Description:
"1. Executive Summary
This report provides analysis of the indiscriminate aerial bombardments launched by the
Tatmadaw1 throughout the country—especially after the 2021 military coup—with a special focus on
the recent bombardments in A Nang Pa, Hpakant township, Kachin State. Despite the stated
bombardments seeming like a harbinger of death for civilian victims, they have, in turn, become the case
for the senior military commanders, led by Min Aung Hlaing, who have been providing orders from their
high command headquarters located in Nay Pyi Taw, the capital of Burma. How can it be a reality? In
that regard, this report elaborates in detail.
For over 70 years, the civil war in Burma has proved that, if the Tatmadaw continues to exist as
a major state institution, serious human rights violations amounting to the gravest crimes of international
concern will never be deterred. Continued Tatmadaw rule would also mean no genuine peace—nor
justice, freedom, or development for all ethnic nationalities—can ever be achieved. Lessons learnt from
the roughly 60 years of ostensible peace-seeking processes starting in 1963 following the 1962 military
coup vividly indicate that all so-called peace-related dialogues, including various types of ceasefires with
the Tatmadaw, have unequivocally failed due to the lack of the rule of law. As far as Burma is concerned,
the concept of institutional reform no longer suffices. This report therefore urges all stakeholders to exert
efforts that support the emergence of a new Federal Union Army to replace the position of the Tatmadaw
and ultimately uphold the rule of law.
Chapter 2 provides a general background of the country before and after the coup, focusing on
aerial attacks against civilians. Then, chapter 3 details some of the worst aerial attacks launched by the
Tatmadaw in other states/provinces and regions that have resulted in high civilian casualties. A brief
case summary of the A Nang Pa airstrike, a contextual description of the situation of the site, and the
nature of the object of the attack, which is the central focus of this report, are laid out in chapter 4.
Subsequently, chapter 5 addresses the legal issues that arose from the aerial bombings of A Nang
Pa from the three perspectives: 1) whether the geographic feature of the site effectively contributed to
military objectives, 2) whether the Tatmadaw had knowledge of the civilian presence in the vicinity, and
3) the systematic and widespread nature of the airstrike constituting crimes against humanity. While the first legal question argues the legitimacy of the site as a military object by invoking the Geneva
Conventions and customary rules of International Humanitarian Laws, the second question deals with
the mental element, the perpetrators’ behavior, and the means and methods used to carry out the
airstrikes. The last legal question deals with the prerequisite elements of the crimes against humanity
provided for in the Rome Statue of the ICC. Moreover, this chapter highlights notable previous decisions
and judgements of the international courts potentially relevant to the case of Burma.
Under the title of a common plan to keep Min Aung Hlaing in power, chapter 6 contrasts the case
of Laurent Gbagbo, the President of Ivory Coast, and the case of Min Aung Hlaing, the military coup
maker in Burma. The former was acquitted by the ICC, while the latter is currently enmeshed in the
process that leads to an ICC trial. In the case of Ivory Coast, the ICC prosecutor might have failed to
prove that President Laurent Gbagbo committed such crimes.
Chapter 7 offers a conclusive analysis of all related societal, political, and legal factors that have
influenced Burma, focusing on impunity and immunity issues from the perspective of international law.
In addition, the rationale behind Min Aung Hlaing orchestrating the illegal coup and desperately trying
to retain power to avoid criminal accountability is somewhat covered. The chapter indicates too that, to
achieve stability and long-term peace, Burma must still carefully address people’s rights to selfdetermination. Such actions will lead to the emergence of a federalism suited to Burma with the
underpinning of the rule of law. In addition, responsibility of states to comply with international law,
transitional justice related issue and national defense authorization act – NDAA, 2022, (USA) are also
scrutinized.
Chapter 8 covers the major recommendations of our LAN, inter alia, that, despite maintaining
ethnic nationalism leading to the emergence of a federalism suited to Burma, the protection of human
rights with the underpinning of the rule of law must be a prime priority. Such protection of rights must be
undertaken, at a minimum, in line with the Geneva Convention, also known as the law of war, even in a
non-international armed conflict. To this end, in connection with the 2020 election results,
constitutionalism that focuses on limited government concepts must be activated. Finally, a strong
national legal order – which is essential for a just, peaceful and prosperous society – is recommended
highlighting the core and distinguishing feature of law..."
Source/publisher:
Legal Aid Network
Date of Publication:
2022-12-30
Date of entry:
2022-12-30
Grouping:
- Individual Documents
Category:
Countries:
Myanmar
Language:
English
Local URL:
Format:
pdf
Size:
12.92 MB (43 pages) - Original version
Resource Type:
text
Text quality:
- Good
