Q&A: Justice for International Crimes in Myanmar

In March 2017, the United Nations Human Rights Council established the Independent International Fact-Finding Mission on Myanmar to “establish the facts and circumstances of the alleged recent human rights violations by military and security forces, and abuses, in Myanmar … with a view to ensuring full accountability for perpetrators and justice for victims.” The three members appointed to the Fact-Finding Mission were Marzuki Darusman (chair), Radhika Coomaraswamy, and Christopher Dominic Sidoti.

The Fact-Finding Mission’s mandate was extended after Myanmar security forces carried out a campaign of ethnic cleansing, including killings, rape, and mass arson, against the Rohingya population in northern Rakhine State following attacks by the Arakan Rohingya Salvation Army (ARSA) on August 25, 2017. Human Rights Watch found that security force abuses amounted to crimes against humanity.

More than 720,000 Rohingya fled to Bangladesh, where nearly one million refugees now live in precarious, crowded, flood-prone camps. Agreements between UN agencies and Myanmar to facilitate the return of Rohingya refugees would require conditions conducive to voluntary, safe, dignified, and sustainable returns, and protections to ensure Rohingya’s basic rights – criteria unlikely to be met in the foreseeable future. Human Rights Watch documented the torture in Myanmar of several Rohingya who had returned.

The Myanmar government did not cooperate with the Fact-Finding Mission and denied access to its experts and its staff. It has also banned Yanghee Lee, the UN special rapporteur on the situation of human rights in Myanmar.

The Fact-Finding Mission released its 20-page report on August 27, 2018. While it focused primarily on Rakhine State, the Fact-Finding Mission also documented serious violations of international law primarily by government security forces, but also by ethnic armed groups, in Shan and Kachin States. The Myanmar government summarily rejected the Fact-Finding Mission’s report.

The mission’s report with a 400+ page appendix is expected to be presented to the Human Rights Council on September 18.


What were the Fact-Finding Mission’s findings?

The Fact-Finding Mission found that Myanmar security forces committed serious crimes under international law “that warrant criminal investigation and prosecution,” namely crimes against humanity, war crimes, and genocide.

Crimes against humanity by Myanmar security forces, committed as part of a widespread or systematic attack on a civilian population, include murder; imprisonment; enforced disappearance; torture; rape, sexual slavery, and other forms of sexual violence; persecution; and enslavement. Elements of the crimes of extermination and deportation were also present. The mission concluded that the systematic oppression and discrimination against the Rohingya might also amount to the crime of apartheid.

War crimes are serious violations of international humanitarian law committed by individuals with criminal intent. War crimes committed by the military in Rakhine State since at least August 2017 include murder; torture; cruel treatment; outrages upon personal dignity; attacking civilians; displacing civilians; pillaging; attacking protected objects; taking hostages; sentencing or execution without due process; and rape, sexual slavery, and sexual violence.

Genocide refers to certain criminal acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group.

The mission found that Myanmar security forces carried out genocidal acts against the Rohingya: killing; serious bodily or mental harm; conditions of life calculated to bring about the group’s physical destruction; and measures to prevent births.

The mission concluded that there was “sufficient information to warrant the investigation and prosecution of senior [military] officials” to determine liability for genocide. Six senior commanders were named for investigation and prosecution, including the military commander-in-chief, Sr. Gen. Min Aung Hlaing.

The mission highlighted relevant factors to show “genocidal intent,” a necessary element of genocide, including the broader oppressive context and hate rhetoric; statements of individual commanders and perpetrators; exclusionary policies, including to alter the makeup of Rakhine State; a level of organization suggesting a plan for destruction; and the extreme scale and brutality of the violence.

The mission reported that certain acts committed by ARSA in Rakhine State “may also constitute war crimes.” It also found that the Myanmar military committed crimes against humanity and war crimes in Shan and Kachin States since 2011, while ethnic armed groups in those states committed war crimes.


What is the basis for the Fact-Finding Mission’s conclusions?

The Fact-Finding Mission stated that it only relied on verified and corroborated information for its findings. It conducted 875 in-depth interviews with victims and eyewitnesses. It used satellite imagery and authenticated documents, photographs, and video. Since the mission did not have access to Myanmar, despite repeated requests to the government, its members traveled to Bangladesh, Indonesia, Malaysia, Thailand, and the United Kingdom to collect information.


