An Independent Investigation is a Must
By Aman Ullah
“For too long the world has stood by in the face of atrocities. The responsibility to protect is a commitment to act”. Global Centre for the Responsibility to Protect
More than 1,000 Buddhists in a Myanmar state wracked by religious and ethnic strife protested Tuesday’s arrival of former U.N. Secretary-General Kofi Annan, saying the Ghanaian is meddling in the country’s affairs by leading a government-appointed commission to find solutions to the conflict, reported by associated press today ( Sep 5, 2016).
The state’s dominant Arakan National Party and the Rakhine Women Network led the protest about 300 meters (yards) from the airport in Sittwe, the Rakhine capital, where Annan and other members of the Rakhine Advisory Commission arrived Tuesday morning. As Annan’s car passed, the crowd shouted, “Dismiss the Kofi Annan-led Rakhine Advisory Commission now.“
The NLD led government set up a new nine-member advisory commission on Arakan State with former UN Secretary-General Kofi Annan at chair to help find solutions to “protracted issues” in western Rakhine state, where human rights groups have documented widespread abuses by majority Rakhine Buddhists against minority Rohingya Muslims.
The office of Burma’s State Counselor Daw Aung San Suu Kyi announced the formation of the commission in state-run newspapers on August 31, Wednesday. The announcement said the commission would recommend “lasting solutions to complex and delicate issues” in Arakan State.
However, The Arakan National Party (ANP) expressed objection and has demanded to cancel the new Arakan State Advisory Commission formed on Wednesday, stating that they would not be able to understand the background of and the current situation on the ground in Arakan State. The ANP also stated that the formation of the said commission would likely harm the rights of indigenous people—a reference to the Buddhist Arakanese—and national sovereignty and the problem of the state is a matter of “internal affairs”.
Human Rights violation is no more internal affairs of any country. Annan’s own view was clear. “Surely no legal principle – not even sovereignty – can ever shield crimes against humanity”, he said in 1999. According to him, “The sovereignty of States must no longer be used as a shield for gross violations of human rights”.
For decades the international communities have turned a blind eye to the persecution of the Rohingya, one of the world’s most vulnerable minorities. Rohingyas are denied by the government the right to citizenship, restricted from having more than two children, and many are forced to live in segregated, squalid ghettos that they can only leave with permission from authorities. Rohingyas have repeatedly been attacked and killed on the basis of their identity, receiving little to no physical protection from security forces. The Myanmar government has utterly failed to protect the Rohingya, for whom conditions have only worsened since the government began its transition to democracy in 2012.
Increasing hate speech by political, cultural and religious figures has served to dehumanize the Rohingya in the eyes of Myanmar’s public by demonizing them as unwanted “Bengali” foreigners.
The widespread culture of impunity for state and non-state actors who perpetrate or incite attacks against Rohingyas fuels a growing cycle of anti-Muslim violence within the country. Meanwhile, neighboring states have made it abundantly clear that they will not open their borders nor offer protection to Rohingyas attempting desperately to flee persecution. Anti-Rohingya sentiment is not confined to Myanmar’s borders.
The world has seen this before. The Holocaust and Rwandan genocide have shown us what happens when a minority population is systematically dehumanized, deprived of their rights, forced to live in segregation, and denied asylum elsewhere.
In the wake of the atrocities perpetrated against the Jews and Tutsis, the world vowed to prevent these crimes from being repeated. Yet today in Myanmar, the Rohingya face institutionalized persecution.
The global commitment to the Responsibility to Protect means that atrocities are not internal affairs. Every government, including all Asean member states, affirmed this in 2005 when they endorsed the Responsibility to Protect at the UN World Summit. In that summit, the governments around the world unanimously agreed to the principle of the responsibility to protect (R2P), which holds that all states have a responsibility to protect their populations from genocide and mass atrocities, that the international community should assist them to fulfill this duty, and that the international community should take timely and decisive measures to protect populations from such crimes when their host state fails to do so. R2P is committed to peaceful interventions including assistance, peaceful persuasion, and financial sanctions. The nature of collective action must exhaust the possibilities of “appropriate diplomatic, humanitarian, and other peaceful means” before ‘forceful means’ can be considered.
The means of determining whether a state has abdicated its responsibility to protect is an independent investigation that can be commissioned by the UN Security Council, UN Human Rights Council, UN General Assembly, or the UN Secretary General. An investigation can recommend that the UN Security Council refer the situation to the ICC. Under Chapter VII of the UN Charter, the Security Council has the authority to determine measures, peaceful or, if necessary, forceful, “to maintain or restore international peace and security.” This “international” provision does not imply that conflicts must threaten to spill over borders; certainly, the UN Security Council has acted to address numerous crises without “spillover power” on the basis that these crises necessitated UN intervention to reestablish international order. Even so, the threat in Burma has definitively spilled over international borders, with thousands of refugees from the anti-Muslim conflict pouring into nations including Thailand, Malaysia, Bangladesh, and Indonesia.
