5

Politics, Justice and Accountability: Myanmar and International Courts

Adam Simpson

Senior Lecturer in International Studies, Justice & Society, University of South Australia

Juliette McIntyre

Lecturer in Law, Justice & Society, University of South Australia and PhD candidate, University of Melbourne

Abstract

The military coup in February 2021 has added yet another brutal chapter to the multiple crises facing Myanmar. Prior to the coup, Myanmar and its military already faced various charges, including crimes against humanity and genocide of the Muslim Rohingya minority, in the International Criminal Court and the International Court of Justice. There are now questions over whether there have been crimes committed during and since the February 2021 coup, by the military or any other groups in Myanmar, that could be prosecuted under international law. While the United Nations Independent Investigative Mechanism for Myanmar gathers evidence of such crimes, it cannot prosecute, and it is not a court. This chapter investigates the potential international justice mechanisms available to hold Myanmar to account, and the issues with these. It finds that various factors, such as restrictions on jurisdiction, the need for state consent and the significant burden of establishing criminal acts reaching the threshold of crimes against humanity or genocide, mean that the influence and authority of international courts, while important, remains limited.

***

The military coup in February 2021 has added yet another brutal chapter to the multiple crises facing Myanmar (Simpson 2021a). It has provided a further case study of the Myanmar military’s ruthless modus operandi. Prior to the coup, Myanmar and its military already faced various international court proceedings, notably at the International Criminal Court (ICC) and the International Court of Justice (ICJ). The crimes being investigated included crimes against humanity and genocide of the Muslim Rohingya minority.

In 2017, the Myanmar military conducted clearance operations in Rakhine State that resulted in the exodus of 740,000 mostly Rohingya refugees to Bangladesh (Simpson & Farrelly 2021b). These operations involved the commission of serious human rights violations including mass killings, torture, rape and sexual assault, and the destruction of homes and mosques (UNHRC 2018a, 256–60). Myanmar refused to allow independent investigators into the country and vigorously defended its actions in the proceedings, as seen in Aung San Suu Kyi’s vigorous defence of the military at the ICJ in November 2019 (Simpson 2020; Simpson & Farrelly 2020).

Since 2019, three separate international justice processes have commenced with the goal of accountability for the atrocities committed against the Rohingya. First, the Independent Investigative Mechanism for Myanmar (IIMM) was established by the United Nations Human Rights Council (UNHRC 2018b) in September 2018. Its mandate was to collect evidence regarding serious international crimes and violations of international law committed in Myanmar since 2011. Second, on 11 November 2019, The Gambia filed suit in the ICJ against Myanmar alleging that Myanmar was responsible for committing genocide against the Rohingya (The Gambia 2019). The Gambia has emphasised that the prohibition of genocide has the character of a peremptory norm and the obligations under the Genocide Convention are owed erga omnes (to all states) and erga omnes partes (to all other states party to a treaty) (The Gambia 2019, 14). The UK, the Maldives, Canada, and the Netherlands have stated their intention to act as intervenors in the case (Pillai 2020; Simpson 2022b). Third, on 14 November 2019, a Pre-Trial Chamber of the ICC authorised the opening of a full investigation by the Office of the Prosecutor into crimes against humanity committed against the Rohingya that took place, at least in part, on the territory of Bangladesh, which is a state party to the Rome Statute (ICC 2019). These alleged crimes have only been investigated outside of Myanmar since Myanmar is not a state party to the Rome Statute. The former National League for Democracy government, deposed in the 2021 coup, blocked investigations by the relevant agencies within Myanmar’s territory.

Other cases in national courts, such as those of Argentina and Germany, have also sought to address the accountability gaps in Myanmar for atrocities against the Rohingya and the rest of the population. In November 2021, the Federal Criminal Court of Argentina confirmed that it would pursue an action against senior Myanmar military officials under the principle of universal jurisdiction, which allows particularly horrific crimes to be prosecuted anywhere in the world, regardless of where the crimes were committed. This allows the court in Argentina to investigate all crimes committed against the Rohingya in Myanmar, giving it a wider remit than the ICC prosecution (Reed 2021). Similarly, in January 2023, the NGO Fortify Rights announced in Bangkok that it had filed a criminal complaint with the federal public prosecutor general of Germany under the principle of universal jurisdiction against senior Myanmar military generals and others for genocide, war crimes and crimes against humanity covering atrocities related to both the Rohingya pogroms and the military coup (Fortify Rights 2023). In this chapter, however, we focus on the international court proceedings since they reflect most clearly a developing international political and legal consensus.

By November 2022, there were reports that more than 2,400 opponents of the military regime had been killed since the February 2021 coup, including almost 250 children, with over 13,000 political prisoners under arrest (AAPP (Burma) 2022). The military regime also tortured detainees to death (Simpson & Farrelly 2021a). Almost a million people remained displaced (Andrews 2022b). These activities may well result in further charges against the military of crimes against humanity, which could be brought before the ICC or other courts. It may, therefore, one day be significant that the exiled National Unity Government (NUG) has declared that it will accept the ICC’s jurisdiction with respect to all international crimes committed in Myanmar since 2002 (Simpson 2021b).

This chapter will consider the implications of Myanmar’s 2021 coup for these mechanisms of international justice and consider the avenues for increasing accountability under international law through engagement with the NUG. The first section examines the existing international justice processes, including the IIMM investigation and the proceedings before the ICJ and the ICC. The second section addresses the procedural issue of who represents Myanmar in international legal proceedings, whether it be a representative from the junta, the NUG or a civil servant. The third section investigates the actions of the military—and the opposition—since the coup and considers the substantive issue of whether prosecutions under international law are possible or likely. The fourth section addresses the policy implications of international legal considerations for the international community, including the Association of Southeast Asian Nations (ASEAN) and Australia. The chapter concludes by finding that while the influence and authority of international courts are important, their ability to respond to Myanmar’s many crises is limited.

Existing international justice processes

There are three active international justice processes investigating war crimes, crimes against humanity in Myanmar and genocide of the Muslim Rohingya ethnic minority. The scope of each of these processes, which are at times intersecting, is outlined below.

