Myanmar Coup: “A Crisis Born of Impunity”
LRWC joins worldwide calls for action to restore civilian authorities
Catherine Morris
Lawyers’ Rights Watch Canada
19 February 2021
First published at Slaw.ca, Canada’s online legal magazine, on 25 February, 2021
UPDATE: On 12 February the then Ambassador of Myanmar to the UN in Geneva, U Myint Thu, defended the coup (see article). U Myint Thu resigned on 23 February. On 26 February 2020, the UN General Assembly met for an informal briefing by the UN Special Envoy Christine Schraner Burgener. She urged that no government “lend legitimacy or recognition to this regime.” The Myanmar Ambassador to the UN in New York, Kyaw Moe Tun, sitting in Myanmar’s place at the General Assembly, denounced the coup in clear terms, saying he represents the civilian government elected in November 2020.
The military coup in Myanmar shocked the world on the 1st of February, but the junta’s actions since then have surprised no one. International organizations, governments, and civil society organizations around the globe have expressed outrage or at least “concern” about the abrupt halt to Myanmar’s decade of stumbling political reform. Hundreds of thousands of people in Myanmar have courageously risen up in nonviolent protest and are calling on the world for help. They are awaiting urgent action by other countries and international organizations to use the international law tools and mechanisms available to reverse the military takeover.
In the dark early hours of 1 February 2021, the Myanmar military, known as the Tatmadaw, arrested Myanmar’s President Win Myint, State Counsellor Aung San Suu Kyi, and other elected members of the ruling National League for Democracy (NLD) party. The arrests came just hours before the scheduled swearing in of members of parliament elected in the NLD’s landslide electoral victory in November 2020. The Tatmadaw’s seizure of power was based on unsubstantiated claims of electoral fraud.
At news of the coup, Myanmar’s pro-democracy activists, UN officials, foreign diplomats, international law scholars, journalists, and human rights advocates around the world, including Lawyers’ Rights Watch Canada (LRWC), immediately shifted into overdrive.
Myanmar’s activists and ordinary citizens from all walks of life have been pleading with the world for “real action” to uphold democracy – instead of mere words “on a piece of paper.” Their pleas have yet to be fulfilled.
For years the world has watched and decried the Tatmadaw’s impunity for human rights abuses, including alleged genocide against the Rohingya people and crimes against humanity in Rakhine, Shan, Kachin, and Kayin (Karen) States. The military’s rights violations have made Myanmar one of top five source countries for refugees. It is now time for resolute action in solidarity with the people of Myanmar who are peacefully putting their lives on the line to stop the Tatmadaw’s return to the absolute power they held from 1962 to 2010.
Rapid deterioration of safety in Myanmar
The dangerous situation in Myanmar has been deteriorating hour by hour despite clarion calls for democracy in daily, nonviolent demonstrations by citizens demanding that the Tatmadaw end the coup and restore the results of their November 2020 vote. Since 1 February, the Tatmadaw has arbitrarily arrested and detained hundreds of people including NLD members, political activists, teachers, health care workers, journalists, civil society leaders, human rights defenders, and at least 40 lawyers.
Aung San Suu Kyi is being tried in secret on politically motivated charges without the presence of her lawyer. Conviction will preclude her from holding political office.
Many are detained incommunicado on spurious charges with no access to lawyers, family members, or legal remedies to secure their release and guard them against risks of torture, ill-treatment, or enforced disappearance. The location of numerous detainees remains unknown. Many activists are in hiding. Neighbouring countries are now guarding their borders against new waves of refugees.
Abuse of law as a weapon of terror
The Tatmadaw’s newly formed State Administration Council (SAC) is abusing laws for the purpose of terrorizing the public and cracking down on dissent. The Tatmadaw justified the coup by falsely and unlawfully declaring a “state of emergency” for a year with a promise of a new election. The only emergency is the one created by the coup.
The junta is in violation of Myanmar’s international law obligations to uphold the Charter of the United Nations. A key purpose of the United Nations (UN) is to promote and encourage “respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.” The junta is also violating numerous provisions of the Universal Declaration of Human Rights (UDHR).
The Tatmadaw has undermined Myanmar’s already weak justice system by taking control of all branches of government, including the judiciary. This is a serious abrogation of Myanmar’s halting steps towards independence of judges and lawyers.
