Two years ago, Myanmar’s military seized power in a coup. It was a major setback for the country, which had begun to slowly move toward democracy and free elections after decades of military rule. For other countries and organizations like the United Nations – the coup raised some big, and still open, questions about whether and how to interact with the military junta, particularly amid efforts to hold Myanmar’s leaders accountable for grave crimes, including acts of genocide, against the Rohingya and other ethnic groups.
The junta has announced that it plans to hold “elections” in August, but most experts believe that free and fair elections are impossible under current conditions, and that the elections are merely an effort by the military to deepen its control over the country.
On the two-year anniversary of the coup, we speak with Akila Radhakrishnan and Angela Mudukuti from the Global Justice Center, a nonprofit organization that advances gender equity and human rights. Global Justice Center has worked closely with organizations in Myanmar since 2005. Akila is Global Justice Center’s President and an expert on the role that gender plays in genocide. Angela Mudukuti, is a Zimbabwean lawyer and the Senior Legal Adviser at the Global Justice Center. She has worked for a number of organizations including the International Criminal Court (ICC) and her experience includes working on universal jurisdiction and precedent-setting cases before South African courts including seeking the arrest of the former president of Sudan during his visit to South Africa.
Show Notes
Two years ago, Myanmar’s military seized power in a coup. It was a major setback for the country, which had begun to slowly move toward democracy and free elections after decades of military rule. For other countries and organizations like the United Nations – the coup raised some big, and still open, questions about whether and how to interact with the military junta, particularly amid efforts to hold Myanmar’s leaders accountable for grave crimes, including acts of genocide, against the Rohingya and other ethnic groups.
The junta has announced that it plans to hold “elections” in August, but most experts believe that free and fair elections are impossible under current conditions, and that the elections are merely an effort by the military to deepen its control over the country.
On the two-year anniversary of the coup, we speak with Akila Radhakrishnan and Angela Mudukuti from the Global Justice Center, a nonprofit organization that advances gender equity and human rights. Global Justice Center has worked closely with organizations in Myanmar since 2005. Akila is Global Justice Center’s President and an expert on the role that gender plays in genocide. Angela Mudukuti, is a Zimbabwean lawyer and the Senior Legal Adviser at the Global Justice Center. She has worked for a number of organizations including the International Criminal Court (ICC) and her experience includes working on universal jurisdiction and precedent-setting cases before South African courts including seeking the arrest of the former president of Sudan during his visit to South Africa.
Show Notes
Paras Shah: Two years ago, Myanmar’s military seized power in a coup. It was a major setback for the country, which had begun to slowly move toward democracy and free elections after decades of military rule. For other countries and organizations like the United Nations – the coup raised some big, and still open, questions about whether and how to interact with the military junta, particularly amid efforts to hold Myanmar’s leaders accountable for grave crimes, including acts of genocide, against the Rohingya and other ethnic groups.
The junta has announced that it plans to hold “elections” in August, but most experts believe that free and fair elections are impossible under current conditions, and that the elections are merely an effort by the military to deepen its control over the country.
On the two-year anniversary of the coup, we speak with Akila Radhakrishnan and Angela Mudukuti from the Global Justice Center, a nonprofit organization that advances gender equity and human rights. Global Justice Center has worked closely with organizations in Myanmar since 2005. Akila is Global Justice Center’s President and an expert on the role that gender plays in genocide. Angela is a Zimbabwean lawyer and a Senior Legal Adviser at the Global Justice Center. She’s worked for a number of organizations including the International Criminal Court. Her experience includes working on universal jurisdiction and precedent-setting cases before South African courts, including seeking the arrest of the former president of Sudan during his visit to South Africa.
Welcome to the Just Security podcast, I’m your host Paras Shah.
Akila, to get us started, can you take us back to February 1, 2021? What happened on that day in Myanmar?
Akila Radhakrishnan: So, Myanmar is a country that has been in conflict, and under military rule, off and on for the past 70 years. In about 2010, we started seeing some level of a transition to a quasi civilian rule, some levels of democracy taking root in the country. And in February, 2021, following elections that were held in November 2020 that did not go well for the military, the military staged a coup in the country, they jailed key opposition leaders includingAung San Suu Kyi, and since for the last two years, have been engaged in a campaign of brutal and violent repression against the civilian population, and sustained and increased conflict in ethnic areas.
Paras: Right, and what’s happened in the country since the coup?
