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Responsible or complicit: a look at Myanmar´s crisis through its business actors, people´s resistance and the international community

 

1. Myanmar since February 2021

Myanmar’s political landscape since February of this year has witnessed some extremely distressing transformation. Right before the start of the new parliament1, the Myanmar military, or popularly known as the ‘Tatmadaw’, deposed the democratically elected government by staging a coup d’etat on February 01, 2021 and detaining the de facto leader and State Counsellor, Daw Aung San Suu Kyi, President Win Myint, members of the Union Election Commission (‘UEC’)2 and several other political allies from the National League of Democracy (‘NLD’) party. The Tatmadaw, in addition to declaring a year-long state of emergency, precipitated a slew of subversive changes to the country’s legal system by criminalizing peaceful protests, suspending basic protections under the Law Protecting the Privacy and Security of Citizens (2017)3, authorizing arbitrary detentions and amending the Electronic Transactions Law to criminalize the online dissemination of information critical of the coup4, to state a few.

As of April 11, 2021, according to the Assistance Association for Political Prisoners (AAPP), the publicized toll of the number of people killed by the Tatmadaw stands at 7065 with the likelihood of the actual number of fatalities being far worse. The number of people under detention and having been tortured is much higher and is a continuously mounting toll with each day of the coup becoming ghastlier than the one before. The legitimacy drawn by the Tatmadaw for its actions does not find a source either in Myanmar’s already skewed Constitution in favour of the military6 or under any international legal standards. The attempt to justify the coup and the resulting violence on the civilians on account of election irregularities7 is both unconstitutional and grossly disproportionate to the national interest it claims to protect. The present situation in Myanmar as projected by the military does not qualify for derogation from any of the human rights that it has been so prompt to suspend. Especially disquieting is the impunity with which rights of bodily integrity such as that of habeus corpus have been pilfered without any recourse to judicial review.8 Since the Myanmar Constitution does not necessitate any review of ‘legitimate measures’ pursuant to the declaration of state emergency and consequently emboldens the military forces to steamroll any and all forms of dissent in the process, the ICJ considers this safeguard for the military forces as both unconstitutional and antithetical to the rule of law.9

Although Myanmar has witnessed severe political unrest in the past, the ongoing atrocities being committed by the Tatmadaw is drawing ire not just from the international community at large but is also seeing unyielding and almost universal resistance from its own people.10 The coup has not only resulted in a democratic reversal of sorts by clamping down and jeopardizing the rights and liberties of its peoples, but has also caused a major setback to a decade of peacebuilding efforts11 and political and economic liberalization.12 The response of the international community can be observed on a spectrum ranging from outright condemnation13 to mild concern with a focus on instability.14 This post will discuss some of these reactions with an emphasis on the human rights responsibilities of corporations presently operating in Myanmar. This post will also highlight the overall measures that have been or are likely to be considered by the international community in response to the ongoing turmoil as a means of securing relief for the people of Myanmar.