Arbitrary arrests and searches without warrants or judicial remedies are countenanced now that the coup leaders have suspended laws that protected human rights. The Tatmadaw has signaled its intention to crack down on those in hiding by resurrecting a colonial era law requiring registration of house guests.
The junta’s unlawful use of force against demonstrators, including water cannons, tear gas, rubber bullets, and live fire, violates the right to freedoms of expression and peaceful assembly set out in the UDHR. A 20-year-old woman died on 19 February after police shot her in the head at a peaceful rally on 9 February 2021.
Since 13 February 2021 there have been reports of night-time police raids and looting by unknown bands of thugs. Convoys of armoured military vehicles rove through the streets of major cities. Despite this terrorization, people in Myanmar have continued to protest en masse for democracy and human rights.
Human rights are further threatened by orders requiring telecommunications companies to shut down social media and the internet. These shutdowns violate the rights to freedom of information and expression and prevent other rights violations from coming to light. Curbs on the internet also create danger for those in need of communication for humanitarian relief, particularly during the COVID-19 pandemic.
One of the largest telecommunications companies, Norway’s state-controlled Telenor Myanmar, has complied with shutdown orders, citing an obligation to follow local orders despite their concern that internet blackouts violate international human rights law. The UN Fact Finding Mission on Myanmar noted in 2019 that Telenor has reportedly leased property in premises owned by the Tatmadaw. Telenor is also the subject of an allegation of complicity with the Tatmadaw’s 2017 atrocity crimes against Rohingya people in Rakhine State.
The Tatmadaw has hurriedly announced a draconian cybersecurity law which, according to Human Rights Watch, would give it “sweeping powers to access user data, block websites, order internet shutdowns, and imprison critics and officials at noncomplying companies.”
The Tatmadaw and its enablers: Decades of impunity
The UN Deputy High Commissioner for Human Rights has described the situation in Myanmar as “a crisis born of impunity.” The Tatmadaw is counting on its continuing ability to avoid accountability for its long decades of grave and systematic human rights violations. International observers have castigated the NLD and Aung San Suu Kyi for defending the Tatmadaw’s atrocities, but the overwhelming majority of the Myanmar population supports the NLD’s 2020 election victory and justifiably fears a return to military rule.
Since the day of the coup, the Tatmadaw has ignored concerns expressed by the Association of Southeast Asian Nations (ASEAN), the UN Special Rapporteur on human rights in Myanmar, the UN Security Council, the UN Human Rights Council (UNHRC), numerous States including Canada, and many regional and international non-governmental organizations including LRWC. At the UNHRC Special Session on 12 February 2021, Myanmar’s ambassador to the UN in Geneva, Mr. Myint Thu, demonstrated his willingness to take instructions from the junta by justifying the coup and disassociating Myanmar from the UNHRC’s consensus resolution. China and Russia, currently members of the UNHRC, also disassociated themselves from the resolution even though China had already made sure that the text of the resolution was watered down.
The Tatmadaw’s actions demonstrate a historical pattern of impunity for human rights abuses that, if permitted to continue, further threatens the stability of a region that has been severely impacted by mass exoduses and expulsions of Rohingya people. The result is a refugee situation in Bangladesh and other countries in the region involving over a million children, women and men. While the majority of refugees are Rohingya, the military’s decades of conflict with other ethnic minorities have resulted in refugee populations of Karen, Karenni, Shan, Chin, Kachin, and others in neighbouring countries.
The Tatmadaw’s 2017 atrocities have resulted in several practical international measures:
- The establishment of the UNHRC’s 2017-2019 Independent International Fact-Finding Mission on Myanmar (IIFFMM);
- The creation of the UNHRC’s Independent Investigative Mechanism for Myanmar (IIMM), established in 2019 to collect and prepare evidence of military and security forces’ international crimes for prosecution in courts of competent jurisdiction;
- An investigation of the international crimes of deportation and persecution (committed at least in part on the territory of Bangladesh) authorized in November 2019 by the International Criminal Court (ICC);
- A case against Myanmar in the International Court of Justice (ICJ) under the Genocide Convention launched by The Gambia on behalf of the 57-member Organisation of Islamic Cooperation in November 2019, in which Canada and the Netherlands jointly announced in September 2020 an intention to intervene, with a focus on the centrality of gender-based violence in the genocide.
However, Myanmar is not a party to the Rome Statute of the ICC, so the ICC cannot investigate or prosecute atrocity crimes taking place on Myanmar’s territory itself without a binding referral from the UN Security Council. Such a referral has so far been precluded by the threat of vetoes by two permanent Council members, China and Russia. The listed measures do not address the violations associated with the coup.
