The violence of Myanmar’s civil war, soon to enter its third year, includes increasing domestic and international reports of resistance forces arbitrarily detaining and killing suspected junta collaborators. As their multi-front “Operation 1027” offensive makes rapid and widespread territorial gains, the resistance’s treatment of prisoners and civilians will be essential to its legitimacy. Though the junta remains by far the main perpetrator of civilian harm, the National Unity Government (NUG), formed by ousted lawmakers and activists and operating largely in exile, and allied ethnic revolutionary organizations (EROs), decades-old, identity-based armies operating in the many highlands surrounding central Myanmar, must investigate alleged incidents of harm committed by fighters under their command. The resistance must then find ways to provide justice for those harmed, and guarantee the human rights and due process protections of those suspected of involvement in violations.
Proactive measures would provide a vital demonstration that pro-democratic forces are committed to the rules of international humanitarian law (IHL), while inaction would undermine their legitimacy among affected communities and abroad. The question of whether to recognize the junta or the NUG has proved a thorny issue for diplomats at international organizations and across capitals: the United Nations and the Association of Southeast Asian Nations (ASEAN) walk a fine line in choosing between the junta and the NUG; China, Russia, and India fund the junta’s war effort; the U.K. and the European Parliament have recognized the NUG as Myanmar’s legitimate government; and the United States has imposed an extensive sanctions campaign against the junta but stopped short of recognizing the NUG.
Ultimately, arbitrary violence, impunity, and the fear of reporting abuses cast a broader pall over a community’s rights to life, security, and free expression.
Background
In its March and October 2023 reports on Myanmar, the Office of the United Nations High Commissioner for Human Rights (OHCHR) highlighted that anti-junta armed groups have kidnapped, harassed, and summarily executed civilians suspected of collaboration with the military regime. While the findings primarily discuss the junta’s continued egregious violations, OHCHR details “credible reports” of hundreds of civilian killings, from administrators to monks to women and children. This underreported violence includes sexual assault, beheadings, and extrajudicial executions.
Two and a half years after seizing power in a coup that ended Myanmar’s democratic transition, the military (Sit-tat in Burmese) has largely barricaded itself in provincial bases and its urban strongholds in Lower Myanmar. The Special Advisory Council for Myanmar, which is comprised of former U.N. human rights investigators, estimated in September 2022 that the junta firmly controlled only 17 percent of the country’s territory. Yet the junta’s military offensive reaches far beyond the territory it controls. Artillery, jets, and gunships launched from remaining bases can cover most of the country, allowing the junta’s indiscriminate bombing campaigns to take a heavy toll on civilians. The fear of punitive and seemingly random death from the sky is pervasive in Myanmar, as airstrikes have hit concerts, camps for internally displaced people, and schools.
The retreat of a deeply unpopular and overstretched military has opened massive physical and institutional space for the democratic resistance. Makeshift militias are left to carry out a fierce armed conflict against the junta’s cities and strongholds, while building parallel administrations in their expanded territories.
But the speed and scale of the junta’s decline has exposed the difficulty of strengthening and expanding complex administrative structures in such short order. Insufficient capacity and the exigencies of conflict have left resistance groups to administer their domains summarily and with little to no accountability.
This is most apparent in the plight of those accused, correctly or not, of being dalan, Burmese for informants. Between February 2021 and January 2023, OHCHR documented 127 killings of local administrators who are often the face of the regime in Myanmar, with 38 officially claimed by resistance forces. Though attributing assassinations in Myanmar is difficult, it is clear that administrators and other high-profile civilians are caught in a maelstrom of tit-for-tat killings between the opposition, pro-junta Pyu Saw Htee militias, and paramilitary Thway Thout (meaning “Blood Comrades”) hit squads.
