According to the International Law Commission, all states have an obligation to cooperate to bring to an end serious breaches of peremptory norms of international law, including genocide and crimes against humanity. The recent actions of the emboldened military in Myanmar highlight what can happen when the obligation is not adhered to.
Recent events in Myanmar – the military coup d’état at the start of last month, the firing of Myanmar’s ambassador to the United Nations (UN) last week, and the increasingly brutal crackdown on peaceful protests – show what happens when senior officials get away with genocide.
In 2018, a UN fact-finding mission found that there were reasonable grounds to believe that the Myanmar military – the Tatmadaw – had perpetrated genocide as well as war crimes and crimes against humanity against the Rohingya people (pp 353-383, 421). Shortly thereafter, the UN General Assembly passed a resolution expressing ‘concern’ at the findings that there was sufficient information to warrant investigation and prosecution for genocide. In 2020, the International Court of Justice (ICJ) found that there was a ‘real and imminent risk’ of genocide.
Through all this, the most senior members of the Tatmadaw – named in the report of the fact-finding mission as the likely perpetrators – have remained largely unscathed. The UN fact-finding mission recommended that the UN Security Council refer the situation to the International Criminal Court (ICC), but Russia and China wouldn’t countenance such a proposal. Non-Governmental Organisations have for years been calling for an arms embargo, targeted sanctions and a cessation of cooperation with the Tatmadaw (see here, for example), but the Security Council hasn’t imposed any mandatory measures. Back in 2018, the United Kingdom drafted a resolution that would have warned of Security Council action if progress was not made on key human rights issues, but it was not even put to a vote – Russia’s Ambassador described it as ‘inappropriate, untimely and useless’.
In 2019, the drafting committee of the International Law Commission (ILC) provisionally adopted Draft Conclusions on Peremptory Norms of International Law. Draft Conclusion 19 provides that ‘states shall cooperate to bring to an end through lawful means any serious breach by a State of an obligation arising under a peremptory norm of general international law (jus cogens).’ There is a longstanding and unresolved debate about which norms of international law qualify as ‘peremptory’, but it is almost universally agreed that the prohibition of genocide is one, and the ILC also includes the prohibition of crimes against humanity in its ‘non-exhaustive list’ in Draft Conclusion 23 and the annex. As defined in the Rome Statute of the ICC, crimes against humanity include deportation, rape, persecution and many other crimes that allegedly have been committed and continue to be committed in a widespread and systematic manner by the Tatmadaw against the Rohingya.
The ILC’s Commentaries to the Draft Conclusions state that ‘depending on the type of breach and the type of peremptory norm in question, the collective system of the United Nations is the preferred framework for cooperative action’ (p 195). They assert further that the obligation to cooperate means that in the face of serious breaches of peremptory norms of international law,
‘international organisations should act, within their respective mandates and when permitted to do so under international law, to bring to an end such breaches. Thus, where an international organisation has discretion to act, the obligation to cooperate imposes a duty on members of that international organisation to act with a view to the organisation exercising that discretion in a manner to bring to an end the breach of a peremptory norm of general international law [emphasis added]’ (p 196).
The situation in Myanmar since the allegations of genocide emerged in 2017/2018 paints a picture of what a failure of cooperation looks like. It is a failure of cooperation, because what should have happened is that following the first warnings of mass violence, the Security Council – acting on its primary responsibility for international peace and security – should have imposed targeted sanctions and an arms embargo, and then if the ethnic cleansing campaign proceeded regardless, an immediate referral of those responsible to the ICC. Failing that, the UN General Assembly should have stepped in and made its own recommendations, both to the Security Council as well as to member states. Neither of those things happened – or at least, not adequately – and now, the genocidal Tatmadaw is running the country, and human rights groups fear that the return to military rule may pave the way for further persecution and violence against the Rohingya.
On a more promising note, it is worth noting that in addition to depicting a failure of cooperation, the situation in Myanmar also hints at what international cooperation can look like. Some countries have imposed sanctions, for example – albeit without the benefit of an overarching UN resolution. The West African state of Gambia, for its part, has brought a genocide case against Myanmar before the ICJ. That case resulted in the ICJ in 2020 ordering Myanmar to take ‘provisional measures’ to prevent the further commission of genocide. The early indications of compliance with that order are not promising, however it’s the best effort yet to ensure that the alleged genocide and crimes against humanity have international consequences.
