Chris Gunness and Khin Ohmar

The United Nations Human Rights Council (HRC), of which Indonesia is a key and active member, is meeting now in Geneva and despite the mass atrocities being routinely committed in Myanmar, has, in a rare move, decided to deny the Union of Myanmar the right to participate in its month-long session.

There’s a shocking irony in this.

According to the HRC’s own special rapporteur on Myanmar, Tom Andrews, the leaders of last year’s coup have committed crimes against humanity having “killed protesters in the streets, murdered civilians in their homes, beaten individuals to death, and tortured people to death while in detention.” Yet the very people being subjected to these barbarities are facing the further indignity of their democratic representatives being shut out by the UN body specifically mandated to protect them.

Like many egregious UN decisions, the reasons are a depressing combination of process and politics.

Late last year, the UN General Assembly (UNGA) had an opportunity to decide who should represent Myanmar at the UN: the failed coup leaders who have waged what UN human rights experts called a “brute force terror campaign”, or the National Unity Government (NUG), representing the parliamentarians who won an overwhelming victory in Myanmar’s 2020 elections. Both claimed the right to represent Myanmar at the UNGA 76^th session.

The leaders of the coup wrote to the UN secretary-general in May demanding they have the UN seat, but that was rebuffed even before the issue got to the UNGA, which, under pressure from China and Russia, chose instead to defer its decision on who should get the credentials.

The effect of this – thanks to the UNGA’s procedural rules – was that NUG’s ambassador, Kyaw Moe Tun, was permitted to remain in his seat.

So, to be clear: In deferring and allowing Kyaw Moe Tun to remain in his seat, the UNGA has opted to allow Myanmar to be represented by the NUG.

However, the HRC’s governing “Bureau” — made up of its president, four vice presidents and representatives of the five regional groups – has decided to bar Myanmar from participation in the HRC, because of a claimed lack of clarity from New York.

The UNGA has stated previously that where the representation of a state becomes the subject of controversy, the “attitude adopted by the General Assembly … should be taken into account in other organs of the United Nations and in the specialized agencies”.

In this case, the “attitude” of the UNGA is crystal clear from its acceptance of Kyaw Moe Tun as the representative of Myanmar; and its resolution of June last year, in which the UNGA called on Myanmar’s armed forces to “respect the will of the people as freely expressed by the results of the general election” and to allow the “opening of the democratically elected parliament”. That democratically elected parliament is now represented by the NUG.

The HRC is a subsidiary of the UNGA and in line with the determination of the UNGA, we demand that the HRC allow Myanmar to be represented by the NUG, whether by Ambassador Kyaw Moe Tun himself or another appointee.

Unless this is resolved urgently, the Universal Periodic Review, in which states account for their abuses and commit to binding recommendations will be jeopardized, potentially removing another tool for upholding human rights in Myanmar.

The HRC is not the only body in the UN that has had to contend with this issue and thus far, the system has been shambolically inconsistent.

In February, the International Court of Justice, the UN’s principal judicial organ, decided without explanation to allow the illegitimate junta to represent Myanmar in the case of the Gambia versus Myanmar over a breach of the Genocide Convention. That decision, made in the face of NUG demands that it should represent Myanmar at the ICJ, has been widely condemned as irresponsible.

So how do we get out of this mess?

First, the HRC Bureau must recommend to the wider Council membership that the NUG be allowed to represent Myanmar. Although the issue has proved divisive, the motion would likely be carried.

Such a decision by the HRC would be an important stance for democracy and human rights, and would set a much-needed example for the rest of the UN system.

Second, UN Secretary-General António Guterres must use his good offices to eliminate these systemic inconsistencies.

Finally, the UNGA should adopt a resolution explicitly expressing its view on which authority should be regarded as legitimately representing Myanmar.

The UNGA has taken a strong stand in similar situations in the past and must do so again.

Following the military coup in Haiti in 1991, the UNGA affirmed as unacceptable any entity resulting from the coup and demanded the immediate restoration of the legitimate government.

After the coup 2009 coup in Honduras, the UNGA called upon states to “recognize no government other than that of the constitutional president.”

Today, the people of Myanmar are looking to the UN to take a similarly principled stand.

We urge the HRC to reverse its decision on leaving Myanmar’s seat empty.

It has an opportunity to honor its human rights mission while living up to the obligations placed on it by UNGA precedent, the UN charter and its overriding responsibility to protect the embattled people of Myanmar.

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Chris Gunness is director of the Myanmar Accountability Project (MAP) and Khin Ohmar is chairperson of Progressive Voice. Damian Lilly, MAP’s protection director and Rebecca Barber, research fellow at Asia Pacific Centre for the Responsibility to Protect, University of Queensland, also signed the article.

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