Independent investigative mechanism for Myanmar

In response to reports of human rights abuses, the UNHRC has established various independent fact-finding investigations into the situation in Myanmar. The Independent International Fact-Finding Mission on Myanmar (FFM) (with which Myanmar refused to cooperate) was established in April 2017 (UNHRC 2017). It concluded that the actions of Myanmar’s military forces in Kachin, Rakhine and Shan states since 2011 constituted consistent patterns of serious human rights violations, crimes against humanity and war crimes (UNHRC 2018a). The FFM proposed that the United Nations (UN) Security Council should refer the situation to the ICC or create an ad hoc international criminal tribunal (UNHRC 2018, 426), neither of which has occurred due to obstruction by Russia and China.

Following the release of the FFM final report, the IIMM was established (UNHRC 2018b). The FFM transferred almost all the material it gathered to the IIMM, and, as such, the two processes may be seen as connected. The role of the IIMM is to collect and preserve evidence of the most serious international crimes and violations of international law committed in Myanmar since 2011. As explained by the head of the body, the necessity of this work derives from the fact that, over time, ‘crime scenes get disturbed, bodies decompose, wounds can heal, people’s memories can fade, witnesses with information can pass away’ (UN News 2021). The IIMM works to ensure that evidence is gathered in a way that meets the required technical and procedural standards to be admissible in criminal proceedings. The IIMM may also prepare case files for use by prosecutors where it considers that the information meets the standard required to hold individuals criminally responsible. However, the body itself cannot prosecute or adjudicate cases; it is not a court.

Unlike the FFM, the IIMM is not limited in geographical scope, nor to any particular group of victims or perpetrators. It may investigate any international crime occurring in the territory of Myanmar. It is also mandated to investigate both past and future situations. As such, it has continued to closely monitor events in Myanmar since the coup (IIMM 2021). Indeed, the IIMM reports that it has experienced an ‘exponential increase in communications’ (IIMM 2021) since the military seized power on 1 February 2021. By July 2022, its repository consisted of nearly 3 million information items, including ‘interview statements, documentation, videos, photographs, geospatial imagery and social media material’ (IIMM 2022).

The IIMM prioritised the post-coup events for investigation:

on the basis of a preliminary assessment of the gravity of the crimes concerned, including their scale, nature, manner of commission and impact on victims; the degree of responsibility of alleged perpetrators; the strength of the available evidence; the importance the Mechanism’s thematic priorities concerning sexual and gender-based crimes and crimes against children; and the likelihood of a court or tribunal taking jurisdiction over the crime(s) in question. (IIMM 2022)

Thanks to the work of the IIMM, evidence of the atrocities committed by the junta is being collected and collated. But this record-keeping function is insufficient in and of itself as an instrument of justice. The IIMM cannot directly hold perpetrators to account. Indeed, as observed by Mahnad, the model was ‘an innovation borne out of desperation’ in a situation in which there was no realistic prospect of domestic prosecutions in the near future, a lack jurisdiction on the part of the ICC and ‘no path toward it due to a blocked Security Council’ (Mahnad 2018).

The International Court of Justice

However, the importance of the FFM and IIMM’s evidence-gathering function is demonstrated by the reliance placed on the reports of the FFM by the ICJ in the proceedings brought by The Gambia. The Gambia alleges that Myanmar is responsible for committing genocide against the Rohingya by undertaking operations that were intended to destroy the Rohingya as a group, in whole or in part (The Gambia 2019, 6).

The jurisdiction of the ICJ requires the consent of both parties to the dispute, which can be manifested by ‘matters specially provided for … in treaties and conventions in force’ (ICJ Statute 1945, Art. 36(1)). In this case, The Gambia and Myanmar are both parties to the Genocide Convention (adopted by the UN in 1950), Article XIII of which provides that disputes relating to the ‘interpretation, application or fulfilment’ of the treaty shall be submitted to the ICJ. While The Gambia is not directly implicated or impacted by Myanmar’s conduct, the ICJ held in accordance with its previous jurisprudence (Longobardo 2021) that:

any State party to the Genocide Convention, and not only a specially affected State, may invoke the responsibility of another State party with a view to ascertaining the alleged failure to comply with its obligations erga omnes partes, and to bring that failure to an end. (ICJ 2020, 17)

In December 2019, the ICJ heard arguments on whether to grant an interim order for provisional measures pursuant to Article 41 of the court’s statute; a hearing notorious for the appearance of Nobel Peace Prize laureate and former state counsellor Aung San Suu Kyi as agent for Myanmar, attempting ‘to defend her government against allegations that many considered indefensible’ (Becker 2020, 428). The court’s unanimous order, issued in January 2021, held that Myanmar was required to ‘to take all measures within its power to prevent the commission of all acts’ of genocide (as defined in Article 2 of the Genocide Convention) in relation to the members of the Rohingya group in its territory, and to report back to the court ‘on all measures taken to give effect’ to this order within four months, and thereafter every six months, until a final decision on the case was reached by the court (ICJ 2020, 30). Although the reports are confidential, Myanmar appears to have continued to comply with this order even following the coup (Myanmar Now 2021, 2; ICJ 2022a, 15).

Prior to making this order, the ICJ needed to establish that the requisite elements of Article 41 were made out (Miles 2017). The court had to be satisfied that the rights asserted by The Gambia were ‘at least plausible’ (ICJ 2020, 18). In this case, it was

the right of the Rohingya group in Myanmar and of its members to be protected from acts of genocide and related prohibited acts … and the right of The Gambia to seek compliance by Myanmar with its obligations not to commit, and to prevent and punish genocide in accordance with the Convention. (ICJ 2020, 23)

This is where we return to the reports of the FFM, because, in finding that these rights were plausibly established, the court relied heavily on the conclusions of the FFM investigation (ICJ 2020, 22) to find that the Rohingya were a protected group under the Genocide Convention and that the Rohingya in Myanmar ‘remain extremely vulnerable’ (ICJ 2020, 26). Vice-President Xue observed that the evidentiary ‘weight’ of the FFM reports ‘cannot be ignored’ (ICJ 2020, 35). While there are questions remaining as to the reliance that the court will place on such third-party fact-finding at the merits stage of the case, where the standard of proof is higher (Becker 2019b; Becker 2019a; Devaney 2016), the IIMM has been requested by both parties to share evidence with the court (UN News 2021). As such, while the IIMM cannot itself prosecute international crimes, it has an important role to play in providing evidence to decision-makers.