Akila: What you have is, you have a military headed up by Min Aung Hlaing who have taken the reins of all parts of the government, and their way of enforcing their rule has been brutal, violently putting down resistance actors, arbitrary detention, torture, killing, direct targeting of civilians. For example, there was a bombing of some schools recently in one of the ethnic states, there was a concert that was bombed. So really, you know, brutal tactics to try to keep civilian rebellion under control.
At the same time, what you've actually seen has been on the parallel side, the development of democracy activists and actors. So you've seen kind of a very grassroots led movement from the ground to resist what you could say is a more formalized structure that's been formed by those who are elected. And through them they formed a sort of government called the National Unity Government. You've also seen the calcification of the power and control of ethnic resistance, organizations and ethnic armed organizations. You've also seen the formation of local militias who are in opposition tothe military who have been taking up arms. So what you have right now in the domestic context is a really complicated political structure where one thing is certain, and it's that the military is not, in territorial or in many other ways, in control of the country.
Paras: Adding further to this complexity is the international community’s response, and by that I mean the response of other countries and organizations like the United Nations. So, what’s been happening on that front?
Akila: So recognition diplomatically right now looks a bit mixed. The first piece of it was at the United Nations led bythe General Assembly. The UN has made a decision to not make a decision on who represents Myanmar. So what they've done is they've actually carried forward the credentials of the former Ambassador Kyaw Moe Tun, who was appointed under the quasi civilian government, who has now subsequently pledged allegiance and stands as a representative of the National Unity Government. But what the UN has done is to say, we're just carrying forward his credentials as the representative of the previous government. So the UN itself hasn't taken a formal decision on recognition, but the process, what it has done is it has allowed the seat to be occupied by somebody who was publicly in allegiance to the opposition.
In terms of the junta, you've seen a range of states who have been, off and on, willing to engage directly with the junta.I'm not sure any state has formally recognized them per se, but you see ministerial visits from Russia, from China, from India to Myanmar. And so the question of recognition is one that everyone is concerned about and thinking about, and frankly, I think the majority of states don't want to recognize the junta formally, so they will choose not to make a decision, but no state has also willingly made the decision to recognize the National Unity Government.
Paras: And why is this question of recognition important? Why does it matter who the international community recognizes as the government of Myanmar?
Akila: A part of it is as a matter of who does it matter to. Some of these recognition battles aren't necessarily reflective of the priorities of the democracy activists in the country, who are facing acute humanitarian threats, they're facing threats to security.
But at the international level, recognition is about who is the legitimate government, right? For folks who are fighting on the diplomatic stage, the fight against the junta – it means that they wanna be recognized as the proper leaders of the country so that they can be reinstated. They don't want the junta’s coup to be legitimated by states. And so I think that's why international recognition matters. You know, you're looking at issues of diplomatic engagement, you're looking at issues of who's getting funding, who is being engaged with. States are asserting that they need to be practical in some ways and recognize the benefits of them being in the country and having access against the fact that they are also not taking steps, at least formally, to legitimate the junta.
Paras: And all of these battles, these recognition battles, are happening on the backdrop of really grave international crimes, including acts of genocide committed against the Rohingya and other ethnic groups in the last decade, but also stretching much further back. So, how does all of this play out against those battles for accountability, and can you remind us of what happened in the past decade to the Rohingya and other ethnic groups?
Akila: Sure. So in 2016 and 2017, you saw a particularly violent crackdown by Burma’s military on the Rohingya population in Rakhine State. The violence that occurred during the 2016 and 2017, um, they're called clearance operations, comes against a backdrop of the systematic exclusion and discrimination of the Rohingya for decades. In the eighties they were officially stripped of their ability to be citizens of the country. So, while the violence is often what we're looking at in 2016 and 2017, it's really a part of this broader system that has been a priority of Burmese leadership for decades in terms of the repression of the Rohingya.
I also would be remiss if I didn't note that the attacks against the Rohingya are also coming in concert with over 70 years of conflict and repression of a range of ethnic minorities across the country. The military has used systematic tactics that amount to war crimes, crimes against humanity and genocide across a range of ethnic groups, but particularly, in the context of the Rohingya, it was what the UN and others have deemed a genocide.
Paras: And, what have efforts to hold the people who committed these crimes accountable looked like?
Akila: In the aftermath of the genocide, there were, for the first time, actual attempts made to pierce the total impunity that the military has had for decades for the crimes that it's committed. So, the first major piece of progress was The Gambia filed a genocide case at the International Court of Justice.
Kind of in that same week, actually a fateful week in November, 2019, you also saw the ICC open an investigation on a very limited jurisdictional principle around looking at cross border crimes that happened into Bangladesh because they have jurisdiction over Bangladesh, but not over Myanmar. And then you also saw the filing of a case in Argentina under the principle of universal jurisdiction.
