OPINION
Mainstream discussions of transitional justice in Myanmar emphasise future punishment at the expense of dialogue, introspection and structural change.
By YE HTET | FRONTIER
The daily atrocities in Myanmar since the 2021 military coup have prompted a strong interest in transitional justice and its capacity to right wrongs and deter future human rights violations.
The parallel National Unity Government and allied ethnic armed organisations have made “TJ” one of the core objectives of the Spring Revolution, alongside overthrowing the military and establishing a federal democratic union. The National Unity Consultative Council, a resistance advisory body, published a policy paper in December 2023 with a TJ roadmap. Civil society groups and non-government organisations have meanwhile conducted a great number of workshops and public education campaigns on the topic.
There are undeniably valid reasons to promote TJ and good intentions behind such efforts. However, certain aspects of the current approach require critical review and revision – particularly the overemphasis on retribution. Although it is vital to hold perpetrators to account, an overwhelming preoccupation with punishment could harm the prospects for healing and reconciliation. Moreover, it risks overshadowing other pillars of TJ, such as truth-seeking, reparations and institutional reform.
The passivity trap
The NUCC’s TJ policy outlines three time periods. These are the current “interim” phase of revolutionary struggle, leading up to the defeat of the junta; a “transitional” era, when the victorious forces agree on the constitutional outlines of a federal democracy; and lastly, the time when this is put into practice. Action points for the interim period focus on pressing military and governance matters, as well as the documentation of atrocities. TJ and the righting of wrongs, meanwhile, are reserved for the transitional era, as the name suggests.
The policy foresees justice coming from either domestic or international courts. Cases have already been submitted to the latter regarding pre-coup military atrocities against the Rohingya in Rakhine State, with some success. In November, the International Criminal Court prosecutor’s office requested an arrest warrant for junta chief Senior General Min Aung Hlaing, while in February a court in Argentina issued warrants for more than two dozen Myanmar military and civilian officials, including the junta chief, using the principle of universal jurisdiction.
However, these courts cannot compel Min Aung Hlaing or his associates to stand trial while they remain entrenched in Nay Pyi Taw. As with domestic courts, dispensing justice realistically depends on the downfall of the regime and the dawn of a new “transitional” era.
Those pursuing TJ, therefore, can only record evidence for the time being. This work is vital, but with so many uncertainties in Myanmar and in global politics, it is hard to anticipate when, and even if, the junta will collapse.
However, the mainstream approach to TJ allows for no Plan B. The only choice is to effectively sit and wait, creating a passivity trap. As time drags on, disillusionment can grow among victims and communities. Without processes they can engage with in the present, they will be more tempted to turn to vigilantism and violent score-settling, which is already entrenched and creating fresh cycles of violence.
The desired participatory processes require a broader conception of justice – one that goes beyond seeing it primarily as retribution.
Pining for payback
Activists rightly say that impunity emboldens the military to keep committing atrocities. However, ending it by punishing particular individuals has become the be-all and end-all of TJ, at the expense of addressing wider societal problems.
Impunity is pyit dan kinn lut kwint in Burmese, which translates literally as freedom from punishment. This has its mirror in the popular revolutionary slogan thway jway hma sway nway zaya ma shi, “there’s no negotiating a blood debt”. The message is that suffering and the loss of lives must be repaid through retribution.
Accordingly, on social media, Min Aung Hlaing’s name is often paired with the Burmese term kyo sin, meaning “gallows”. This reflects the belief that justice will only be achieved when he and other military leaders are tried and punished – preferably by execution, in a manner similar to the Nuremberg Trials, where senior Nazis were tried for war crimes and crimes against humanity after the Second World War.
A superficial understanding of Buddhism reinforces this line of thinking. For instance the law of karma, put very simply, says bad deeds inevitably lead to negative consequences for individual perpetrators. However, Buddhist teachings have a broader message and promote what we would now call restorative practices. Instead of resorting to punishment, the Buddha offered paths of genuine remorse, accountability and moral redemption – even for notorious criminals such as the bandit Angulimala who killed people to make a necklace of fingers.