Oral hearings in relation to Myanmar’s objections to the ICJ’s jurisdiction to hear the case were held on 21–28 February 2022, a year after the coup. This raised issues relating to the legal and legitimate representation of Myanmar at these proceedings, which are explored in the third section.

The International Criminal Court

Finally, in relation to the conduct of the Myanmar authorities prior to the coup, there is the question of the role to be played by the ICC. There are separate questions to be asked regarding the role of the ICC for conduct occurring as part of, or subsequent to, the coup, which will be addressed in the last section.

In November 2019, an investigation into crimes against humanity committed against the Rohingya was authorised by the ICC (ICC 2019). This followed an earlier ruling that the ICC had jurisdiction ‘over the alleged deportation of members of the Rohingya people from Myanmar to Bangladesh, provided that such allegations are established to the required threshold’ (ICC 2018, 42). The reason for the geographical limitation is that Myanmar is not a party to the Rome Statute, and, as such, the ICC does not have jurisdiction to investigate crimes occurring within the territory of Myanmar without its consent, unless it has a Security Council mandate.

Bangladesh, however, is a party to the Rome Statute, and the ICC may assert jurisdiction pursuant to Article 12(2)(a) of the statute if at least one element of a crime within the jurisdiction of the court or part of such crime is committed on the territory of a state party to the statute. The prosecutor successfully argued that the crime of deportation (Rome Statute 1998, Art. 7(1)(d)) was completed when the victims fled to Bangladesh as a result of coercive acts and a coercive environment (ICC 2019, 24).

However, deportation that falls within the jurisdiction of the ICC must reach the threshold of a crime against humanity (Rome Statute 1998, Art. 7(1)). This requires that the act takes place in a context of ‘a widespread or systematic attack directed against any civilian population’. Article 7(2)(a) of the Rome Statute further defines an ‘attack directed against any civilian population’ as ‘a course of conduct involving the multiple commission of acts … against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack’. The underlying crime of deportation must have been committed as part of the attack.

The Pre-Trial Chamber accepted that ‘there exists a reasonable basis to believe’ that ‘widespread and/or systematic acts of violence may have been committed against the Rohingya civilian population’ that could qualify as the crime against humanity of deportation across the Myanmar–Bangladesh border (ICC 2019, 42). The chamber did not assess whether other crimes may have been committed, although this line of inquiry could form part of the prosecutor’s ongoing investigation.

The Office of the Prosecutor is now undertaking an investigation in relation to any crime, including any future crime, that meets the criteria set down by the Pre-Trial Chamber. That is, in addition to meeting the temporal limitations demanded by the entry into force of the Rome Statute, the alleged crime must be: 1) within the jurisdiction of the ICC, 2) allegedly committed at least in part on the territory of Bangladesh, or on the territory of another state that accepts ICC jurisdiction (i.e. not Myanmar) and 3) sufficiently linked to the situation of the deportation of the Rohingya minority. Therefore, while the prosecutor’s investigation is to be welcomed, it is, in fact, extremely limited in its scope.

Who represents Myanmar?

The procedural issue of who represents Myanmar in international law is one that is heavily dependent on international politics. The main practical contest in the international sphere is whether Myanmar is represented by the junta and its representatives, or the NUG and the opposition. This has played out in a variety of fora but most recently in relation to the ICJ case. For the purposes of the court, it is the state of Myanmar and not the government that has standing to appear (ICJ Statute 1945, Art. 34). This was emphasised by the president of the court at the opening to the oral hearings in February 2022, where she stated that ‘the parties to a contentious case before the Court are States, not particular governments’ (ICJ 2022a, 11). Ko Ko Hlaing, minister for international cooperation under the junta, appeared as agent for Myanmar at these hearings, along with its attorney-general, Thida Oo. Both are subject to US sanctions due to the coup and the violent suppression of resultant peaceful protests. The hearings proceeded as normal, and the ICJ is, at the time of writing, deliberating on its judgement.

But matters could have proceeded very differently. The NUG on 1 February 2022—the one-year anniversary of the coup—issued a statement that withdrew the preliminary objections and asserted that UN Ambassador Kyaw Moe Tun is ‘the only person authorised to engage with the Court on behalf of Myanmar’ (NUG 2022, n.p.). Had the ICJ accepted this, it could have proceeded immediately to hearing the merits of the case.

The ICJ’s choice to permit the junta to appear on behalf of Myanmar creates political difficulties, as other organs of the UN continue to resist acknowledging the junta. For example, in September 2021, the US and China brokered a deal that prevented Myanmar’s military rulers from addressing the General Assembly at its 76th session (Lynch, Gramer & Detsch 2021). And while the military junta stated that it had appointed Aung Thurein, a former military commander, as Myanmar’s ambassador to the UN, the incumbent representative Kyaw Moe Tun remained the ambassador, as a decision must be taken by the General Assembly credentialing committee and approved according to General Assembly rules before he can be replaced (Simpson 2021c).

The NUG has endeavoured to be seen, both by Myanmar’s population and the international community, as the legitimate government and representative of Myanmar. It announced a ‘defensive war’ that would work with newly formed volunteer People’s Defence Force (PDF) units to attack the junta and its interests (Regan & Olarn 2021). To prosecute the war, it developed a ‘chain of command’ to assist in coordination between disparate groups (Myanmar Now 2021). But the junta’s appearance at the ICJ has conferred a perception of legitimacy upon the military government that works against the NUG’s claims (Simpson & McIntyre 2022; Weller 2022). This was a valuable diplomatic win for the military junta, one that a more powerful nation, such as Russia, may not have been so desperate to achieve (McIntyre & Simpson 2022a).

