Limits of international amnesty: The Myanmar case

On Thursday, March 27, 2021, as part of the National Day of the Myanmar Armed Forces, the military junta led by General Min Aung Hlaing carried out its threat to "shoot in the head and back" to all those who decided to continue with the pro-democratic protests: more than 110 Burmese citizens, including a child under the age of five[1](https://elpais.com/internacional/2021-03-27/mas-de-50-muertos-en-las- myanmar-protests-after-military-threatened-to-shoot-in-the-head.html), were killed.

Videos and broadcasts show how elements of the Myanmar National Police and Armed Forces have been in control of the country since the [overthrow of the civilian government in February](https://cemeri.org/art/china-ansea-y-coup -myanmar-state/), arrest, beat and execute without discretion raising the number of crimes against humanity against the Burmese population in the last two months to more than 550 attacks.

Historical logic dictates that in this type of situation, where accelerating regime change and stopping human suffering is possible and necessary; negotiating an amnesty-political asylum agreement is the most practical way out.

The price of this resource, however, must be weighed in the context, means and consequences for its use; among them the type of crime, the signing of treaties and international support.

Is an amnesty-asylum agreement possible, relevant and viable to stop the repression in Myanmar?

Peace vs Justice: pros and cons of amnesty

In the last four decades, the offer of amnesty and/or political asylum has emerged as a quick, peaceful and, above all, practical solution to find solutions to conflicts and avoid further bloodbaths: Cambodia (1991) , El Salvador (1992), South Africa (1992), Haiti (1993) and Sierra Leone (2003), to mention a few recent cases, had support from the UN to ensure guarantees of amnesty in each crisis.

Thus, in Haiti in 1993, for example, high representatives of the UN reached an agreement with the de facto military leaders, where the latter, authors of a coup d'état and various crimes against humanity, agreed to relinquish power and allow the return of the democratically elected president (Jean-Bertrand Aristide) in exchange for a full amnesty and asylum in Panama.

The agreement achieved its objectives: avoided the intervention of a multinational coalition; provided legitimacy to the restored government; and reduced civilian suffering after lifting UN Security Council sanctions on Haiti2.

Likewise, the agreement was successful in stopping the coalition operation approved by the Security Council on July 37, 1994 and which, with great certainty, would have resulted in more human suffering.

The scope of this resource, however, is very limited: although in the case of Haiti the agreement did not generate strong political and social consequences in the long term; Precedents in Liberia, El Salvador or Angola have shown, in the opinion of different international commentators, that social reconciliation is not possible without justice.

Indeed, despite the fact that reparation remedies against the victims were accompanied by amnesty, examples such as that of Charles G. Taylor, convicted of conspiracy to murder from his asylum, showed that far from being a solution, this type of agreement marks a milestone. negative precedent against the rule of law.

In the opinion of Richard Goldstone, former Prosecutor of the International Criminal Tribunal for the former Yugoslavia, the inability of the international community to prosecute Pol Pot, Idi Amin, and Mohammed Aidid, among others, in fact encouraged the Serbs to pursue their policy of ethnic cleansing waiting that they would not have to answer for their crimes"3.

Therefore, before analyzing the offer of an agreement of this type, it is necessary first to assess that its implementation always sets a negative precedent in favor of impunity and justice into one's own hands.

Conditions and obstacles

In the previous cases, the crimes alleged by special courts and organizations were crimes against humanity, that is, acts recognized in international law for seeking generally and systematically the generation of physical and/or mental suffering against a civil population.

With more than 550 citizens murdered, 2,258 detained, and at least 5 deceased in custody with signs of torture (OHCHR, 2021) the repression of the Junta encompasses for the moment four crimes contained in article 7 of the Rome Statute: murder, persecution, torture and forced disappearance.

Myanmar National Police detain a protester during a demonstration in Moulmein, Mon State, on February 7, 2021 (Photo by STR/AFP via Getty Images)

However, the main obstacle to prosecute the perpetrators of these crimes lies in the fact that despite the principle of universal jurisdiction and the nature of imprescriptibility crimes against humanity legally lack a duty to prosecute or extradite at the international level 4; differentiating it from other crimes categorized in the Rome Statute such as war crimes (Geneva Conventions), genocide (Convention for the Prevention and Punishment of the Crime of Genocide) and even torture (Convention against Torture and other Treatments or Punishments cruel).