UN officials, Nobel Peace laureates, and human rights organizations have thus recognized the applicability of R2P and the need for an independent investigation. UN High Commissioner for Human Rights Navi Pillay has called for a prompt, independent investigation into crimes in Arakan State since June 2012. Twelve Nobel Peace laureates echoed and expanded Pillay’s call in June 2013, after violence spread beyond Arakan State, calling for an “independent investigation of the anti-Muslim violence in Burma” on the grounds that “some within Burma are propagating a politics of division—and using violence as a tool to manipulate feelings of fear and insecurity.”
In order for an independent investigation to be warranted, two points must be established:
1. It must be likely or evident that minority Muslims are suffering from mass atrocity crimes, defined under the Rome Statute and Geneva Conventions as genocide, war crimes, crimes against humanity, or ethnic cleansing,
2. It must be likely or evident that the state has withheld justice and accountability for victims of these mass atrocity crimes.
Mass Atrocity Crimes
Muslims in Burma are suffering from two types of mass atrocity crimes: crimes against humanity and ethnic cleansing.
Crimes against humanity
Crimes against humanity, defined in the ICC’s Elements of Crimes, consist of prohibited acts committed as part of a “widespread or systematic attack against a civilian population.” The most relevant prohibited acts committed against Muslims include the crimes of murder, deportation or forcible transfer of population, imprisonment or other severe deprivation of physical liberty, torture, rape, sexual slavery, sexual violence, apartheid, and persecution.
An “attack”, ‘in Rome Statute, is defined as a “course of conduct involving the multiple commission” of prohibited acts.” According to the Harvard Law School International Human Rights Clinic, and scholars, “Widespread”, attacks are commonly understood to be “large-scale” with many victims. “Systematic” refers to well-organized attacks or attacks of a patterned or methodical nature. Attacks against non-Rohingya Muslims in Burma throughout 2013 were coordinated and widespread; indicating that prohibited acts against non-Rohingya Muslims may constitute crimes against humanity.
As for acts against Rohingya Muslims, the verdict is even clearer. UN Special Rapporteur on the human rights situation in Burma, Tomás Ojea Quintana, concluded in 2014 “that the pattern of widespread and systematic human rights violations in Rakhine State may constitute crimes against humanity as defined under the Rome State of the International Criminal Court.” In April 2014, after the government banned Doctors Without Borders (MSF) from Arakan State and failed to protect UN and NGO aid workers from attacks with the intention of blocking aid to Rohingya, Quintana issued a special statement condemning the “discrimination and persecution against the Rohingya community which could amount to crimes against humanity.”
In February 2014, Fortify Rights published official documents that show government policies restricting the rights of Rohingya in Arakan State, including marriage, childbirth, and movement. Evaluated through the Rome Statute, these policies provide a “prima facie finding that Rohingya in [Arakan] State are victims of the crime against humanity of persecution, perpetrated by Myanmar government officials.” The report establishes that government officials had knowledge that these policies deprived Rohingya of basic rights, having written, distributed, and enforced them.
Human rights violations against the Rohingya also amount to ethnic cleansing. Ethnic cleansing is identified as a mass atrocity crime in customary international law, but it has not received an official legal definition. A 1994 UN Commission of Experts defined ethnic cleansing as a “purposeful policy designed by one ethnic or religious group to remove by violent and terror- inspiring means the civilian population of another ethnic or religious group from certain geographic areas.” Using this definition, ethnic cleansing precisely defines the plight of the Rohingya, who have been systematically moved from their neighborhoods and land, even from areas that were not affected by violence, and exiled to makeshift government camps. The local Arakan population, Burmese government officials, and in many cases, the general Burmese public, are remarkably straightforward about their intent to achieve a Rohingya-free Burma.
Human Rights Watch concluded in March 2013, after extensive investigative research into the human rights violations in Arakan State, that the Rohingya were prima facie targets of ethnic cleansing. The OIC Secretary General has called the Rohingya situation in Arakan State ethnic cleansing as well. Scholar Benjamin Zawacki of the International Commission of Jurists argued the same, maintaining that “what is being prosecuted in Rakhine State is an effort to remove the Rohingya from the area.”
Withholding Justice and Accountability
In order to establish an independent investigation into these crimes, it must be demonstrated that the Burmese government has failed to pursue justice for the victims and perpetrators of these crimes. Under the Rome Statute and R2P, the Burmese government shoulders the sovereign responsibility to protect its own people against mass atrocity crimes. The ICC cannot have jurisdiction over the case unless the individual state’s judicial system fails to act.