Within ASEAN, the response has also been mixed. Traditionally, ASEAN has been far more accommodating to military juntas and human rights abuses, partially because of the limited history and culture of democracy across Southeast Asia (Simpson & Smits 2018). With the organisation’s mostly timid and laggardly response in the first few months following the Myanmar coup, history seemed to be repeating itself. That changed at the emergency meeting of ASEAN foreign ministers held on 15 October 2021 (Simpson 2021d). The statement released afterwards began with a discussion of the Five-Point Consensus reached with coup leader Min Aung Hlaing in April and the role of the special envoy, who had just cancelled his visit to Myanmar after being refused access to Aung San Suu Kyi and other junta opponents. It went on to hint at Myanmar’s intransigence by ‘emphasising the need to exercise flexibility’, while noting that the situation in Myanmar was having an impact on regional security and the credibility of ASEAN itself.

The statement noted requests by the NUG to represent Myanmar at the meeting and then employed ASEAN’s tradition of consensus decision-making to deny representation to both the NUG and the junta, instead deciding to invite a non-political representative from Myanmar, probably a civil servant. This response, pushed by the more progressive quartet of ASEAN—Indonesia, Malaysia, Singapore and the Philippines—and supported by the then ASEAN chair, Brunei, effectively disinvited Min Aung Hlaing to a series of ASEAN-related summits in October 2021, including one with US President Joe Biden.

In November 2021, ASEAN continued its surprising stance when the virtual ASEAN–China Special Summit, a major event to commemorate 30 years of ASEAN–China relations, began with Myanmar’s seat embarrassingly empty, a further major snub to the military (Simpson 2021e). The same five governments of Indonesia, Brunei, Malaysia, the Philippines and Singapore joined Myanmar’s Civil Disobedience Movement in successfully opposing the junta’s attendance at the summit, despite diplomatic lobbying by China. The following day, the Myanmar representative attending an ASEAN climate and disaster conference was a minister of the NUG not the military junta. While this event was relatively independent of the ASEAN Secretariat and did not have the prominence of the leaders’ summits, it was still significant: an NUG minister was invited to an ASEAN conference for the first time. It was a sign of growing frustration with the military’s brutality and intransigence. Further snubs soon followed, with the junta’s foreign minister barred from attending an ASEAN retreat in February 2022 and Myanmar represented by an empty chair at a special US–ASEAN Summit at the White House in May (AFP 2022).

While it might seem somewhat bizarre to contemplate two rival groups fighting to be prosecuted for genocide at the ICJ, this competition should be seen in the context of the politics of international legitimacy and representation. Both groups want to be seen as the legitimate government of Myanmar, although Suu Kyi’s previous robust defence of the military at the ICJ would likely evaporate if the NUG was to take the stand.

The ICC will likely follow the UN in its recognition protocols, which is currently in the NUG’s favour due to the incumbency of Kyaw Moe Tun. Due to ongoing support from the US and others in the credentialing committee, Kyaw Moe Tun remained in place for the 77th Session of the UN General Assembly in September 2022 and will likely remain so for the foreseeable future (Simpson 2022b).

International proceedings in the future: Prosecuting the coup?

Clearly, the existing ICC and ICJ proceedings demonstrate that there is a case to be answered in international courts in relation to the Rohingya (Becker 2020). A more substantive issue than who represents Myanmar is whether there have been crimes committed during and since the February 2021 coup, by the military or any other groups in Myanmar, that could be prosecuted under international law.

As noted above, the IIMM is mandated to investigate both past and future situations. As such, it has continued to closely monitor events in Myanmar since the coup to gather evidence of potential crimes. However, despite the reliance placed on similar materials by the ICJ in its provisional measures order, there is no capacity for the ICJ to expand the scope of its judgement beyond the question of genocide of the Rohingya. The ICJ is limited by the jurisdictional mandate granted under the Genocide Convention, and by the non ultra petita (not beyond the request) principle, by which it cannot independently investigate issues outside of those raised by the parties to the case.

We are, therefore, left with the possibility of criminal prosecution against individuals at the ICC. The Rome Statute grants the ICC jurisdiction in respect of genocide, war crimes, crimes against humanity and the crime of aggression (Rome Statute 1998, Arts 6–8bis). In respect of the situation in Myanmar, only the crime of deportation is presently within the scope of the investigation opened by the Office of the Prosecutor.

Putting to one side the question of jurisdiction, as noted above, to reach the threshold of a crime against humanity, the criminal act—murder, rape, torture or other acts as listed in Article 7(1)—must take place in a context of ‘a widespread or systematic attack directed against any civilian population’.

Given that the military is an organ of the state of Myanmar (ICL 2001, Art. 4) or at the least that the junta is exercising elements of governmental authority in Myanmar (ICL 2001, Art. 5), it is likely that its acts would be considered to be in furtherance of state or organisational policy.

Regarding the requirement of multiple attacks against civilian populations, as evidence mounts it is becoming clear that the junta’s attacks on the opposition may reach the threshold of crimes against humanity with a range of interrelated actions including:

