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A crowd of protesters holds a large banner demanding the release of Myanmar's de facto leader Aung San Suu Kyi.
Mass protests against the detention of Aung San Suu Kyi continue on the streets of Myanmar’s major cities. EPA-EFE/ Lynn Bo Bo

Myanmar: trial of Aung San just the latest in a long line of unlawful prosecutions by illegal regimes

Myanmar’s military coup leaders have reportedly put the country’s lawfully elected leaders on trial. It is understood that the proceedings, apparently held in secret and without giving the defendants the benefit of legal representation, could last for up to six months.

Aung San Suu Kyi, Myanmar’s state counsellor and de facto leader, faces charges of illegally importing two walkie talkies and of contravening a natural disaster management law by interacting with a crowd during the coronavirus pandemic. These carry a maximum penalty of six years in jail. Win Myint, the country’s deposed president, has been charged with breaching the natural disaster restrictions, which – if he is found guilty – could mean up to three years imprisonment.

You can hear more about the events which led up to Myanmar’s military coup in the second episode of our new podcast, The Conversation Weekly – the world explained by experts. Subscribe wherever you get your podcasts.

The worrying developments in Myanmar echo political or show trials of the past, raising fundamental questions about what “law” actually is. How does an unlawfully established government legitimately use the law against its opponents? Indeed, can any rules adopted or imposed by a dictatorship be said to be “laws” at all?

Nuremberg trials

This question has bothered legal theorists and human rights lawyers for a very long time. For example the German theorist Gustav Radbruch argued that actions authorised by abhorrent Nazi “law” were not, in fact, lawful and so the post-war prosecution of people for their actions in Nazi Germany would not be unfair.

Similar issues arose at the Nuremberg International Military Tribunal in 1945 because the trial of senior Nazis there was the first time anyone had ever been put on trial for “crimes against humanity” and “waging aggressive war”. The defence argued that those crimes were not clearly established in international criminal law when they were said to have been committed.

Former high-ranking Nazi officials in the dock at the Nuremberg War Crimes Trials, 1946.
‘Natural law’: high-ranking Nazi officials on trial at Nuremberg. US National Archives

The judgment at Nuremberg made the not entirely convincing claim that it should have been obvious that these categories of international crime already existed, but it also stated that the rule against retrospective prosecution might not apply in the face of the scale of Nazi atrocities in any event.

Arguments and amnesties

More recently, the communist regimes of central and eastern Europe toppled and the newly democratic states joined the Council of Europe and signed the European Convention on Human Rights. Many of these states were, for the first time, now able to embark on the prosecution of people for their actions under communism, such as suppressing the failed 1956 uprising in Hungary, or killing people seeking to cross the Berlin Wall to flee communist East Germany.

Defendants have argued not just that their prosecution was unfair because a prosecution was unforeseeable when they carried out the alleged crimes – but also that it violates the European Convention, which confirms that people can only be convicted of offences that existed at the time they were allegedly committed. The European Court of Human Rights has tended to take the position that where the actions were clearly contrary to international law, it does not matter if they were permitted by a state’s national legislation under communism.

This does not mean, however, that globally we are free of the notion of show trials and political trials that, like those in Myanmar, claim to be lawful but are anything but. Even in Europe, the hastily convened and poorly organised military “trial” and resulting execution of Romanian dictator Nicolae Ceaușescu and his wife on Christmas Day 1989 is a clear example.

The trial of Saddam Hussein at the Supreme Iraqi Criminal Tribunal, an Iraqi national court, came close: it has been alleged that there was political interference and that the potentially very strong case against him was inadequately set out. Moreover, defence witnesses and lawyers were intimidated – and several were murdered. But even a weak trial was probably at least a step up from extrajudicial targeted killing, for example by drone strikes, that we have seen ordered by presidents and prime ministers of all political persuasions throughout the “war on terror”.

At the other extreme, there are examples of crumbling regimes attempting to provide themselves with an amnesty against prosecution – such as when military dictatorships established in Argentina and Chile in the 1970s came to an end in 1983 and 1990, respectively. Indeed, the Argentine Supreme Court only struck down their amnesty law in 2005. That ruling took inspiration from the case law of the Inter-American Court of Human Rights, which has ruled that such amnesties violate the human rights of surviving victims and dead victims’ next of kin.

There are, however, more democratic conditional amnesties, such as those granted in South Africa during the process of “Truth and Reconciliation” after the fall of apartheid: the South African Truth and Reconciliation Commission, led by Archbishop Desmond Tutu, accepted over 1,000 applications for amnesty – in return for the applicant agreeing to testify to the Commission.

Back to the issue of Myanmar, it can only be hoped that the military government shows some restraint in its use and abuse of “the law”. But, given the country’s track record of violence, and the growing protests against its coup, it is questionable for how long even the pretence of acting according to the law will last.

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