What are the Fact-Finding Mission’s main recommendations to bring perpetrators to justice?

To address the “gross human rights violations and abuses committed in Kachin, Rakhine and Shan States,” which are “shocking for their horrifying nature and ubiquity,” the mission urged the UN Security Council to refer the situation to the International Criminal Court (ICC) or create an ad hoc international criminal tribunal similar to those established for the former Yugoslavia and Rwanda. Since Myanmar is not a party to the Rome Statute, the treaty that created the ICC, a Security Council referral is the only way for the entire situation in Myanmar to come under ICC jurisdiction.

The mission also urged the UN General Assembly or the Human Rights Council to create “an independent, impartial mechanism to collect, consolidate, preserve and analyze evidence” of serious violations of international human rights and humanitarian law, and “to prepare files to facilitate and expedite fair and independent criminal proceedings in national, regional or international courts or tribunals.”


Why can’t perpetrators be held accountable in Myanmar?

The Fact-Finding Mission concluded that the Myanmar government has demonstrated that it is “unable and unwilling” to investigate and prosecute crimes under international law. This is an important conclusion since the ICC, as a court of last resort, can only step in when justice in national courts is not possible. The mission found that Myanmar’s political and legal system effectively placed the military above the law. Myanmar’s military courts have long failed to deal with massive human rights violations committed by the military, while the civilian criminal justice system lacks independence and the capacity to respect fair trial standards.

The mission noted that it examined eight ad hoc inquiry commissions and boards created to address abuses in Rakhine State since 2012. It concluded that “none meets the standard of an impartial, independent, effective and thorough human rights investigation.” It said that the government’s new Commission of Enquiry with international members “will not and cannot provide a real avenue for accountability.” In fact, in August, the commission’s chair, Rosario Manalo, told the media that “there will be no blaming of anybody, no finger pointing at anybody, because we don’t achieve anything by that procedure.”


What is the UN Human Rights Council’s role in carrying out the Fact-Finding Mission’s recommendations?

The Human Rights Council, as the UN’s primary human rights body, has the first responsibility to substantively address the concerns raised in the Fact-Finding Mission report and act on the recommendations of the body it created in its upcoming resolution on Myanmar. This should include pressing the Security Council to fulfill its responsibility to refer the entire situation in Myanmar to the ICC and establishing an International, Independent, Impartial Mechanism as the mission called for.


Why is an International, Independent, Impartial Mechanism so important now?

An International, Independent, Impartial Mechanism, modeled on a similar mechanism established for Syria by the UN General Assembly, is urgently needed to collect, consolidate, preserve, and analyze evidence of possible crimes to support criminal proceedings in the future. The Myanmar mechanism should have a similar title to convey the seriousness of the crimes, the standard for gathering evidence, the scale of the task, and the need for commensurate staffing and resources.

The urgency reflects the realities on the ground. Since the military operations began in August 2017, 362 predominantly Rohingya villages in northern Rakhine State were completely or partially destroyed by arson. Human Rights Watch has documented the complete or partial destruction since November 2017 of at least 60 villages formerly occupied by Rohingya, destroying evidence of crimes.

And while thousands of Rohingya victims and witnesses are in Myanmar and Bangladesh, as more time passes, memories will fade and key witnesses may no longer be available or easily located. These challenges highlight the urgency of concrete action to support eventual criminal investigations and prosecutions before the ICC or other competent courts.

An International, Independent, Impartial Mechanism would also play a critical role in centralizing the documentation and fact-finding efforts that are ongoing across the country by nongovernmental organizations, journalists, and others, and ensure that evidence is collected according to international standards and best practices. This can help minimize risks and further trauma to victims and witnesses and safeguard the confidentiality and integrity of potential evidence shared with investigators.

Analysis of evidence and preparation of case files would also send a message to perpetrators that there could be justice for atrocity crimes and act as a deterrent to further abuses. Evidence gathered could also be used by other countries to prosecute cases under the principle of universal jurisdiction.

