UN report accuses Myanmar’s military of genocide

UN report accuses Myanmar’s military of genocide

Larry Jagan,

The UN’s independent human rights investigators have issued the toughest verdict yet on the crisis in Myanmar’s war-torn western region of Rakhine State. The investigators’ report does not mince words and is going to have major ramifications, both within the country, and within the international community.

In their report, they called on the UN Security Council to refer the Myanmar situation to the International Criminal Court (ICC) or for an ad hoc international criminal tribunal to be created.

The violence there – especially after the terrorist attacks by the insurgent Arakan Rohingya Solidarity Army (ARSA) almost exactly a year ago, which left a score of security forces dead – caused more than 700,000 Rohingya Muslims to flee to safety in neighbouring Bangladesh.

In their report — released on Monday 27th August — the three international legal and human rights experts believe they show sufficient evidence against Myanmar’s top military leaders to warrant an investigation into genocide in Rakhine and crimes against humanity in other areas.

The report, based on hundreds of interviews over the last 18 months, is the most comprehensive yet produced by any human rights organization, and calls for the strongest international condemnation possible. And suggests the UN can no longer dodge the issue, and must refer it to the top international courts for further action.

It is committed to supporting the Tatmadaw in this regard, according to government insiders. Over the past year, Aung San Suu Kyi has privately insisted that she would not allow Min Aung Hlaing to face the ICC. It is a national issue that needs to be dealt with “locally”.

The report names six senior military officers – including the Commander-in-Chief, Senior General Min Aung Hlaing, and his deputy General Soe Win – who it says should be referred to the ICC on charges of genocide and crimes against humanity.

This is the most detailed and comprehensive report yet from the UN – amongst a plethora of reports over the last two years — and certainly lays the foundation for legal proceedings. It is a shocking indictment on the Myanmar military’s actions in Rakhine over the recent years.

The report documents crimes in Kachin, Shan and Rakhine that include murder, imprisonment, torture, rape, sexual slavery, persecution and enslavement, which it says “undoubtedly amount to the gravest crimes under international law”. In Rakhine, the report also found elements of extermination and deportation “similar in nature, gravity and scope to those that have allowed genocide intent to be established in other contexts”.

The military and the government have consistently defended the army’s actions, claiming the operations targeted militant and insurgent threats. But the report believes the army’s methods were “consistently and grossly disproportionate to actual security threats”. Though the report does mention the atrocities committed by ARSA, it leaves no doubt that the main culprit is Myanmar’s Tatmadaw.

“The scale, brutality and systematic nature of these violations indicate that rape and sexual violence are part of a deliberate strategy to intimidate, terrorize or punish a civilian population, and are used as a tactic of war,” the report concluded.

“Military necessity would never justify killing indiscriminately, gang raping women, assaulting children, and burning entire villages,” said the report.

It is also extremely critical of Myanmar’s civilian leader, Aung San Suu Kyi, for failing to intervene to stop the violence: though it acknowledges that she and her government have little control over the military’s operations. But it suggests her silence has made her unwittingly complicit in the violence and “contributed to the commission of atrocity crimes”.

But while the UN fact-finding mission may have completed its job, this is far from the end of the episode. Coming as it does a couple of weeks before the annual UN General assembly – which Aung San Suu Kyi is expected to attend – this report has added urgency of dealing with the situation in Rakhine and will force the international community to face the Myanmar crisis head on.

The fact-finding mission is adamant that only an ICC inquiry and case can provide justice for the victims of the atrocities. There are several options that the international community can consider. One is referring the case of genocide and crimes against humanity against Myanmar directly to the ICC. This would need a UN Security Council resolution, which both China and Russia would be expected to veto.

But the Myanmar government has already vigorously rejected international intervention, and denied that the ICC had any jurisdiction in the matter: the State Counselor Aung San Suu Kyi’s office issued a statement several weeks ago repeating the government’s continued stance that the international court has “no jurisdiction over Myanmar whatsoever” because the country is not a party to the Rome Statute which established the international tribunal.

This was of course in relation to a previous move by the ICC itself, which earlier this year began considering whether the court had jurisdiction over Myanmar officials who forced Rohingya refugees to flee to Bangladesh, which is an ICC member, for the crime against humanity of deportation. Myanmar called this particular suggestion a “meritless claim”. In a detailed 21-point statement the government claimed there was “no obligation to enter into litigation with the prosecutor at the ICC … and the court had no jurisdiction”.

Furthermore, according to the statement: “Myanmar also disagrees with the prosecutor’s assertion that population displacement across a national boundary is an essential objective element of the crime of deportation.” So clearly the Myanmar government s committed to opposing any international legal intervention into Rakhine.

It is committed to supporting the Tatmadaw in this regard, according to government insiders. Over the past year, Aung San Suu Kyi has privately insisted that she would not allow Min Aung Hlaing to face the ICC. It is a national issue that needs to be dealt with “locally”.

The problem, as many diplomats, point out is that the government “initiatives” appear to be too little too late: first the Kofi Annan Commission, whose year-long investigation and recommendations were scuppered by the ARSA attack 12 months ago immediately after these were made public.

And now there is the recent formation of the Commission of Inquiry – composed of 2 foreign representatives and 2 nationals – to investigate the human rights abuses in Rakhine. It is meant to complete its investigation within the next 12 months. In part it was a national alternative to the UN human rights’ council’s independent mission, with which Myanmar refused to cooperate. And to stave off international efforts to have the Rakhine situation referred to the ICC.

But now the latest UN report has put the cat amongst the pigeons. The most viable recommendation of the UN fact-finding mission is for UN member states to urgently establish an International, Independent, Impartial Mechanism – similar to one which investigated the situation in Syria, or the special tribunal by the UN Security Council, to prosecute the crimes committed in the former Yugoslaviato preserve evidence and assist in investigations for future prosecution of those responsible for atrocity and crimes in Myanmar.

This may not need a UN Security Council resolution, but can be passed by the UN General Assembly – without the veto being involved.

Although the UN mission did not have access to Myanmar, their 20-page report was based on 847 interviews, satellite imagery, authenticated documents, photographs, and video, which covered serious abuses in Rakhine, Shan, and Kachin States from 2011 to the present. It also detailed abuses committed by ethnic armed groups it said may also constitute war crimes.

Now the Myanmar government can no longer defer taking action against the army. The ball is firmly in Aung San Suu Kyi’s court, but she needs to act quickly and decisively if she is going to deflect efforts at concerted international intervention, and protect the army commanders from being tried as war criminals.

This may be the opportunity she needs to confront the military head-on and secure a measure of democratic constitutional change: the end of the 25% of MPs nominated by the military, three ministers appointed by the army commander – border affairs, defense and home affairs – and civilian oversight over the military.