The obligation to cooperate to bring an end to serious breaches of peremptory norms of international law – as interpreted by the ILC – applies to all states. States are not absolved of their responsibility because they are not members of the Security Council, and those states that are on the Security Council are not absolved of their responsibility because they think their efforts will be thwarted by China and Russia. In relation to states’ obligation to prevent genocide, pursuant to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), the ICJ has said previously that it is ‘irrelevant whether the State whose responsibility is in issue claims, … that even if it had employed all means reasonably at its disposal, they would not have sufficed to prevent the commission of genocide’, because ‘the possibility remains that the combined efforts of several states, … might have achieved the result … which the efforts of only one State were insufficient to produce’ (Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) at para 143). That particular statement pertained specifically to the obligations enshrined in the Genocide Convention, but it seems reasonable to suppose that the same logic should apply to the obligation to cooperate more generally. That is to say, the obligation is one of conduct, not result.
Neither the ILC nor the ICJ has shed much light on what measures states should take in fulfilment of the obligation to cooperate. There is, however, a clear thread running through the commentaries to the Draft Conclusions on Peremptory Norms as well as the earlier Draft Articles on State Responsibility: that the duty is one to explore all possible avenues, within the limits set by international law, and if possible within the framework of the UN system.
The single UN body in which every state has a voice, and a vote, is the General Assembly. The General Assembly is not encumbered by the veto of any single state. The General Assembly is also the only body within the UN system empowered to make recommendations on any matter within the scope of the UN Charter, including explicitly on matters of international peace and security and on human rights. In other words, for states looking for avenues through which to fulfil their obligation to cooperate, particularly in circumstances in which the Security Council is unlikely to act, the General Assembly provides an obvious possibility.
The General Assembly was briefed last week by both the UN Special Envoy on Myanmar, Christine Schraner Bergener, and Myanmar’s Ambassador to the UN, Kyaw Moe Tun – before he was fired. Schraner Bergener called for ‘all collective and bilateral channels’ to be exhausted; Kyaw Moe Tun appealed for ‘all strongest possible measures’ to stop the violence.
There are various things the General Assembly could do in response to Myanmar’s military coup. These options have been explored in more detail elsewhere by this author. In brief, they include: critiquing the performance of, or making specific recommendations to, the Security Council; requesting a special report from the Security Council regarding its handling of the situation; or recommending to states that they impose targeted sanctions such as asset freezes and travel bans on senior members of Myanmar’s military, as well as an arms embargo – as recently called for by 137 NGOs.
For ‘third states’, there are no immediately apparent international consequences for failing to fulfil the obligation to cooperate to bring an end to serious breaches of peremptory norms of international law. But for many states, including Australia, adhering to international legal obligations – even without the immediate threat of punitive consequence for failing to do so – is part of foreign policy. These states will presumably want to look back and know that they did all they could do to bring an end to the serious violations of peremptory norms of international law that for years have been perpetrated by the Myanmar military – particularly if Myanmar is ultimately found guilty of genocide by the ICJ. To be able to do so, these states must use every channel of diplomatic influence to ensure that the General Assembly does everything it can to bring the violence in Myanmar to an end, and to ensure that the reins of power are not held by the perpetrators of genocide.
Rebecca Barber is a research fellow at the Asia Pacific Centre for the Responsibility to Protect (APC2P), and a PhD candidate at the TC Beirne School of Law, University of Queensland, Australia. She is currently working with the APC2P on the development of a guidance document on the powers of the General Assembly to prevent and respond to atrocity crimes. Prior to undertaking her PhD she had a career of more than 15 years with international humanitarian NGOs, managing human rights and legal assistance programs, as well as multi-sector humanitarian response programs, in South Asia, Southeast Asia and Africa. She has also worked as a humanitarian advocacy advisor with Oxfam and Save the Children, and lectured with the Centre for Humanitarian Leadership at Deakin University. She is admitted to practice as a legal practitioner to the Supreme Court of Victoria, and serves on the international humanitarian law advisory committee with the Australian Red Cross and the advisory board of the International Rule of Law Initiative.
Suggested citation: Rebecca Barber, ‘Myanmar’s Military Coup: A Consequence of an International Failure of Cooperation’ on ILA Reporter (3 March 2021) <https://ilareporter.org.au/2021/03/myanmars-military-coup-a-consequence-of-an-international-failure-of-cooperation-rebecca-barber/>