• shooting or otherwise killing or maiming unarmed protesters in multiple peaceful demonstrations over many months, including:
  • a massacre in Yangon on 14 March 2021 when at least 65 unarmed protesters and bystanders were killed
  • on 5 December 2021, security forces driving purposefully into the rear of a protest, followed up by beating and shooting protesters, leaving five dead and many others injured.
• the killing of unarmed civilians or captured members of the opposition (including the PDF) in a variety of villages across the country, including:
  • an attack in Kayah (Karen) State on 24 December 2021 that left more than 30 people dead and burned, including women, children and two staff members from the international non-governmental organisation Save the Children
  • a series of mass killings in Sagaing in July 2021 that resulted in at least 40 men, beaten or tortured to death
  • the burning of 11 unarmed captives, including teenagers, in Sagaing Region in December 2021
  • taking 40 villagers from Magway Region’s Myaing Township hostage in May 2022 and using them as human shields, while killing six of them
  • the torture and killing of at least six civilians in Kani Township, Sagaing, in June 2022.
• systematic torture, with at least 110 prisoners dying in police custody, many from torture in the first 24 hours of detention while others died due to being denied medical care.
• execution of four political prisoners in July 2022 (Simpson 2022a).
• indiscriminate attacks on villages that kill civilians including air strikes, shelling and the burning of buildings and entire villages, including:
  • an attack on Thantlang in Chin State in September 2021, which was analysed by the Washington Post through videos, photos, satellite imagery, eyewitness accounts and military planning documents, and demonstrated that it was the result of a premeditated campaign that targeted civilians
  • an air raid by military jets in October 2022 that bombed a music festival in Kachin State celebrating the anniversary of the founding of the Kachin Independence Organisation, killing at least 80 people, including musicians and other civilians, and injuring at least 100 (Al Jazeera 2022).
• blocking the transport of humanitarian aid to civilian communities.
• the displacement, arbitrary detention and torture of children (Andrews 2022a).

The mandate of the IIMM does not extend to the overthrow of the constitutional authority via the coup, but, in November 2021, Nicholas Koumjian, the head of the IIMM, suggested that preliminary evidence collected since the coup demonstrated a widespread and systematic attack on civilians ‘amounting to crimes against humanity’ (Associated Press 2021).

Another issue to consider is whether ethnic armed groups, the PDF and other oppositional actors have committed crimes that might also be prosecuted under international law. There is little doubt that PDFs have been undertaking targeted assassinations of civilians who have assisted with the junta’s administration, and clashes have resulted in the death of thousands of military personnel. Any crimes committed against civilians by the opposition should also be investigated, but the opposition does not presently exercise governmental authority, nor are these entities to be equated with organs of the state of Myanmar. As such, even criminal acts on their part would not reach the threshold of crimes against humanity necessary to implicate prosecution at the ICC.

In this regard, the efforts of the NUG to establish itself as Myanmar’s legitimate government, with a clear chain of command between itself and the PDFs, may be a double-edged sword, since, although it may be advantageous politically and diplomatically, it may also open it to prosecution under the ICC. While this is a potential outcome in the future, it is likely that for the moment, for the purposes of international state and individual criminal liability, the main perpetrator of international crimes is the instigator of the crisis itself, the Myanmar military led by Min Aung Hlaing.

However, at present the ICC cannot consider any of these acts, whomever commits them, since Myanmar is not a state party to the Rome Statute. The ICC does not have jurisdiction. It is worth noting that there is one way in which the ICC could widen its mandate, and that is through the operation of Article 13(b) of the Rome Statute, which allows the ICC to receive referrals of situations by the Security Council. This has occurred, for example, in respect of the situation in Darfur, notwithstanding that Sudan is not a state party to the Rome Statute (de Wet 2018). With such a referral, the ICC could assume jurisdiction over all crimes listed in the Rome Statute that may have been committed in the territory of Myanmar. To date, however, the non-cooperation of China and Russia has ensured the Security Council has not taken any steps in this direction.

Policy implications for the international community

The international community has a range of levers at its disposal to influence events in Myanmar, many of which can be considered part of the contentious policy known as Responsibility to Protect (R2P) (Simpson 2021a), where the international community intervenes in a country when its government is unable, or unwilling, to protect communities at risk.

Human Rights Watch and other international non-governmental organisations have called for a comprehensive global arms embargo against Myanmar (HRW 2021). Fortify Rights, an organisation focused on Myanmar and its region, called for UN member states to form an emergency coalition to respond to the coup and Myanmar’s devastating COVID-19 outbreaks (Fortify Rights 2021). These organisations have some influence in the Western halls of power, but they are still dependent on action from states. States themselves have a range of competing interests and are constrained by the limits of their authority within the international system. Even a UN Security Council resolution banning arms sales to the junta was a bridge too far for China and Russia.

In terms of the ICJ proceedings, the most effective direct action for the international community would be to formally intervene in the genocide case under Article 63 of the ICJ Statute. Such intervention brings moral and legal reinforcement to one side of the case (Fitzmaurice 1958, 127). While many states, such as the UK, Canada, the Netherlands and the Maldives have made statements that they intend to intervene, by November 2022 none had filed a formal declaration of intervention (ICJ 2022b). This is in stark contrast to the other genocide case underway at the ICJ, in which at least 23 countries have formally intervened to support Ukraine against Russia (ICJ 2022c; McIntyre & Simpson 2022b; Simpson 2022c). However, regardless of who joins the Myanmar genocide case, it is highly unlikely that the ICJ will make any reference to the coup.

The ICC cannot act in relation to activities within Myanmar unless there is a Security Council resolution or Myanmar itself becomes a party to the Rome Statute. Since the NUG has committed to joining the Rome Statute if it takes power, it is in the international community’s interest for this to happen. The main avenue for international pressure at present is, therefore, to recognise the NUG as Myanmar’s legitimate government and accredit Myanmar’s various rebellious ambassadors, including the current UN representative, Kyaw Moe Tun, who have denounced the military coup and been sacked by the military as a result. This would send a potent message to the junta and allow the NUG to fill Myanmar’s currently empty seat on the UN Human Rights Council (Simpson 2022b).

Likewise, ASEAN should continue to isolate the military and recognise the NUG. Unfortunately, the visit to Myanmar in January 2022 of Hun Sen, Cambodia’s prime minister and the chair of ASEAN for 2022, undermined ASEAN’s fragile position by meeting with Min Aung Hlaing, resulting in criticism from Malaysia’s foreign minister. Hun Sen was confident that, as a fellow authoritarian, he could make progress in the peace process. However, he came away from the discussions empty handed and, in February, virtually gave up on making any headway (Nachemson 2022).

