through the use and control of various communication media, the monitoring of emails, the sending of SMS messages … [and] the blocking of various internet and international television channels.” It found that “[a] cover-up campaign was also implemented in order to conceal the commission of crimes by the Libyan State apparatus.”

Finally, the court used the evidence of communications cuts to issue arrest warrants against all three defendants in part on the basis that they would continue to obstruct the ongoing investigation by continuing the cover-up of crimes.

Presumably, due to the scale of other acts under investigation and the more immediate modes of liability apparently available, the court did not consider the possibility of the act of shutting down the internet in itself giving rise to criminal liability. However, given the prominent role that internet shutdowns have played in the commission of crimes against humanity in Myanmar, we argue that those responsible for the internet shutdowns could potentially themselves face criminal liability.