Mizzima
In committing widespread human rights violations against the population, Tatmadaw generals have abdicated their sovereign responsibility to protect the people of Myanmar.
As people displaced by post-coup crackdowns move into multi-ethnic areas, it is falling to Ethnic Armed Organisations (EAO) to uptake the responsibility to protect those within their territorial reach as best they can. However, as intensifying armed conflict, including Tatmadaw jet bombings of villagers, destabilises these areas further, their capacity to protect diminishes. The Rohingya, already having experienced genocidal attacks, this round since 2017, face even more precariousness.
Many international actors have responded to protestors calls for R2P action. Amongst these are Gareth Evans, co-author of the R2P (21 March); Alice Wairimu Nderitu, United Nations Special Adviser on the Prevention of Genocide, and Michelle Bachelet, the High Commissioner for Human Rights, on the situation in Myanmar (28 March); The Global Leadership Foundation consisting of 45 former heads of state and senior ministers (29 March); Youth for Atrocity Prevention in the Asia Pacific (25 March); the Global Centre for R2P (constantly) and Naoimi Kikloar, Director, Simon-Skjodt Center for the Prevention of Genocide at United States Holocaust Memorial Museum (1 April).
The New York-based non-government organisation leading R2P monitoring and advocacy, the Global Centre for the Responsibility to Protect (GCR2P), wrote on 17 March, “It is essential that the UN Security Council, as well Myanmar’s neighbours and all governments around the world, heed the pleas of the people in Myanmar and address the threat of further crimes against humanity.’
At the 1 March launch of the Special Advisory Committee on Myanmar (Sac-M), Yanghee Lee, co-founder and former Special Rapporteur on the situation on human rights in Myanmar said, ‘What we are seeing is definitely crimes against humanity committed by security forces against its own people.’ Joining Lee on this highly credentialed committee is Marzuki Darusman and Chris Sidoti, former members of the UN Independent International Fact-Finding Mission on Myanmar.
What are Crimes against Humanity?
Crimes against Humanity are defined as certain crimes committed purposefully as part of a widespread or systematic state policy directed at civilians in war time or peace.
Unlike genocide and war crimes, there is no treaty dedicated to the codification of crimes against humanity – although there is on-going work to do so. Rather their definition is evolving as part of customary international law. Today, cases of crimes against humanity are brought against individual state actors (not the institution) and are investigated and tried by the ICC.
There is no complete or definitive list of these certain crimes. However, the Rome Statute lists eleven types which, in summary, include: murder; extermination; enslavement; deportation or forcible transfer of population; imprisonment; torture; sexual violence; persecution against any identifiable group; enforced disappearance of persons; the crime of apartheid and other inhumane acts intentionally causing suffering, serious injury or death.
Crimes against humanity must be proven to be ‘widespread.’ According to a 2007 legal document on the United Nations Residual Mechanism for Criminal Trials website, ‘widespread’ refers to ‘the large-scale nature of the attack and the number of victims.’
The same document also defines the term ‘systematic’ as referring to ‘the organised nature of the acts of violence and the improbability of their random occurrence.’ As it further explains, ‘patterns of crimes – that is the non-accidental repetition of similar criminal conduct on a regular basis – are a common expression of such systematic occurrence.’
R2P in Practice
R2P is intended, as Evans once wrote, to fill in the space between ‘Doing Nothing and Sending in the Marines.’ R2P were clear from the beginning that R2P was not shorthand for armed intervention.
Evans stressed that we must ‘accept coercive military intervention only as an absolute last resort, after a number of clearly defined criteria have been met, and the approval of the Security Council has been obtained.’ Rather, Evans explained, aim of R2P is to ‘pressure to change the cost-benefit balance of the regime’s calculations.’
A Framework for Action
R2P provides a framework for employing measures that already exist in international politics to put sufficient pressure on aberrant state actors to cease their criminal behaviour. Actions can be economic (incentives and sanctions); diplomatic (sanctions and isolation); legal (arbitration, threats of referral to the ICC) and political (mediation, sanctions) in nature. All these actions are also available to the UNSC and can enforced invoking Chapter VII of the UN Charter.
Actors involved in R2P responses include any organisation, corporation or institution with significant political, economic and/or security relationship with the Myanmar Government, military junta and key individuals within both. The government, Tatmadaw and key individuals are today enmeshed in a richer web of relationships than 10 years ago, providing increased leverage for exerting pressure than existed in the past. The kind of action taken is determined by the nature of the relationship.
The United Nations System, particularly UNSC, is the most important body to exert pressure on a state actor to cease violence against citizens. Other UN offices, agencies, commissions, envoys, rapporteurs, courts, and mechanisms play important roles in advocating for UNSC action and other measures. As Myanmar’s regional body, ASEAN play particularly important role in R2P processes due to its deeper inter-connectedness with the government apparatus.
Additional pressure is brought to bear by global financial institutions such as the World Bank Group, International Monetary Fund and Asia Development Bank; states with strong bi-lateral relations such as China, Japan, Singapore and India and multi-lateral corporations in various sectors including mining and energy, banking and manufacturing. Global advocacy groups such as the Global Centre for the Responsibility to Protect, Amnesty International and Human Rights Watch and civil society groups, both Myanmar- and issue-focussed- play crucial roles in amplifying R2P calls and suggesting appropriate actions.
Challenges for R2P
Despite its strong initial reception, however, R2P faces several challenges in this regard. First, for actors to respond, the principle must be widely accepted as convincing way of justifying and mobilising action. Like a muscle, it must be used until it becomes a strong – indeed normal – part of international practice.
Regrettably, R2P has met resistance due to many states’ continuing hard-line adherence to the principle non-interference. Many Asian states, for example, have never engaged meaningfully with R2P. Indeed, ASEAN has shown little appetite to act based on R2P in the past.
Second, international actions undertaken in the name of R2P, including in Kenya (2007-8), Ivory Coast (2011), Libya (2011), Central African Republic (2013), Syria (2001) have had mixed and sometimes controversial results including becoming tainted with ulterior political agendas. Consequently, R2P’s reputation as a basis for action has lost some of its shine.
Third, there is sometimes an expectation that making a call for protection based on R2P is sufficient to trigger immediate and satisfactory international responses. Also, a lack of action is often attributed to a lack of political will. Unfortunately, R2P has never reached the status of an internationally reflex response. As Evans writes, ‘political will is not a missing ingredient, waiting in each case to be found if we only had the key to the right cupboard or lifted the right stone. It has to be painfully and laboriously constructed, case by case, context by context.’ Myanmar’s current context has great R2P clarity.
Perhaps the most important function of R2P is as a rallying cry in the face of mass atrocities. Clear, concise, and unmistakable in its meaning, R2P communicates with very little space the essential action required by all actors at all international, national, global, and local. These are three powerful alphanumeric characters.
And the call is being heard and amplified by many in the international community. In a message to the UNSC and wider international community, Evans said, ‘a timely R2P response to the military junta’s crackdown in Myanmar is as critical as it was in the early stages of the Libya and Syria conflicts.’
The prospects for success for the people are far greater than in any of the earlier R2P cases mentioned above. Myanmar has an alternative government which enjoys overwhelming international support. People have seen it in action, have twice voted for it, and are demonstrating how much they want it back. The alternative threatens progress at home and in the region.
