Symposium on the Current Crisis in Myanmar: Post-coup Violations Should be Investigated as Crimes against Humanity

[Valerie Gabard is a Co-Founder of UpRights. Kingsley Abbott is the Director of Global Accountability & International Justice at the International Commission of Jurists. The authors would like to thank Luigi Prosperi, for his assistance and suggestions for this post.]

Introduction 

On 1 February 2021, the Myanmar’s Army executed a coup d’état, overthrowing the elected civilian government that won the election in November 2020. In response, a civil disobedience movement emerged and protests involving millions of people took place across the country.

The Security Forces’ response to the protests, which are ongoing, has been brutal. The International Commission of Jurists (ICJ) and others have documented numerous serious human rights violations, including extrajudicial killings, enforced disappearance, torture and ill-treatment and widespread arbitrary detention.  As of 18 September 2021, the Assistance Association for Political Prisoners (AAPP) records that 1109 persons have been killed and 8265 arrested [see also Human Rights Watch and Reuters Graphics].

By exploring International Criminal Court (ICC) jurisprudence and the Prosecution’s approach in the context of demonstrations, this post will explain why these large-scale violations should be investigated as crimes against humanity.  

Considering this conclusion, it is critical that:

1. States support the mandate of the Independent investigative Mechanism for Myanmar (IIMM), which has announced that crimes against humanity have “likely been committed” since the coup; 

2. possible fora for legal proceedings are actively identified, where evidence collected by the IIMM could help facilitate justice for the people of Myanmar; and

3. the UN Security Council refer Myanmar to the ICC.

While this post focusses on events since the coup, it is important to recall that numerous human rights defenders, victims and independent experts, including the United Nations Human Rights Council-created Independent International Fact-Finding Mission on Myanmar (FFM) have documented that Myanmar’s Army has committed numerous serious human rights and international humanitarian law violations throughout the country for decades.

ICC Jurisprudence and Practice Supports Finding of Crimes against Humanity

Acts of violence committed by Myanmar’s Security Forces since the coup could be qualified as murder, severe deprivation of physical liberty, torture, enforced disappearance and persecution as crimes against humanity if it can be established these acts formed part of an attack committed against a civilian population in a widespread or systematic manner.

Under article 7 of the Rome Statute of the ICC, crimes against humanity requires proof of the following contextual elements: 

1. an attack directed against any civilian population pursuant to or in furtherance of a State or organizational policy; 

2. the widespread or systematic nature of the attack; 

3. a nexus between the individual act and the attack; and 

4. knowledge, by the alleged perpetrator of the attack.

An attack directed against any civilian population

An ‘attack’ consists of a campaign or operation carried out against the civilian population’ and ‘involving the multiple commission of acts referred to in article 7(1)’. It must be demonstrated that the acts were not ‘a mere aggregate of random acts’ but rather show a ‘pattern of behavior’. The acts must show common features in terms of their characteristics and nature. For instance, in the context of demonstrations, factors that can be taken into account include a pattern of excessive and indiscriminate use of force or the fact that means like firearms were used, the population targeted (e.g. protesters and other civilians in the vicinity of the protests), the alleged perpetrators (e.g. state Security Forces), and their locations (e.g. the sites of demonstrations) [OTP Report 2015; Burundi Article 15 Decision].

In the context of demonstrations, showing that Security Forces carried out a campaign or operation that qualifies as an ‘attack’ can at times be challenging, since the use of force could potentially be perceived as ‘reactive in nature’ to the protests [OTP Gabon Report]. Nevertheless, the jurisprudence shows that an attack can be found to exist even in contexts where protests were not entirely peaceful [Burundi Article 15 Decision]. 

With regard to ‘any civilian population’ the jurisprudence specifies that the targeted population  must be ‘primarily composed of civilians’ [Katanga Trial Judgment].  It is not limited to populations defined by common nationality, ethnicity or other similar distinguishing features [Bemba Trial Judgment] and can be composed, for example, of a group based on its perceived political affiliation [Muthaura Decision on the Confirmation of Charges]. Under the Prosecution’s approach, protesters and people perceived as opponents because they share their dissatisfaction with the Government have been considered as a “civilian population” [OTP Report 2015; OTP Honduras Report]. 

The various modalities of repression by the Security Forces appears to involve the commission of multiple violent acts listed in article 7(1) of the Rome Statute (murder, severe deprivation of physical liberty, torture, enforced disappearance and persecution). These violent acts target a civilian population comprised of protesters and other civilians who are, or are perceived to be, associated with protesters. 

Available information also suggests these violent acts are not random, but reflect a clear pattern of behavior as shown by the common features of the conduct of the Security Forces, such as: routinely relying on excessive use of force against peaceful protesters and people in the vicinity of the protests across the country; the repetitive use of firearms and grenades; the high number of protesters arrested and arbitrarily detained; and the violent raids in numerous cities and villages targeting people who participated in protests and other persons associated with the movement.

A State or organizational policy

In order to amount to crimes against humanity, the acts of violence committed in the context of demonstrations cannot be ‘extemporaneous and incidental to the situation of unrest’ [OTP Report 2015], but must have been committed pursuant to or in furtherance of a State or organizational policy. This policy ‘need not be formalized and may be inferred from a variety of factors which, taken together, establish that a policy existed. Such factors may include (i) that the attack was planned, directed or organized; (ii) a recurrent pattern of violence; (iii) the use of public or private resources to further the policy; (iv) the involvement of the State or organizational forces in the commission of crimes; (v) statements, instructions or documentation attributable to the State or the organization condoning or encouraging the commission of crimes; and/or (vi) an underlying motivation’ [Bemba Trial Judgment].

