War Crimes and the Myanmar Conflict

On the 27th of October 2023, military operation 1027 was launched by the Three Brotherhood Alliance, a military coalition composed of three ethnic armed organizations in Myanmar: the Arakan Army (AA), Myanmar National Democratic Alliance Army (MNDAA), and Ta’ang National Liberation Army (TNLA), allied with other anti-junta forces in the country.  The target of the operation was some positions of the Myanmar armed forces on the border with China. Initially, they mainly targeted the Shan state, and later the militants turned towards the Sagaing region. This operation aimed to regain control by the Myanmar national democratic alliance army of the Kokang self-administered zone.

The Three Brotherhood alliance issued a statement in which the organization announced the motives and objectives of their operation. Among others, we can safeguard the lives of civilians; Maintain control over [their] territory; Respond resolutely to ongoing artillery attacks and airstrikes perpetrated by the State Administration Council.  The reaction of the armed forces of Myanmar has been very violent; as of the 15th of December, the UN reported 378 civilians were killed, 505 injured and 660.000 internally displaced.  On 16 November, the military opened fire indiscriminately, without distinguishing between civilian and military targets. The military issued a directive for all civilians to evacuate within a mere hour. Amnesty International, after conducting interviews with nine individuals who were present at the time, along with a monk from a neighboring village, reported that the majority of Pauktaw’s 20,000 residents fled promptly. However, regrettably, several hundred individuals were unable to escape before the military resumed its attacks later that afternoon

Amnesty believes that Myanmar should be investigated for war crimes and also demands an arms embargo on Myanmar. According to a report published by the UN Special Rapporteur, Tom Andrews, Russia, and China continue to be the main suppliers of advanced weapon systems to the Burmese army, with a total of over USD 400 million and USD 260 million respectively since the coup, with much of the trade coming from state-owned entities. However, arms dealers operating out of Singapore are crucial to the continued operation of the Burmese army’s deadly weapons factories.

On what basis can a particular case be considered a war crime? Reference must be made to the Geneva and Hague Conventions and the Rome Statute. For an attack by either a government or insurgent group to constitute a war crime, it must be directed against protected persons, or assets of non-military interest or be conducted by prohibited means and/or methods of combat. Protected persons are those who do not take part in combat or those who no longer take part in combat – civilians, refugees, prisoners of war, the sick, and wounded. Non-military assets refer, for example, to hospitals, schools, or undefended areas such as villages. By prohibited means and methods of combat, we can think of the indiscriminate use of armed force.

It can therefore be argued that the demands of Amnesty International and other international organizations are indeed well-founded. However, as Myanmar is a state not party to the Rome Statute, the United Nations should initiate a prosecution before the court in the Hague, through the issuance of a Security Council resolution ascertaining the situation and inviting the court to proceed with the investigation. Such an initiative could not only guarantee compensation to the victims or their families, but could also act as a deterrent for future similar actions.

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