The gravest crimes under international law
On August 27, the United Nations Fact-Finding Mission on Myanmar, which was tasked with investigating alleged human rights abuses in Myanmar, with a focus on Rakhine, announced their initial findings whereby it has been suggested that senior members of the Myanmar military, including commander-in-chief Senior General Min Aung Hlaing, “be investigated and prosecuted” for genocide and human rights atrocities against the Rohingya and other minority groups in Myanmar. The report is the harshest indictment yet of the Myanmar military. The mission also said that crimes against humanity and war crimes were committed by the Tatmadaw in Rakhine State, as well as in Kachin and Shan states. Following are the main conclusions and recommendations of the report presented by the three-member commission headed by Marzuki Darusman.
1. The gross human rights violations and abuses committed in Kachin, Rakhine and Shan States are shocking for their horrifying nature and ubiquity. Many of these violations undoubtedly amount to the gravest crimes under international law. They are also shocking because they stem from deep fractures in society and structural problems that have been apparent and unaddressed for decades. They are shocking for the level of denial, normalcy and impunity that is attached to them. The Mission concludes that these abusive patterns are reflective of the situation in Myanmar as a whole.
2. Myanmar has a heavy responsibility to remedy the situation as a matter of the utmost urgency, or risk destroying its democratic reform process. The international community also bears responsibility and must take a united stand to both condemn the violations and assist Myanmar in addressing the root causes of its recurrent problems. This begins by ensuring that the perpetrators of crimes are held to account, and by giving hope to victims of a future without the fear and insecurity that have characterized their existence.
3. The steps required to address the human rights crises in Myanmar are well known. For nearly three decades, five consecutive Special Rapporteurs on the situation of human rights in Myanmar have presented annual reports to the General Assembly and the Human Rights Council, with detailed recommendations to all stakeholders. Similarly, the United Nations High Commissioner for Human Rights has formulated concrete recommendations, as have many international and national civil society organizations. The Advisory Commission on Rakhine State also presented a detailed report. These recommendations should be implemented immediately.
4. The Mission’s detailed report provides comprehensive recommendations. Here, it draws particular attention to the following priority areas for action by the international community:
(a) The international community, through the United Nations, should use all diplomatic, humanitarian and other peaceful means to assist Myanmar in meeting its responsibility to protect its people from genocide, crimes against humanity and war crimes. It should take collective action in accordance with the United Nations Charter, as necessary;
(b) The Security Council should ensure accountability for crimes under international law committed in Myanmar, preferably by referring the situation to the International Criminal Court or alternatively by creating an ad hoc international criminal tribunal. Further, the Security Council should adopt targeted individual sanctions, including travel bans and asset freezes, against those who appear most responsible for serious crimes under international law. It should also impose an arms embargo on Myanmar;
(c) Until the Security Council acts, the General Assembly, or alternatively the Human Rights Council, should create an independent, impartial mechanism to collect, consolidate, preserve and analyse evidence of violations of international humanitarian law and human rights violations and abuses and to prepare files to facilitate and expedite fair and independent criminal proceedings in national, regional or international courts or tribunals;
(d) The Human Rights Council should continue to support the mandates of the Special Rapporteur on Myanmar and the High Commissioner for Human Rights, and ensure they have adequate resources to maintain a strong focus on the human rights crisis in Myanmar;
(e) The Human Rights Council should specifically request OHCHR to focus on ensuring accountability for human rights violations and abuses in Myanmar, including by enhanced monitoring, documentation, analysis and public reporting on the human rights situation; raising awareness among civil society and other actors engaged in documenting human rights violations about relevant international standards; working with victim communities to raise awareness about justice options; and supporting comprehensive rule of law and security sector reform in Myanmar in line with international human rights norms and standards. Appropriate resources must be allocated;
(f) The Human Rights Council should establish a second fact-finding mission for a limited period to build on the work undertaken by the Mission, until either one of the mechanisms outlined in (b) or (c) are operational, or the reinforced work of OHCHR set out in (e) is in place;
(g) The United Nations should urgently adopt a common strategy to ensure that all engagement with Myanmar takes into account, and addresses, human rights concerns, in line with the Human Rights Up Front Action Plan. This should guide all UN engagement in Myanmar, particularly in relation to Rakhine State, and include policies and public advocacy stances. All United Nations support to Myanmar authorities should undergo a full Human Rights Due Diligence analysis;