The mechanism should have the expertise and budget to effectively document violations and abuses. At a minimum, the mechanism should have staff with expertise in the following areas: building case files and indictments for serious international crimes, including command responsibility; investigating sexual and gender-based violence, and interviewing children; analyzing military operations, weapons, and command structure; forensics; Myanmar criminal law; and investigating serious international crimes. Sufficient funds should be allocated for translation and interpretation.

Once operational, the mechanism should develop protocols for managing evidence, including preserving the chain of custody, managing information and security, and protecting witnesses and victims, among other areas.


Can the Human Rights Council create an International, Independent, Impartial Mechanism?

The Human Rights Council regularly creates mechanisms in response to reports of international crimes to carry out a variety of functions, including gathering and preserving evidence and identifying perpetrators. For example, the Commission on Human Rights in South Sudan has the mandate “to determine and report the facts and circumstances of, to collect and preserve evidence of, and to clarify responsibility for alleged gross violations and abuses of human rights and related crimes, including sexual and gender-based violence and ethnic violence, with a view to ending impunity and providing accountability.” Human Rights Council resolutions on North Korea have set up a field-based structure in Seoul and strengthened its monitoring and documentation capacity by “establishing a central information and evidence repository,” and appointing “experts in legal accountability [to] assess all information and testimonies” with a view to advancing accountability.

The UN General Assembly, in its upcoming resolution on Myanmar, should welcome and endorse the creation of this mechanism, and strengthen it as needed. The mechanism should report both to the Human Rights Council and the General Assembly.


Is a UN Security Council referral of Myanmar to the International Criminal Court a realistic possibility?

A Security Council referral to the ICC would underline the international community’s responsibility to help bring those responsible for grave crimes in Myanmar to account. However, China and Russia have previously blocked an ICC referral for grave crimes in Syria, and Russia has made it clear that it will continue to block referrals in the foreseeable future.

Security Council members Sweden and the Netherlands have been vocal in calling for a referral of the situation in Myanmar to the ICC. Voices outside of the council are also making themselves heard. For example, a group of more than 130 sitting members of parliament from Indonesia, Malaysia, Timor-Leste, Singapore, and the Philippines have called for an ICC referral. Malaysia’s foreign minister emphasized the Security Council’s responsibility to step in to address the crimes in Myanmar if the government “proves to be unwilling or incapable of ensuring justice.”

Current political dynamics in the Security Council add to the obstacles to achieving an ICC referral in the near term. To date, the UK, the “penholder” on Myanmar resolutions at the Security Council, has not put forward a draft resolution on any element of the country situation, even on issues like refugee return, on which council members are largely in agreement.

To change the political climate in the Security Council so that a resolution can be adopted, UN member countries, especially those on the council, will need to persistently make accountability in Myanmar a priority. That approach would help raise the political cost on China, Russia, and other countries opposed to an ICC referral.

A concrete step in this direction would be for the Security Council to invite the Fact-Finding Mission to brief members on its findings and recommendations. Any council member could also formally circulate the Fact-Finding Mission’s report as a Security Council document, which could further pressure the council to address its findings.


Isn’t the ICC already looking at crimes in Myanmar?

On September 6, a panel of ICC judges confirmed that the court could assert jurisdiction over Myanmar officials who forced Rohingya to flee to Bangladesh as the crime against humanity of deportation. This is because an element of the crime occurred in Bangladesh, which, unlike Myanmar, is an ICC member. The judges also said that the court could have jurisdiction over the crime against humanity of persecution if the prosecutor shows that the deportation of the Rohingya was based on discriminatory grounds, such as ethnicity or religion. Additionally, Myanmar’s efforts to prevent the return of the Rohingya could be examined by the court as “other inhumane acts” causing “great suffering or serious injury.” Myanmar has rejected the court’s ruling.

However, there is not yet an ICC investigation, and the judges’ ruling should not be used as an excuse to stall action at either the Human Rights Council or the Security Council. The crimes linked to the mass flight of several hundred thousand Rohingya into Bangladesh represent only a fraction of the crimes committed during the Myanmar security forces’ ethnic cleansing campaign. A Security Council referral is needed for an ICC investigation to cover the full scope of criminality in Myanmar, including the war crimes and crimes against humanity in Kachin and Shan States. Likewise, the need remains for the Human Rights Council to create a mechanism to urgently collect evidence of crimes outside of any limited ICC investigation.

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