A simplified focus on karmic retribution, though, has little room for these considerations. Moreover, it deprives ordinary people of agency by saying they merely have to wait for bad actors to get their comeuppance. Meanwhile people harbour grudges, anguish and hatred within themselves.
Such a focus also ascribes injustice almost exclusively to individual perpetrators and their personal moral failures, overlooking structural problems in Myanmar’s politics and society. These include institutionalised discrimination, intergenerational trauma, power disparities and economic inequality, to name only the most obvious.
If unaddressed, these factors will perpetuate injustice, regardless of who is in charge. True transitional justice therefore entails comprehensively understanding and transforming the underlying conditions that allow harm to persist.
To be fair, the NUCC’s TJ policy contains a brief clause about the need to address root causes, albeit largely political ones like the absence of the rule of law or civilian control over security forces. Deeper, less visible cultural and social factors are treated even more vaguely. Moreover, the policy defers action to the future “transitional” era. This overlooks what can be done in the present, particularly by major revolutionary forces such as the NUG and ethnic armed organisations, whose governing role has grown massively.
The NUG in particular has been criticised for its inability to address multiple extrajudicial killings and sexual assaults by fighters under its nominal command, as well as other abuses of power. These fighters have largely evaded justice by saying they will accept punishment after the junta falls, and that nothing should distract from the current armed struggle. However, some communities have been running out of patience, protesting corruption and oppression by revolutionary forces despite threats. They demand justice and accountability now – not at some indeterminate point in the future.
Divide and misrule
In addition, reducing transitional justice to retribution risks deepening divisions within society. Merely singling out wrongdoers deserving of punishment – while not reflecting on the structures that enable them, and the role that everyone may play in upholding these structures – entrenches an us-versus-them mentality that will make it harder for Myanmar to ever heal and find peace.
The country is, after all, experiencing an internal conflict and the military’s tentacles run deep, co-opting a range of ethnic, political and social groups in a way that can make it hard to draw neat political distinctions. Even if the military were to be firmly ousted from power, reconciliation should be a priority.
One negative example in this regard is the Civil Disobedience Movement policy published by the NUCC in January 2023. The policy outlined reparations for government staff who quit their jobs to join the CDM after the coup, and a range of punishments for those staff who chose to remain at their desks and serve the new junta. These measures, of course, will only be taken in the post-junta transitional era, whenever that may come.
While some CDM members were pleased with the policy, many of them are understandably tired of waiting for their dire circumstances to improve. On the other hand, non-CDM civil servants – many of whom had stayed in their jobs out of fear or the need to feed their families – found themselves even more alienated from the revolutionary movement, and more likely to actively support the junta rather than quietly biding their time.
CDM leaders and other stakeholders spent almost two years drafting the policy – time that could have been spent analysing the failures of the movement and devising fresh strategies. Partly as a result, the CDM has faded to the margins of the anti-junta struggle, and society is more divided than ever. Those devising TJ policies should learn from this experience.
Work starts now
The literature on TJ emphasises the complexities that arise in periods of transition, which call for institutional reforms, national reconciliation, reparations, and truth-seeking initiatives, rather than just punishment for particular crimes. Yet, these additional aspects are largely missing from the mainstream discourse on TJ in Myanmar. Worse, the “transitional” element of TJ has been used by some “interim” revolutionary leaders to defer accountability indefinitely within their own ranks, leaving communities feeling helpless.
TJ, done right, should empower communities and promote truth-telling. Key aspects of this wider process could start now, in the current revolutionary period, rather than hinging everything on an uncertain outcome. Journalists, the arts and traditional community practices, for instance, could be creatively used to amplify the voices of survivors and foster societal dialogue. This would give ordinary people a concrete stake in a better future, and counter the more divisive tendencies described above.
Embarking on this process, however, requires reflection on the true purpose of justice. More than retribution, it is an opportunity to uncover the truth, heal trauma and ultimately build a more just society. Although there is a place for punishing individuals, it is not the ultimate goal. Moreover, a failure to address the root causes of past and present suffering will only pave the way for future horrors.
Ye Htet is a scholar and trainer in nonviolent resistance at Freedom Fighter Myanmar.
