Populations in Myanmar are facing crimes against humanity and war crimes perpetrated by the military following the February 2021 coup.

BACKGROUND:

On 1 February 2021 Myanmar’s (Burma) military – the Tatmadaw – led by Commander-in-Chief Min Aung Hlaing, overthrew the country’s civilian-led government and declared a state of emergency. Since then, hundreds of thousands of people have participated in peaceful protests and strikes against the re-imposition of military rule, while numerous civilian militias – known as People’s Defence Forces (PDFs) – have also formed as part of an armed resistance. Several UN officials and entities, including the Special Rapporteur on the situation of human rights in Myanmar, Tom Andrews, and the Independent Investigative Mechanism for Myanmar (IIMM), have said that abuses committed by the military since the coup likely amount to crimes against humanity and war crimes.

Over 3,000 people have been killed by the security forces since February 2021, and more than 16,000 people remain detained for resisting the coup, according to the Assistance Association for Political Prisoners. The military has charged members of the National Unity Government (NUG) – a coalition of democratic opponents formed in opposition to military rule – with high treason and pronounced that the NUG and PDFs are terrorist organizations. The military has also widely used internet shutdowns to limit communication and access to information. In June 2021 the UN General Assembly adopted a resolution calling for the immediate release of all political detainees and for all member states to prevent the flow of arms into Myanmar. At least 1.1 million people have been displaced since the coup, particularly in the northwest and southeast. An estimated 17.6 million people need humanitarian aid.

The Tatmadaw has targeted civilian areas with airstrikes, scorched earth campaigns and other attacks, particularly in the opposition strongholds of Magway and Sagaing regions and Chin, Kachin, Shan, Kayah and Karen states, resulting in civilian casualties and mass displacement. According to the UN Office for the Coordination of Humanitarian Affairs, an estimated 34,000 civilian properties have been burned or destroyed since the coup.

Myanmar’s armed forces previously ruled the country from 1962-2011, overseeing the violent repression of the democracy movement and waging war against several ethnic armed groups in many of the same areas that it continues to attack today.

A number of governments have imposed targeted sanctions or suspended development funds in response to the coup. The Republic of Korea restricted military exports and suspended defense exchanges. Oil conglomerates TotalEnergies and Chevron announced in January 2022 their withdrawal over the human rights crisis.

In August 2017 the military launched so-called “clearance operations” in Rakhine State with the purported aim of confronting the Arakan Rohingya Salvation Army. During those operations the majority of Myanmar’s Rohingya population were forced to flee the country, bringing the total number of Rohingya refugees in Bangladesh to over 900,000 people. The estimated 600,000 Rohingya who remain in Rakhine State face severe violations of their universal human rights. In 2018 the UN Human Rights Council-mandated Fact-Finding Mission on Myanmar concluded that senior members of the military, including General Min Aung Hlaing, should be prosecuted for genocide against the Rohingya ethnic group, as well as for crimes against humanity and war crimes in Kachin, Rakhine and Shan states. In March 2022 the United States government determined that the acts perpetrated by the Tatmadaw against the Rohingya constituted genocide and crimes against humanity.

Numerous processes are underway to investigate and potentially hold perpetrators accountable of crimes against the Rohingya. This includes the IIMM, an International Criminal Court (ICC) investigation into crimes against humanity that may have resulted in the forced deportation of the Rohingya across the Myanmar-Bangladesh border, and a trial at the International Court of Justice (ICJ) initiated by The Gambia in November 2019, accusing Myanmar of violating its obligations under the Genocide Convention. Several states have announced their intention to intervene in the case, including Canada, Germany, the Netherlands and the United Kingdom (UK). Several cases have also been opened under the principle of universal jurisdiction, including in Argentina and Germany.

RECENT DEVELOPMENTS:

In December 2022 the UN Security Council (UNSC) passed a resolution — its first and only since the coup — condemning the human rights crisis and calling for political prisoners to be released. On 31 January Canada banned the supply of aviation fuel to Myanmar and the UK imposed sanctions against companies supplying Myanmar’s military with aviation fuel.

A January report by the Special Advisory Council for Myanmar, a group of independent international experts, found that dozens of companies in 13 countries are directly or indirectly assisting the junta by supplying materials to the Directorate of Defence Industries, a state-owned entity that produces weapons for the military.

Meanwhile, the military is preparing for so-called elections in August and is taking steps to block opposition parties. Special Rapporteur Andrews has warned that the elections will not be free or fair and urged the international community to denounce them.

ANALYSIS:

Impunity for past atrocities, including the Rohingya genocide, has enabled the military to continue committing widespread and systematic human rights violations and abuses against civilians, particularly those from ethnic minority populations.

The risk of further war crimes and crimes against humanity remains high as the Tatmadaw continues to target civilians and the armed resistance, including with airstrikes, scorched earth campaigns and landmines. The Tatmadaw’s reported use of surveillance technology and internet shutdowns appears to help facilitate the commission of atrocities and shield itself from accountability.

The UNSC has consistently impeded the international community from responding to or preventing atrocities in Myanmar. The only formal response by the UNSC to the genocide against the Rohingya was the adoption of a Presidential Statement on 6 November 2017 that stressed the “primary responsibility of the Myanmar government to protect its population.” Since the coup, the UNSC has only issued statements following private sessions and adopted one resolution. Regional bodies have also been ineffective. In April 2021 the Association of Southeast Asian Nations (ASEAN) agreed to a “Five-Point Consensus.” Despite the plan’s failed implementation, ASEAN continues to rely on the strategy as its main approach.

The coup and ongoing hostilities in Rakhine State complicate the prospects for the safe, dignified and voluntary repatriation of Rohingya refugees from Bangladesh. Given its history, the military is unlikely to address the denial of citizenship for the Rohingya since the 1982 Citizenship Law rendered most of the population stateless.

RISK ASSESSMENT:

• • Impunity for atrocity crimes enjoyed by the military.
  • A history of institutionalized persecution and discrimination against ethnic minority groups.
  • The military’s continued access to weapons, aviation fuel and money, providing the means to perpetrate atrocities.
  • Severely weakened state structures.
  • Escalating armed conflict throughout the country.

NECESSARY ACTION:

The UNSC should impose a comprehensive arms embargo and targeted sanctions on Myanmar and refer the situation to the ICC. China, Russia, Serbia and India must halt weapons transfers to Myanmar’s military. All UN member states, regional organizations and the UNSC should impose economic sanctions on Myanmar’s oil and gas sector, particularly the Myanma Oil and Gas Enterprise. States should also block the military’s access to aviation fuel and refuse to legitimize the upcoming so-called elections in August.

Foreign companies should immediately divest and sever ties with all businesses linked to Myanmar’s military, including the Directorate of Defence Industries.

ASEAN member states should condemn the Tatmadaw and increasingly engage with the NUG. The military junta should not be diplomatically recognized as the legitimate representatives of Myanmar.

More states, particularly Canada, Germany, the Netherlands and the UK, should formally intervene in the ICJ case. General Min Aung Hlaing and other senior military leaders who bear responsibility for atrocity crimes should face international justice.