(Editor’s Note: This article is part of a Just Security series on the Feb. 1, 2021 coup in Myanmar. The series brings together expert local and international voices on the coup and its broader context. The series is a collaboration between Just Security and the International Human Rights Clinic at Harvard Law School. This article was first published to Just Security on May 18, 2021).
In his first speech since illegally attempting a coup d’etat, Commander-in-Chief Min Aung Hlaing told the people of Myanmar that, “no one is above the law.” He went on, “no one or no organization is above the national interest in state-building and nation-building.” But in reality, Min Aung Hlaing and indeed all of the military (Tatmadaw) are very much above the law in Myanmar.
Of the coup’s many potential causes, perhaps the most overt is that military leadership thought they could get away with it. The military’s constitutional insulation from civilian oversight and control, the failure thus far to hold them accountable for human rights abuses and international crimes, and even periodic cheerleading from the international community for a “democratic transition” emboldened the military into thinking that subverting the will of the people could be done without major consequence. To quote the Office of the High Commissioner of Human Rights, “This crisis was born of impunity.”
After all, the military has been getting away with genocide, war crimes, and crimes against humanity, so why not a coup?
In the aftermath of Feb. 1, a great many novel and knotted international legal questions have arisen. Chief among them is a question about the status of the constitutional order in Myanmar: the military has strained to claim that it is upholding the 2008 Constitution, while the Committee Representing the Pyidaungsu Hluttaw (CRPH)/National Unity Government (NUG) have abolished the 2008 Constitution and issued a new Federal Democratic Charter that envisions a different system entirely. Rather than getting into the merits of these claims, this piece looks at the related – and in many ways inseparable – issue of how military impunity is an essential part of the narrative of the ongoing crisis and how accountability must be part of the solution moving forward. In doing so we analyze the major areas of concern in Myanmar’s 2008 Constitution, the lack of concerted international action to address the military’s grave crimes, how those collective failings created an environment of impunity that paved the way for the coup, and why this path must be avoided going forward.
Military impunity in Myanmar is deeply entrenched and is therefore sometimes express and sometimes more structural and less visible. To find the military’s express impunity, one must look no further than a few select provisions of Myanmar’s 2008 Constitution. The consequences of this specific, constitutionally condoned form of impunity are vividly illustrated by the military’s pattern and practice of conflict-related sexual and gender-based violence, and the general absence of genuine investigative bodies or an independent judiciary.
Military personnel are granted blanket immunity under Article 445 of the 2008 Constitution, which guarantees that no proceeding shall be instituted against any member of the government “in respect to any act done in the execution of their respective duties.” Moreover, the 2008 Constitution further grants the military autonomy over all its own judicial processes and gives the Commander-in-Chief “final and conclusive” authority over all cases and complaints, effectively allowing him to overturn convictions or commute sentences on a whim.
Nowhere is the military’s impunity and autonomy clearer than in the fact that for decades it has without consequence deployed sexual and gender-based violence as a weapon against Myanmar’s ethnic communities. Deemed by the U.N.’s Independent International Fact-Finding Mission for Myanmar (FFM) as a hallmark of Myanmar military operations, rape and other forms of sexual violence have been used as a deliberate strategy to intimidate, terrorize, and punish civilian populations. During the military’s 2017 so-called “clearance operations” against the Rohingya, the use of sexual violence was massive in scale, ghastly in brutality, and meticulous in coordination. According to the FFM, the targeted perpetration of sexual violence shows a level of planning and coordination implicating the highest echelons of the military’s ranks.
Yet, we are not aware of any prosecutions for rape and sexual violence as international or domestic crimes related to these “clearance operations” inside Myanmar. And as noted by the FFM, to date no senior Tatmadaw officer has been held accountable for the widespread sexual and gender-based violence committed against the Rohingya during the 2016 and 2017 “clearance operations.”
In the isolated cases against the military that do make it to civilian courts, administration of justice is weak. Myanmar’s judiciary has been described as “inactive and subordinate to the military,” with “allegations of judicial corruption, inefficiency, and susceptibility to executive influence [that are] so widespread that they cannot be sensibly discounted.” State actors, including the military, have been known to apply improper pressure on the judiciary and prosecutors in cases related to gross violations of human rights, as well as political and civil cases.
Moreover, attempts to utilize formal court or accountability proceedings are often met with reprisals. The experience of Brang Shawng, the father of a fourteen-year-old girl who was killed by the military, is a case in point. The father never saw accountability for his daughter’s killing – but he himself was prosecuted for filing false charges and was embroiled in legal proceedings for over eighteen months.