In the case of General Min Aung Hlaing, leader of the coup and consequently responsible for these crimes by command line, this represents a capital limitation for international justice: **Myanmar, in addition to not being part of the Rome Statute **; nor has it signed the Convention against Torture.

Membership of these instruments would not only have facilitated the accusation of those responsible for these crimes by the International Criminal Court, but would also have increased the chances of legally invalidating any amnesty-asylum agreement that could end in impunity5.

As if that were not enough, Myanmar also presents reservations in articles 6, 7 and 9 of the Convention for the Prevention of Genocide (1951) whose essence establishes: "Persons accused of genocide or any of the other acts enumerated in article III shall be judged by a competent court of the State in whose territory the act was committed"; presenting a barrier to prosecution and condemns this type of crime in the future.

To this, it must be added that the legal-constitutional order of the country establishes an ambiguous basis for the legitimacy of the coup d'état, allowing the recognition of neighboring States and maintaining civil support in the interior.

Expectations

In this sense, an offer of amnesty-asylum with the Military Junta is possible due to the lack of current international legal obligation to prosecute crimes against humanity and Myanmar's non-membership of key Treaties for its prosecution, such as the Convention against Torture and the Rome Statute.

General Min's Board also has a small but important international recognition from neighboring countries, including the Russian Federation and the People's Republic of China, both present at the protocol acts of the National Day of the Myanmar Forces and that They have the right of veto in the UN Security Council.

In fact, on March 10, 2021, Russia and China, with the support of India and Vietnam, [**managed to stop** **two joint resolution proposals**](https://www.lavanguardia.com/internacional /20210310/6266898/china-russia-block-condemns-military-coup-burma-onu.html) in the Security Council to condemn the events since February 1 in Myanmar and open the door to "additional measures" for their sanction.

Away from the centers of influence of the European Union and the United States, the Myanmar case has also shown that Western economic sanctions are currently ineffective in Southeast Asia. The diplomatic presence of the aforementioned Russia and China, but also of Bangladesh, Vietnam, Laos and Thailand, in the protocol acts of Armed Forces Day as well as their integration into the Regional Comprehensive Economic Partnership (RECP) agreement materially support the geostrategic.

Russian Deputy Defense Minister Aleksandr Fomin received recognition from General Min Aung Hlaing, leader of the coup d'état and responsible for the junta's crimes, March 26, 2021 (AFP-PHOTO. Myanmar Radio and Television via AFPTV)

The fact that a way out through prosecution or an amnesty-political asylum agreement is far away, however, does not translate into the inexistence of other resources for peace and justice.

Customary international law, special courts of justice, and the principle of universal jurisdiction are remedies that have shown a high level of enforcement. The most illustrative case is the dual prosecution of former Sudanese dictator Omar al Bashir, who despite not approving Sudan's subscription to the Rome Statute -and consequently to the International Criminal Court- prior to his overthrow, is currently subject to a [prosecution process](https://www.google.com/search?q=omar+al+bashir+international+criminal+court&rlz=1C1ALOY_esSV934SV934&source=lnms&tbm=nws&sa=X&ved=2ahUKEwjGyYSElObvAhXiQjABHddrDEIQ_AUoAnoECAE QBA&biw=1366&bih=625) international.

In addition, the degree of political, economic, and commercial interconnectivity that globalization has shaped substantially limits the scope for action of current and future perpetuators; shown that while justice may not be achieved immediately, the possibility persists in the medium and long term.

Finding a solution will also depend on the degree of reaction of the international community. Between positions of silence and concern, many countries in the Western Hemisphere including Brazil, Guatemala, Mexico, Honduras, Costa Rica, Argentina and El Salvador have not established a condemnation of the crimes in Myanmar.

Establishing a joint position, where the States expressed their rejection from the commission of a coup d'état, would not only favor a multilateral exit in favor of the universal principles that most States are part of; Rather, it would demonstrate the autonomy and voice of those states that adopt democratic values in their foreign policy.