Civil rights approach to accountability and transitional justice in Myanmar

The UN Special Rapporteur’s upcoming report seeks to identify and clarify the diverse pathways to accountability for grave human rights violations in Myanmar. This submission examines accountability specifically through the lens of civil and political rights. Meaningful justice requires not only addressing physical atrocities but also dismantling the structural mechanisms of oppression, including the weaponisation of the legal system and the digital surveillance infrastructure, that facilitate the military’s systematic persecution of the civilian population.

Accountability priorities

For many activists, human rights defenders, journalists, and others at the forefront of civil and political rights, the immediate priority is punitive accountability consistent with international criminal law, rather than restorative measures or political compromises.

• End impunity: The architects of the coup have historically enjoyed total impunity, leading to recurring cycles of violence against the civilian population. No political solution can succeed without the prosecution and sentencing of senior leadership.
• Reject amnesty: Past political dialogues have frequently proposed amnesty for military leaders, which is viewed by the public as perpetuating the cycle of abuse. Future accountability mechanisms must explicitly rule out amnesty for grave crimes to maintain legitimacy.
• Primacy of criminal prosecution: Retributive justice has in the past often been sidelined in favour of “soft” diplomacy and reconciliation efforts. Supporting international tribunals and universal jurisdiction cases must be prioritised over domestic reconciliation efforts at this stage.

What are “grave violations” in the Myanmar context?

The definition of grave violations must expand beyond physical atrocities to include, for example, the systematic deprivation of liberty and digital rights across all territories.

• Digital harms: Pro-military channels systematically disseminate private data to silence people, known as doxxing, including women defenders, constituting online gender-based violence. These acts should be categorised and investigated as forms of psychological torture and a distinct grave violation.
• Surveillance as abuse: Omnipresent surveillance creates a severe chilling effect that violates the right to security of person. Accountability mechanisms must treat the deployment of such invasive technology as a violation of fundamental human rights.
• Geographic and temporal scope: Violations occur transnationally and are rooted in decades of historical impunity. The scope must include extraterritorial and digital repression and extend temporally to cover the structural roots of the crisis, such as the Citizenship Law (1982).

Legal frameworks applicable to accountability

Domestic legal frameworks have been weaponised to entrench persecution, while international frameworks offer the only viable path to justice.

• Weaponised Domestic Law: The military has weaponised laws like the Counter-Terrorism Law (2014) and Penal Code (1861), Art. 505A to arbitrarily detain thousands, effectively legalising State abduction. The Rapporteur must identify these laws not as legitimate statutes but as instruments of crimes against humanity.
• State of Emergency Abuse: The military manipulates emergency provisions to suspend all fundamental rights indefinitely. Legal analysis must challenge the validity of the declared State of Emergency as a pretext for mass violations.
• International Frameworks: Myanmar’s domestic laws currently provide no avenue for genuine accountability. International legal frameworks, specifically the Rome Statute, must be applied as the primary standard for adjudicating these violations.

Impunity for grave human rights violations

Impunity is structural in Myanmar, embedded in the Constitution (2008) and the total subjugation of the judiciary.

• Constitutional immunity: The Constitution (2008) grants the military constitutional immunity for acts done in the discharge of duties. Any roadmap for accountability must begin with the complete abrogation of these constitutional immunity clauses.
• Judicial subjugation: The judiciary functions merely as an administrative arm of the military intelligence apparatus, rubber-stamping arbitrary detentions. The entire judicial system must be declared illegitimate and legally incapable of addressing impunity.
• Military courts: Civilians are routinely tried in military tribunals with no access to legal counsel or appeal. The practice of trying civilians in military courts must be condemned as a violation of the right to a fair trial.

Accountability through Myanmar’s courts and mechanisms

Myanmar’s current domestic courts are instruments of repression, not justice. Deep reform is required before they can function.

