Responding to Myanmar’s Junta: An Alternative to Sanctions and Boycotts
By Bertil Lintner 11 May 2021
It has long been argued that sanctions against rogue regimes such as Myanmar’s military dictatorships are ineffectual and may hurt ordinary people more than those responsible for the acts that made outside powers take action against them. That would also apply for so-called “smart sanctions”, which in the case of Myanmar would mean freezing the generals’ non-existent foreign bank accounts or barring entry to Western nations they have no intention of traveling to. And any attempt to bring the generals to face charges at the International Criminal Court (ICC) or the International Court of Justice (ICJ) are bound to fail because China and Russia would block necessary UN Security Council resolutions for the latter to enforce any verdict the court may pass and Myanmar is not a signatory to the Rome statute which created the former.
But there is a new kind of action that may actually work: to bring prosecutions against named individuals in countries such as the United Kingdom, Germany, the Netherlands and Sweden. Called the Myanmar Accountability Project, or MAP, it was launched in the UK after the Feb. 1 coup at the initiative of Christopher Gunness, a former BBC correspondent who covered the 1988 pro-democracy uprising in Myanmar and later became a UN official working in the Middle East. Section 134 of the UK Criminal Justice Act of 1988 establishes universal jurisdiction over cases that may be filed in the UK or wherever the alleged offense was committed. According to a statement issued by MAP, “The provisions enact the UK’s obligations under the UN Convention against Torture (UNCAT), specifically the obligation to extradite and prosecute, in Article 5 of UNCAT.” Working with Gunness are three legal experts: Tatyana Eatwell of Doughty Street Chambers in London and an expert in public international law, Michael O’Kane, a senior partner at Peters & Peters solicitors in London, and Damian Lilly, a protection and human rights expert with more than 20 years’ experience working with the United Nations.
Behind the legalese and expertise lies a simple concept: “The generals are being scrutinized on many fronts, not least because the criminal acts they ordered are being widely shared online. We can see their insignia on the uniforms and we understand the chain of command. They can run, but they can’t hide in this digital age,” Gunness told The Irrawaddy.
The first test case was filed at the beginning of May against the junta’s attempts to remove U Kyaw Zwar Minn, Myanmar’s former ambassador to London, from his residence. He went public with his support for Myanmar’s civil disobedience movement, and was subsequently fired by the junta. The plan is to persuade an English court to rule that the junta is illegitimate and has no legal standing. Peters & Peters sent a letter to the junta-appointed successor U Chit Win warning him that any attempt to evict U Kyaw Zwar Minn would be unlawful and “any attempt to secure access to any part of the property will be reported immediately to the police.”
The next step, according to Gunness, will be to go after those who are committing atrocities: “And that will be done whether it’s the torturers in detention centers, the snipers shooting demonstrators in the head or the commanding officers that gave the orders.”
It remains to be seen how—and if—the perpetrators can be more than exposed on social media and face justice in foreign courts. There is nothing in international law that prohibits solicitors in the UK from investigating such atrocities and UK courts from prosecuting them. They will be named, shamed and convicted, which will make it difficult for them to travel to any country that has an extradition treaty with the UK, or any other country where similar verdicts have been passed. Red alerts issued by Interpol could also be a legal consequence of such lawsuits.
A legal precedent can be found when the ousted Chilean dictator Augusto Pinochet was arrested in the UK in 1998 on the same principle of universal jurisdiction which the MAP refers to. He spent two years under house arrest in a resort outside London while awaiting extradition to Spain, where he had been indicted. Because of his advanced age—he was in his early 80s—he was not seen as fit to stand trial, and was sent back to Chile in March 2000.
Currently, 25 junta leaders and other military officers have been identified and sanctioned by the European Union for what it has termed “serious human rights violations and abuses”, among them Senior General and coupmaker Min Aung Hlaing, his deputy Vice Senior General Soe Win, Defense Minister General Mya Tun Oo and Lieutenant-General Than Hlaing, who in mid-April took part in a video conference organized by the United Nations Office on Drugs and Crime (UNODC). On Feb. 2, Lt-Gen Than Hlaing was appointed deputy minister of home affairs and chief of police and as such has overseen the crackdown on the civil disobedience movement and the killings of hundreds of pro-democracy demonstrators.”
That resulted in a storm of protests from pro-democracy organizations all over the world, who also pointed out that UNODC has a long history of turning a blind eye to official complicity in the trade and that the outfit’s annual opium surveys often distort the realities in the poppy growing areas. Its 2019 survey claimed that opium production had increased in areas controlled by the rebel Kachin Independence Army while independent sources refuted such claims, pointing out that the local drug trade in Kachin State was and is run by local militias allied with the Myanmar military.
Such bias makes it difficult for any international sanctions to be effective, as it would be seen as if a UN organ is legitimizing the junta in Naypyitaw. Other UN agencies on Myanmar are also said to be negotiating with the junta-appointed government, which is against the advice of the UN Secretary-General’s own adviser not to legitimize or recognize the coup regime. But lucrative jobs are at stake, and money is also the reason why international oil companies are lobbying against sanctions.
Van Tran, a researcher on social movements in Myanmar at Cornell University in the US wrote for the Brookings Institutions’ website on Feb. 9 that Western sanctions have “not and will not propel Myanmar’s military dictators toward democracy” because “Myanmar’s neighbors in Asia are sure to continue prioritizing economic engagement, regardless of Myanmar’s political circumstances.”
In 2008, when Myanmar was ruled by another junta, the US Congress passed the most extensive sanctions ever, called the Block Burma Jade (Junta’s Anti-Democratic Efforts) Act, which prohibited the importation of gemstones from Myanmar even through third countries. Precious stones were seen as a major source of revenue for the then junta, the State Peace and Development Council, and the aim was to cut its economic lifeline. But most of Myanmar’s economy does not show up in official statistics and monetary transactions are mostly carried out through an informal, underground transmittance system known locally as “hundies”—and that includes money transfers between Myanmar, Singapore, Thailand and other countries in the region. The Myanmar military has always managed not only to survive but also to prosper when Western sanctions have been imposed on their businesses.
MAP’s initiative may therefore make a difference because it avoids all those unseen transactions and official trade channels that are associated with sanctions and focuses on individual officers who have committed crimes against humanity—and does so outside of cumbersome ICJ and ICC bureaucracies. The campaign may not force the generals to reverse the coup, but it will deprive the worst offenders in the leadership of legitimacy and, perhaps, prompt some elements within the armed forces to question the wisdom of supporting the current order.
Correction: The previous version of this story misstated the year of the UNODC survey. It has been updated to reflect the correct year.
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