Myanmar's ambassador to the UN Kyaw Moe Tun makes a three-finger salute as he addresses the General Assembly on February 26, 2021. Photo: AFP / United Nations via YouTube

The UN Human Rights Council in Geneva has taken swift, practical and principled steps to establish a Commission of Inquiry into the heinous human-rights violations committed during the Russian invasion of Ukraine. 

It did so as the Security Council in New York, hamstrung by a Russian veto, could do little else but pass the Ukraine crisis over to the General Assembly, which adopted a non-binding resolution that was long on rhetorical calls and short on practicable action.

We salute the members of the Human Rights Council for living up to their responsibility, as Europe faces its gravest threat since World War II. 

But those same members of the HRC risk destroying their credibility through their mishandling of Myanmar, where like the Russians in Ukraine, the army is committing well-reported mass atrocities against civilian populations. 

The HRC voted to ban Myanmar’s National Unity Government (NUG), the post-coup successor to the country’s overwhelmingly elected democratic administration, from taking up its rightful seat to represent Myanmar in its current session. 

It did this in the face of a rival claim for UN accreditation by Myanmar’s junta, came to power in February last year.

The HRC could have done for Myanmar what it did for Ukraine and stood with the millions of Myanmar citizens who voted for a future grounded in the principles of democracy and human rights – the very principles the UNHRC was created to uphold. 

It is not too late for the HRC to overturn its decision and allow the NUG to represent Myanmar. Indeed, we urge it to do so before its next session, which begins in June, and grant the people of Myanmar a voice in defending their own rights. 

There are solid grounds for this course of action, based on the resolutions of the HRC’s parent body, the UN General Assembly (UNGA), and the fact that Myanmar’s imprisoned democratic leader, Aung San Suu Kyi, and its president are inscribed in the “Blue Book” of delegations in New York as the country’s rightful representatives, with standing across the UN system.

As early as 1950, the UNGA adopted Resolution 396 (V), which states that whenever there are competing claims to represent a state at the UN, the issue should be resolved “in light of the purposes and principles of the UN Charter.” Myanmar’s NUG clearly wins hands-down on this consideration.

Resolution 396 (V) also gives definitive guidance to UN bodies like the HRC where there are competing credentials. It says that the “attitude” of the General Assembly must be taken into account. And this “attitude” is abundantly clear in relation to Myanmar. 

Last June, the General Assembly voted overwhelmingly to condemn the coup. It called on Myanmar’s illegal junta to “respect the will of the people as freely expressed by the results of the general election,” and allow “a sustained democratic transition.”

In May 2021, Myanmar’s generals wrote to the UN secretary general, demanding that they represent Myanmar at the UNGA. This was rebuffed. But as part of a compromise involving Afghanistan, the UNGA decided to defer a decision on Myanmar’s credentials. 

However, significantly, they voted unanimously to leave the NUG ambassador, Kyaw Moe Tun, in his seat. 

So to be clear: The junta’s credentials challenge was rejected, and after months of political and procedural wrangling, the UNGA decided unanimously to allow Myanmar to be represented by the NUG.

Historical precedent supports such a move  

In the 1960s and ’70s in the case of Southern Rhodesia, the UNGA called on member states to refrain from any action that might confer legitimacy on the illegal regime.

In the 1970s and ’80s the General Assembly deemed that the racist regime of South Africa was illegitimate, that it had no right to represent the country’s people, and that the national liberation movement was the people’s authentic representative.

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

Today, the NUG is looking to the UNHRC to take a similarly principled stand.

The situation on the ground demands this. The HRC’s own Special Rapporteur on Myanmar, Tom Andrews, reports that junta forces have committed crimes against humanity. 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. 

The HRC cannot allow this to stand. We urge it to reverse the decision on barring Myanmar and allow the NUG to take the seat. 

The HRC has a historic opportunity to build on the admiration it has rightly won over its robust stand on accountability in Ukraine. It must now show similar resolve on Myanmar and honor its human-rights mission there to protect 55 million embattled people in their hour of need and to hold the junta to account.

Chris Gunness

Chris Gunness is director of the Myanmar Accountability Project.

Damian Lilly

Damian Lilly is protection director at the Myanmar Accountability Project.