6.1
Inquiry participants suggested that sanctions, embargoes and other measures could be used to apply pressure to the Tatmadaw and incentivise a return to democracy. These elements were summarised by Mr Christopher Sidoti, who outlined the ‘three cuts’ strategy towards the military regime as being to ‘cut the cash flow’, ‘cut the arms supply’, and ‘remove the Tatmadaw’s impunity.’ At the two public hearings, there was also discussion about whether these measures would be effective in achieving change.
6.2
The Department of Foreign Affairs and Trade (DFAT) outlined in April that further punitive action is being considered, but some measures were already in place prior to February. Mr Ridwaan Jadwat, First Assistant Secretary, DFAT, advised:
Our sanctions regime is currently being reviewed, and we already maintain a longstanding arms embargo against Myanmar and have imposed targeted sanctions and travel bans against five senior military officials for their involvement in the atrocities committed in Rakhine State.
Influencing the Tatmadaw
6.3
According to DFAT and the Department of Defence ‘the Myanmar military regime in the past has been largely impervious to foreign influence.’ The Lowy Institute also stated that ‘the Tatmadaw … is resistant to outside pressure and has few compunctions about isolating its own country and its own people.’
6.4
The Department of Defence highlighted that ‘the actions taken by the Tatmadaw lack efficacy. If you’re trying to build a stable, humane society—this type of repression is going to create more problems, not fewer.’
6.5
In April, DFAT was hopeful that the ‘impervious’ nature of the Tatmadaw would be affected by ASEAN’s involvement and ‘that ASEAN can and will make a significant difference in how things go in the next few weeks and months ahead.’ In May, DFAT stated that they expected affecting change in Myanmar to ‘be quite a long and complex process.’
6.6
Mr Hugh Jeffrey, First Assistant Secretary, Department of Defence, stated that ‘sanctions, no matter how broadly applied, are not a silver bullet’ and that ‘sanctions are never going to be “the” answer. They’re part of a toolkit, but we also need to be able to provide options that incentivise a return to liberal democratic governance.’
6.7
The Australia Chin Communities Council was emphatic that firmer action was needed due to the Tatmadaw’s resilience:
The military have been emboldened, because for the last nearly 70 years they have been built up as an institution. It’s been strong. Bureaucratic military authoritarianism has been deeply rooted. We don’t have anyone, any party, who can get rid of them. I think now is the time to have external force to intervene or maybe to help the civilians to arm, because they only understand bullets.
6.8
Mr Coppel stated that it is not futile to externally pressure the Tatmadaw:
The bottom line is that change can only come from within Myanmar. That said, we can support the people of Myanmar by our statements, by resolutions, by targeted sanctions, by arms embargoes and by urging reconciliation, but the change itself will be determined in Myanmar by the Myanmar people.
Cutting the cash flow
6.9
Inquiry participants expressed support for financial sanctions and advocated that Australia should implement sanctions with a sense of urgency.
6.10
DFAT advised that that there are ‘five individuals who are currently sanctioned.’ The DFAT website details that:
Australia imposed autonomous sanctions in relation to Myanmar in response to the Myanmar Government’s failure to recognise the victory of the National League for Democracy in the 1990 Myanmar elections. After democratic reforms were initiated by the government of President Thein Sein, Australia lifted some sanctions measures in 2012 but retained an arms embargo due to concerns about ongoing armed conflict, weapons proliferation and human rights. In October 2018, the Minister for Foreign Affairs imposed new targeted financial sanctions and travel bans on members of the Myanmar military (Tatmadaw), in response to the release of the full report of the UN Fact-Finding Mission on Myanmar, which documented human rights abuses committed primarily by Myanmar’s military against ethnic minorities.
6.11
DFAT stated in April that they will be reviewing Australia’s sanctions. DFAT expanded that any further sanctions will likely comprise of ‘financial related sanctions and sanctions affecting business interests. Travel bans could be part of that as well’.
6.12
DFAT, however, further advised in May that further sanctions were assessed to have ‘very little, if any, positive impact to the people on the ground’:
We have been looking very closely at options for a wide range of policy responses to the situation in Myanmar. We liaise closely with those countries that you just mentioned who, as you say, have introduced significant sanctions, both individual and against entities. … In the case of the Australian government, our assessment at this time is that additional sanctions by Australia would not have a positive impact on the ground. Our assessment is that it could potentially limit our ability to have influence. It could potentially limit our ability to provide assistance, and there would be very little, if any, positive impact to the people on the ground.