Other efforts at domestic accountability have proven themselves to be equally flawed and futile. Take, for example, the paradigmatic case of Myanmar’s “Independent Commission of Enquiry” (ICOE) mandated by the previous government to investigate crimes occurring in Rakhine State in 2017. Trumpeted by the government as a positive step toward accountability, the ICOE suffered from critical failings in its independence, mandate, methodology, procedures, findings, and transparency that make clear that the real intention was to deflect and defer attempts by the international community to ensure justice and accountability for the military’s genocidal campaign against the Rohingya. Of course, the coup only further stymied efforts at thorough and credible investigation and adjudication.
Structural Impunity through Military Superiority
But it was not only express impunity that so filled the military with hubris that they sought to commandeer Myanmar’s sovereignty for themselves. It was impunity resulting from, and coupled with, a constitutional system that at every turn entrenched and elevated the military over and above the civilian government. Under Myanmar’s 2008 Constitution, the military is exceptionally empowered with the most grandiose responsibilities and the most granular of administrative tasks. Like the spine of a book, military supremacy and autonomy are the structures giving the 2008 Constitution its form. Even as the current conversation in Myanmar may be moving away from the 2008 Constitution, owing to the strong support by the people of the country for a new, federal constitution, as well as the release of a new Federal Charter for the country by the CRPH, the 2008 Constitutional framework is nevertheless instructive in contextualizing what brought us to this moment and highlighting essential next steps to address the crisis.
The 2008 Constitution situates the military as an autonomous entity simultaneously independent of, but also entwined with, the civilian state. This duality was created to prevent the civilian government from checking the actions of the military or its members and does not contemplate any civilian power over the military or military-controlled territories. Tellingly, the role of the Defence Services under this framework includes the vague and broad responsibility to “safeguar[d] the non-disintegration of the Union, the non-disintegration of National solidarity and the perpetuation of sovereignty.”
Furthermore, one of the objectives of the 2008 Constitution is to “enabl[e] the Defence Services to be able to participate in the National political leadership role of the State.” This lofty intention is fleshed out by several specific entitlements which entrench military power. For example, the 2008 Constitution sees to it that it is the military that appoints the three critically important Ministers of Home Affairs, Border Affairs, and Defence. Crucially, there is no requirement that members of the military appointed as ministers retire or resign from the military, meaning that they remain within the military command hierarchy and ultimately answer to the Commander-in-Chief.
The 2008 Constitution also situated the General Administration Department (GAD), which has been referred to as the “bureaucratic backbone” of the country, under the military-appointed Minister of Home Affairs. The pre-coup majority-party National League for Democracy (NLD) wrested control of the GAD from the military in 2018, only for the military to reclaim control after the coup. The GAD is tasked to control all the essential functions of state administration and decision-making down to the local level, including collection of taxes, land management and registration, and certification procedures, and has authority to “coordinate, communicate among and convene other government actors.” The aim of this system is to put the military in charge of all the most important state functions and ensure all members of the GAD are accountable, by extension, to the Commander-in-Chief.
Similarly, the National Defence and Security Council (NDSC), the most powerful non-elected body under the 2008 Constitution, consists of eleven officials, six of whom are selected by the military and are answerable to the Commander-in-Chief.
The 2008 Constitution contains no qualifications for the Commander-in-Chief, nor does it allow for parliamentary approval of his appointment or procedures for his removal. It does, however, contain a provision that enables the Commander-in-Chief to prompt impeachment proceedings against the President.
Beyond this general structure of military superiority, the coup itself had a well-defined constitutional runway. The 2008 Constitution grants the Commander-in-Chief the ability to “exercise State sovereign power” during an emergency that could cause the “disintegration of the Union, disintegration of national solidarity and loss of sovereign power or attempts therefore by wrongful forcible means….” In such a “state of emergency,” the Commander-in-Chief assumes all sovereign power, including the right to exercise the powers of the legislature, executive, and judiciary. Of course, no state of emergency was declared by Myanmar President Win Myint at the time of the coup, rendering it, despite all the military’s power, unconstitutional.
Finally, the civilian government is not able to alter the limitations of the 2008 Constitution without military consent. The 2008 Constitution guarantees that 25 percent of parliamentary seats are reserved for the military and requires that constitutional amendments be passed with more than 75 percent of members of parliament voting in favor – ensuring a military veto over any attempts to limit its power. Over the past decade, the military has exercised this veto power repeatedly. Time and again when Myanmar’s civilian parliamentarians have attempted to amend the Constitution to rein in military control, they have failed.