The Tatmadaw must “return to their barracks” and be held accountable for all violations
The UN Special Rapporteur on human rights in Myanmar, Tom Andrews, at the 12 February Special Session of the UNHRC urged that the UN tap into “the full range of the tools at its disposal or developing new ones where necessary.” Coordinated pressure is needed to bring together all internationally lawful measures toward:
- Restoration of all authorities as elected in November 2020;
- Unconditional release and withdrawal of charges against all those arbitrarily detained during and after the coup;
- Restoration of all laws and institutions protecting human rights;
- Protection of all peaceful pro-democracy activists and human rights defenders;
- Disclosure of the whereabouts of all detained persons;
- Access by all detained persons to lawyers of their choice and fair trials before independent and impartial tribunals;
- Protection of the right to freedoms of expression, information, association, privacy, and peaceful assembly;
- Permanent restoration of stable internet access and social media services;
- Media freedom; and
- Humanitarian access for all people in need.
International organizations, governments, corporations, civil society organizations, and individual members of the public need to take immediate action to insist on the above measures and seek accountability for those responsible for Myanmar’s past human rights violations.
States should urge that the UN Security Council reconvene immediately to consider arms embargos, targeted sanctions against all those involved in or enabling the coup, and an immediate referral of the situation in Myanmar to the ICC. Since China and Russia are certain to continue to veto any binding or substantive Security Council remedies, immediate preparations should be made to call for an Emergency Special Session of the General Assembly to recommend measures such as arms embargoes and other targeted sanctions. While the General Assembly’s resolutions are not binding, they have the potential to increase the rhetorical pressure on the Tatmadaw to stand down.
The UN Special Rapporteur, referring to the panoply of UN options for interventions, said: “[a]ll of these options should be on the table.” However, agreements and implementation of UN measures are uncertain, subject to politicized pressures, and above all, take time.
Individual States can act quickly by continually denouncing the Tatmadaw’s human rights abuses as they occur, and instituting immediate, targeted sanctions directed at military leaders and collaborators, and the Tatmadaw’s business interests. The Special Rapporteur recommended that States impose bilateral arms embargos and ensure that development assistance is provided only through civil society organizations directly and not the junta. In 2019, the UN Fact Finding Mission recommended sanctions to target the Tatmadaw’s vast network of financial interests.
A number of States have announced targeted sanctions, including the United States, New Zealand, the European Union, and the United Kingdom. On 18 February 2021, Canada announced targeted sanctions against nine of Myanmar’s top military leaders bringing to 54 the number of individuals sanctioned under Canada’s Special Economic Measures for Myanmar. These names are added to Canada’s 2018 sanctions, which also include an arms embargo, a requirement that aid be directed only to civil society, and a list of sanctioned businesses. In addition to targeting the personal interests of military leaders, it is imperative that sanctions focus on undermining the Tatmadaw’s business enterprises.
Only carefully targeted sanctions are recommended, as generalized sanctions will cause economic harm to ordinary people. Even so, there are fears that the Tatmadaw are impervious to sanctions. Yet, the Tatmadaw’s curbs on the internet, intended to control and limit the flow of information in and out of the country, demonstrate a wish for as much secrecy as possible about crackdowns. Coordinated pressure to expose the Tatmadaw’s actions and undermine their business interests is crucial.
Canada also needs to clarify its intentions concerning intervention in the ICJ case against Myanmar, ideally deciding on the fullest possible engagement in the case. Canada’s humanitarian assistance should include protection, resettlement, and other measures to assist refugees and internally displaced persons, including local civil society groups run by women and youth.
Private corporations should be urged to operate according to the UN Guiding Principles on Business and Human Rights and should be pressured to stop doing business with the Tatmadaw. Several have already done so.
Finally, individuals can become informed and use their own networks to expose the Tatmadaw’s human rights violations. Individuals can urge their governments to muster the collective international political will to uncover the truth and bring justice to the people of Myanmar, including refugees in Bangladesh and throughout the region.
The world must now act in concert to come to the aid of the Myanmar people. The Tatmadaw’s expectation of impunity must be replaced with the certainty of accountability.
The international community must speak with one voice to insist on a clear path towards reforms that fully respect international human rights, including rights of ethnic and religious minorities, and the right to take part in the government through freely chosen representatives.
