Conflagration in Myanmar: International Crimes in the Burning of Thantlang

 

Priya Pillai

 (  (Priya Pillai is an international lawyer, consulting in the areas of international justice, transitional justice, and human rights. She has extensive legal experience at international and domestic institutions.)

In December 2021, I was asked to review evidence gathered by the Washington Post for a report on atrocities in Chin State, Myanmar – “Burn it all down” – and provided my analysis for the piece. This blogpost provides additional detail and a legal assessment of what has been occurring in Chin state, Myanmar. Much of the evidence on which this post is based is available in the Washington Post article mentioned above.  Details of the burning of Thantlang and the surrounding areas can also be viewed in the article for additional context.

In brief, as part of the Myanmar military response to civil disobedience and protests relating to the coup, civilians are bearing the brunt of a brutal crackdown in urban and rural areas. Chin state in particular has emerged as key in resisting the junta, and is bearing the brunt of atrocities against civilians and armed groups. The town of Thantlang has been targeted and much of it has been burnt down, in addition to surrounding areas. Much of the population of the town has fled across the border to India. As the campaign by the military over the course of a few months intensified last year, which is meticulously detailed in the Post’s article, this blogpost highlights potential violations of international law based on this evidence.   

1. Potential Crimes against Humanity

The Rome Statute defines the chapeau requirements of crimes against humanity as a course of conduct with multiple commission of acts against a civilian population, with knowledge of the attacks. This course of conduct could be a campaign or operation, as indicated in the leaked military documents (which references a “clearance operation” in October). The civilian population also seems to be the primary target of the attack – based on the documents, as well as the acts committed (of setting ablaze residences, shops and places of worship). There is no strict requirement of a geographic boundaries for the attacks, and the requirement of ‘population’ targeted does not have to mean the entire population of a given area – in this case though, the town and its inhabitants certainly seem to have been targeted.

Widespread or systematic – these are disjunctive, and one or the other needs to be satisfied in the legal definition. “Widespread” indicates the geographical scope and number of victims, per legal interpretation of the term. “Systematic” refers to the organized nature of the acts of violence, and the improbability of ‘random occurrence’.

Policy of state does not have to be formalized (though here it seems to have been, given the articulation of the policy at various meeting and in the documentation). The policy also can be regional or a local level policy – so the fact that this is stated by a regional commander is sufficient and does not necessarily need to tie into a national level policy. 

Based on the eyewitness testimony of those who were at the meeting with senior military commanders in August, as well as the documentation regarding clearance operations, this seems to indicate a plan or policy for the town (to be burned if labelled a ‘rebel town’), targeted at civilians in the town. The statements at the meeting also indicate an objective – as punishment, and for civilians to flee to India, which would fall within the rubric of the CAH of forcible transfer or deportation. 

This threat was carried out by the firing of artillery shells around 18 September by the Tatmadaw, immediately after clashes with the CDF/CDA, resulting in fires and the killing of a pastor. This was compounded on 28 September with an attack by soldiers on village elders returning from Haka. Looting and setting fires by soldiers continued towards the end of October. Furthermore, an analysis of military movements also coincides with the fires set in October, in Thantlang as well as other locations along the Falam-Thantlang-Haka route.  

• Deportation or forcible transfer as a crime against humanity 

The pre-requisites for the crimes of deportation or forcible transfer as a crime against humanity are the forced displacement of persons by expulsion or other coercive acts, from where they are lawfully present, and without grounds permitted under international law. 

‘Forced’ in the definition means not just the use of physical force, but also threats and intimidation, and includes the fear of violence, duress, taking advantage of a coercive environment. In addition, this course of conduct must be in the context of widespread or systematic attacks on the civilian population (per the chapeau requirements of CAH). The distinction between forcible transfer and deportation is that the former is displacement within a state, and deportation is across borders of a State. In this case, the elements of deportation and forcible transfer are present, given the cross over the international border into India by significant numbers of the population (deportation), as well as displacement within the territory of Myanmar (forcible transfer). The use of threats of violence, and of burning a significant portion of the town to the ground satisfy the requirements of ‘forced’.  Precedent at the International Criminal Court has held that killing, looting, burning and destruction of property are coercive acts through which displacement can occur.    

• Persecution as a crime against humanity 

The CAH of persecution relates to the severe deprivation of fundamental rights, on the basis of political, racial, national, ethnic, cultural, religious, gender or other grounds. This invariably accompanies other crimes against humanity or war crimes. Here, given the ethnic and religious composition of Thantlang and the surrounding areas, it is highly likely that the acts committed could be considered persecution.    

• Murder as a crime against humanity 

The killing of the pastor, as well as the targeting and killing of elders returning from Haka would – in the context of the systematic attack being carried out in and around Thantlang – be the crime of murder as a crime against humanity.   

2. Potential War crimes 

Myanmar is a party to the Geneva Conventions, which delineates rules applicable to international armed conflicts (IAC) and non-international armed conflicts (NIAC) or internal armed conflicts.