Since the coup, you've also seen a few other places where cases may have been initiated in some level or the other, Indonesia, Turkey, and most recently, a complaint filed with a German federal prosecutor in Germany.
Paras: Angela, I want to turn to you. Akila just mentioned these cases that are happening in national courts under a legal theory called universal jurisdiction. So, what is universal jurisdiction?
Angela Mudukuti: So universal jurisdiction in its purest form allows for the investigation and prosecution of grave crimes regardless of where they were committed and irrespective of the nationality of the victims or that of the perpetrator. And when I say grave crimes, I mean, for example, genocide or crimes against humanity or torture. And the idea is that these crimes are so egregious that they're considered an affront to humanity and the international community as a whole, and therefore on that basis, they must not go unpunished.
Often victims cannot get justice in their own country. They have nowhere to turn, especially in situations where the International Criminal Court has no jurisdiction, and that happens quite often. And so there's a justice gap and a vacuum that needs to be filled, and this is where universal jurisdiction comes in, where courts can intervene and provide justice for the victims and survivors.
Paras: What are some of the challenges with these types of cases?
Angela: So one of the challenges we have with universal jurisdiction is sometimes you'll get prosecutors and investigators who tell you, this is hard to investigate. We can't do this. We don't have access to the crime scene. We don't have enough victims and witnesses. But these are not reasons not to pursue universal jurisdiction. They can be overcome. But these are some of the responses I've heard in my practice and in my cases when I'm trying to use universal jurisdiction.
The other problem you often find, or challenge you find, with universal jurisdiction is that there's political opposition. So for example, some governments don't like the idea of intervening in another nation's issues, particularly when the alleged perpetrators are senior leaders in government, which is often the case because of the crimes we're talking about, right? We're talking about genocide, we're talking about crimes against humanity. So there's a scale which makes things difficult, but these challenges can be overcome and I've seen it in my previous cases where the law is clear on this. Therefore, the political resistance can't stop justice and can't hinder the case. But there have been other cases where political pressure has stifled universal jurisdiction.
Paras: Could you tell us about the case that is happening in Argentina? What’s happening there?
Angela: So in November 2019, the Burmese Rohingya organization in the UK known as BROUK, with legal representation from Thomas Quintana, who's a well-known human rights lawyer and the former UN Special Rapporteur from Myanmar, together they petitioned Argentinian courts to open an investigation into the role of Myanmar’s civilian and military leaders in the Commission of Genocide and Crimes against Humanity, including sexual and gender-based violence perpetrated against the Rohingya, and they're using the principle universal jurisdiction, which is of course a part of Argentinian law, including in the Constitution itself.
And BROUK’s president, Tun Khin, he's a member of the Rohingya community and he's bringing this case on behalf of his community. He's highlighted six women in particular who were raped and tortured and witnessed horrific crimes. And so in this case, there's of course a long history of the persecution of Rohingya and Myanmar, but BROUK’s filings focus on a time period from 2012 to 2018, and in July 2021, unfortunately the case was dismissed by a court, but BROUK were able to appeal and in November 2021, the second chamber of the Federal Criminal Court in Buenos Aires confirmed that they would launch a case against Myanmar officials. This case is very important because it's the first case related to the situation of the Rohingya that universal jurisdiction is being used, and of course other cases have been launched in other parts of the world subsequently, but this is really the first one.
And it's also significant because it includes sexual and gender-based violence. And we know that sexual and gender-based violence is under-prosecuted. There's a very good report from TRIAL International. They do an annual universal jurisdiction review, and in their 2021 report, they say that out of 125 charges of international crimes, only 17 addressed conflict-related sexual violence and gender-based violence. So we can see that there's a need to raise the profile of these issues and to ensure investigation and prosecution.
Paras: Global Justice Center also recently filed a submission in the case. What did the submission address?
Angela: One of the things BROUK wants to do is to ensure that Rohingya victims themselves, including the six women I mentioned, are able to testify in Argentina. And we did two things in our recommendations. We looked at international and regional best practice on how to engage with survivors and witnesses of sexual violence, and also how courts should evaluate evidence of sexual violence. All over the world, there have been discriminatory and harmful practices that have prevented the just evaluation and adjudication of these crimes. And they've quite frankly always negatively affected the wellbeing and the dignity of the witnesses. So we want to support the Argentinian authorities and our partners, BROUK, in making sure that this doesn't happen with the case.