2. Business actors during the coup

The Tatmadaw has always found enablers and supporters in large global and multinational corporations. Since Myanmar’s efforts of transitioning from a military rule into a civilian democratic government in 2011, multinational business entities operating in Myanmar and their links to the military have become more pronounced. For years preceding the present crisis in Myanmar, the Tatmadaw has been continuously linked to instances of grave human rights violations such as forced appearances, arbitrary detentions, torture and genocidal crimes against ethnic minorities such as the Rohingya Muslims. It is a well-known fact that the corporations doing business in Myanmar have always had reliable intel on the internal machinations of the military including corruption and other human rights violations.15 As part of the Independent International Fact-finding Mission (‘IIFFM Mission’) in Myanmar under the 42nd session of the Human Rights Council, a report was published on the economic interests of the Myanmar military.16 This report was in furtherance of the previous reports submitted to the Human Rights Council in the year 2018 which in addition to detailing the grave atrocities committed by the Tatmadaw against the ethnic Rohingya Muslims, also identified and investigated five areas of economic interests enabling the Tatmadaw.17 Amongst them feature the military’s principal conglomerates, Myanmar Economic Holdings Limited (‘MEHL’) and Myanmar Economic Corporation (‘MEC’) and the subsidiaries either owned or controlled by them. These are owned and controlled by senior personnel in the Tatmadaw and have more than 100 businesses across various sectors of the economy.18 The Tatmadaw therefore is able to both fill its coffers and sustain and shield its autonomy from any democratic oversight. This untethered degree of financial independence and might effectively releases the Tatmadaw from any sense of accountability towards its actions and renders it practically immune from any civilian censure. The report by the IIFFM Mission essentially confirmed and underscored the existing commercial relationship between the aforesaid companies and its primary patrons. Although the IIFFM Mission report made several recommendations in line with its adverse findings, the primary proposition was to call on the commercial enterprises to cease all business activities with the Tatmadaw or any entities owned and controlled by them, including subsidiaries. The report since has been a testament to the economic facilitation of the Tatmadaw’s unending cycle of violations and impunity. However, despite the recommendations and all the evidence establishing the military’s culpability, it has still led to the present-day turmoil and rampant lawlessness while the military continues to remain as unscathed as before.

Some Western states have attempted to impact the status quo and mount international pressure by imposing economic sanctions on several personnel of the Tatmadaw, both in response to the current coup and at several points in the past before. The U.S. imposed sanctions by specifically targeting the MEHL, MEC and one of Tatmadaw’s economic backbone enterprises involved in the mining and marketing of jade and gemstones, Myanma Gems Enterprise (‘MGE’)19 and freezing their assets in the U.S. The European Union imposed sanctions on senior officials of the Tatmadaw by issuing a visa ban and by freezing of assets.20 Germany and the UK have also cautioned and indicated towards imposing further sanctions. A number of Japanese companies, including Suzuki and beverage maker Kirin, have suspended business activities,21 but are apprehensive of completely withdrawing from their trade partnership.22 The Swedish giant H&M and Italy’s Benetton have currently suspended all new orders from Myanmar in spite of Myanmar being a crucial manufacturer in the garment production industry.23 The French energy giant, EDF has suspended an ongoing hydro-power dam project in Myanmar in response to the coup,24 whereas another French company Voltalia plans to close all its activities entirely despite being active in Myanmar since 2018.25 However, it must be noted that not all companies have been inclined towards making a strong statement in response to the situation. Prominent French corporations Total and Accor, which have significant investments in Myanmar, have professed little to no intention of suspending their respective operations in Myanmar.26 Although both corporate giants insist that their local subsidiaries and business affiliates are in compliance with and respectful of universal human rights obligations, Accor’s business partner Max Myanmar Group was named as one of the cronies of the military and one of the companies involved in crimes against humanity in the IIFFM report of 2019.27 Danish brewer Carlsberg on the other hand has assured of ‘no contact’ with the new regime and plans to reduce its production of beer without intending to wind up its operations entirely as it employs about 500 people locally.28

Historically, sanctions have not always been the most effective as many of them do not act as deterrents on those imposed but end up affecting the already oppressed and affected civilian population.29 However, these set of sanctions have been specifically targeted towards the military and officials of the military. Although the imposition of these economic embargos has not elicited any response from the Tatmadaw nor has it visibly mitigated the escalating crisis situation on the ground, but these certainly count as part of growing voices of international intervention intent on sustaining pressure through economic isolation.30

