Myanmar: What can the international community do?

Presentation to Webinar on Application of R2P in Myanmar, with Dr Sasa, Minister for International Cooperation in the National Unity Government of Myanmar, sponsored by Arakan National Rohingya Organisation (ARNO), recorded 19 April 2021

One of the most frustrating and depressing characteristics of the current 2021 crisis in Myanmar – just as it was with the terrible crackdown in 1988, and with the eruption of the Rohingya crisis in 2017 – is its demonstration that the Tatmadaw generals and the armed forces they command continue to live in a bubble: not the kind of bubble that can be burst with a pin-prick, but one more like a plexiglass shield, not very easily breakable at all.

It is a bubble which, internally, keeps the military culturally insulated and isolated from, and entirely lacking empathy with, the wider Myanmar community, as the generals make and play by their own rules, finding ways to continue to enrich themselves however much the economy as a whole might be suffering, and somehow persuading themselves that it is legitimate to slaughter their own people to stay in power. And it is a bubble which, externally, means that the military is comfortable in its isolation, utterly lacking in shame in the face of international condemnation, and quite habituated to ignoring the kinds of external economic and other pressures that have so far been applied to it.

The task for all of us – the internal opposition to the regime, now embracing almost the whole of Myanmar society and being led by Dr Sasa and his colleagues, and all those in the international community who have been appalled (and there are very few who have not been) by the February coup and the terrible violence that has followed – is to somehow break through that bubble around the military before the situation descends into even more catastrophic violence, making the more than 700 deaths of innocent civilians just the prelude to a total nation-wide bloodbath.

Internal Action. Internally, it is clear that some progress is being made, and that the bubble is at least starting to crack, if not yet break. The generals, it is now clear, utterly failed to anticipate the breadth and depth of the opposition to their coup throughout the country, and the extraordinary bravery of those in the streets who have continued to demonstrate and those in the civil service and key sectors of the workforce who have continued to stay on strike despite all the terrible violence, and threats of more, that has been thrown at them.

The Tatmadaw must also be acutely aware that many of the ethnic minority militias on its borders, including some of the most powerful, are now again showing more interest in reigniting civil war than in ceasefires. And, above all, it must also be dawning on the generals, as the economy spirals down into freefall, that the country is becoming completely ungovernable.

At the same time, the forces opposed to the military – initially struggling as their parliamentarians and other leaders were arrested or worse, or had to flee into hiding – have now found their coherence and collective voice, first through the establishment of the CRPH, and now the National Unity Government. The Tatmadaw can no longer even begin to claim that it is the only force capable of governing the country and stopping it becoming a failed state: there is an alternative, with real democratic credentials, ready and able to reassert its authority.

My own instinct is that it is this internal dynamic, now working itself out, which is ultimately more likely to determine the outcome in Myanmar than any external pressure, which pressure – it has to be acknowledged – has so far been much less strong and effective than all of us participating in this webinar would have hoped. To an extent greater than almost any recent conflict I can think of, it is the internal pressure building up – thanks to the bravery and commitment of people like Dr Sasa and the millions now supporting his government in waiting – which seems likely to matter most.

External Action. But that does not, for a second, mean that there is nothing more that can or should be done internationally. It is critically important that external pressure be sustained and increased, for two related reasons. First, to give support, encouragement and confidence to those inside the country that the rest of the world – or at least most of it – is behind them in their struggle. And second, to try to crack the bubble which has so far kept the generals isolated and insulated from, and unaffected by, not only the reactions of their own people, but by those of the wider international community as well.

What has to be created is an understanding by the coup leaders not only that things are now totally out of their control and they are utterly friendless internally, but that they are almost totally friendless internationally as well – and that unless they step back from the path they are on, they are going to suffer some real pain.

The starting point for mobilising international action must be, as the organisers of this webinar have made clear, and thousands of your fellow citizens have made clear by their banners and placards and candlelit and waterborne installations dramatically and movingly invoking it, ‘R2P’ – the Responsibility to Protect – the set of principles, unanimously endorsed by the world’s heads of state and government at the UN General Assembly’s special World Summit session in 2005, which make it clear beyond argument that countries like Myanmar can no longer shelter behind the notion that mass atrocity crimes being committed behind sovereign state borders are nobody else’s business.

On the contrary, despite the familiar rhetoric of ASEAN and so many states about non-interference in internal affairs, and despite the often-quoted language of Article 2(7) of the UN Charter that the world body should not intervene “in matters essentially within the domestic jurisdiction of any state”, the global community has now unanimously signed up to the proposition that should a state “manifestly fail” to protect its own people from genocide, ethnic cleansing, other crimes against humanity or war crimes, this is no longer a matter just of domestic jurisdiction but of international peace and security concern. In these circumstances, the 2005 resolution makes clear, it is the responsibility of the wider international community to “take collective action in a timely and decisive manner”, including – at the most extreme end of the reaction spectrum – through military intervention, but only if this is endorsed by the UN Security Council.