6.13
The Global Movement for Myanmar Democracy advocated for sanctions against Tatmadaw entities MEC (Myanmar Economic Corporation) and Myanma Economic Holdings Public Company Limited (MEHL).
6.14
DFAT also advised that financial sanctions targeting entities would require a change in regulations:
… our current regulations focus on the arms embargo and the listing of individuals rather than entities. A change in the regulations would be required under the Myanmar regime to include entities.
6.15
Inquiry participants also recommended Australia engage multilaterally to implement sanctions against the Tatmadaw. DFAT stated that sanctions had not been imposed by ‘Japan, the Republic of Korea and ASEAN countries’, expanding that ‘certainly in our own region other countries have not at this stage sanctioned and are choosing to try and maximise their influence instead.’
6.16
The Australian Myanmar Constitutional Democracy Project, a group of Australian legal academics, stated that Australia’s sanctioning decisions stood in ‘marked contrast to the response of friends and allies such as the United States, the European Union, Canada and New Zealand’:
In 2018, a UN Fact-Finding Mission concluded that there was evidence Min Aung Hlaing ordered atrocities to be committed against the Rohingya, including possible genocide. Several countries, including the United States, imposed targeted sanctions against Min Aung Hlaing at that time. Australia did not.
6.17
Mr Sidoti stated that Australia should have targeted the most senior members of the Tatmadaw, as well as their assets:
Australia has sanctioned a number of individual generals but, incredibly, not the top two—not the commander-in-chief and his deputy. Again, the time has long past when we should have taken that step, but we need to move beyond that and sanction military owned and controlled companies.
6.18
The Australia Chin Communities Council was not optimistic about the effectiveness of sanctions, stating that ‘sanctions don’t work. In the past, we have seen and the world has seen that sanctions alone do not work.’ Ms Tun stated, however, that the context for sanctions in 2021 is different to previously imposed sanctions:
The last time sanctions were imposed on the military in the 1990s and 2000s it was to remove a regime that had been in power for decades and was extremely isolated. But 2021 is a different story. The military, their associates and their families now have extensive international business ties, built in the last 10 years after the transition to democracy. This time strong, effective sanctions and visa bans can hurt but we must do it now.
6.19
Mr Coppel emphasised that the impact of sanctioning the Tatmadaw goes beyond financial damages, as sanctions provide a:
… frequent reminder that [the military regime] haven’t achieved legitimacy and that both within the country and outside the country no-one is recognising that they have been successful in taking control of governance of Myanmar.
Cutting the arms supply
6.20
Inquiry participants discussed both Australia’s autonomous arms embargo against Myanmar, and the idea of a global arms embargo.
6.21
DFAT advised that the Australian Government ‘already maintain[s] a longstanding arms embargo against Myanmar.’ The Department of Defence stated that the defence exports control scheme ‘preclude[s] any export of arms [to Myanmar] under the current conditions, and it has done for many years.’
6.22
Mr Sidoti sought clarification as to whether dual use goods, such as drones, are restricted under Australia’s existing arms embargo:
Australia already has an arms embargo, but increasingly we see that dual use goods are being exported from many countries to Myanmar, ostensibly for civilian purposes but in fact to support military operations. In particular the export of drones and telecommunications equipment is having a serious impact on facilitating military operations against national groups. We see the need for an extension of the Australian arms embargo to include more dual use goods, and that will first require an examination of whether those goods are being exported from Australia at the moment.
6.23
The DFAT website details that ‘goods on the Defence and Strategic Goods List are likely to be considered arms or related matériel. Depending on the context, end user and end use, other goods may also be considered arms or related matériel.’ DFAT advised that permit process for exporting ‘arms and related material’ includes the seeking of advice from the Department of Defence:
On the definition of ‘arms and related material’, [DFAT] work[s] very closely with Defence; and [Defence] have expertise in determining what fits into that category. There are two ways this would potentially come to our attention. One is if there is a company looking to export something to a country where there is an arms embargo. They would go through our website, which is called Pax and which is essentially a means by which a company could get advice or potentially seek a permit to export a certain good for certain reasons.
The other would be if Border Force stopped goods at the border and queried whether they were subject to a sanctions permit. Then they would revert to us and we would go through that investigation.
6.24
DFAT stated that the UN Security Council is the likely mechanism for a global arms embargo, ‘if the UN Security Council decided to impose an arms embargo then we would implement that via our Charter of the United Nations Act obligations by a change in regulations.’ DFAT clarified that advocating for a global arms embargo ‘is an issue that is currently being looked at in the department’, and elaborated in April that:
We are going to look very closely at what happens in the UN on that issue. … We want to do something where can also get other countries on board, so we need to look at what can be done and what is realistic in the current environment and what other countries may be willing to do. Without going into any further detail in terms of our internal discussions and also discussions with other countries, we just need to make sure that we can bring together other nations to support some of the things that we are thinking about.