(h) As a matter of urgency, there must be a comprehensive, independent inquiry into the United Nations involvement in Myanmar since 2011, with a view to establishing whether everything possible to prevent or mitigate the unfolding crises was done; identifying lessons learned and good practice; making recommendations as appropriate, including on accountability; and enabling more effective work in future;
(i) The United Nations and international community must ensure that the repatriation of refugees and return of internally displaced persons only occurs when safe, voluntary and dignified, with explicit human rights protections in place, including citizenship. In the current circumstances, returns are not possible;
(j) All Member States should ensure that engagement with Myanmar, and support for aid, development and reform projects, take into account and address human rights concerns, and explicitly conform to the principles of non-discrimination and equality. They should ensure that humanitarian organizations working on Myanmar are appropriately funded. States should cease operational support to the Tatmadaw and other security forces until there is (1) demonstrable commitment to genuine reform; (2) international assistance in implementing reform; and (3) acceptance of and cooperation with international mechanisms to hold those responsible accountable for crimes under international law;
(k) Regardless of the imposition of an arms embargo by the Security Council, States should not authorize the transfer of arms to Myanmar, considering the overriding risk that they would be used to undermine peace and security and in the commission of serious crimes under international law;
(l) Relevant regional organizations, including the European Union and ASEAN, should develop strategies to ensure accountability for perpetrators of crimes under international law in Myanmar, including through sustained engagement with Myanmar and support for an international justice mechanism;
(m) Member States should exercise jurisdiction to investigate and prosecute alleged perpetrators of serious crimes under international law committed in Myanmar;
(n) The United Nations should establish a trust fund for victim support, through which victims can receive psychosocial support, legal aid, livelihood support and others means of assistance. All trust fund projects should be designed in consultations with victims.
It has taken a long time — too long — to fully acknowledge the terrible suffering of the Rohingya people at the hands of Myanmar’s military rulers, perhaps because of the world’s reluctance to jeopardize their tentative political opening. A newly released United Nations report, which details Myanmar’s state violence against an ethnic and religious minority in that country known as the Rohingya, should put an end to any hesitation about holding the generals, and their civilian enablers, to account for what they have done: genocide and crimes against humanity. The report has found conclusive evidence that the actions of the Burmese armed forces, known as the Tatmadaw, “undoubtedly amounted to the gravest crimes under international law” in Rakhine as well as in Kachin and Shan, states also riven by internal conflicts. The report further said, “Based on the body of information collected, the Mission concludes on reasonable grounds that serious crimes under international law have been committed that warrant criminal investigation and prosecution.
Genocide is the most serious charge that can be levelled against a regime. It means, in effect, the premeditated destruction of a people, and for all the denials and evasions of Myanmar’s generals, that is what they have tried to do to the Rohingya Muslims, which has been condoned by the failure of civilian leaders — including the once-revered Nobel Peace Prize laureate Daw Aung San Suu Kyi — to speak out.
According to the United Nations panel, the military’s response was far out of proportion, indicating a premeditated campaign. Military necessity, the panel wrote, “would never justify killing indiscriminately, gang-raping women, assaulting children and burning entire villages.” The panel also assailed the virulent hate speech against the Rohingya on social platforms, notably Facebook. Facebook subsequently said it was taking additional steps to block the propaganda.
Most of the atrocities detailed by the report have been described before. But the panel’s charge of genocide, and the naming of six senior military figures, including the commander-in-chief of the armed forces and his deputy, raised accusations that cannot be neglected by the international community.
Myanmar itself will not act, as the military and civilian authorities have made clear in their denials and phony internal investigations. The United Nations fact-finding mission lacks the power to bring charges before the International Criminal Court or to set up an international tribunal, and any such action by the Security Council would most likely be blocked by China, Myanmar’s patron.
But, there are other remedies: sanctions, travel bans, a freeze on the assets of those named. The European Union has held a meeting with the United Nations team; the United States has also imposed sanctions on several Myanmar security officers and two military units, and Secretary of State Mike Pompeo said the United States would continue to hold accountable those responsible for “abhorrent ethnic cleansing” of Rohingya Muslims.
However it is done, the Myanmar generals and their civilian enablers must be held to account and the terrible persecution of the Rohingya brought to an end.