There can be no doubt whatever that what is now happening in Myanmar, just as what happened with the military’s assault on the Rohingya since 2017, is unequivocally in breach of the R2P norm. On any view, the Tatmadaw and the other security forces it directs have been, and continue to be, guilty of the most heinous crimes against humanity, and there is a profoundly real fear that even worse is to come.

So what does this mean in terms of available action options for the wider international community? Let me work through them, one by one

Military Force? As painful as this may be for some to accept, I think we have to begin by putting completely to one side the military intervention option, even if R2P does contemplate it, and even though the UN Security Council has specifically mandated it in the past, most obviously in the very similar case of one-sided violence against unarmed civilian protesters in Libya in 2011. There are three reasons why this is simply not a realistic option here:

• the UN Security Council, with China and Russia both wielding vetoes, will never agree to it;
• no country with any serious military capability, in the region or anywhere else, has shown any willingness to take up arms against Myanmar, with or without Security Council authorisation; and
• the prudential criteria which should govern any use of military force anywhere, not least the bottom-line requirement that any intervention to be likely to do more good than harm, weigh strongly against such intervention here (just as they did, quite apart from any other factor in play, in Syria) – the Tatmadaw would be a formidable opponent, enabling no easy disabling strike, and absolutely guaranteeing a protracted and very bloody war in which many more people might die than be saved

But that is not the end of the story. In the R2P toolbox, there are at least four other major reaction tools available in situations like this, and all of them can and should be mobilised here. In all these areas, unlike military action, if the Security Council fails to act, as probably will remain the case, others still legally can.

Naming, Shaming and Diplomatic Isolation. Condemnatory statements (naming and shaming) and diplomatic isolation (including suspension of membership in international organisations) may be, on past experience, the least likely actions to move the generals, but they must continue to be taken to the extent possible, if only to keep giving heart to the Myanmar people. Similarly with acts of diplomatic recognition and non-recognition: this is not a particularly meaningful step for those many countries, like my own, which recognise states rather than particular governments, but refusing to accept the credentials of a new Tatmadaw appointed ambassador is certainly a very useful signal of displeasure to the military and morale booster for its civilian opponents.

As to condemnatory statements, the UN Security Council has at least issued statements of concern, without being blocked by China or Russia, but these could and should be stronger. What the Tatmadaw will find hardest to shrug off completely are the voices of its neighbours. Not much can be expected from China in this respect: it has no love for the Tatmadaw, but even less for the anti-Chinese sentiment which has been expressed on the street and, while wanting calm on its borders, is unlikely to do anything useful to achieve it. Nor from India: its North-Eastern states are deeply troubled, but it is not in Narendra Modi’s DNA to press seriously for human rights redress. The military leadership of Thailand could send serious messages to the Tatmadaw leadership but has so far shown little disposition to do so.

ASEAN’s role is more important than anyone else’s, not least because it is the one organization from which suspension really would trouble the generals. It has shown itself incapable in recent times of acting collectively on anything significant, but Indonesia – and in particular its Foreign Minister Retno Marsudi – are to be commended for trying to energise at least some regional momentum for change. At the leaders’ meeting they have succeeded in convening on 24 April there is at least some prospect that Myanmar’s suspension from the organisation will be, if not agreed, at least seriously floated, and this would do something to concentrate the generals’ minds on their present friendlessness.

Arms Embargo. Arms embargoes are being applied by a number of countries, but it is important that these be more comprehensive and systematically applied. There is every justification for the Security Council to agree on a strong general embargo, but given Russia’s interests, and spoiling instincts, that seems very unlikely. But as the International Crisis Group’s Richard Horsey has proposed, like-minded countries could still agree to a coordinated list of prohibited items – not only arms, but also technologies for surveillance and repression – and share information on their efforts to block transfers on a voluntary basis, and this would create a framework for other states to so act as well.

Targeted Sanctions. Like-minded countries should also continue to coordinate the imposition of targeted economic sanctions. Sanctions impacting the wider economy and as such adding further stress for ordinary people are to be avoided – and experience elsewhere suggests that in any case these rarely make a difference with those who matter. But targeted financial sanctions, directly impacting the generals’ pockets, are prima facie the ones most likely to have an impact, and it is important that the US and UK have again blacklisted the two sprawling conglomerates – MEHL and MEC – through which the Tatmadaw leadership generates enormous income. There is no excuse for other countries which can have an impact of this kind not doing so: it is indefensible that my own country Australia, for one, has dragged its feet in applying even the most obvious new targeted financial and travel sanctions against the military leadership.