Another important strategy for the international community is to provide material support to the NUG and the opposition movement. Many participants in the Civil Disobedience Movement have not received any income since February 2021. Since the coup, the real value of Myanmar’s currency has collapsed, losing up to 60 per cent of its value, with rampant inflation only exacerbating Myanmar’s humanitarian crisis. The NUG has very limited funding with essentially no-one being paid. A substantial international measure, that would assist both the NUG and the rest of the opposition movement, would be for the US to release the USD1 billion frozen in the Federal Reserve to the NUG. Countries such as Australia should also consider applying sanctions against Myanmar’s military officials. Australia has recently enacted Magnitsky-style legislation that could be deployed for this purpose.

A more contentious, although still justifiable, policy would be to support the anti-junta PDFs that have emerged, often in conjunction with existing ethnic minority militias, to militarily challenge the Tatmadaw. While many governments are hesitant to arm or support non-state militias, arguing that non-violent methods should be employed, Myanmar’s military has shown throughout history that it has no qualms in ruthlessly and brutally crushing non-violent opposition movements. While the conflicts and crises in Myanmar are only likely to be resolved by groups within the country, aid and diplomatic support may well provide the opposition movement with the resources, resolve and recognition that they need to force a negotiated settlement.

Conclusion

The evolving crises facing the people of Myanmar are not limited to violence and political repression. They include the heavy burdens of poverty, food shortages and unemployment, along with the collapse of the healthcare and education systems and the pressure of COVID-19 (Simpson 2021a; Thant Myint-U 2021). A report by the World Bank estimated that Myanmar’s economy contracted by 18 per cent in 2021 because of the joint effects of the pandemic and the coup (World Bank Group 2021). It suggested the share of people living in poverty would more than double by the beginning of 2022 compared to 2019. Another crisis waiting in the wings is climate change, which is already disrupting the monsoon, causing droughts and reducing agricultural returns (Simpson & South 2022; Thant Myint-U 2020).

Applying external pressure to the military junta is unlikely to have any significant impact while China, Russia and some ASEAN countries continue to work with the regime. The international community can provide aid and diplomatic support to the opposition, but the conflicts in Myanmar are only likely to be resolved by the groups within the country.

The power of the international judiciary to respond to these intersecting crises in general, and the violence and repression of the coup in particular, are limited. International courts can only act within the legal mandate granted to them by states. Various factors, such as restrictions on jurisdiction, the need for state consent and the significant burden of establishing criminal acts reaching the threshold of crimes against humanity or genocide, mean that their influence and authority, while important, remains limited.

The acts committed by the military junta are abhorrent and, thanks to the work of the IIMM, have been documented for the eyes of the world to see. It is difficult to be optimistic in the face of the military’s brutality and incompetence. However, a bleak outlook is no reason not to act on Myanmar, whether at a diplomatic level or via international courts. There is always the possibility of political change, particularly when the vast majority of a country’s population is so implacably opposed to its leaders. While some sections of Myanmar’s population reluctantly accepted military rule for the half-century prior to 2011, there can be no doubt this time about the level of visceral domestic fury directed towards the military for having, once again, driven the country into the ground and snuffed out the dreams of its long-suffering people. The joint activities of the ICC investigation, the ICJ proceedings related to the Rohingya genocide, and the work of fact-finding missions and other human rights agencies will continue to document crimes and prosecute the military in courts where possible. The wheels of international justice turn slowly but it is hoped that, one day, justice can be done.

References

AAPP (Burma). 2022. ‘Daily Update 16/11/22 Day 654’. Twitter. twitter.com/aapp_burma/status/1592838654573293569?s=20&t=4mDD9mpnawp815Vmgm6e_g

AFP. 2022. ‘Myanmar Junta Slams US Summit Snub, Lauds Ties with China’. Jakarta Post, 16 May. www.thejakartapost.com/world/2022/05/16/myanmar-junta-slams-us-summit-snub-lauds-ties-with-china-.html

Al Jazeera. 2022. ‘Death Toll from Air Raids in Myanmar’s Kachin Reported to Hit 80’. 25 October. www.aljazeera.com/news/2022/10/25/horrific-air-raids-in-myanmars-kachin-kills-80-reports

Andrews, Thomas H. 2022a. Conference Room Paper of the Special Rapporteur: ‘Losing a Generation: How the Military Junta Is Attacking Myanmar’s Children and Stealing Their Future’. UN Doc. A/HRC/50/CRP.1, Office of the UN High Commissioner for Human Rights, 13 June 2022. www.ohchr.org/en/documents/thematic-reports/ahrc50crp1-conference-room-paper-special-rapporteur-losing-generation

Andrews, Thomas H. 2022b. Report of the Special Rapporteur on the Situation of Human Rights in Myanmar. UN General Assembly, 77th Session, UN Doc. A/77/494, 3 October. www.ohchr.org/en/documents/country-reports/a77494-report-special-rapporteur-situation-human-right-myanmar

Associated Press. 2021. ‘Attacks on Civilians in Myanmar “Crimes against Humanity”: UN’. Al Jazeera, 6 November. www.aljazeera.com/news/2021/11/6/attacks-on-civilians-in-myanmar-crimes-against-humanity-un

Becker, Michael. 2019a. ‘The Situation of the Rohingya: Is There a Role for the International Court of Justice?’ University of Cambridge Legal Studies Research Paper Series, no. 25/2019. doi.org/10.2139/ssrn.3285738

Becker, Michael. 2019b. ‘The Challenges for the ICJ in the Reliance on UN Fact-Finding Reports in the Case against Myanmar’. Blog of the European Journal of International Law, 14 December. doi.org/10.2139/ssrn.3505272

Becker, Michael. 2020. ‘The Plight of the Rohingya: Genocide Allegations and Provisional Measures in The Gambia v Myanmar at the International Court of Justice’. Melbourne Journal of International Law 21 (2): 428–49. doi.org/10.2139/ssrn.3688935

de Wet, Erika. 2018. ‘Referrals to the International Criminal Court under Chapter VII of the United Nations Charter and the Immunity of Foreign State Officials’. American Journal of International Law Unbound, 112: 33–7. doi.org/10.1017/aju.2018.13

Fitzmaurice, Sir Gerald. 1958. ‘The Law and Procedure of the International Court of Justice, 1951–4: Questions of Jurisdiction, Competence and Procedure’. British Yearbook of International Law 34 (1): 1–161.

