In February 2021, the Myanmar military, or Tatmadaw, staged a historic coup in response to the 2020 elections where Aung San Suu Kyi’s National League for Democracy (NLD) won decisively against the military-backed Union Solidarity and Development Party (USDP). Notwithstanding Myanmar’s history of military involvement in democracy since its earliest post-independence, this coup marked a new level of devastation for the nation.

As of March 2023, over 3,100 deaths and 16,000 arrests had been reported among anti-coup protesters who rejected the junta known as the State Administration Council. This junta replaced the exiled NLD-led National Unity Government, prompting activists to seek international assistance to address not only ongoing sexual violence but also the plight of the Rohingyans. Despite superficial efforts to satisfy international stakeholders, the situation in Myanmar has not improved over two years since the initial coup. The government extended the state of emergency, allowing Senior General Min Aung Hlaing, the coup leader, to prolong his control over Myanmar’s 54 million people until early 2024, postponing the democratic election once again.

Though the future of the country seems to be unclear or rather inauspicious, an effective mechanism to hold perpetrators of human rights violations accountable should be readied. The author argues that a tailored solution in the form of a hybrid tribunal would prove to be useful in doing just that.

Special Nature of the Situation and the Need for International Involvement

The situation in Myanmar is very unique for a number of reasons. First, there is the aforementioned fact that the country has a unique history of military history whereby for most of its independent life, the country has seen at least partial partaking of the military in government chambers. As things roll out in Naypyidaw, it becomes more evident that even in the future scenario where democracy is restored, remnants of the coup will remain and the military will continue to have influence over civil society.

Second, it is crucial to acknowledge the complex issues pertaining to the situation in Myanmar. Among the most notable of which is the fact that ethnic and religious dissidence is painted all over. The recent fallout can be and has been seen by many to be closely linked with the genocidal actions against the minority Rohingyans that started a fallout in 2017. The ongoing struggle for autonomy and recognition among various ethnic groups further complicates the pursuit of stability and unity.

A third factor, a consequence of the first two, is the bewildering political situation in the country. This revolves around determining the legitimate government or supposed to be the legitimate one that can eventually administer the state and enforce criminal justice. Any appointment of local parties, especially in the judicial realm, has the potential to be a point of contention.

These factors combined require any mechanism of justice for the atrocities against the people in Myanmar to be uniquely catered to the preexisting conditions (or more fittingly, obstacles) of the country. It would be foremost unwise to solely rely on the country’s own judicial system which has already been infested with irresponsible parties. On the other hand, despite the international community’s calls for accountability, it is unlikely that an ordinary criminal justice framework through the International Criminal Court (ICC) – a body that aims to convict perpetrators for the most heinous crimes by way of cooperation of its 123 state parties – would suffice.

Myanmar is not a state party to ICC’s constitutive instrument, the Rome Statute. At first instance, this could seem like the end of the story. However, Article 13 of the Statute provides that a crime can also be referred to the Prosecutor by the United Nations Security Council (UNSC) as per the Chapter VII powers ascribed to the Council by the UN Charter. Such a procedure has been used a few times such as in the 2005 Darfur situation and the 2011 Libyan crisis. Ironically, these cases also exemplify the inefficacy of the UNSC’s referral to expedite the ICC’s work. In the prior, for instance, President Omar Al-Bashir, the main perpetrator whom the Court issued arrest warrants for in 2009 and 2010, was on the loose as African states did not follow through with ICC’s calls for cooperation.

Sandwiched by domestic and international unlikelihood, the best way out of the predicament is to embrace both pressures by taking the best of both worlds. A hybrid tribunal formed by the UN in cooperation with the Myanmar government would be an agreeable middle ground by offering advantages like expertise and support of the international community and a contextual understanding through more direct participation of concerned stakeholders which are complementary to one another.

Mechanics of Establishment and Procedures

Although the UNSC may not bring an end to the problem through its ICC pipeline, it will certainly prove to be instrumental in forming the hybrid tribunal for Myanmar. This is nothing new for the Council as it has, in accordance with its Chapter VII powers, done exactly that on numerous occasions in the past such as in the cases of the Special Court for Sierra Leone (SCSL) in 2000 and the Special Tribunal for Lebanon (STL) in 2007. The hybrid tribunals were founded and operated by the respective country governments with the help of the UN.

The future tribunal in Myanmar should take lessons of best practices from its predecessors. For one, these courts took the concept of cooperation literally by forming co-opted rosters of court officials, from prosecutors to judges, who jointly sought truth to the cases brought upon them. They also had a robust victim participation mechanism that is comparable to that of the ICC itself but with the added benefit of often being located within the country of residence of both the victims and perpetrators, allowing for more direct engagement that can involve way more stakeholders all throughout due to operational efficiency.

Beyond short-term justice for the perpetrators, similar bodies like the Special Court for Sierra Leone (SCSL) through its Residual Court (RSCSL) prove that it can serve a long-term function for the safeguarding of the progress made so that no such horrors ever transpire again. Once the Special Court was done deciding on cases of international humanitarian law in 2013, the Residual Court took charge of carrying on its legacy by maintaining archives, protecting and supporting witnesses, and assisting national authorities, among other things.

Concluding Remarks

The situation in Myanmar is ultimately a very perplexing matter that may not just be viewed through a single lens. While human rights justice is a legal concern, politics will always be a very important factor to consider. The mere existence of an international party without a direct connection to domestic politics can create a better perception of impartiality. A localised approach on top of that would go a long way to help gain legitimacy. Skepticism about a hybrid tribunal will always persist, mainly using the core argument of the insensitivity of the court and its apparatus. While there is merit to this, scholars have come up with ways to solve the issue which include particularising courts’ choice of members and specialised training. The situation in Myanmar would make good use of such a model, and it would in turn be a further testament to its potency.

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Rafsi Albar is an undergraduate student, teaching assistant, and researcher at the Faculty of Law, Universitas Gadjah Mada, Indonesia.

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Image Credits: Emily Teng