Burma’s national judicial system has failed to act. No system of legal recourse or redress for Muslim victims of violence has been implemented. Domestic attempts at justice have been discriminatory and violent, resulting in mass arrests of Muslims, convictions under trumped-up charges, and the continuing sexual violence and extrajudicial killings of unarmed Rohingya. Two of the most horrific massacres—the slaughter of twenty-eight Muslim children in Mrauk-U, Arakan State on October 28, 2012 and the executions of at least thirty-two Muslim schoolchildren and four teachers in Meiktila on March 21, 2013, who were forcibly marched to their deaths by soldiers as cheering crowds and officials looked on—have been unaddressed by authorities. Those who assist Muslims, including humanitarian aid workers, Buddhists who sell products to Muslims in defiance of the apartheid-style 969 campaign promoted by outspoken monks, and those who have helped smuggle Muslims to safety, are targets of threats and intimidation.
Investigative reports commissioned by the Burmese government under international pressure have failed to address abuses by government authorities and hold accountable those responsible for the attacks. An official July 2012 report denied all government involvement in the attacks and shamefully declared that there were no outstanding humanitarian needs in Arakan State. In April 2013, the government released a second report, which discriminatorily refers to the Rohingya as illegal “Bengali,” recommending a higher presence of security forces in Arakan State and genocidal birth control tactics to limit the Rohingya population, and suggesting that the international community update Burma’s weaponry so the army can better control people trying to cross the Bangladesh border. The report’s language is severely provocative with the Burmese version more racist than the strategically translated English version. The UN, international agencies, and the human rights community, who have called repeatedly on the Burmese government to pursue justice and accountability, met the report with great skepticism.
After the large-scale killings of Rohingya in Du Chee Yar Tan in January 2014, the government at first refused to commission any investigation whatsoever. It called a UN statement that condemned the attacks unacceptable, barred access to the village, and threatened the Associated Press and other media outlets for investigating the incident. It vehemently refused the U.S. Ambassador unprecedented request that the government establish an independent investigation commission with international officials. The government did eventually commission investigations under the Office of the President and the Myanmar Human Rights Commission, but both investigations preposterously concluded that no killings had taken place.
To compound matters, the government refuses to honor its November 2012 commitment to allow the UN High Commissioner for Human Rights to open an office in Burma to monitor the human rights situation. Moreover, the government has banned Rohingya persons from self-identifying as Rohingya in the national census. It is also pursuing national legislation to criminalize marriage between Buddhist women and non-Buddhists and to ban non-citizens (i.e. Rohingya) from forming political parties.
The government has also constructed or enabled significant obstacles to researchers and aid workers attempting to enter conflict zones. When UN Special Rapporteur Quintana visited Burma in August 2013, around 200 Buddhists, the identity of whom remains unclear, attacked his UN convoy in Meiktila. Quintana stated afterward that government forces failed to protect him from the mob, just as they had failed to protect the victims of March 2013 violence in Meiktila. President Thein Sein’s office subsequently alleged that Quintana had fabricated the attack and that the mob had only meant to give Quintana a letter and a t-shirt.
This government defiance is the status quo. Far from pursuing justice, the government has persistently denied allegations of human rights violations against Muslims, and has “strongly rejected” human rights reports from the United Nations and other organizations. These public refutations of violence demonstrate how the Burmese government has not only intentionally failed to provide justice; it has also become emboldened by the lack of international pressure to stop the violence. Further international calls to stop violence would thus be redundant and ineffectual.
The Annan commission is expected to start work in September and will release a full report, including a set of recommendations on “conflict prevention, prevention, humanitarian assistance, rights and reconciliation, institution building and promotion of development of Rakhine state” by the second half of 2017. However, the litmus test going forward is whether or not the government will accept and implement those recommendations.
However, the present Kofi Annan Commission can be only a first step towards a full-fledged independent investigation commission under the United Nations. Otherwise the repression in Burma will continue unabated.
After leaving the UN, Mr. Annan has undertaken a few of these missions. In 2007, a disputed election in Kenya lead to widespread communal violence and threatened to unravel and otherwise thriving country. He mediated between the two parties and helped establish a commission of inquiry that investigated post-election violence, turning its findings over the International Criminal Court. He mediated a power sharing agreement that ended the prospect of further violence. In the mean times, we hope and pray that the Commission to be truly effective, it must ensure an independent, impartial and thorough investigation of human rights violations in Rakhine State. Only when the facts have been established can Myanmar move towards accountability and dismantling the systemic discrimination that Rohingyas face.