But the broader detention and killing of ordinary civilians suspected of collaboration is likely significantly underreported for fear of retaliation. In at least one case, OHCHR noted the harassment and exile of a suspected dalan’s family, while a subsequent report highlighted that a “sense of fear [of discussing violations] also extended to areas under the control of other duty-bearers.”
With the need to project both unity and a progressive image to the outside world, affected households and civil society organizations have understandably been hesitant to criticize armed groups that are often less abusive than junta forces.
Decentralized Command and Control Structures
Several factors enable such abuses. First, violence and impunity in conflict often create conducive environments for extrajudicial punishment. Additionally, in the case of Myanmar, the junta’s indiscriminate targeting of civilians and civilian infrastructure through its “four cuts” strategy – which is designed to deprive rebels of food, finances, information, and recruits – has polarized sentiments between pro-and anti-junta forces and made collaboration a particularly heinous crime.
Perhaps most importantly, the struggle of resistance movements to coordinate and maintain discipline among disparate armed groups often provides fertile ground for the abuse of power. Without a unified or disciplined command structure, it is challenging to instill and enforce norms of conduct respectful of human rights. OHCHR’s October report indicated that the NUG had expelled an unknown number of battalions (200 to 500 troops each) that engaged in criminal conduct or violations of the NUG’s Code of Conduct. But there are hundreds of anti-junta units in Myanmar of varying size and strength, and the more powerful ones are far less likely to be punished or cut loose.
In Myanmar, the Local Defense Forces (LDFs) are highly localized community militias that have been “recognized” by the NUG. Many anti-military militias have not officially allied with the NUG, are still waiting for recognition, or are nominal allies without real operational or material relationships. The LDFs operate largely autonomously, receiving often makeshift weapons crowdfunded by the NUG, who have a limited presence on the ground.
Similarly, the half-dozen EROs that have partnered with the NUG maintain their own parallel administrations, chains of command, and security forces, while other powerful EROs in the east remain neutral. Some EROs have existed for decades with distinct claims to territory and legitimacy.
Ultimately, police and militia units on the ground make tactical decisions based on individual temperaments or a community’s own notions of justice, which vary among Myanmar’s many identity groups and may include summary execution. And while civilian institutions are still expanding into newly claimed areas, survivors of abuses may find that the only officials handling such allegations are, in fact, the same perpetrators or their colleagues.
The NUG’s responses to abuse have been underwhelming. In August 2022, an NUG-affiliated militia in Chaung-U, Sagaing region in north-central Myanmar, a key battleground of the civil war, detained seven civilians for scavenging in an abandoned village. But when one was rumored to be related to a government soldier, militia members allegedly sexually assaulted the women and executed all seven. Afterwards, the NUG stated that civilians “purported to be intelligence personnel from the terrorist military council” were “unlawfully killed,” without mentioning the alleged sexual violence. The perpetrators were reportedly briefly detained, then released back to their positions without any judicial process or form of accountability.
In general, the desire to maintain relationships with local allies seems to inhibit the NUG from clear condemnation of their actions. OHCHR noted in its October report that the NUG has at times “fail[ed] to respond to reported incidents with urgency, downplay[ed] the severity of misconduct, or even ignor[ed] requests altogether.” Despite official pronouncements, OHCHR’s report and cases like Chaung-U demonstrate that the command structure must go further in advocating for accountability.
Applying an International Law Framework
In parallel, the NUG’s position and actions on human rights are far less clear than they should be. “Fundamental human rights” tops the list of values of the Federal Democracy Charter (FDC), the interim constitutional framework promulgated by the allied opposition in March 2021. The Charter also establishes a host of independent rights commissions, including on human rights and gender-based violence. The NUG’s Ministry of Human Rights produces educational materials on the Universal Declaration of Human Rights (UDHR) and operates a secure complaints mechanism for alleged abuses. As of July 2023, the NUG stated its Central Commission for the Investigation of Military Crimes had received 212 complaints related to extrajudicial killings, with 24 resolved and 100 under investigation.
