The Pitfalls of International Justice in Myanmar

Recent Features

ASEAN Beat | Politics | Southeast Asia

The Pitfalls of International Justice in Myanmar

Will threats of international criminal prosecutions against the junta’s leaders make compromise more likely – or less?

The Pitfalls of International Justice in Myanmar

The International Criminal Court building in The Hague, Netherlands.

Credit: Flickr/Roel Wijnants

Today, a group representing Myanmar’s ousted civilian government announced that it had gathered 180,000 pieces of evidence of rights abuses by the country’s military junta, with which it hopes eventually to press criminal cases against high-ranking generals.

The announcement was made by the Committee for Representing Pyidaungsu Hluttaw (CRPH), a group of parliamentarians from the National League for Democracy government that was ousted on February 1, an event that has plunged the country into crisis.

“CRPH has received 180,000 items of evidence. This evidence shows wide scale abuses of human rights by the military,” the group said in a short statement posted on social media. These include more than 540 extrajudicial executions, 10 deaths of prisoners in custody, torture, illegal detentions and disproportionate use of force against peaceful protests.

In the nine weeks since the military’s seizure of power, the Assistance Association for Political Prisoners claims that at least 581 people have been killed by the security forces, a number that it admits is probably an underestimate.

The CRPH, which forms the nucleus of the parallel government that has emerged in opposition to the military junta, said its lawyers were scheduled to meet today with officials from the U.N.’s Independent Investigative Mechanism for Myanmar (IIMM). The statement said that the meeting was “intended to discuss the modalities of dialogue and cooperation between Myanmar (acting through CRPH) and the IIMM in relation to the atrocities committed by the military.”

The IIMM was set up by the U.N. Human Rights Council in 2018 to probe the Myanmar army’s brutal campaign against the Muslim Rohingya communities of Rakhine State in the country’s west, which drove more than 700,000 people over the border into Bangladesh. The IIMM is mandated to collect evidence of the most serious international crimes and violations of international law and prepare files for an eventual criminal prosecution of those deemed responsible.

The CRPH’s announcement incarnates a hope that if and when the junta has been forced from power, there will be sufficient evidence to charge senior leaders with the atrocities that they have committed since the coup, to say nothing of earlier crimes. This raises the possibility that perpetrators of grave crimes will be held accountable to the victims and their families, whether in domestic courts or international organs such as the International Criminal Court (ICC).

While such evidence opens the way to justice at some undefined point in the future, it also conjures up a difficult near-term question: whether working for justice now will further complicate the pursuit of victory by Myanmar’s protest movement, and whether threatening the persecution of the junta’s leading members with prosecution might make them less likely to compromise or accept defeat.

This is a moot point for now, given that there is little indication so far that Myanmar’s junta is willing to compromise or bend to the will of the protest movement. But with the CRPH and its parallel national unity government facing an uphill march against its well-armed and ruthless adversary, there are reasons to question the wisdom of preemptively closing off any escape routes for the junta’s leadership.

As such, the CRPH’s legal push encapsulates a common shortfall of international criminal mechanisms, which offer a weak deterrent to the commission of atrocities in the first instance, while sometimes remaining threatening enough to act as a disincentive for abusive leaders to loosen their grip.

Indeed, some observers have argued that a threat of an ICC referral should be among the coercive tools employed by the U.N. to pressure the junta, without apparently pausing to ask whether threatening Sen. Gen. Min Aung Hlaing and his cronies with a cell in The Hague is more likely to make them capitulate, or less.

The peaceful resolution of conflicts and civil wars very often require messy political compromises. To take one notable example, the victory of the People Power Movement in the Philippines in 1986 rested on the United States’ willingness to allow Ferdinand Marcos safe passage to Hawaii. (The U.S. Air Force even provided a C-130 transport plane to bear off Marcos, his family, and their hauls of ill-gotten booty into exile.) Absent that guarantee, and threatened with the prosecution that he very clearly deserved, things may have turned out differently.

To be sure, no two cases are exactly alike, and in each instance the pursuit of justice and peace will align to a greater or lesser extent – but a neat convergence of the two aims can’t ever be taken for granted.

Myanmar’s struggle has a long way to go, and its ultimate outcome is uncertain. If it eventually terminates in a restoration of civilian government and some modicum of democratic rule, there is a high likelihood that the journey will have involved its share of uncomfortable trade-offs and compromises.