And so I'll just give you a few examples of some of the best practices we highlight in our submission. In our recommendations, we talk about the importance of being gender sensitive, which includes practical considerations like make sure there is gender balance on the bench. Make sure your team of interpreters, there's gender balance there. Make sure that anyone who's going to come in contact with the witnesses – for example, if you have a victims and witness unit – make sure that there's also balance there. Make sure you have staff on hand with gender expertise, trauma expertise, and of course legal expertise. Protect the safety and security of the witnesses, create non-intimidating court environments, and provide counseling and psychological support for the victims and witnesses. So those are some of the practical recommendations we make.
And we also want to provide context for the court on how gender has played a role in Myanmar because the attacks against the Rohingya and the associated criminal acts, such as sexual violence, have affected different genders in different ways. And so you have to really do a gender analysis of the whole situation. While men and boys are of course victims of sexual violence, women and girls are often the primary targets. And that was the case here. And we see this in the UN fact-finding mission report on Myanmar, and when we look at rape, for example, they say that 80% of the rapes were gang rapes and women were the primary target. So in Myanmar we see that the widespread use of sexual violence has to be understood in context.
Paras: Thanks for that overview of such an important case.
Angela: This case is really special because it's led by survivors in affected communities who are leading the charge. And I think that's very important when we think of justice and accountabilities, making sure that we have people from affected communities who are leading these initiatives.
Paras: Akila, coming back to you, as we mark this anniversary and we also look forward, what should the international community be thinking about, and what steps does it need to take to respond to the junta?
Akila: The last two years have been largely reflected by a significant lack of progress, particularly from the international community. ASEAN right at the start stepped up and said, we'll be in charge of this process and came up with this five point consensus, no points of which have been meaningfully engaged with or made progress with. The international community, the UN continues to hide behind ASEAN. You've seen states impose some unilateral sanctions, take some measures to cut off arms flows individually, but you haven't seen something like a global arms embargo be passed. You haven't seen the Security Council come together with an ICC referral.
After two years, the UK in December managed to get a Security Council resolution on Myanmar, which is not just the first resolution on Myanmar since the coup, it's actually the first Security Council resolution on Myanmar ever. They couldn't even get one in the wake of the Rohingya genocide. And, you know, they started with something ambitious and it got whittled down and whittled down and all that remained when it was passed is for the UN Special Envoy to report to the Council in March. They couldn't take any meaningful action in the first UN Security Council resolution on Myanmar. And that tells you what the dearth of international leadership has really been on the issue and how we need to be thinking about what comes ahead.
So in terms of the key actions going forward – and I think these are following what has been requested by the community itself – the first one is a global arms embargo. There's a real need to stop the flow of arms as a way to stop the violence in the country. The people of the country are suffering.
Another key piece that is reflective of what our partners want is the scaling up of cross-border humanitarian assistance, really in order to meaningfully deliver humanitarian aid to the country. What local groups are calling for is for states and donors to trust in their capacity to deliver humanitarian aid through informal channels. So I think for states to meaningfully consider what a trust-based approach to humanitarian aid could look like, that really centers the work of local community actors.
The last piece is on the election. The military junta has announced that they will be holding elections later this year. And the elections are commonly understood that there's no ability for them to be free and fair, and that this is the junta’s effort to have some sort of off-ramp to legitimate their rule, because I think they are tired of sanctions and not being able to travel and other restrictions as a result of a coup that did not result in what they imagined that it would. And so I think to think about how is the international community is gonna engage with the elections or whatever you wanna call them, states need to make a plan now ideally to prevent the junta from holding an election for those who have any sort of influence over them. But for those who don't, a genuine campaign bilaterally, multilaterally, to ensure that no steps are taken to legitimize the elections that are coming forward.
There's some really difficult questions facing the international community in the next few months, and I think it's really beyond time that we saw more political courage and more creative solutions coming from them. States have shown in the context of Ukraine that they can actually subvert politics as usual, and I think it's time that for countries like Myanmar, but for so many others, that the international community started to apply that same level of urgency and that same level of consideration to other states, particularly Myanmar in this context.
Paras: Let’s wrap it up there. Akila, Angela, thanks so much.
The Just Security podcast is produced in partnership with NYU's American Journalism Online program. AJO trains students to become world class journalists, no matter where they live or work. Find out more about AJO, and how you can apply, in our show notes.
This episode was hosted by me with co-production and editing by Tiffany Chang and Michelle Eigenheer. Our music is the song “The Parade” by Hey Pluto! Special thanks to Clara Apt, Tess Graham, Angela Mudukuti, and Akila Radhakrishnan. To read more about Myanmar from expert local and international voices check out Just Security’s series Beyond the Coup, which we’ll link to in the show notes.
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