Importantly, the military’s structural and express impunity in the domestic sphere has been compounded by the impunity offered by the international community’s lack of action to hold the military accountable. For example, despite being included in every single Secretary-General report on conflict-related sexual violence, despite a dedicated report from the FFM on sexual and gender-based violence, and despite calls for action from women’s human rights defenders in the U.N. Security Council, before the coup the military continued to enjoy the economic benefits of foreign investment, defense-to-defense cooperation, and unencumbered world travel.
Impunity has been particularly enabled by the Security Council, which has only once tabled a resolution on Myanmar (in 2007 in the wake of the Saffron Revolution; the resolution was vetoed by China). In recent years, the Security Council has only managed to issue two Presidential Statements on Myanmar (consensus statements without binding legal effect): one in the wake of the Rohingya genocide in 2017 and another in March 2021 with regards to the coup. The message this has sent to Myanmar’s generals is loud and clear: even in the face of serious violations of international law like genocide and crimes against humanity, the political dynamics of the Council will shield them from any real consequences.
One particular sticking point has been actions to enable accountability, specifically through a referral to the International Criminal Court (ICC), which has long been called for by ethnic groups and, in the wake of the coup, by the pro-democracy movement writ large. Given the Security Council’s inability to act, the U.N. Human Rights Council stepped in after the Rohingya genocide to provide some building blocks towards accountability, first through the creation of the Myanmar FFM, and then subsequently, the Independent Investigative Mechanism for Myanmar (IIMM) (see discussion below). However, with Myanmar not having signed the Rome Statute, any venue for international prosecutions, whether in the ICC (outside of the limited jurisdiction the Court currently has) or through the creation of an ad-hoc tribunal, requires Security Council action.
In the past, this failure to act has been validated by arguments from Myanmar’s civilian government, as well as high level U.N. interlocutors, that pushes for international accountability would be unhelpful. In a striking part of her defense at the International Court of Justice (ICJ), State Counsellor Aung San Suu Kyi clearly stated this position, which has since been echoed by members of the civilian government, including in their representation at the United Nations.
Overall, whether represented by the previous civilian government or the junta, Myanmar has for the last decade failed to cooperate with international accountability mechanisms (apart from engaging with the ICJ case’s process) and utilized flawed domestic processes, such as the ICOE, to deflect the need for the international community to act. And for all too long, the Security Council has bought the message and failed to act. The international community’s failure to take any concrete action to meaningfully stem well-known and well-documented grave violations of international law is no less a measure of impunity than the specific provisions in the 2008 Constitution.
Existing International Accountability Efforts: An Incomplete Picture
Where impunity and autonomy were essential ingredients in enabling the ongoing crisis in Myanmar, the solution requires accountability. The Tatmadaw must know and see that there will be consequences for their actions – past, present, and future.
In 2018, the FFM concluded that “in light of the pervasive culture of impunity at the domestic level, the mission finds that the impetus for accountability must come from the international community.” The coup has only further underscored this conclusion.
To be fair, segments of the international community have done more to seek accountability in Myanmar than in most other atrocity situations. To date, there are four ongoing international efforts: (1) the ICJ has an ongoing case brought against Myanmar by The Gambia under the Genocide Convention; (2) the ICC has an ongoing investigation into crimes occurring in Rakhine state leading to forced migration across the border into Bangladesh; (3) the U.N. Human Rights Council-mandated IIMM is investigating serious violations of international law occurring in all parts of Myanmar since 2011; and (4) a universal jurisdiction case focused on crimes against the Rohingya is in its beginning stages in Argentina.
However, these efforts are not a panacea, whether taken individually or collectively. The ICJ case only covers state responsibility for genocide, not individual criminal accountability, not to mention the fact that genocide cases in the Court do not have a great track record of success. The ICC’s jurisdiction is limited because Myanmar is not a State Party to the Rome Statute; the Prosecutor can only investigate crimes with at least one element occurring in a State Party like Bangladesh. The IIMM does not have a standing venue to hear the case files it builds, meaning that there is no specific judicial body to try persons responsible for international crimes or on which the IIMM could rely to issue orders that would move its investigations along. While the IIMM could cooperate with many different judicial bodies under its mandate, the current jurisdictional options are so limited that widespread evidence collection efforts could be for naught. Similarly, Argentina’s universal jurisdiction case faces the typical political and pragmatic obstacles to progress, including the limited ability to arrest and bring any perpetrators to trial in the country. In addition, aside from the IIMM, these cases are limited to accountability for past crimes connected to the Rohingya genocide – which would exclude the potential to investigate the litany of human rights violations, including potential crimes against humanity, that have characterized the military’s brutal responses to nationwide protests since the coup, as well as the decades of war crimes and crimes against humanity committed against ethnic groups.