• Illegitimacy of current courts: Judges knowingly issue politically-motivated sentences in closed prison courts. These judicial officers must be sanctioned as enablers of crimes against humanity rather than recognised as legitimate arbiters.
• Prison courts: Trials are frequently conducted inside prisons, hidden from public scrutiny and legal observers. The dismantling of these ad hoc prison courts is a prerequisite for restoring open justice.
• Structural independence: The executive branch currently exercises total control over judicial appointments. Future domestic accountability requires the creation of an independent Judicial Services Commission to rebuild the bench from scratch.

Existing opposition accountability mechanisms

Myanmar’s opposition groups (NUG, EROs) have established parallel systems, but face significant capacity challenges.

• Enforcement gaps: Opposition courts currently lack the capacity to apprehend high-level perpetrators protected by the military. International tribunals must fill this gap by issuing arrest warrants for leadership figures while local bodies handle lower-level cases.
• Procedural standards: Community justice mechanisms risk devolving without proper oversight. Capacity building is required to ensure these parallel systems adhere to international due process standards.
• Forensic capacity: Local bodies often lack the resources to document crimes to evidentiary standards. Technical assistance must be provided to standardise forensic collection and the chain of custody.

Customary, indigenous, and community-based accountability

While vital for local disputes, informal mechanisms must be strengthened to handle the scale of rights violations in Myanmar, and to ensure that they do not commit further violations of fair trial.

• Role in conflict zones: In the absence of State law, community mechanisms are holding society together. These mechanisms should be supported but limited in jurisdiction to prevent the adjudication of grave international crimes without adequate resources.
• Inclusivity: Traditional mechanisms may sometimes exclude women, youth, or marginalised groups from decision-making. Support for these systems must include gender-sensitivity training to ensure equitable justice.
• Risk of vigilantism: There is a risk of informal justice becoming retributive in a polarised conflict. International technical support is needed to establish clear context-appropriate guidelines and human rights safeguards for community-based justice.

The role of international courts and mechanisms

Given the failure of domestic remedies, international courts act as the primary avenue for justice.

• ICC referral: The jurisdiction of the International Criminal Court (ICC) remains limited to cross-border crimes. A full UN Security Council referral or an expansion of the current investigation scope is necessary to address the totality of domestic crimes.
• ICJ proceedings: The genocide case at the International Court of Justice (ICJ) addresses state responsibility but not individual criminal liability. Complementary mechanisms must be pursued to ensure individual perpetrators are held criminally responsible alongside state sanctions.
• Ad hoc tribunal: Gaps in current jurisdiction leave many crimes unaddressed. The establishment of an ad hoc international tribunal for Myanmar should be considered to prosecute crimes outside the ICC’s current scope and locally within Myanmar to be accessible to the people.

Universal jurisdiction cases and other cases before national courts

Universal jurisdiction represents a critical pathway to bypass the deadlock in international tribunals relating to Myanmar. International cases largely focus on the crime of genocide, and many other perpetrators of international crimes remain free. National courts should consider expanding investigations to cover crimes against humanity and war crimes more broadly.

Corporate accountability for grave human rights violations

Corporate actors providing dual-use technology and revenue are complicit in grave violations.

• Surveillance supply chains: International entities continue to provide the digital weapons used to target dissidents. Strict export controls and criminal liability must be imposed on companies supplying surveillance technology to the military.
• Revenue streams: State-owned enterprises provide the financial lifeline for the military’s operations. Sanctions must target the financial infrastructure and foreign reserves that sustain the military’s capacity to commit atrocities.
• Due diligence failure: Companies often claim ignorance of how their technology is used. Mandatory human rights due diligence must be encouraged and enforced for all tech exports to high-risk zones like Myanmar.

Initiatives to gather and preserve evidence

Civil society is leading evidence-gathering but faces forensic and security hurdles.

• Evidence standards: Resistance groups often lack the resources to preserve the chain of custody for evidence. The international community must provide technical assistance to standardise evidence collection for future prosecutions.
• Witness safety: The preservation of evidence puts those collecting it at risk. The protection of witnesses and reporting mechanisms, including media, CSOs, unions, and activist groups, must be integral to any evidence-gathering initiative.

International support for accountability processes

Support must move beyond rhetoric to concrete technical and financial assistance.

