Han Alter (pseudonym) explores how to define civilians in the Spring Revolution.
On 7 September 2021, the National Unity Government’s (NUG) acting president Duwa Lashi La declared a people’s war against the Tatmadaw. He stated that in waging war against the junta, People’s Defense Forces (PDFs) should operate in accordance with the NUG’s Military Code of Conduct for People’s Defence Forces, which had been laid out on 21 July 2021. The NUG claimed that the Code of Conduct was established in accordance with the Geneva Conventions. However, there are some controversial areas in the Code of Conduct, which if left unaddressed, could undermine the NUG’s credibility. The political analyst Benjamin Mok has examined the Code of Conduct in an article on the Diplomat. However, there has not yet been an analysis of the Code of Conduct through the lens of International Humanitarian Law.
In this article, I will discuss some issues with how “legitimate targets” of PDF action might be defined and interpreted in the NUG’s Code of Conduct. First, I will evaluate the definition of civilians used in the NUG’s Code of Conduct and compare it with Additional Protocol II to the Geneva Conventions (1977) which applies specifically to non-international armed conflicts. In so doing, I will inquire what constitutes a legitimate military target in the Myanmar context. Then, I will highlight some contentious issues on the ground, particularly targeting alleged informants, the junta-appointed civil servants, and political opponents. Finally, I will come up with recommendations for the main actors mentioned in this article.
Who exactly are civilians?
One of the major actors in the Spring Revolution is “informants”. In this article, I use informants to refer to civilians who side with the junta and reveal the whereabouts of the resistance figures to the State Administration Council (SAC). They could be the SAC-appointed administrators or regular civilians and they have been one of the main targets of the PDFs. The moral justification for killing them has been debated since the beginning of the resistance. The NUG also does not specify if the informants qualified as military targets in their Code of Conduct for PDFs.
Under the ‘Targeting’ section of the Code of Conduct, Article 1 says PDFs are to target only “mechanisms of the dictatorship”, while Article 2 reads, “Civilians shall not be targeted, threatened, and attacked”. These two articles are in line with the basic principles of the Geneva Conventions. However, a question arises if we compare Article 2 against Article 1: Who does the Code of Conduct really count as civilians? According to the ICRC’s Interpretive Guidance, “all persons who are not members of State armed forces or of organized armed groups belonging to a party to an armed conflict are civilians.” This implies that to the ICRC, informants could be classified as civilians. The ICRC continues to state that civilians, so defined, are “protected against direct attack unless and for such time as they directly participate in hostilities”. Now, it is important to identify what constitutes “direct hostilities”.
While there’s no official definition of direct hostilities in International Law, the ICRC’s Interpretative Guidance, while not legally binding, also is helpful for this matter and serves as the standard procedure for states. According to the ICRC’s Interpretative Guidance,
“Persons participate directly in hostilities when they carry out acts, which aim to support one party to the conflict by directly causing harm to another party, either directly inflicting death, injury or destruction, or by directly harming the enemy’s military operations or capacity.”
By this definition, it’s hard to decide whether or not informants are partaking in direct hostilities. It may be tempting to put informants under the indirect hostility category. After all, what they are doing is simply revealing the location of their enemies. But, in this Spring Revolution, the informants do really “harm the operations” of the resistance groups. For example, informants reportedly revealed the whereabouts of Ko Phyo Zeyar Thaw and Ko Jimmy, responsible for overseeing the Yangon operations, leading to their arrests and snowball arrests of other members. A large number of arms and ammunition were also seized during the arrest.
However, I acknowledge the subjectiveness of such a matter, and one could argue targeting informants is not justified if they are only revealing the whereabouts of resistance figures under threat. This also highlights areas for improvement in international humanitarian law and such unique scenarios under the Myanmar context should be discussed more to better define “direct and indirect hostilities”.
Attacks on SAC-appointed civil servants and political opponents
While informants blur the line between “direct and non-direct hostilities”, it is easier to determine whether or not civil servants working for the SAC should go under the “indirect hostility” category. The ICRC’s Interpretative Guidance says that “administrative and political support” is considered indirect participation in hostilities. Hence the ICRC views SAC-appointed civil servants as civilians that enjoy all the protections under Common Article 3 and Additional Protocol II. However, in Myanmar, the situation on the ground could be considered not yet in line with the ICRC’s standard.
As of November 2021, about 200 SAC-appointed administrators were killed by PDFs. It’s not surprising, to some extent, if some PDFs, not affiliated with the NUG, have their own agenda and would target the civil servants working for the junta, but it becomes problematic if the NUG itself would publicly recognize such operations as legitimate. In April 2022, Yangon Regional Command (YRC) under the NUG’s Ministry of Defense (MoD) shot the Central Bank’s Deputy Governor, as part of Operation Byan Hlwar Aung, which was conducted by NUG-affiliated PDFs under the directive of the NUG’s MoD. This sort of incident is not justified by the Geneva Conventions, which the NUG claims to abide by. While the NUG could argue that targeting informants is justified due to their significant damage to the resistance, International Law does not justify for military actions against civil servants.
