Sai Wansai - It has not yet come to the stage where the United Nations General Assembly (UNGA) has to decide whether the military junta or State Administrative Council (SAC) or the Committee Representing Pyidaungsu Hluttaw (CRPH) acting government owns legitimacy to govern Burma or Myanmar. But the two are employing lobby firms to woo international opinion so that one of them will prevail as a legitimate governing body.
The SAC has hired political consulting firm, Dickens & Madson Canada, owned by Ben-Menashe to help Myanmar’s generals communicate with the US and other countries who he said “misunderstood” them, according to The Guardian report of March 7.
Ari Ben-Menashe, a Tehran-born, Israeli-Canadian lobbyist is a former arms dealer, who has worked for the long time Zimbabwean ruler Robert Mugabe, Sudan’s military junta and presidential candidates in Venezuela, Tunisia and Kyrgyzstan, among others, The Guardian report said recently.
Likewise, CRPH hired Volterra Fietta public international law firm. “(I)t has instructed Volterra Fietta to advise on and pursue international legal proceedings against the illegitimate military regime that is responsible for the violent armed aggression directed against the people of Myanmar and their legitimate democratic representatives.”
“From 1 February 2021, an unconstitutional and illegitimate military regime has been unlawfully directing a violent armed aggression inside Myanmar. As announced by Myanmar’s sole legitimate representative, the Committee Representing Pyidaungsu Hluttaw (the “CRPH”), Volterra Fietta will support Myanmar to hold to account the perpetrators of these flagrant international law violations before all relevant fora,” according to Volterra Fietta Client Alert, dated 11 March 2021.
Killing with impunity
The junta’s track record all through these years of suppression in ethnic states may be hard to fathom, but conservative estimate of extra-judicial killings were said to be in thousands. The Burmese heartland or where the Bamar majority lives were left relatively untouched in the past, but the recent carnage created by the junta’s crackdown starting from February is devastating, in which the Bamar suffered most and atrocities covers the whole country.
As of 4 April, (564) people are now confirmed killed by this junta coup. The Assistance Association for Political Prisoners (AAPP) compiled and documented (7) fallen heroes today. (2) died on 4 April. (5) were killed on previous days and documented today. This is the number verified by AAPP, the actual number of fatalities is likely much higher as the death toll continues to rise.”
“As of April 4, a total of (2667) people are currently under detention; of them (38) are sentenced. 425 have been issued arrest warrants. We are verifying the recently released detainees and continuing to update the lists,” according to the AAPP.
Legitimacy question
The issue of the legitimacy of the states and governments is outlined in the Unrepresented Nations and Peoples Organization (UNPO) Statement On Self-Determination as below:-
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“States exist for the sole purpose of fulfilling three fundamental tasks: 1) to protect the population of the state; 2) to promote the economic , social and cultural welfare of that population; and 3) to represent the interest of that population externally, that is, internationally.
Where a state, or its government, does not fulfill these functions over a period of time, but instead represses or even kills the people it is supposed to protect; destroys their culture, economically exploits them; or represents other interests other then those of the people, then that state or government lacks legitimacy in respect of the whole population of the state or that section of population which it oppresses.”
(Source: The Question of Self-Determination : The Cases of East Timor, Tibet and Western Sahara, Conference Report (UN, Geneva, 25 – 26 March 1996), UNPO Publication, p. 43.)
“In accordance with the Declaration on Principles of International Law concerning Friendly Relations and Cooperation Among States in accordance with the Charter of the United Nations, this shall not be construed as authorizing or encouraging any action which dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a Government representing the whole people belonging to the territory without distinction of any kind.”
(Source: World Conference on Human Rights: The Vienna Declaration and Programme of
Action June 1993, published by UN Department of Information, NY., p. 29.)
“According to this declaration, the notion of “territorial integrity” and its entitlement would be only applicable for the governments adhering to accepted international norms of human rights and representing peoples of the whole territory without distinction of any kind. This would exclude
illegitimate governments, which are violators of human rights from benefiting from this notion of “territorial integrity”. In other words, under such illegitimate rules, the ethnic groups or nationals’ right of exercising self-determination should be met with more flexibility and acceptance, even if it means “secession”.