Since sanctions are primarily post facto international punitive measures in response to specific situations, what merits a closer examination is if businesses can operate within a framework that does not directly contribute to widespread human rights abuses. All kinds of businesses do not have the option to suspend their operations in situations of conflict. Essential businesses such as transport, telecommunications, logistics, infrastructure, banking services etc. should continue to function in these kinds of situations in order to prevent a complete economic breakdown. The UN Guiding Principle on Business and Human Rights (‘UNGPs’) read together with the UN guidance for businesses in conflict affected regions31 emphasize on the significance of conducting heightened human rights due diligence in order to minimize any further potential harms as a result of their activities and affiliations.32 Although it is an extremely challenging proposition33, but economic investment can be accomplished without being in concert with the military and its operations. It must be reiterated that business actors are never neutral in situations of conflict.34 The primary responsibility of larger corporations lies towards prioritizing the safety of their civilian staff on ground and support their civil and political liberties.35 All businesses must reorganize their internal policies and adapt to volatile situations by collaborating with other similarly situated businesses, engaging in collective actions, critical information sharing, maintaining an open yet discreet channel of communication with trade associations, local and international civil society organizations, embassies and consulates etc.36 In situations where employees and staff are subject to abuses, businesses must try and intervene within the existing legal infrastructure to the best of their ability and in cases when such intervention has the likelihood of causing more potential harm, document the abuses and maintain records if necessary for future evidentiary purposes.37

While the primary focus of businesses and their affiliates must be a complete cessation of any and all commercial ties to the military, it must be done in a phased manner so as to not attract hostile repercussions. In addition to impeding the flow of revenue and any other economic incentive, this must be done to avoid conferring any legitimacy on the personnel and leaders of the military responsible for the egregious human rights violations. In the midst of a human rights emergency, even acts of simple practical facilitation38 for military operations can amount to aiding and abetting of the crimes against humanity. In any event, all efforts must always be directed towards protection and support of human rights and any derogation and violation must be strictly condemned and communicated if possible, either singularly or as part of a collective action. A noteworthy instance of one such collective action is the joint statement released by concerned businesses operating in Myanmar in cooperation with the Myanmar Center for Responsible Business (‘MCRB’).39 The statement has also been further endorsed by EuroCham Myanmar and several other international chambers of commerce in Myanmar as well. The statement although does not explicitly condemn the coup but does express a deep sense of concern over the state of emergency and commits to undertake a wider human rights and business integrity due diligence and comply with the principles enshrined in the UNGP, ILO Conventions and international anti-corruption instruments.40 Lastly, should a business entity choose to exit Myanmar, it must do so keeping in mind the safety and interests of all its employees and stakeholders with respect to paying salaries, benefits, offering assistance with any immigration formalities if applicable, to state a few.

3. The international community’s opprobrium of the crisis: what it means for the people’s movement and access to justice

The present persecution of its people by the Tatmadaw is an echo of the unspeakable atrocities and ethnic cleansing inflicted by them against the Rohingya Muslims. As a result, Myanmar has been at the center of 2 significant international proceedings41 over the last 2 years. Despite being at the receiving end of almost unanimous condemnation by both states as well as transnational humanitarian organizations, the Tatmadaw has shouldered absolutely no accountability for its actions. The present situation is playing out to be no different as the number of victims far exceed any justice avenues in sight. As much as it is important to bring the perpetrators to justice, it has become more exigent to level focus on the civilians and avow all support necessary. The civilian protesters continue to resist by staging peaceful demonstrations and acts of civil disobedience despite being treated with utmost impunity. With the absolute disruption of all the democratic institutions and processes including access to judicial remedies, the civilians are looking towards the international institutions and processes in place for not just to condemn but to act.42 The protesters have been relying on the principle of ‘responsibility to protect’ or the ‘R2P’ with slogans, placards and messages on clothing. The R2P principle, despite its imperialist implications,43 is crucial in so far as it obligates the international community to fulfill its collective commitment towards protecting people from ethnic cleansing, crimes against humanity, genocide and war crimes.44 The R2P, although a call for immediate intervention, goes beyond mere military measures and relies more on processes dependent on political will for effective implementation.45