One of the Soldier’s Rules under the NUG’s Code of Conduct reads: “Shall not discriminate any individual based on their ethnicity, religion, gender, and sexual orientation”, but there’s no mention of non-discrimination based on “political or other opinions” as included in Additional Protocol II. While it’s possible that the NUG simply overlooked this phrase in the article, it could also be assumed that the NUG intentionally phrased the rule in a way that could somehow enable the PDFs to target the regime-friendly civil servants or even civilians politically supporting the junta without facing legal restraints. In a recent interview with BBC, the USDP (a military’s proxy party) chairman U Than Htay claimed that “over 1,500 USDP members and supporters [were] killed (since the beginning of the coup)”. While it’s possible that the USDP has inflated this number, if true it could pose a threat to the NUG’s legitimacy if there’s no clear explanation on why and how it could happen from its side.
Potential risks and recommendations
As the NUG is still competing for representation at the UN Human Rights Council with the SAC, it should consider the consequences of targeting those considered civilians in the eyes of the international community. Some international actors like ASEAN, except countries like Malaysia, lean towards keeping their distance from the parallel civilian government. ASEAN could justify its relative inaction against the SAC based on the claim that the NUG-led resistance inflicted “civilian damage”.
While targeting alleged informants is understandable for strategic purposes, it should always be the last resort and the PDFs should make sure that their targets are heavily involved in the military operations. While engaging with the international community, the NUG should make it clear from the start why alleged informants are not the same as ordinary civilians and how they are critical to the SAC’s counterinsurgency plans. And, at the same time, the NUG, as the government, should distance itself from the killing of the informants. In other words, they should not take credit for such operations. Otherwise, the NUG risks not looking credible in the eyes of the international community, within which many assume that ground realities contradict the NUG’s Code of Conduct.
The NUG could come up with alternatives to deal with the alleged informants and the junta-appointed civil servants rather than killings. There have been some good initiatives with the NUG setting up People’s Police Forces and township courts in different regions and states. With clear policies and measures, they could establish an effective justice mechanism to impose judicial measures against pro-SAC civilians rather than resorting to armed violence. The success of such a mechanism also relies on support from the international community.
The international community should also recognize that current conditions on the ground pose limitations on what the NUG can do. After all, many PDFs and LDFs (Local Defense Forces) operating are not yet directly under its command. The NUG’s Minister of Foreign Affairs Daw Zin Mar Aung recognized this reality while meeting with the diaspora community during her visit to Washington DC when she said, “PDFs need to follow rules of engagement (ROE) but on-ground situations could be complicated sometimes.” In order for the PDF to be more compliant with the NUG’s Code of Conduct, the NUG needs to first gain leverage over them. For now, the people’s government has little leverage over the majority of the PDFs due to its lack of capacity to provide financial and weapons support, and it simply cannot command the PDFs to do this or that.
While it is clear at this point that the West would not provide arms to the NUG, other forms of non-lethal support are still feasible. By having more financial leverage over the PDFs, the NUG could have more bargaining power in requiring them to engage in warfare and operations more in line with the Code of Conduct. What the West could do in this case is provide financial support to the NUG. The US could allow the NUG to access the 1 billion USD in Myanmar assets which the US froze at the beginning of the coup. This money could assist the NUG in coordinating its resistance, so that it can follow the standards of International Law. The US could also accelerate the legislative process of the Burma Act of 2021, which once passed, would provide humanitarian aid and assistance to civil society impacted by the coup, including “participants in the Civil Disobedience Movement, and government defectors”, hence, lifting weight off the NUG, so that it could redirect more resources to the resistance.
They could also support the parallel government in setting up administrative mechanisms, building the capacity of civil servants that refuse to work for the junta, developing administrative policies, providing joint educational programs, helping set up an effective tax system, and channelling aid through the NUG-initiated programs. At the moment, ASEAN is channelling aid through the SAC’s task force but the US could use its influence over ASEAN members to be more inclusive with aid management. In order to navigate the risk of targeting non-CDM civil servants, the international community could provide financial and technical support to the people’s administrations in PDF strongholds to create more incentives for those joining CDM. I recommend that the NUG also revise the Code of Conduct and make it more concrete with a well-defined set of rules and instructions to follow. More than a year since the publication of the Code of Conduct, it is important that the NUG and the international community revisit it.
Han Alter (pseudonym) is currently working as an analyst. Their research interest includes human rights, conflicts, and peace.