The violent reaction of the Myanmar military to the protests cannot be characterized as incidental to the situation of unrest. The pattern of unnecessary, disproportionate and/or indiscriminate use of force against unarmed and peaceful protesters, as well as the violent raids conducted by the Security Forces may be an indication of a policy established by the Myanmar military leadership. Evidence of such a policy may also be found in testimonies of former police officers who fled the country after the coup claiming they were ordered to shoot at anyone who would not be on the side of the army. Further, on 26 March, the junta announced on national television that people would be shot dead in the head and the back if they were to strike. The following day, at least 90 individuals, including children, in over 40 locations across the country where killed including by gunshots in the head and the back. 

The widespread or systematic nature of the attack

An attack can be characterized as ‘widespread’ in light of its large-scale nature and the number of targeted persons, whereas its systematicity reflects the organized nature of the acts of violence and the improbability of their random occurrence [Katanga Trial Judgment].

According to the Prosecution’s approach, in situations involving prolonged demonstrations which involved large numbers of protesters, for an attack to be considered widespread it would need to be shown that the violent acts did not occur in a limited number of confrontations. In addition, in cases where the protests have taken place in several regions throughout a country like in Myanmar, the Prosecution’s approach considers whether the alleged crimes did not occur only in a limited number of them [OTP Report 2015]. According to the Prosecution’s approach, the number of the victims needs to be weighed against the size of the targeted population and the timespan [OTP Honduras Report]. However, this  practice does not undermine the Pre-Trial Chamber’s position that ‘an attack in a small geographical area, but directed against a large number of civilians’ could also be considered as widespread [Katanga Decision on Confirmation of Charges].

In determining whether an attack is systematic in the context of demonstrations, the Prosecution has relied on the fact the conduct of the Security Forces followed a similar ‘pattern of excessive use of force against protesters’, so that the alleged crimes are carried out ‘in a consistent, organized manner or on a regular or continual basis’. Conversely in instances where the violent act occurred in an ‘infrequent’ and ‘reactive’ manner to the protests, the Prosecution has concluded the attack could not be characterized as systematic [OTP Report 2015].

While there is no need to show the attack is both widespread and systematic, evidence mentioned above in relation to the attack and the policy elements suggest that both criteria may be met in relation to the ongoing violence in Myanmar. 

A nexus between the individual act and the attack

In order to demonstrate there is a sufficient nexus between the individual act and the attack, it must be demonstrated that acts share ‘common features’ with the other acts forming part of the attack, such that it can be considered ‘“as part of” the relevant course of conduct’ [Gbagbo Decision on Confirmation of Charges].

Violent acts allegedly committed by Myanmar Security Forces are largely directed against protesters and persons associated with or perceived to be associated with the protest movement. They are taking place in the context of protests or during raids connected to the protests. Accordingly, the acts of violence allegedly committed by the Security Forces since 1 February 2021 appear to be part of the attack.

Knowledge of the attack

The perpetrator must have known that the conduct was part of, or intended the conduct to be part of a widespread or systematic attack against a civilian population [Katanga Trial Judgment]. The motive of the perpetrator in relation to their conduct is not relevant. The systematic use of disproportionate non-lethal and lethal force against peaceful protesters and other associated persons and the public knowledge of the abuses committed during the protests strongly suggests that the Security Forces knew that their conduct was part of the attack. Social media posts by members of the Security Forces support the same conclusion.

While this post focuses on establishing the crimes themselves, it should be recalled that only individuals can be found responsible by a court for crimes against humanity. Therefore, an investigation would also focus on whether any individuals can be linked to crimes through the various modes of liability.

Action is Required

ICC jurisprudence and practice supports the conclusion that Myanmar’s post-coup violations should be investigated as crimes against humanity.  However, to date, Myanmar has been unable and unwilling to conduct investigations and prosecutions that meet international law and standards.  Consequently, accountability should continue to be pursued at the international level or in front of other States.  

While the Human Right’s Council’s creation of the IIMM – which already indicated it is actively collecting evidence in relation to violations committed in the context of the coup – is a positive step, the IIMM is not a prosecution office or a court of law but was established to collect, consolidate, preserve and analyse evidence of crimes and violations committed in Myanmar since 2011 and to prepare files to facilitate criminal proceedings at the national, regional or international levels. Therefore, there should be renewed efforts to identify and utilize possible fora for fair legal proceedings which could use the evidence collected by the IIMM. 

Additionally, while Myanmar is not a State Party to the Rome Statute of the ICC, the ICC is currently investigating crimes committed against the Rohingya minority as part of waves of violence in Rakhine State in 2016 and 2017.  However, the investigation is limited to those crimes where one element or part of the crime was committed inside Bangladesh, which is a party to the Rome Statute.  The ICC would be able to conduct a full investigation on Myanmar, including the ongoing violence, if the UN Security Council used its Chapter VII powers to refer the matter to the ICC pursuant to Article 13(b) of the Rome Statute – a step it has so far failed to take for political rather than principled grounds.