The UNHRC has also taken serious cognizance of the situation through resolution A/HRC/46/L.21/Rev.1, wherein the UNHRC has decided to extend the mandate of the Special Rapporteur, Mr. Thomas Andrews on the situation of human rights in Myanmar for a further period of one year, with a request to present an oral progress report to the Human Rights Council at its 47th and 48th sessions and to monitor the situation of human rights in light of the recommendations and communicate any urgency if the situation were to further deteriorate.46 Mr. Andrews has thus far emphasized on the need for coordinated action and has documented several cases of grave human rights violations including but not limited to extrajudicial killings, arbitrary mass detentions, torture, use of force etc.47 Mr. Andrews has also called on the UNHRC to urge the UN Security Council to consider all options it has previously considered to address grave human rights violations.48 The options, some of which have already been considered by states as discussed hereinabove, range from imposing sanctions, arms embargos, travel restrictions, action before the ICC or ad hoc tribunals.49 Myanmar however has rejected the Special Rapporteur’s mandate claiming contravention of principles of universality and neutrality.50

The UN High Commission for Refugees (‘UNHCR’) has also urged states to honor the principle of non-refoulement and offer sanctuary to anyone crossing borders and seeking asylum.51 Some additional measures that neighboring states in the region must equip themselves with are temporary suspension of deportations of both documented and undocumented migrants from Myanmar, facilitate safe and non-custodial alternatives to detention of undocumented migrants especially in light of a public health crisis such as Covid-19.52

The UN country team (‘UNCT’) in Myanmar which consists of 21 UN agencies and offices is also committed to staying in Myanmar and providing humanitarian assistance.53 The international NGOs currently working in Myanmar have issued a joint statement with a commitment to collaborate and continue liaising with other civil society partner organizations, local community groups to national civil society networks.54 There is a legitimate fear of donors pulling out of civil society initiatives and reviewing their long-term role in a transitional state. However, the primary beneficiaries of the funds must be borne in mind before any efforts to scale back are initiated. The decision to continue channelizing funds through partner organizations and grass root local organizations to those affected is critical to ongoing humanitarian efforts.55

Civil society groups have historically faced immense opposition in Myanmar but they have managed to persist and make incremental progress in working on rights of ethnic minorities, gender equality, peacekeeping efforts and civil liberties. The coup has compelled international actors to recognize the need for aid programs and development assistance to be both politically sensitive and flexible enough to accommodate unpredictable democratic transitions. Access to humanitarian aid should never be solely contingent on expectations of linear transitions and must be prepared to adapt and evolve, just like the people of Myanmar.56

The people of Myanmar were afforded a very small window to experience a democratic civilian political environment and this sudden revert to the past has stirred the national consciousness like never before. The cost of defending that experience has however been a colossal loss of community and lives. No resistance or movement is stranger to dissenters being wrongfully and forcefully silenced, but as witnesses to such appalling acts of injustice, justice for them can only be imagined with the systemic dismantling of the powerful and brutal machinery in force and by holding them accountable.

4 Ibid.

8 Supra note 6.

9 Art. 432 of the Myanmar Constitution; Supra note 6.

12 Supra note 10.

13 Western states such as the U.S., NZ, the EU have almost unanimously condemned the coup and some have already issued sanctions.

14 China has emphasized on the need for ‘stability’ in Myanmar although it vetoed a UN Security Council resolution condemning the coup; Crisis Group interviews, diplomats and officials, New York, February 2021.

17 Ibid, at p. 4.

18 Supra note 16.

26 Ibid.

32 Ibid.

34 Ibid.

35 Ibid.

36 Ibid.

37 Ibid.

38 Instances of logistical support, hospitality services etc. are acts of everyday practical facilitation that are not necessarily of an economic nature but are still essential for the functioning of an institution.

40 Ibid.

41 Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar ICC-01/19 and Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) before the ICJ.

43 Sasha Bhatnagar, ‘Responsibility to Protect and its Neo-Imperialist Implications’, April 2016, available at https://www.e-ir.info/2016/04/14/responsibility-to-protect-and-its-neo-imperialist-implications/

44 Supra note 42.

45 Ibid.

49 Ibid.

50 Supra note 47.

52 Ibid.

53 Ibid.

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