(Source: The Implementation of the Right to Self-Determination as a Contribution to Conflict Prevention – published by “UNESCO Centre of Catalonia” in July 1999, p. 137. In “Secession as an ethnic conflict resolution: The case of the Shan States,” by Sai Myo Win.)
Call for actions
The daily deterioration of the situation in Burma or Myanmar, which is heading towards a failed state has prompted several meetings in UNSC but except for concern and worrying nothing seems to be forthcoming to help the people, who are suffering immensely under the tyrannical military junta.
Meanwhile, at the end of last month, the Special Advisory Council for Myanmar (SAC-M) condemns the Myanmar military as an organization engaging in terrorism, marking its Armed Forces Day with a barbaric massacre, and calls for a global “three cuts” strategy against the military.
“SAC-M is calling on the United Nations Security Council to lead a global three cuts strategy by imposing a comprehensive arms embargo on Myanmar with a mechanism to monitor and enforce it; imposing targeted financial sanctions against senior military officials and all military-owned companies, especially MEHL, MEC and their subsidiaries; and referring the situation in Myanmar to the International Criminal Court.”
“SAC-M emphasizes that there must be no recognition whatsoever of the Myanmar military as a legitimate government of Myanmar. The military is nothing more than an armed terrorist group, representing the interests of a small elite, that has attempted to seize power over the country by force and forge its rule in blood,” according to its press release of March 28.
“I appeal to this council to consider all available tools to take collective action and do what is right, what the people of Myanmar deserve, and prevent a multidimensional catastrophe in the heart of Asia,” UN special envoy Christine Schraner Burgener told the closed-door session.
She said she remained open for dialogue with the junta, but added: “If we wait only for when they are ready to talk, the ground situation will only worsen. A bloodbath is imminent,” writes The Guardian in its April 1 report.
Recent development
The CRPH has abolished the military-drafted 2008 Constitution and introduced Federal Democracy Charter Part 1 and 2, which should be the guidelines to draft the Federal Constitution and transitional period arrangement respectively on March 31.
During the last few days growing armed resistance, using home made weapons, to the junta’s crackdown were registered, notably in upper Burma, also in Yangon and Mandalay. In Kachin State the youth were said to swell the ranks of Kachin Independence Army (KIA) as the junta mercilessly used force to quell the uprising.
Some reports indicated that armed training centers of up to forty at a time were springing up over the country in a bid to launch urban guerrilla warfare, while many tried to reach ethnic armed organizations’ (EAOs) areas to get the necessary training.
While the KIA and Karen National Union (KNU) are openly heightening the fight with junta in their respective states, the junta resorted to using air power to counter the attacks. So far, some 10,000 Karens are on the run because of the junta’s bombing of their settlements.
The political alliance seven-member Federal Political Negotiation and Consultative Committee (FPNCC), includes United Wa State Army (UWSA), National Democratic Alliance Army (NDAA), Shan State Progressive Party (SSPP), Kachin Independence Army (KIA), Ta’ang National Liberation Army (TNLA), Myanmar National Democratic Alliance Army (MNDAA) and Arakan Army (AA).
On March 29, the military Three Brotherhood Alliance, AA, MNDAA and TNLA, issued a statement endorsing the people’s Spring Revolution and invoking self-defense rights, demanding political solution to the people’s need, and that killings of the innocent people must stop. If not, it may have to support and cooperate with all multi-ethnic peoples according to the statement, without mentioning what it will do exactly. At this writing, no move has been made by the alliance.
As for the ten NCA-Signatory-EAOs, which are made up of All Burma Students’ Democratic Front (ABSDF), Arakan Liberation Party (ALP), Chin National Front (CNF), Democratic Karen Benevolent Army (DKBA), Karen National Union (KNU), KNU/Karen National Liberation Army Peace Council (KNU/KNLA PC), Pa-O National Liberation Organization (PNLO), Restoration Council of Shan State (RCSS), New Mon State Party (NMSP), and Lahu Democratic Union (LDU), no clear positioning, on whether to side with the CRPH or not, have been made public.