• Funding for documentation: Evidence gathering is resource-intensive and dangerous, particularly at the international level. Support should be focused on building national capacity in documentation to evidentiary standards where necessary. 
• Technical cooperation: Local governance bodies lack experience in complex criminal law. Legal experts, local where possible, should be deployed to assist NUG and ERO judicial bodies in establishing compliant legal frameworks.

Victim-centred accountability and participation

A victim-centred approach is defined by Safety First, including the protection of digital identity.

• Protection from reprisals: Seeking justice currently exposes victims to significant harm from surveillance networks. Mechanisms must incorporate “do no harm” protocols that assume all witnesses are at high risk of digital and physical reprisals.
• Anonymous participation: Open testimony is often intercepted by military intelligence. Secure mechanisms must be established and allowed to enable victims to submit evidence without revealing their identity.
• Victim leadership: Victims should not just be witnesses but participants in design. Accountability mechanisms should include victim advisory boards to ensure processes remain relevant to their needs.

Transitional justice

Transitional justice is currently in a planning phase, led by many CSOs, and focused on preventing the recurrence of dictatorship.

• Vetting and lustration: The civil service and security services are currently staffed by military appointees who both lack commitment to democratic approaches and may sabotage reforms. A comprehensive lustration policy must be prepared to remove these actors from all senior levels during the transition.
• Institutional reform: The Ministry of Home Affairs currently controls the police force. Planning must focus on the total separation of police and general administration from military oversight.
• Abolition of the Constitution (2008): The current constitution entrenches military power and impunity to the extent that it is not worth amending. The drafting of a new Federal Democratic Charter must be supported rather than amendments to the existing document.

Truth and reconciliation

Truth must precede reconciliation. Premature dialogue is a concession to impunity.

• Historical record: Military propaganda distorts the narrative of atrocities to fuel division. An independent truth commission must be established to document the indisputable facts before any reconciliation attempts begin.
• Horizontal dialogue: Resources should be directed towards inter-ethnic dialogue (e.g., Bamar-Rohingya) rather than military-civilian dialogue. The military as an institution must be excluded from reconciliation processes until it is under civilian control.
• Countering revisionism: The military actively rewrites history to justify its actions. Truth-telling initiatives must focus on creating an accurate, accessible historical record for future generations.

The role and importance of reparations

Reparations must focus on the restitution of rights and structural guarantees of non-repetition.

• Restitution of citizenship: The Rohingya and other minority groups remain stateless under Myanmar’s discriminatory laws. Immediate legislative repeal of the Citizenship Law (1982) must be a non-negotiable condition of any transitional roadmap.
• Prison and exile reparations: Thousands of individuals have been wrongfully imprisoned and forced into exile. These individuals need to be recognised by law, their crimes nullified, and the State must act to restore them to their previous situation, including by returning their jobs.
• Digital reparations: Victims of doxing suffer permanent reputational damage. Mechanisms for the right to be forgotten and the scrubbing of military-propagated defamation from the internet must be established.
• Property restitution: Many individuals’ homes and properties have been confiscated since independence. A legal framework for the automatic unsealing and return of these assets must be developed.

Comparative lessons and examples

Myanmar must learn from past failed transitions where amnesty led to renewed coups.

• Failed amnesties: Previous transitions in Myanmar and the region often granted de facto amnesty, leading to the military’s resurgence. Moving forward without justice has historically guaranteed the repetition of atrocities.
• Lustration successes: Countries that successfully transitioned often purged authoritarian elements from the civil service, security services, and judiciary. Comparative examples of judicial lustration should be used to guide the restructuring of Myanmar’s courts.
• Hybrid tribunals: Purely domestic or international courts may be insufficient. Models of hybrid tribunals that combine international expertise with local ownership should be studied for the Myanmar context.

Conclusion

The people of Myanmar have been denied justice for decades. The post-2021 crisis has only deepened the conviction that sustainable peace requires accountability. Human Rights Myanmar stands ready to provide further evidence regarding the civil and political dimensions of these violations.