Fortify Rights. 2021. ‘UN Member States: Form Emergency Coalition to Respond to COVID Outbreak and Coup D’état in Myanmar’. 21 July. www.fortifyrights.org/mya-inv-2021-07-21/

Fortify Rights. 2023. ‘Criminal Complaint Filed in Germany against Myanmar Generals for Atrocity Crimes’. 24 January. www.fortifyrights.org/mya-inv-2023-01-24/

The Gambia. 2019. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar). Application instituting proceedings and request for the indication of provisional measures, 11 November.

HRW (Human Rights Watch). 2021. ‘Global Civil Society Statement on Myanmar’. 5 May. www.hrw.org/news/2021/05/05/global-civil-society-statement-myanmar

ICC (International Criminal Court). 2018. Request under Regulation 46(3) of the Regulations of the Court. ICC-RoC46(3)-01/18, 6 September.

ICC (International Criminal Court). 2019. Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar. ICC-01/19, 14 November.

ICJ (International Court of Justice). 2020. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar). Provisional Measures, 23 January.

ICJ (International Court of Justice). 2022a. Verbatim Record of the Public Sitting Held on Monday 21 February 2022, at 1.30 p.m., at the Peace Palace, President Donoghue Presiding, in the Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar). CR 2022/1.

ICJ (International Court of Justice). 2022b. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar). Case 178, 22 July. www.icj-cij.org/en/case/178

ICJ (International Court of Justice). 2022c. Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation) – Intervention. Case 182, 21 July. www.icj-cij.org/en/case/182/intervention

ICL (International Law Commission). 2001. ‘Draft Article on the Responsibility of States for Internationally Wrongful Acts, with Commentaries’. Yearbook of the International Law Commission, vol.2, part 1. Documents of the 53rd Session, UN. Doc. A/56/10.

IIMM (Independent Investigative Mechanism for Myanmar). 2021. ‘Message from the Head of the Mechanism’. Bulletin 5, (October).

IIMM (Independent Investigative Mechanism for Myanmar). 2022. Report of the Independent Investigative Mechanism for Myanmar. UN Doc. A/HRC/51/4, 12 July.

Longobardo, Marco. 2021. ‘The Standing of Indirectly Injured States in the Litigation of Community Interests before the ICJ: Lessons Learned and Future Implications in Light of The Gambia v. Myanmar and Beyond’. International Community Law Review. doi.org/10.1163/18719732-12341480

Lynch, Colum, Robbie Gramer and Jack Detsch. 2021. ‘U.S. and China Reach Deal to Block Myanmar’s Junta from U.N.’. Foreign Policy, 13 September. foreignpolicy.com/2021/09/13/myanmar-united-nations-china-biden-general-assembly/

Mahnad, Polina Levina. 2018. ‘An Independent Mechanism for Myanmar: A Turning Point in the Pursuit of Accountability for International Crimes’. Blog of the European Journal of International Law, 1 October. www.ejiltalk.org/a-turning-point-in-the-pursuit-of-accountability-for-international-crimes/

McIntyre, Juliette and Adam Simpson. 2022a. ‘A Tale of Two Genocide Cases: International Justice in Ukraine and Myanmar’. East Asia Forum, 26 May. www.eastasiaforum.org/2022/05/26/a-tale-of-two-genocide-cases-international-justice-in-ukraine-and-myanmar/

McIntyre, Juliette and Adam Simpson. 2022b. ‘Myanmar’s Genocide Overshadowed by Ukraine’. East Asia Forum, 5 October. www.eastasiaforum.org/2022/10/05/myanmars-genocide-overshadowed-by-ukraine/

Miles, Cameron. 2017. Provisional Measures before International Courts and Tribunals. Cambridge: Cambridge University Press. doi.org/10.1017/9781316410813

Myanmar Now. 2021. ‘NUG Establishes “Chain of Command” in Fight against Regime’. 28 October. www.myanmar-now.org/en/news/nug-establishes-chain-of-command-in-fight-against-regime

Nachemson, Andrew. 2022. ‘Misreading the Room: Why Hun Sen Is Failing on Myanmar’. Al Jazeera, 30 March. www.aljazeera.com/news/2022/3/30/misreading-the-room-why-hun-sen-is-failing-on-myanmar

NUG (National Unity Government). 2022. ‘Announcement (2/2022) – Myanmar Withdraws all Preliminary Objections to the International Court of Justice Hearing on the Genocide Case’. 1 February. gov.nugmyanmar.org/2022/02/01/announcement-2-2022-myanmar-withdraws-all-preliminary-objections-to-the-international-court-of-justice-hearing-on-the-genocide-case/ (page discontinued).

Pillai, Priya. 2020. ‘Canada and The Netherlands: New Intervention in The Gambia v Myanmar at the International Court of Justice’. Opinio Juris blog, 3 September. opiniojuris.org/2020/09/03/canada-and-the-netherlands-new-intervention-in-the-gambia-v-myanmar-at-the-international-court-of-justice/

Reed, John. 2021. ‘Argentine Court to Hear Myanmar Rohingya Genocide Case’. Financial Times, 28 November. www.ft.com/content/0a2c1a4c-269a-4121-b37f-0da41e53a618

Regan, Helen and Kocha Olarn. 2021. ‘Myanmar’s Shadow Government Launches “People’s Defensive War” against the Military Junta’. CNN, 8 September. edition.cnn.com/2021/09/07/asia/myanmar-nug-peoples-war-intl-hnk/index.html

Rome Statute. 1998. Rome Statute of the International Criminal Court. 17 July. United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court: Rome. Entry into force: 1 July 2002, in accordance with Article 126.