In the wake of the coup, accountability, in particular a Security Council referral to the ICC, has been a common ask of the civil disobedience movement (CDM), as well as domestic and international civil society. And yet, despite its importance to ending the current crisis in Myanmar, except for efforts by the IIMM and civil society to document ongoing abuses, enabling accountability has been virtually nonexistent in ongoing conversations on international action in response to the coup.
Closing the Domestic and International Accountability Gaps
Fortunately, there are solutions that could close gaps in the existing patchwork efforts. Most obviously, the U.N. Security Council could follow its own precedent in Sudan and Libya and refer the situation dating back to 2002 to the ICC. Short of ICC jurisdiction, the U.N. Security Council could follow other Security Council precedents and establish a special criminal tribunal as happened in Rwanda and the former Yugoslavia. In addition to these possible paths to individual criminal accountability, Member States of the Genocide Convention should work with The Gambia to support its case at the ICJ through formal intervention or other means.
There is no question that international action is required; however, these efforts could be bolstered by concrete action by the CRPH/NUG to show that they reject the hostile postures of the previous civilian government with regards to accountability and take steps to support international accountability. For example, the CRPH/NUG could announce their acceptance of ICC jurisdiction under Article 12(3) of the Rome Statute with respect to the situation arising from the coup (they should ideally accept the Court’s jurisdiction dating back to 2002), which is reportedly already on the table. The CRPH/NUG could also commit to cooperation with the IIMM and the ICC in their ongoing investigations. At the moment their power to take these actions remains uncertain; however, the value of these actions could signal an important shift from the NLD’s past stances and demonstrate genuine commitment to justice and accountability.
These suggestions are not made in ignorance of the complex political dynamics that stand as obstacles to these solutions. However, it is important that perceived political barriers are not used to eliminate options before they are even considered, and even more so when those options are grounded firmly in international law – in this case international human rights and criminal law and precepts like the Responsibility to Protect.
In addition, these options are not merely the typical shopping list of accountability mechanisms, but rather reflect some of the core demands of Myanmar’s civil society, including ethnic groups. In fact, for years before the coup, women’s civil society groups had been calling for international action to hold the military accountable. International and domestic impunity has prolonged decades of ethnic conflict, impeded peace, and stood in the way of democratic transition in the country. As the people of the country coalesce around a new vision of a federal, multi-ethnic nation, holding accountable those who committed horrific crimes against the populace and preventing them from holding future positions of power can help to make this vision a reality.
The U.N. Security Council has met in closed-door sessions five times since the military seized power, agreeing to three consensus statements. And just like every other meeting that has been held on Myanmar since 2017, the Council has failed to act. It is clear now, over three months into the coup, that words of condemnation, however strong, have had little to no influence on the Tatmadaw. There is a real need to take actions that create clear consequences and can have a deterrent effect on the military.
Since the early days of the coup, the people of Myanmar have consistently put their hope and trust in the international community to stand with them, take steps to bring an end to the crisis, and work to establish a full and free democracy in the country. With 781 people killed, 4916 arrested and 3843 currently detained on spurious charges as of May 10, the need for the international community to do so could not be more urgent. The tools of international diplomacy and non-military intervention – including the above-mentioned interventions for accountability as well as arms embargoes and targeted sanctions – should be immediately deployed. These tools, among others, can show Min Aung Hlaing and the Tatmadaw that while they may be above the law in Myanmar, they are not above international law.
Grant Shubin (@Grant_GJC) is Legal Director at The Global Justice Center (GJC). Shubin holds expertise in international law and conflict resolution and supports all of GJC’s legal projects with research, writing, editing, and coordination. He has contributed to GJC’s shadow report submissions to human rights treaty bodies, as well as legal briefings to the Human Rights Council, the UN Secretary General, the Special Rapporteur on Sexual Violence in Conflict, the International Criminal Court, the European Commission and European Parliament, and various national level policymakers. He has been published and spoken on international legal issues ranging from the human rights implications of identity politics and the law governing peace agreements.
Akila Radhakrishnan (@akilaGJC) is the President of the Global Justice Center, where she directs GJC’s work to establish legal precedents protecting human rights and ensuring gender equality. Akila leads GJC’s efforts to ensure justice and accountability for the genocides of the Yazidi and the Rohingya. She has authored numerous reports and provided legal expertise to domestic and international stakeholders and policymakers, including the International Criminal Court, the United Nations, and the European Union. Akila received her J.D. from the University of California, Hastings and holds a B.A. in Political Science and Art History from the University of California, Davis.