Mizzima
The Legal Aid Network has released a review of the Myanmar junta’s military service law claiming it is being illegally applied.
In a statement released on 23 February, the NGO had the following to say:
The Myanmar junta has seen plunging morale due to the push-back by People’s Defence Forces (PDF) and Ethnic Revolutionary Organizations (EROs), resulting in mass surrenders of the Tatmadaw soldiers – including six high ranking military officials. It has prompted the unlawful enforcement of the People’s Military Service Law (2010), which is illegal, by the State Administration Council (SAC).
Given the SAC’s above ‘systematic’ acts, the following appalling scenes have been witnessed:
- The conscriped civilians, having been transformed into soldiers, are to kill other civilians or die in the battles.
- Widespread forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law, and enforced disappearance of persons have been taking place.
- There is a close nexus between the armed conflict and the acts of the SAC, and the stated acts have occurred within the frame of that armed conflict.
The above situations are the legal pre-requisites for the commission of crimes against humanity and the degree of culpability can be determined. Article 5 of the ICTY Statute covering crimes against humanity refers to acts “directed against any civilian population”. The notion of crimes against humanity has evolved under international customary law and through the jurisdictions of international courts. In spite of lacking an overall specific intent, the SAC’s stated acts constitute crimes against humanity as it has been committing with knowledge of the attack against the civilian population.
The above conducts of the SAC – forcefully taking position of a State, which is Burma/Myanmar – also constitutes a breach of an international obligation of the State, which is a wrongful act. The responsible State may not rely on the provisions of its internal law, in this case people’s military service law (2010), as justification for failure to comply with its obligations under this part. The SAC is responsible for serious breaches of obligations under peremptory norms of general international law.
The International Law Commission highlighted the hierarchical superiority of peremptory norms of general international law (jus cogens) norm, and they are hierarchically superior to other norms of international law in terms of both characteristics and its effect.
Regarding Burma, out of the five points consensus agreed upon by ASEAN, the second point – which accentuates constructive dialogues of all stake holders, including the SAC – is void as it stands against international obligation of the State under an internationally wrongful act which is connected with peremptory norms of general international law (jus cogens). Similarly, a common position, which is reached by the National Unity Government (NUG) and the three EROs on January 31, 2024, is also void. Both national and international communities, particularly States, are responsible to hold the SAC military perpetrators, who have been committing the gravest crimes of international concern, accountable.