6.25
At the 13 May 2021 public hearing, DFAT was asked on notice whether Australia has been part of any broader multilateral or international discussions about a global arms embargo. At the time of writing, a response has not been provided.
Removing the impunity
6.26
Inquiry participants called on the Australian Government to support accountability mechanisms, including the International Criminal Court and International Court of Justice, to ensure individuals responsible for human rights violations in Myanmar are prosecuted.
6.27
DFAT acknowledged that the UN Independent Investigative Mechanism for Myanmar, established in September 2018 by the UN Human Rights Council, was ensuring those in Myanmar who breach international laws are held accountable:
We welcome the announcement by the UN Independent Investigative Mechanism for Myanmar that they will collect, consolidate, preserve and analyse evidence of ongoing serious international crimes and violations of international law.
6.28
Professor Susan Harris Rimmer stated that the military coup was an extension of the Tatmadaw’s historical behaviour:
The military coup in February 2021 was an extension of the kind of rights-violating behaviour the Tatmadaw had engaged with in Rakhine, Karen, Kachin, Chin and Shan States in the years leading up to the coup, and a perceived and real level of impunity for those actions was not sufficiently countered by the international community.
6.29
Ms Melinda Tun stated that there is a legal precedent to deport Tatmadaw relatives and affiliates residing in Australia:
Many of them are living and studying here funded by the proceeds of their parents’ military connections and involvement in military enterprises. Their presence in this country is fundamentally contrary to our foreign policy interests. They must be expelled and there is clear legal precedent for DFAT to do so, based on a 2008 decision in the Federal Court of Australia regarding a Myanmar offspring of a military figure.
6.30
The Department of Home Affairs advised that it had received a list of individuals in Australia who are alleged to be relatives of senior members of the Tatmadaw. The Department of Home Affairs stated that:
The role of individuals in country is to be lawful and act lawfully while they are here under the terms and conditions of their visas.
If we are … given a name and told, ‘This is a relative of’ we don’t necessarily go to the next step of investigating, ‘Are they, in fact, the relative?’ if there’s no reason to believe they are in breach either of their visa conditions or advice from other agencies that they have about activities they might be undertaking. It’s linked to the activity and circumstances of the individual not the fact that they are related to someone, necessarily.
6.31
The Department of Home Affairs was asked on notice whether there are any investigations into relatives of the Tatmadaw in Australia on 13 May 2021. At the time of writing, a response has not been provided.
Concluding comment
6.32
The Committee heard that the Tatmadaw is a resilient entity, considered to be ‘impervious’ to foreign influence. The Committee understands that measures such as sanctions, arms embargoes, and human rights accountability mechanisms will not singlehandedly resolve the issue, but are important tools.
6.33
The Committee was advised that prior to February some measures were already in effect: under Australia’s autonomous sanctions regime there were some financial sanctions against certain members of the Tatmadaw, and an arms embargo was in place from Australia to Myanmar. The Committee also heard that globally enforced sanctions, such as a global arms embargo through the UN Security Council are being discussed.
6.34
The Committee notes the advice by DFAT in May that the Australian Government has decided to not impose additional sanctions, taking into account their assessment that further sanctions would be detrimental to negotiations among ASEAN nations.
6.35
The Committee acknowledges the different views on the issue of the effectiveness of sanctions amongst Committee members, as there are amongst the international community. The Committee as a whole does, however, agree that the issue of additional sanctions does warrant further consideration.
6.36
The Committee recommends the Australian Government further consider imposing targeted sanctions upon additional senior figures in the Tatmadaw and Tatmadaw-linked entities, including MEC and MEHL, who have played a role in the overthrow of democracy and subsequent violent repression of protests.
6.37
The Committee recommends that the Australian Government actively contribute to international discussions regarding a possible global arms embargo against Myanmar, and/or the expansion of the number of countries imposing unilateral arms embargoes.
6.38
The Committee recommends the Australian Government support UN and multilateral efforts to: hold leaders of the Tatmadaw to account; investigate serious human rights violations; deter further violent repression; and restore civilian democratic rule. This includes support for the UN Special Envoy on Myanmar and for the UN Special Rapporteur on Myanmar.
Senator the Hon David Fawcett
Chair
Joint Standing Committee on Foreign Affairs, Defence and Trade
Mr Dave Sharma MP
Chair
Foreign Affairs and Aid Sub-committee