Leaked memo shows Myanmar’s junta feels legally vulnerable
An internal Myanmar army memo surfaced last week, instructing all members of the military to not answer or even accept any letter, summons or warrant from abroad, especially where it is clear they are from the International Criminal Court, the Argentinian federal court or any of the plaintiffs in either of these cases. The reason: Both these courts are currently hearing cases alleging genocide against the Rohingya minority by the Myanmar military. This shows that the Tatmadaw, as the military of Myanmar is also known, feels legally vulnerable in these cases.
The memo was published by the Burmese Rohingya Organisation UK and its president Tun Khin assured me the group has done a good deal of due diligence to verify the authenticity of the document, which it believes to be genuine.
If indeed true, this memo is significant for a number of reasons. John Packer, associate professor of law and director of the Human Rights Research and Education Centre at the University of Ottawa, argues that military hierarchies like the Tatmadaw are typically meticulous at keeping records, including even records of their own crimes. For example, Saddam Hussein’s security services recorded everything, including with photography and video. If this also holds true in the case of the Tatmadaw, evidence of the orders to commit abuses against the Rohingya (as well as other minority groups) would be in the possession of officers all along the chain of command. If such orders have been issued and any one of these offices were to answer the summons or injunctions of the courts, it could leave the Tatmadaw entirely exposed in these cases.
Conversely, that the Tatmadaw is directing its members to avoid all communication with the courts and other foreign actors — and threatening severe punishments for breaching these orders — suggests there are things that rank-and-file officers know that the junta need to keep a lid on.
Packer further argues that it is not surprising that an army hierarchy, especially one under suspicion of abuses under international law, would order all members to close rank and shut down communication. However, before the courts, this will still be evidence of, at a minimum, bad faith vis-a-vis international obligations — i.e., duties to cooperate under the UN Charter, Genocide Convention and so on. This would serve as a strong indicator of dispositions and intentions for the courts and would reinforce suspicions against the Tatmadaw.
The refusal of the Tatmadaw to cooperate with the institutions of international law should further isolate it internationally.
Dr. Azeem Ibrahim
In terms of the practicalities of the judicial proceedings themselves, this order could hinder the courts’ investigations, at least in the short term. Evidence that might have come to light sooner might now be delayed or might not be available at all for these cases and remain suppressed for as long as the Tatmadaw continues to hold power in Myanmar. This should not necessarily affect the outcomes of the court proceedings against the Tatmadaw in either case, not least because the evidence provided by the victims is already incontrovertible and should lead to verdicts of genocide in both pending cases. But for the purposes of full historical accuracy and for full closure for the victims, this is a negative.
On the other hand, these revelations could, and should, also have political ramifications. The refusal of the Tatmadaw to cooperate with the institutions of international law should further isolate it internationally and pile pressure on those countries that normally advocate for human rights on the global stage to step up their efforts to support the pro-democracy resistance against the Tatmadaw junta.
More international support could lead to a quicker resolution of the ongoing civil war between the army and the pro-democracy movement in Myanmar in favor of the civilians, which in turn could lead to the earlier publication of the very information this memo was intended to suppress. Western leaders must follow these developments closely and be prepared to respond quickly to further developments.
• Dr. Azeem Ibrahim is the Director of Special Initiatives at the Newlines Institute for Strategy and Policy in Washington D.C. and author of “The Rohingyas: Inside Myanmar’s Genocide” (Hurst, 2017).