Myanmar: Two Years Since Coup, Impunity Writ Large

1 February marks the second anniversary of the coup d’état in Myanmar. In the past year, the situation for the population has only become more fraught and difficult. The UN Office of the High Commissioner for Human Rights estimates that 2,890 individuals have been killed, likely an underestimation, 16,000 have been detained on spurious charges, scores have been tortured, many have been sentenced to death, and the efforts by the military to quell the democratic movement in the country continues unabated. While the atrocities have only escalated, the attention of the world has fallen by the wayside, with this crisis threatening to become forgotten.  That must not be allowed to happen, and efforts need to continue apace to support the people of Myanmar.

The situation in Myanmar is the culmination of multiple factors over the decades, a significant part of which is the absolute impunity enjoyed by the military junta. For decades, ethnic and religious minorities have borne the brunt of conflict with the military, in various regions of Myanmar. The most widely known is the persecution and targeting of the Rohingya in Arakan state, with so called ‘clearance operations’ deployed against them over the years, most recently in 2017. As a consequence of these atrocities, a number of international justice efforts were initiated and have progressed since then. These are of particular relevance now, with any measure of justice within the country impossible, unless the situation changes. 

The International Criminal Court proceedings are now at a more advanced stage – that of an investigation – with recent visits to Cox’s Bazaar by the Prosecutor. The scope of this investigation is however circumscribed by a jurisdictional link to the territory of Bangladesh, and is primarily focused on crimes against humanity, such as deportation and persecution. At the International Court of Justice, the case brought by The Gambia against Myanmar has proceeded beyond the initial stages, with the preliminary objections judgment in July 2022 dismissing Myanmar’s objections and ensuring a consideration of the case on the merits based on the Genocide Convention. The Independent Investigative Mechanism for Myanmar (IIMM) is also now collecting evidence of serious violations of international law since 2011, clearly encompassing the period since the coup. In its latest annual report, the IIMM has indicated that the scale and manner of crimes committed in Myanmar constitute a “widespread and systematic attack against a civilian population”, the pre-requisite for the legal categorization as crimes against humanity. The evidence being collected may be used in a variety of legal fora, including international, regional or domestic courts. With the increasing use of universal jurisdiction to initiate proceedings in different locations worldwide – Argentina, Germany, and Turkey, so far – there are other avenues being explored for redress. 

On the global stage, there has been slow progress. At the UNSC, the council passed a resolution on the situation in Myanmar only in December 2022, just short of this two-year anniversary. UNSC Resolution S/Res/2669 is a necessary step in the right direction, but much more needs to be done. A priority should be to refer the situation in Myanmar to the International Criminal Court, which this resolution does not do. The Court currently has a narrower investigation underway, due to the manner in which jurisdiction has been asserted and approved, as well as the lack of a UNSC full referral. Another aspect not addressed by the UNSC is the need for a global and comprehensive arms embargo, without which the military will be able to continue its operations. As a recent report has shown, companies in countries such as Austria, France, China, Singapore, India, Israel, Ukraine, Germany, Taiwan, Japan, Russia, South Korea and the United States are involved in provision of supplies essential for the production of arms in Myanmar, enabling the bloodshed to continue unabated.  

The linkage between business and human rights violations warrants further action, on the part of businesses, in multiple sectors. The military has substantial business holdings which benefit greatly from external partnerships and investment. As in the case of Kirin beer which was in business with the military linked Myanma Economic Holdings Public Company Limited (MEHPL), similar partnerships should be stopped, as they only buttress the junta.  

In all this, the regional response is disheartening. Myanmar’s neighbours – ASEAN and other states – have shown an impressive disregard for what is happening in their own backyard. Refugee flows across borders – in Bangladesh, in India, in Thailand – all point to a need to address the growing regional crisis, as well as provide succor and support to those fleeing their own homes. It is perhaps no surprise that despite well-established international law obligations such as non-refoulment, many countries in the region turn a blind eye to these obligations. The UNSC resolution, while emphasizing – correctly – the necessity for “full, safe and unhindered humanitarian access” in Myanmar, says little about the regional response, save to give primacy to ASEAN as the entity with a “central role” in the quest for peace, by way of the Five-Point Consensus (which shows next to no indication of working).    

On this anniversary, it is time to reassess what is working, what is not, and to recommit to finding solutions that work for the people of Myanmar, and that provide accountability for all that has been lost.