Gateways for action on Myanmar crisis
published : 11 Jan 2023 at 04:00
newspaper section: Oped
The coup in Myanmar in 2021 brought back to power a junta-based regime and compounded grave violations, adding fuel to a recurrent crisis. A constructive gateway for action in December 2022 was thus the adoption of the UN Security Council (SC) Resolution 2669, the first substantive resolution highlighting urgently needed measures on the issue.
This resolution underlines eight preferred actions. It calls for an end to all forms of violence and a de-escalation of tensions. Release of political prisoners is urged. Constructive dialogue for democracy is advocated. Respect for human rights is emphasised.
In addition, Asean's initiative, based on its Five Point Consensus, is supported; the five points concern cessation of violence; constructive dialogue; mediation via an Asean envoy; humanitarian assistance; and a visit by an envoy to the country.
The resolution offers support to the UN Secretary-General's envoy, together with the Asean envoy. Myanmar is called upon to abide by the Asean consensus and work with those entities. Unhindered humanitarian access is reiterated to help those in need. The age-old crisis in Rakhine State in Myanmar and the refugee situation concerning the Rohingya, a Muslim community, are underscored with a view to addressing the root causes.
Significantly, no country in the SC vetoed the resolution, even though three SC members (out of 15 in total) abstained. Precisely because this was a compromise text, it was of a modest nature, omitting some of the other measures called upon by other sectors of the international community. There is no mention of the need for an arms embargo.
Nor is there any opening for multilateral sanctions based on Chapter VII of the UN Charter. The issue of "which representative" should sit in the Myanmar seat in the UN General Assembly is unresolved and has been delayed by the UN's accreditation committee. The contestation is between the representative of the government existing before the coup and the representative of the current junta. From the angle of legitimacy, the politico-legal weight favours the former.
The resolution should be seen as a political and moral compass guiding the world community's interaction with Myanmar. There are other initiatives concerning the country which open windows of accountability, a legal anchor for advocacy against violations in the country. Two are of note: a case before the World Court (International Court of Justice) lodged by the Gambia against Myanmar concerning the Genocide Convention and a case before the International Criminal Court (ICC) against various leaders of that country in regard to the treatment of the Rohingya.
The World Court case revolves around Myanmar as a party to the 1948 Genocide Convention, a key treaty to prevent this international crime, thus giving rise to the member state's responsibility in the case of a breach. In this case, another member state, the Gambia, claimed that Myanmar had violated provisions of the convention to prevent and address the international crime of genocide. The latter covers five elements, with a specific intent to harm a particular group, namely: killings, cruel treatment, deprivations of basics of life, prevention of births, and forced removal of children.
The Myanmar situation concerning the Rohingya is connected with particularly the first four grounds mentioned. In the first phase, the court ordered provisional measures in 2020, instructing Myanmar to adopt measures to prevent genocide and to report back to the Court on the implementation process. The second phase of the case took place in 2022 when Myanmar tried to block the admissibility of the Gambia's claims by arguing that the latter was not the real applicant but was a proxy for the Organization of Islamic Conference. Myanmar also tried to prevent the court from proceeding by claiming that it had entered a reservation to Article VIII of the convention; that article concerns possible access to UN mechanisms to seek further action.
On deliberation, the court rejected Myanmar's submissions by underlining that the obligation of Myanmar under the convention was to all members of the convention, including the Gambia. This impliedly rejected Myanmar's claim that the latter was not a party affected by the Rohingya situation.
The ICC case involves the accountability of individuals, especially various high-ranking generals of the country's army known as "Tatmadaw," rather than that of Myanmar as a state. Since Myanmar is not a party to the statute of the ICC, does the latter have jurisdiction? In essence, the ICC has jurisdiction where a member state is affected by an international crime, especially as linked with its territory, even though the state with those erring individuals is not a party.
In this case, the affected member state is Bangladesh, and the issue concerns a crime against humanity with cross-border implications; Bangladesh is impacted particularly by the deportation and persecution of the Rohingya in Myanmar with spill-over into Bangladesh. A crime against humanity is an international crime committed with intent, in a widespread or systematic manner against the civilian population, including on those two grounds mentioned. The ICC has thus given the green light to its prosecutor to investigate the situation, and the latter visited Bangladesh in 2022 to collect evidence on the issue, with other steps pending.
In sum, even though those gateways are but humble stepping stones in the quest for justice in Myanmar, they are axiomatic to indicate the rights and wrongs of the situation, leveraging for effective multileveled actions against those who flout international law.
Professor of law at Chulalongkorn University
Vitit Muntarbhorn is professor emeritus at the Law Faculty, Chulalongkorn University. He has helped the UN in a various positions, including as UN Special Rapporteur, UN Independent Expert and member of UN Commissions of Inquiry on human rights.