They, however, said generally that they sympathized with the people’s movement without making official statement on what it will do collectively as a group. On April 4, it issued a statement along the same line with additional two points, which are welcoming the abolishment of military-drafted 2008 Constitution and declaration of Federal Democracy Charter by the CRPH.
This group can be divided into pro-CRPH group, group that wants to mediate between the SAC and CRPH, and neutral group or undecided.
The KNU is already on war path with the junta, although the RCSS is clashing on and off with the junta troops all the time since a few years ago. According to recent Shan News the Tatmadaw or Burma Army is preparing to attack the RCSS positions along the Thai-Myanmar border. The KNU is said to harbor NLD members and as well those from the civil disobedience movement (CDM) in its areas.
In sum, while the negotiation has been going on between the CRPH and various EAOs, something concrete regarding their official position has to come out when the national unity government is formed, in the near future.
Meanwhile, China’s top diplomat, Wang Yi told the Malaysian foreign minister Hishammuddin Hussein “China…supports the convening of a special meeting of ASEAN leaders to mediate as soon as possible,” according to Reuters’ April 2 report.
China is a major investor in Myanmar and one of the few countries able to influence the generals, to seek its backing for a bid to find a path out of the crisis.
On April 3, Commander-in-Chief Min Aung Hlaing said in the afternoon in Meiktila to his soldiers that the Tatmadaw is very lenient to the public in the crackdown. He said the security troops were making use of minimum level of forces according to the lawfully prescribed guidelines in tackling riots.
Perspectives
Given such scenarios, it is hard to imagine how the country’s future will unfold.
For now the SAC, which owned repressive state apparatus without legitimacy, is using the security forces to quell the people’s uprising. In the meantime, the CRPH, with the combination of CDM leadership and anti-junta rallies are able to disrupt and stop public administration from hospitals, schools, banks, government owned factories, to public transportation, from functioning. Thus, it could be said that the junta, even though it is said to hold state power cannot exercise it to function as a government should. In a sense, this is an indication of having no legitimacy to rule.
Other than that, the junta has killed so many people without any consideration which is against the three fundamental tasks of the authority to protect the population of the state; to promote the economic , social and cultural welfare of that population; and to represent the interest of that population externally.
Thus, as an illegitimate ruler it has no right to exercise sovereignty and territorial integrity, and especially as an entity committing crime against humanity on its own population has to be striped off legitimacy.
This leaves us with only the CRPH which should be vested with legitimacy to rule. But with the bulk of its MPs in custody and the few remaining ones are trying to build a national unity government at the moment, which will comprise of the CRPH, who are NLD elected MPs; CRD leadership, who spearheaded the anti-coup, anti-junta movement; the EAOs; and other political parties. Accordingly, it should be a broad-based coalition government.
Until now the competition for ownership of legitimacy is not yet tabled or discussed at the UNGA. But it is worth contemplating for the UN members, either as a bloc or individual country, as this issue will come up sooner or later for them to decide.
But the hardest choice will be a moral one, that is whether to give a terrorist and mafia-like tyrannical military outfit legitimacy as a stakeholder at the negotiation table or not. However, from the existing international norms, even though they are not binding and enforceable in a true sense, the right choice has to be made by the world body, to be on the right side of history.
It is up to the international community to either empower, lend legitimacy to the ethnic-democratic camp’s national unity government or give equal status to both contending parties.
There is no easy way to decide, as accommodating a terrorist-mafia-like outfit to sit at the negotiation table and give negotiator status with legitimacy is against fundamental moral obligation and objecting it will mean unabated conflict, more suppression and killing of the civilians.
But one thing is clear, no one in his right mind wants a failed state at its doorsteps. Thus, the regional powers China, India and ASEAN will have to act fast, the way they see fit, to hinder another Yemen, Somalia or Syria popping up in mainland Southeast Asia.
