Shouldn’t ICC be equally active in Myanmar, not only in Ukraine?

Legally, the military coup was unconstitutional

It has been two years since the military coup in Southeast Asia’s Myanmar. The military junta came to power after overthrowing the democratically elected government on charges of corruption. Myanmar has been under the leadership of the country’s military chief Min Aung Hlaing since 1 February 2021. For more than two years, the military government has repressed the people’s movement and protests demanding democracy. According to various international organizations, at least 2000 people have been killed and more than 15,000 arrested in the junta’s crackdown; At least another 1 million have been displaced. Even then, the International Criminal Court (ICC) has not seen any role in the beleaguered country.

The people of Myanmar may be in solidarity with their Ukrainian brethren, but they have every reason to be infuriated by the contrasting response from the international community to the crisis they face at home.

Western nations and key Asian allies responded within days to Russia’s invasion of Ukraine with tough sanctions and weapon supplies. The international reaction to the bloody military takeover in Myanmar one year ago has been half-hearted by comparison.

There is a degree of racism. The West is quick to defend a fellow and easily identifiable Western state. In part, it speaks to diaspora politics in the West, given the presence of Ukrainian communities in the USA and across Europe, something Myanmar does not enjoy to the same extent.

The types of Russian weapons used in Ukraine are also killing people in Myanmar, an independent United Nations expert has said, urging countries at the UN to form a coalition— as they had done after Moscow’s invasion of Ukraine— to put pressure on Myanmar’s military rulers. UN Special Rapporteur on Human Rights in Myanmar, Tom Andrews, said that a coalition of countries should target Myanmar’s military with sanctions and an arms embargo.

Following the military coup, in April 2021, Myanmar’s pro-democracy and elected representatives formed the National Unity Government (NUG). They formed a government against the junta and announced the acceptance of the mandate of the ICC. The ICC also recognized the declaration. The NUG originally requested the ICC to investigate the junta’s war crimes and crimes against humanity in Myanmar. Because the political leaders know very well that there is no possibility of trial in the courts of that country. And that is why Myanmar, a country of 55 million, is now looking to the international organization in the hope of justice.

But sadly, the ICC is not as active in Myanmar as it is in investigating the crimes committed in Ukraine. This raises the question of many, whether the ICC is more concerned about the suffering of the West. Myanmar and Ukraine lend themselves to comparison, but the differences in international response are revealing. Why have many countries in the Indo-Pacific responded more forcefully to Ukraine than to Myanmar? Ye Myo Hein and Lucas Myers argue that the “democracy versus authoritarianism” framing is not persuasive to many regional actors, who are more interested in defending the norms of sovereignty and territorial integrity. Additionally, their findings expose differences in risk tolerance and interests regarding global order between Russia and China.

The UN Investigative Mechanism for Myanmar was established in 2017 by the United Nations to investigate the persecution of the Rohingya minority in Myanmar. Analysts believe that a similar investigation committee should be formed against the illegal junta government. And through this they are of the opinion that justice should be ensured for the common people of Myanmar. The people of the country have been waiting for justice for a long time. So, the state, UN and ICC should take appropriate steps in this regard. ICC should be equally active not only in Ukraine but also in Myanmar.

Russia-Ukraine recently marked one year of direct conflict. Just a few days after the start of the conflict, the ICC representative went there and started investigating the incident. The International Criminal Court even issued an arrest warrant against Russian President Vladimir Putin on March 17 for war crimes. Although the Myanmar conflict has lasted over twice as long, there is still no ICC activity there.

Political analysts say that since the ICC has recognized the NUG’s declaration, the ICC must send a team of investigators like in Ukraine to find the truth and announce a fair trial against the perpetrators. This will increase the transparency of this international organization and make it a place of trust for the affected countries.

But here comes a question. That is, whether the anti-junta NUG government can represent Myanmar at the ICC. According to an analysis published in The Diplomat, a Washington DC-based online news outlet, the Government of National Unity has the power to make this representation. According to the authors of the analysis, John Daugaard, Chris Gunes, Tommy Thomas, Yuyun Wahuningram and Ralph Wilde, according to domestic law, the NUG is the legitimate government of Myanmar. Because according to the 2008 constitution, these representatives were elected through popular vote in 2020. Thus, they have no chance of being illegitimate even if they are repressed by the junta; Their government formation is completely legal.

On the other hand, the junta seized power through a military coup, in clear violation of Articles 71(a) and 417 of the country’s constitution. These articles contain clear instructions for the impeachment of the President and the imposition of a state of emergency. But according to the rules it was not followed. On the contrary, the military has taken power by force, ignoring the protests of the people and putting the democratically elected people, including the president, in jail.

As a result, analysts say, the military’s seizure of power in this way is completely illegal.

At the end of 2021, the UN removed the junta representative from its General Assembly and allowed the NUG representative to represent Myanmar at the meeting. The International Labor Organization (ILO) also agreed with this decision of the United Nations. As a result, the ICC must now accept the NUG’s declaration as valid. There should be fair investigation and prosecution of the crimes committed and committed there.

The UN Investigative Mechanism for Myanmar was established in 2017 by the United Nations to investigate the persecution of the Rohingya minority in Myanmar. Analysts believe that a similar investigation committee should be formed against the illegal junta government. And through this they are of the opinion that justice should be ensured for the common people of Myanmar. The people of the country have been waiting for justice for a long time. So, the state, UN and ICC should take appropriate steps in this regard. ICC should be equally active not only in Ukraine but also in Myanmar.

Dr Arpita
Dr Arpita
The writer is a freelance columnist

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