Given the non-state armed groups that are organized and actively engaged in conflict with the Myanmar army in Chin state, this may be characterized as a NIAC. This is also distinguished from internal disturbances, riots etc. (a possible argument of the junta), due to the intensity of the conflict (i.e., seriousness of attacks, spread over the territory and over time, increase in government forces, and the mobilization of weapons) 

While the provisions of the Geneva Conventions largely apply to IAC, Common Article 3 of the Geneva Conventions apply to NIAC, and there are potential violations of Common Article 3 (CA3) committed in this offensive in Thantlang. CA3 is for the protection of those who do not take an direct part in hostilities, including civilians. Violations of Geneva Convention Common Article 3 include the prohibition related to ‘Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;’ – arguably, the murder of civilians in the town, as well as mutilation of the pastor could fall foul of this provision.

In addition, there are customary laws/rules of war that would apply to NIAC. Some of these are reflected in the Rome Statute (Article 8, war crimes). While Myanmar has not signed the Rome Statute, the statute is used here as a frame of reference for what is prohibited/criminalized in international law i.e. the types of war crimes that may have been committed in Thantlang in the course of an NIAC.  This is also not an exhaustive list of potential IHL violations, but is illustrative of the types of war crimes that may be committed in this context. 

These include:

• Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities (Article 8(2)(e)(i)) – the requirements are that there is an attack and it is aimed at the civilian population, such as the burning down of parts of the town, targeted specifically at civilians. Attack would include acts such as shelling, and destruction of property, both of which have occurred here. Spreading terror among the civilian population – such as here, by means of fire/arson – is not defined as a crime, but could fall within this purview. (This draws from Article 13(2) of Additional Protocol II which states that “Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited”. AP II is not applicable due to Myanmar not signing, but is again used to illustrate types of crimes that are prohibited)

• Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; (Article 8(2)(e)(iv)). Myanmar has also signed and ratified the Hague Convention on the Protection of Cultural Property. The protection of places of worship in this convention and as part of the customary laws would indicate the destruction of churches – intimately associated with the culture of the people of the region – would be a violation of laws of war.

• Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand; (Article 8(2)(e)(viii)); 

In the final analysis, based on the evidence reviewed, violations of international law include the crimes against humanity of Deportation or forcible transfer, and persecution; and, violations of international humanitarian law i.e., war crimes relating to directing attacks against the civilian population, ordering the displacement of the civilian population, and attacks on buildings related to religion.  

Topics

Asia-Pacific, Featured, General, International Criminal Law, International Humanitarian Law

03.01.22 | 0 Comments

In December 2021, I was asked to review evidence gathered by the Washington Post for a report on atrocities in Chin State, Myanmar – “Burn it all down” – and provided my analysis for the piece. This blogpost provides additional detail and a legal assessment of what has been occurring in Chin state, Myanmar. Much of the evidence on which this post is based is available in the Washington Post article mentioned above.  Details of the burning of Thantlang and the surrounding areas can also be viewed in the article for additional context.

In brief, as part of the Myanmar military response to civil disobedience and protests relating to the coup, civilians are bearing the brunt of a brutal crackdown in urban and rural areas. Chin state in particular has emerged as key in resisting the junta, and is bearing the brunt of atrocities against civilians and armed groups. The town of Thantlang has been targeted and much of it has been burnt down, in addition to surrounding areas. Much of the population of the town has fled across the border to India. As the campaign by the military over the course of a few months intensified last year, which is meticulously detailed in the Post’s article, this blogpost highlights potential violations of international law based on this evidence.   

1. Potential Crimes against Humanity

The Rome Statute defines the chapeau requirements of crimes against humanity as a course of conduct with multiple commission of acts against a civilian population, with knowledge of the attacks. This course of conduct could be a campaign or operation, as indicated in the leaked military documents (which references a “clearance operation” in October). The civilian population also seems to be the primary target of the attack – based on the documents, as well as the acts committed (of setting ablaze residences, shops and places of worship). There is no strict requirement of a geographic boundaries for the attacks, and the requirement of ‘population’ targeted does not have to mean the entire population of a given area – in this case though, the town and its inhabitants certainly seem to have been targeted.

Widespread or systematic – these are disjunctive, and one or the other needs to be satisfied in the legal definition. “Widespread” indicates the geographical scope and number of victims, per legal interpretation of the term. “Systematic” refers to the organized nature of the acts of violence, and the improbability of ‘random occurrence’.

Policy of state does not have to be formalized (though here it seems to have been, given the articulation of the policy at various meeting and in the documentation). The policy also can be regional or a local level policy – so the fact that this is stated by a regional commander is sufficient and does not necessarily need to tie into a national level policy. 

