Episode #240: Beyond Impunity
“I'm from London, and my background is in human rights and international law, and for the better part of the past ten years, my work in human rights has focused directly on Myanmar.”
This episode features Isabel Todd, currently a coordinator of the Special Advisory Council for Myanmar (SAC-M), who discusses her background in Myanmar and current advocacy work.
In 2015, Todd worked on the Thai-Myanmar border, a very exciting time for human rights defenders, as the civil society space was rapidly expanding. Then in 2018, she was hired as a research assistant to the Yanghee Lee, the UN Special Rapporteur. After having been banned from Myanmar by the NLD, Lee’s team was crafting the UN’s response to the Rohingya genocide, and they coordinated with the Human Rights Council, which was then engaged in a parallel, fact-finding mission. “It was felt that the impunity that the military had enjoyed for so long, and that as long as that was allowed to continue, these utterly devastating cycles of violence would not only continue, but likely get worse,” she says. They believed that sustained, coordinated pressure would be needed to bring those generals and their cronies to justice and in 2019 they began having targeted discussions about it; in fact, that was the real impetus for the formation of SAC-M. Their mission to support the people of Myanmar is three-fold: providing strategic advice to democratic actors; advocacy on behalf of the democratic movement; and communication updates and analysis to keep the wider public informed. And though the pandemic halted the team’s momentum, the 2021 military coup re-ignited their resolve. She describes their various efforts (and associated challenges) in this interview.
First, in light of increasing, post-coup violence, SAC-M has pressed forward with trying to ensure that those responsible for human rights violations are held accountable. Todd believes that ideally, justice should be delivered through domestic courts; however, in Myanmar, the justice system is currently incapable of acting independent of military control, and it lacks the capacity to handle the large volume of cases that would be necessary to establish a just system. The other avenue is through international courts. One possibility is the International Court of Justice (ICJ. In line with this, she points to Gambia’s claim in the) that alleges that Myanmar violated its obligations under the Genocide Convention in its treatment of the Rohingya people. However, that case does not seek to hold individual military leaders accountable, which is SAC-M’s and the Burmese people’s goal, but rather aims to determine Myanmar's responsibility as a state under international law. Therefore, while the ICJ can deliver a significant judgment regarding state responsibility, it is not equipped to directly address individual accountability for the atrocities committed.
Another venue is the International Criminal Court (ICC), which does have the authority to initiate proceedings against individuals for war crimes, crimes against humanity, genocide, and crimes of aggression, as defined by the Rome Statute, the treaty that established the ICC. However, Todd points out a significant limitation: Myanmar never ratified the Rome Statute, which means that the ICC does not have jurisdiction over crimes committed within Myanmar. But she notes an exception that has allowed the ICC to exercise limited jurisdiction: the cross-border nature of certain crimes against the Rohingya. Since these crimes involved deportation or forcible transfer of populations across the Myanmar-Bangladesh border, and Bangladesh is a signatory of the Rome Statute, the ICC has been able to claim jurisdiction over these specific actions. Seeking to rectify this bureaucratic holdup, the NUG (while not yet recognized as the official government of Myanmar) filed a declaration under Article 12(3) of the Rome Statute. This provision allows states not party to the Rome Statute to accept the ICC’s jurisdiction on an ad hoc basis. The NUG did this in mid-2021, potentially enabling the ICC to investigate crimes committed in Myanmar dating back to 2002, including post-coup events. However, the ICC did not respond as many would have hoped, as they chose to not expand its investigation. Todd notes an overall discomfort about the willingness to state that the NUG has the legal authority to act on behalf of Myanmar as the cause for their reluctance.
This directly connects to the broader “legitimacy” debate that has been raging for over three years now across the international community with regard to Myanmar, which is: Who should be recognized as officially representing that nation? Todd stresses that whatever decision the ICC makes concerning the NUG has to have international “standing.” That’s why the ICC was looking to the ICJ case to see what their decision would be regarding the formal recognition of NUG’s legitimacy. Todd notes that unfortunately, the ICJ not only did not give the NUG a voice at their proceedings, but they in fact allowed someone from the military to represent Myanmar’s case, which she labels “disastrous.”
Todd points out that there are two factors that complicate the ability to reach a general, international consensus about the NUG. The first is that individual nations make their own decisions about recognition; international bodies do not make these decisions for them. The second is that actually, nations most typically recognize a country as a whole, rather than the government that happens to be in power at a given moment in time specifically. But the on-the-ground policies of nations, not to mention the functioning of international courts and arbitrations, have to deal with the particularities of governments. So in disputed situations like Myanmar’s, where the claim is that the nominal government in power—the junta—is illegitimate, and the government-in-exile—the NUG—is the true representative of the people, it’s sort of like everyone is waiting for others to make the first move, which no one has yet done. While she understands the dynamics at play here, Todd nonetheless expresses frustration with the lack of resolve shown by countries regarding the NUG, as she feels the situation is quite clear. “The wariness on the part of the international community to recognize the NUG for what it is, the most legitimate representative of the Myanmar people, denies Myanmar people a voice on the international stage when they need it the most!” she says.
Todd next moves on to discuss other UN organs that have the authority to take action against the junta. The Independent Investigative Mechanism for Myanmar (IIMM), established in 2019 by the United Nations Human Rights Council, is charged with collecting evidence and preparing case files related to allegations of international crimes committed by military leaders in Myanmar. The IIMM is charged with gathering evidence and maintaining case files in anticipation of a future jurisdiction where prosecutions could occur. It mirrors a model previously established by the UN General Assembly for Syria, and represents a significant step by the Human Rights Council in addressing international crimes. Yet while it can pass resolutions and establish mandates and mechanisms, it does not have the power to enforce its decisions.