But these commitments are not unequivocal. The NUG’s Ministry of Defense stresses civilian judicial oversight and “protection of civilians” in its Defense Policy, but states it will only comply with those components of IHL that do not “contradict with the national interest.” Additionally, the Charter makes space for “customary laws that do not conflict with human rights,” which despite its initial clarity appears to leave room for local interpretation. This is particularly sensitive, as respect for traditional governance is a vital, decades-old aspiration for Myanmar’s minority groups and their EROs.
More broadly, extrajudicial abuse and killing touches upon a controversial issue in international law. Stemming from the UDHR, international human rights law (IHRL) has developed a sustained commitment to both the right to life (Article 3) and freedom from arbitrary detention and execution without a fair trial (Articles 9-11). This extends to IHL governing armed conflict; Article 3 to the Geneva Conventions affirms that in internal conflict, both State actors and armed opposition groups must respect the right to life of those “taking no active part in the hostilities.”
But this raises the question of what constitutes “direct participation,” a term IHL has not defined and the meaning of which differs among States. Civilians who “actively” provide military operations with actionable intelligence, material assistance, or combat functions generally lose their protected status and can legally be targeted without trial. However, issues of coercion by armed forces, temporary assistance leading to future summary punishment, and unclear thresholds to the “directness” of participation leave “direct participation” in a moral and legal gray area.
Importantly, while “direct participation” has been one of the most difficult IHL questions of the 21st century, there are certain actions it clearly does not encompass. Simply being related to or located near junta soldiers does not constitute participation in hostilities, and neither does working in the central government’s once-expansive civilian administrative institutions. A real or perceived relationship to the junta’s soldiers or non-military administrative structure is not direct participation, and any related targeting remains a war crime.
Recommendations
There are several avenues for action on extrajudicial killings. The NUG-allied Karenni Army recently established a specific mechanism by which those accused of junta collaboration are referred to investigation by the police forces to preclude targeting by LDFs. The degree to which local forces are committed to this formal process is unclear, but this investment certainly demonstrates an awareness of the issue and a demand signal from at least some constituents. It is also unclear how effectively formal reporting protects accused individuals in practice, though commentators noted it “seemingly reduced the risk” of arbitrary justice in Karenni State.
In addition to formal mechanisms, customary processes can also bolster human rights. In northwestern Chin State, for example, communities have increasingly turned to traditional justice mechanisms that emphasize restorative over punitive actions. Elders will mediate disputes, render decisions, and monitor their enforcement. Taken alone, the reliance on elders’ interpretation may facilitate arbitrary decisions, but they have increasingly been referring more serious abuses to formal institutions. Maintaining dialogue at the local level, traditional mediation should thus be supported as a partner to the expanding justice system. Indeed, large tracts of Myanmar have been dominated by EROs for years before the coup, where they have been able to build their own administrations mixing traditional justice with more formal ERO institutions. For much of Myanmar (though not the central regions), the question is more of expanding and strengthening this type of hybrid governance rather than building anew.
In terms of policy, “direct participation” does not need to remain a gray area. The International Committee of the Red Cross has interpretive guidance that stresses the importance of context-specific decisions, “limited elasticity” in defining direct participation, and establishing a “threshold of harm” directly caused by an individual’s alleged contribution to hostilities. This definition essentially limits direct participation to specific acts actively harming combatants or assisting combat operations. While the guidance is non-binding and at times controversial, the NUG and its allies can demonstrate their commitment to reducing arbitrary violence by endorsing the guidance and/or laying out their own thresholds of harm and participation.
Finally, ending arbitrary justice is about more than just institutions and enforcement. Survivors and families must feel they are able to report abuses without retribution, while journalists and civil society need the freedom to investigate, document, and discuss the state of human rights in resistance-held territory. Thus, NUG and ERO authorities must also protect those who report abuses and maintain openness to discussion and debate for even the more uncomfortable issues.