Based on the eyewitness testimony of those who were at the meeting with senior military commanders in August, as well as the documentation regarding clearance operations, this seems to indicate a plan or policy for the town (to be burned if labelled a ‘rebel town’), targeted at civilians in the town. The statements at the meeting also indicate an objective – as punishment, and for civilians to flee to India, which would fall within the rubric of the CAH of forcible transfer or deportation. 

This threat was carried out by the firing of artillery shells around 18 September by the Tatmadaw, immediately after clashes with the CDF/CDA, resulting in fires and the killing of a pastor. This was compounded on 28 September with an attack by soldiers on village elders returning from Haka. Looting and setting fires by soldiers continued towards the end of October. Furthermore, an analysis of military movements also coincides with the fires set in October, in Thantlang as well as other locations along the Falam-Thantlang-Haka route.  

• Deportation or forcible transfer as a crime against humanity 

The pre-requisites for the crimes of deportation or forcible transfer as a crime against humanity are the forced displacement of persons by expulsion or other coercive acts, from where they are lawfully present, and without grounds permitted under international law. 

‘Forced’ in the definition means not just the use of physical force, but also threats and intimidation, and includes the fear of violence, duress, taking advantage of a coercive environment. In addition, this course of conduct must be in the context of widespread or systematic attacks on the civilian population (per the chapeau requirements of CAH). The distinction between forcible transfer and deportation is that the former is displacement within a state, and deportation is across borders of a State. In this case, the elements of deportation and forcible transfer are present, given the cross over the international border into India by significant numbers of the population (deportation), as well as displacement within the territory of Myanmar (forcible transfer). The use of threats of violence, and of burning a significant portion of the town to the ground satisfy the requirements of ‘forced’.  Precedent at the International Criminal Court has held that killing, looting, burning and destruction of property are coercive acts through which displacement can occur.    

• Persecution as a crime against humanity 

The CAH of persecution relates to the severe deprivation of fundamental rights, on the basis of political, racial, national, ethnic, cultural, religious, gender or other grounds. This invariably accompanies other crimes against humanity or war crimes. Here, given the ethnic and religious composition of Thantlang and the surrounding areas, it is highly likely that the acts committed could be considered persecution.    

• Murder as a crime against humanity 

The killing of the pastor, as well as the targeting and killing of elders returning from Haka would – in the context of the systematic attack being carried out in and around Thantlang – be the crime of murder as a crime against humanity.   

2. Potential War crimes 

Myanmar is a party to the Geneva Conventions, which delineates rules applicable to international armed conflicts (IAC) and non-international armed conflicts (NIAC) or internal armed conflicts.

Given the non-state armed groups that are organized and actively engaged in conflict with the Myanmar army in Chin state, this may be characterized as a NIAC. This is also distinguished from internal disturbances, riots etc. (a possible argument of the junta), due to the intensity of the conflict (i.e., seriousness of attacks, spread over the territory and over time, increase in government forces, and the mobilization of weapons) 

While the provisions of the Geneva Conventions largely apply to IAC, Common Article 3 of the Geneva Conventions apply to NIAC, and there are potential violations of Common Article 3 (CA3) committed in this offensive in Thantlang. CA3 is for the protection of those who do not take an direct part in hostilities, including civilians. Violations of Geneva Convention Common Article 3 include the prohibition related to ‘Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;’ – arguably, the murder of civilians in the town, as well as mutilation of the pastor could fall foul of this provision.

In addition, there are customary laws/rules of war that would apply to NIAC. Some of these are reflected in the Rome Statute (Article 8, war crimes). While Myanmar has not signed the Rome Statute, the statute is used here as a frame of reference for what is prohibited/criminalized in international law i.e. the types of war crimes that may have been committed in Thantlang in the course of an NIAC.  This is also not an exhaustive list of potential IHL violations, but is illustrative of the types of war crimes that may be committed in this context. 

These include:

• Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities (Article 8(2)(e)(i)) – the requirements are that there is an attack and it is aimed at the civilian population, such as the burning down of parts of the town, targeted specifically at civilians. Attack would include acts such as shelling, and destruction of property, both of which have occurred here. Spreading terror among the civilian population – such as here, by means of fire/arson – is not defined as a crime, but could fall within this purview. (This draws from Article 13(2) of Additional Protocol II which states that “Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited”. AP II is not applicable due to Myanmar not signing, but is again used to illustrate types of crimes that are prohibited)

• Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives; (Article 8(2)(e)(iv)). Myanmar has also signed and ratified the Hague Convention on the Protection of Cultural Property. The protection of places of worship in this convention and as part of the customary laws would indicate the destruction of churches – intimately associated with the culture of the people of the region – would be a violation of laws of war.

• Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand; (Article 8(2)(e)(viii)); 

In the final analysis, based on the evidence reviewed, violations of international law include the crimes against humanity of Deportation or forcible transfer, and persecution; and, violations of international humanitarian law i.e., war crimes relating to directing attacks against the civilian population, ordering the displacement of the civilian population, and attacks on buildings related to religion.