Another UN initiative is the Responsibility to Protect (R2P), a principle that affirms existing international obligations to protect populations from severe human rights violations when their own governments fail to do so. R2P does not create new legal obligations, it merely emphasizes the international community's duty to intervene, potentially even with military action, though Todd says this drastic step is rarely desirable, and that more preferable actions are coordinated arms embargoes, sanctions, etc. Like many, including R2P expert Liam Scott, Todd feels strongly that the international community's response to the crisis in Myanmar has been insufficient, and that it has not lived up to its obligations under R2P despite the clear calls for help from within Myanmar during the post-coup protests in 2021. Interestingly, Todd notes that the Security Council actually has the power to refer a situation to the ICC even if the country in question hasn't ratified the Rome Statute. Doing so would grant the ICC jurisdiction because their charge is to protect civilian populations; this is part of the R2P framework. But, alas, the Security Council has also not moved forward to even consider such steps.
After seeing how one international organization and statue after another has failed to protect the Burmese people, it can be hard to have faith going forward, and Todd does not mince words with her own frustration. “People in Myanmar should feel incredibly disappointed with the international system,” she says. “The word we used was ‘betrayed.’ People should feel betrayed, because the promise of the international system, and what it stands for, has been betrayed in Myanmar.” She also points out that it may be worthwhile to honestly reflect on the reality of the United Nations. “As much as it stands on certain principles, it still simply just reflects the power dynamics that exist globally.” This is where SAC-M acts in its advocacy role, using its reporting and influence to try to remind (and at times push) the international community to be on the right side of history as the crisis in Myanmar wages on. “That is what we do, and we hope that we can make progress over time.”
One of the important tasks SAC-M has undertaken in the service of its advocacy role is how it has set about to create a map illustrating the various degree of control by different actors, and Todd describes what led to this project. “What we were met with [after the coup], which really floored us, actually was this sense of inertia and complacency from the international community. Basically, when we tried to understand it, it seemed to be based on this completely, frankly, lazy assumption, that, ‘Okay, there was a coup, there were some protests. But now the military has quashed those, and it may not be legitimate, but you don't have to be legitimate to be considered a government. It's the de facto government on the basis that it is in effective control of the country. There's not a lot we can do about it. We're back to the 1990s and the 2000s in Myanmar, the military dictatorship. So we'll just not engage directly for a few years, and then hope that things change in a decade or so.’” Alarmed that this response would embolden the junta’s ability to retain power, SAC-M went about creating a map that would clearly illustrate the degree of control by various actors. “The basis for being a de facto government is that you have effective control of the country, as the government. And we were confident that [the military] did not, but we had to set about showing that.”
The task was challenging. First, the SAC-M team had to set the criteria for determining what "effective control" even means in the context of an entity claiming to be the de facto government. For this, they referenced a pivotal 1923 arbitration case between Great Britain and Costa Rica, a case that is often cited when trying to define what constitutes “effective control.” Based on that, they created their map based on the following criteria:
· Control of Territory: An entity must control some territory, but not necessarily all or even most of it. It cannot be completely outside of the country it claims to govern.
· Control of the Population: The population must, by and large, accept the entity as the government. This acceptance does not require approval or democratic mandate; it can even be under duress. The entity may enforce acceptance through authoritarian means.
· Capacity to Administer Government Functions: The entity must have the capacity to perform governmental functions beyond merely occupying territory. This includes being able to manage day-to-day governance and administrative duties effectively, particularly in ways that affect the local population's daily lives.
· Degree of Permanency: The entity’s control must show some degree of stability and permanency; it cannot be fleeting or merely temporary.
SAC-M’s unambiguous conclusion was that the military does not meet these criteria, particularly re controlling the population and administering government functions effectively. In the areas they “control,” there is significant resistance and alternative governance structures being established by the population.
However, to be really accurate, their map had to reflect the dynamism of the rapidly changing situation there; Nathan Ruser pointed out in a previous episode how challenging it can be to track the unconventional conflict being waged in Myanmar. “If you look at the scale, there's a sense of movement, even in the legend,” she says, adding that this also shows a clear “trajectory that was in favor of the resistance.” By creating a “heat map” that applied a scale—from full junta control at one end to full resistance control at the other—to each township in the country, a very fluid picture was captured, but still one where “we were able to say conclusively that the military could not be considered a de facto government because it did not meet those criteria across enough of the country.” Additional criteria they hope to include in future maps may track rivers and roads, and show whether the regime is able or unable to resupply their battalions, which would visually illustrate the military’s problems with supply lines (an issue that Zach Abuza also addressed in a recent episode).
At the same time, she acknowledges that few places are under the firm control of the resistance, either, given the overwhelming superiority of the military’s air force, which runs an average of 70 airstrikes per day! Todd believes that they are able to continue doing so points to the absence of any effective sanctions being placed on incoming jet fuel, a topic taken up by Montse Ferrer in a previous episode. Nonetheless, despite the military’s far greater armed capability, they are still losing control steadily across the map. “It's so important to look at this beyond purely military terms, because this isn't a civil war. This is an uprising,” she says, echoing the words of security analyst Anthony Davis. “It's a revolution to rebuild what Myanmar is, and that's already happening! The sort of foundations of the federal democracy that will be established in the future, are already being built at that community and township level. This is an uprising that people are willing to happen, and there are acts of resistance that are taking place every day that aren't necessarily seen, but what's very clear as people are actively opposed to the junta.”