Simpson, Adam. 2020. ‘The Folly of Aung San Suu Kyi’s “Bad Apple” Defence’. East Asia Forum, 26 March. www.eastasiaforum.org/2020/03/26/the-folly-of-aung-san-suu-kyis-bad-apple-defence/

Simpson, Adam. 2021a. ‘Coups, Conflicts, and COVID-19 in Myanmar: Humanitarian Intervention and Responsibility to Protect in Intractable Crises’. Brown Journal of World Affairs 28 (1): 1–19.

Simpson, Adam. 2021b. ‘Myanmar’s Exile Government Signs up to ICC Prosecutions’. East Asia Forum, 17 September. www.eastasiaforum.org/2021/09/17/myanmars-exile-government-signs-up-to-icc-prosecutions/

Simpson, Adam. 2021c. ‘Two Governments Claim to Run Myanmar. So, Who Gets the Country’s Seat at the UN?’ Conversation, 24 September. theconversation.com/two-governments-claim-to-run-myanmar-so-who-gets-the-countrys-seat-at-the-un-167885

Simpson, Adam. 2021d. ‘ASEAN Finds its Voice as a Military Offensive Looms in Myanmar’. Strategist, 22 October. www.aspistrategist.org.au/asean-finds-its-voice-as-a-military-offensive-looms-in-myanmar/

Simpson, Adam. 2021e. ‘ASEAN Rebuffs Myanmar’s Military Junta as Aung San Suu Kyi Faces Long Jail Term’. Conversation, 1 December. theconversation.com/asean-rebuffs-myanmars-military-junta-as-aung-san-suu-kyi-faces-long-jail-term-172619

Simpson, Adam. 2022a. ‘Myanmar’s Kangaroo Courts Hand Aung San Suu Kyi Another Six-Year Term While Sean Turnell Pleads Not Guilty’. Australian Outlook, 18 August. www.internationalaffairs.org.au/australianoutlook/myanmars-kangaroo-courts-hand-aung-san-suu-kyi-another-six-year-term-while-sean-turnell-pleads-not-guilty/

Simpson, Adam. 2022b. ‘Myanmar: A Desperate Junta Trying, and Failing, to Shore up its Legitimacy’. Interpreter, 29 September. www.lowyinstitute.org/the-interpreter/myanmar-desperate-junta-trying-failing-shore-its-legitimacy

Simpson, Adam. 2022c. ‘Relief as Australian Sean Turnell to be Released from Prison in Myanmar, but More Needs to Be Done’. Conversation, 17 November. theconversation.com/relief-as-australian-sean-turnell-to-be-released-from-prison-in-myanmar-but-more-needs-to-be-done-194814

Simpson, Adam and Nicholas Farrelly. 2020. ‘The Rohingya Crisis and Questions of Accountability’. Australian Journal of International Affairs 74 (5): 486–94. doi.org/10.1080/10357718.2020.1813251

Simpson, Adam and Nicholas Farrelly. 2021a. ‘As Killings, Beatings and Disappearances Escalate, What’s the End Game in Myanmar?’ Conversation, 11 March. theconversation.com/as-killings-beatings-and-disappearances-escalate-whats-the-end-game-in-myanmar-156752

Simpson, Adam and Nicholas Farrelly. 2021b. ‘The Rohingya Crisis: Nationalism and Its Discontents’. In Myanmar: Politics, Economy and Society, edited by Adam Simpson and Nicholas Farrelly, 249–64. London: Routledge. doi.org/10.4324/9780429024443-20

Simpson, Adam and Juliette McIntyre. 2022. ‘It’s a Mistake to Allow Myanmar’s Junta to Appear in Rohingya Case’. Interpreter, 23 February. www.lowyinstitute.org/the-interpreter/it-s-mistake-allow-myanmar-s-junta-appear-rohingya-case

Simpson, Adam and Mattijs Smits. 2018. ‘Transitions to Energy and Climate Security in Southeast Asia? Civil Society Encounters with Illiberalism in Thailand and Myanmar’. Society and Natural Resources 31 (5): 580–98. doi.org/10.1080/08941920.2017.1413720

Simpson, Adam and Ashley South. 2022. ‘Evolving Climate Change Governance in Myanmar: Limitations and Opportunities in a Political Crisis’. In Governing Climate Change in Southeast Asia: Critical Perspectives, edited by Jens Marquardt, Laurence L. Delina and Mattijs Smits, 112–32. London: Routledge.

Statute of the International Court of Justice. 1945. 33 UNTS 99316.

Thant Myint-U. 2020. The Hidden History of Burma: Race, Capitalism, and the Crisis of Democracy in the 21st Century. New York: W. W. Norton & Company.

Thant Myint-U. 2021. ‘Myanmar’s Coming Revolution: What Will Emerge from Collapse?’ Foreign Affairs, July/August. www.foreignaffairs.com/articles/burma-myanmar/2021-06-11/myanmars-coming-revolution

UNHRC (United Nations Human Rights Council). 2017. Resolution 34/22: Situation of Human Rights in Myanmar. 24 March, UN Doc. A/HRC/RES/34/22. ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/RES/34/22

UNHRC (United Nations Human Rights Council). 2018a. Report of the Detailed Findings of the Independent International Fact-Finding Mission on Myanmar. UN Doc. A/HRC/39/CRP.2. digitallibrary.un.org/record/1643079?ln=en

UNHRC (United Nations Human Rights Council). 2018b. Resolution 39/2: Situation of Human Rights of Rohingya Muslims and Other Minorities in Myanmar. 3 October, UN Doc. A/HRC/RES/39/2. ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/RES/39/2

UN News. 2021. ‘Myanmar: In race against time, experts collect evidence of rights violations’. 15 October. news.un.org/en/story/2021/10/1103042

Weller, Marc. 2022. ‘Is the ICJ at Risk of Providing Cover for the Alleged Genocide in Myanmar?’ Blog of the European Journal of International Law, 11 February. www.ejiltalk.org/is-the-icj-at-risk-of-providing-cover-for-the-alleged-genocide-in-myanmar/

World Bank Group. 2021. Myanmar Economic Monitor – Progress Threatened; Resilience Tested. pubdocs.worldbank.org/en/525471627057268984/Myanmar-Economic-Monitor-July-2021.pdf