The trial of civilians before military courts in Myanmar is taking place in the context of widespread protests against the coup, which have been met by a violent crackdown from the regime. According to the organisation Assistance Association for Political Prisoners (AAPP), as of 19 April there had been at least 738 civilian deaths since the start of the coup, with a further 3300 individuals recorded as being held in detention. In a series of orders issued on 14 and 15 March, the junta imposed martial law over several areas of the Yangon region. It is the most recent of these orders, Martial Law Order 3/2021, which provides for lengthy prison sentences against a range of offences – as well as the death penalty. The vague and broadly defined offences to which the death penalty can be applied include those which protesters have most frequently been charged with over the past three months.
The military courts established under these martial law powers differ from courts martial, which try only military personnel, and instead grant judicial authority over civilians to the military. Their use raises many serious due process concerns, especially when their jurisdiction includes capital offences. Under Order 3/2021, once a death sentence is handed down, it is considered final, with no process of appeal permitted. The only prospect for review of a death sentence is by way of application to the commander-in-chief of the military, Senior General Min Aung Hlaing (who is currently under sanctions from the US, EU and UK for his role in the crackdown), within 15 days of conviction.
Photo credit: UN Photo, licensed under CC BY-NC-ND 2.0.
The establishment of military courts is not an entirely new occurrence in Myanmar, but follows a strategy adopted by the military at various points throughout the second half of the twentieth century. As Professor Melissa Crouch has detailed, military tribunals were introduced in the country both in 1948 and 1952, in the years immediately after its independence. In 1962, a system of ‘special criminal courts’ was created under martial law, gaining broad jurisdiction to try civilians, with the courts permitted to impose death sentences (subject to the approval of the Supreme Court). Under another period of martial law in 1989, military tribunals were set up once more, and during that year Amnesty International recorded the imposition of 24 death sentences against civilians. It is important therefore to interpret the recent orders in the context of a history of the use of military courts in this manner.
Even if the present situation draws on a historical pattern, the expansion of the scope of the death penalty, just weeks ago, marks a break with the recent past. As noted, no executions have actually been carried out since 1988. Once a country reaches a period of 10 years without an execution, it is categorised as ‘de facto abolitionist’ by the UN – after which point a return to executions is generally considered unlikely. For Myanmar, the intervening three decades have been characterised by a dynamic involving the continued use of death sentences alongside intermittent pardons and commutations of sentences. In January 2016, for example, 77 individuals had their death sentences commuted to terms of life imprisonment, while during the same year at least three new sentences were imposed. Again, in April 2020, authorities announced that all death sentences had been similarly commuted, although the number of individuals affected was not made public.
One clear theme across the history of the death penalty in Myanmar is its use for political purposes. Melissa Crouch has written that, “The state has used the death penalty against political opponents, including democratic actors, members of ethnic armed groups or insurgencies, and students.” In one particularly renowned case in 1976, a 25-year-old student named Salai Tin Maung Oo was executed for his role in student-led protests which had taken place in late 1974. In the context of the current crisis, it is possible that the ousted politicians of the former ruling party, the National League for Democracy, who have now formed a parallel government as the Committee Representing Pyigaunsu Hluttaw (CRPH), are at risk of trial before the tribunals. The military has begun to charge CRPH figures with ‘high treason’ – one of the offences which can attract the death penalty under the new law.
As international concern has grown, some have sought to compare the situation in Myanmar to that in Syria in the lead up to its protracted internal conflict. On 13 April, UN High Commissioner for Human Rights Michelle Bachelet warned that, “There are clear echoes of Syria 2011.” While the limits of this analogy should be made clear – with the internal and regional dynamics differing markedly – there is at least some similarity with respect to the repressive use of the death penalty. In December 2011, during the early months of the Syrian crisis, President Bashar al-Assad introduced new legislation expanding the application of the death penalty, in a manner which was interpreted as being specifically targeted at anti-government protesters. (As the conflict escalated in subsequent years, Amnesty International documented the role of military tribunals in facilitating the widespread use of the death penalty in the country’s prison system.)
At present, it is unclear whether Myanmar’s military junta intends to return to active executions after a break of over 30 years. To do so would attract significant further international condemnation. Although Myanmar is not a signatory to the International Covenant on Civil and Political Rights (ICCPR) – military MPs having voted down a bill on its adoption in 2019 – for countries which are, the resumption of executions after a lengthy period of de facto abolition would arguably violate the right to life under Article 6. Had Myanmar taken further steps towards abolition prior to the coup, and ratified the ICCPR, this would, of course, have provided greater security against regression. Notwithstanding, the risk of the resumption of executions after such a long period without illustrates the precarity of de facto abolitionist status. For now, even if executions do not resume, it is clear that the regime sees death sentences as another means of intimidating protesters – wielding the threat of ‘judicially’ sanctioned state killing.
Daniel Cullen is a Research Officer in the Death Penalty Research Unit (DPRU).
 The right to the review of a conviction or sentence by a higher tribunal is guaranteed by Article 14(5) of the International Covenant on Civil and Political Rights – although, as noted, Myanmar is not a signatory. In its General Comment 32, the UN Human Rights Committee made clear (para 22) that the provisions of Article 14 apply to all courts or tribunals, including military courts. The Committee stated that the trial of civilians before such courts “may raise serious problems as far as the equitable, impartial and independent administration of justice is concerned.”