It is true that we have seen the generals shrug off these constraints in the past and they may well do so again. Given that so many of the Tatmadaw’s dealings in jade and timber and energy resources bypass the global dollar economy, there are limits on the capacity to bite of the usually effective US finance and banking threats. What might make a real difference would be for Singapore, in particular, to match its stated concerns with the generals’ behaviour with some real demolition of their capacity to trade and deal financially through that state – but I would not be holding my breath.

Judicial Action. An extremely useful action that could be taken by international actors against the generals is to mount a serious threat that they may end up behind bars. That is easier said than done, but they have already had an unwelcome taste of international legal pressure with two cases already on the table. One is the Rohingya Genocide case initiated by The Gambia in 2019, still very much on foot in the International Court of Justice, and the fact that the military has now overthrown the civilian-led govt makes this case stronger. While it is about state rather than individual responsibility, and will not be resolved for at least another two years, it is a very positive signal, both to the regime’s opponents internally, and internationally, that Myanmar is being held accountable for genocide in an international court, and other states should join Canada and the Netherland in making a formal intervention in the case.

The other case, referred by Bangladesh to the International Criminal Court, which is presently actively investigating it, does indeed involve personal criminal liability. But because Myanmar is not a state party, the case only involves atrocities impacting on Bangladesh – in this case the forced deportations across the Bangladesh/Myanmar border in 2017. Under the Rome Statute the UN Security Council could refer Myanmar’s current crimes against humanity to the Court, but given the veto powers exercisable by China and Russia that remains a forlorn hope.

What is potentially a much more immediate legal threat to the generals is the exercise by any state in the international community of the “universal jurisdiction” available to it under international law, in the case of crimes that can be characterised not just as local in character but so serious as to constitute “crimes against all”. In practice, this jurisdiction is exercisable when suspected individuals travel internationally and leave themselves open to arrest. This has been exercised by over fifteen states since the Second World War, notably in relation to perpetrators of the Rwandan genocide.

In the case of Myanmar a good place to start here would be with the senior officers identified by the UN Fact-Finding Mission established by the Human Rights Council in 2017, and those who are currently under targeted sanctions from the US, UK, EU and others. As my colleague Simon Adams, Director of the Global Centre on the Responsibility to Protect, has noted, “It's unlikely these guys are going to head to Disneyland for a holiday but they do want to be able to travel freely around South East Asia. They should not feel safe to do so."

What Next? In an ideally just world, a combination of the internal dynamics now working themselves out, and a significant increase in R2P-based international pressure in any of the ways I have described, would lead to the bubble surrounding the Tatmadaw cracking and breaking so completely that its unity, and capacity to intimidate and control the country, would simply crumble and collapse, with the Myanmar people thereby succeeding in achieving the revolution they want, need and deserve.

But we all have to contemplate the possibility that this complete collapse simply may not happen. And, as painful as this will be to acknowledge, we have to contemplate the need to at least start thinking about an alternative scenario which would avoid a catastrophic escalation of the present violence into a full-scale Syrian-style bloodbath.

That alternative scenario might be one where the military does not completely capitulate, but feels itself under so much pressure that it starts looking for an exit strategy, or “off ramp”, which would save at least some of its face and some of its previous institutional role. Any such outcome would necessarily involve some concessions from the National Unity Government which it will not be at all happy to make, and in the ideal scenario I described would not have to. But it would involve no further loss of life, a restoration of the basic principles of constitutional democracy, and mean that the sacrifice of those who have already died has not been in vain.

It would be inappropriate and premature for me to canvass now, in any more detail, what such a negotiated stepping back, and ultimate settlement, might actually involve. But this is an area where ASEAN – with the Indonesians the most obvious lead actor – could play a positive role. I can understand very well the strength of feeling that has led Dr Sasa to reportedly say that ASEAN should not invite to its 24 April summit the “murderer-in-chief” Ming Aung Hlaing. But sometimes circumstances demand – as I found in dealing with the Khmer Rouge in negotiating the Cambodian peace plan a generation ago – that, if even more death and misery are to be avoided, one at least explore the possibility of mediated dialogue with those whose behaviour has been almost indescribably awful.

Anything less than the complete removal, once and for all, of the political role of the Tatmadaw is not an ideal outcome. Anything less than the trial and punishment of those who have perpetrated atrocity crimes is not R2P working as we who have strived passionately for its birth, and the people of Myanmar who have so trustingly invoked it, would ideally want it to work. But we all have to live with the world as we find it, and do the best we possibly can to achieve peace and justice with the tools we have at our disposal in a real world which falls far short, as perhaps it always will, of the world we want it to be.

An abbreviated version of this presentation is posted on the Asialink website.