Justice in Myanmar: What can the international community do?

Domestic commission denies persecution, rape, genocide

On 3 January 2017, Myanmar’s Investigation Commission on Maungdaw released its Interim Report. The Commission was established following mounting international pressure on State Counsellor and Nobel Peace Prize laureate Aung San Suu Kyi to investigate the army’s military response to border clashes in 2016.

In the report, the Commission denies allegations that members of government forces raped Rohingya civilians, also concluding that genocide and religious persecution do not exist in the region. The Commission also said in an earlier statement that “government authorities have followed the law and acted legally in their response to the attackers.”

Civil society organizations responded strongly to the report and its conclusions, with Human Rights Watch claiming methodological flaws and ASEAN Parliamentarians for Human Rights (APHR) questioning the Commission’s transparency and independence.

Who are the Rohingya?

The Rohingya are a Muslim minority group living primarily in Myanmar’s western Rakhine State. Their origins in the region trace as far back as the fifteenth century when thousands of Muslims came to the former Arakan Kingdom. Many also arrived in the region when Bengal and the Rakhine territory were still under British colonial rule.

The Rohingya differ from Myanmar’s dominant Buddhist groups ethnically, linguistically and religiously. Though they have inhabited the region for centuries, Myanmar has refuted the group’s historical claims and has disavowed the Rohingya as illegal Bengali immigrants since the country’s independence in 1948.

Without citizenship status, the vast majority of Rohingya suffer what has been described as systematic discrimination on issues of marriage, family planning, employment, education, religion, and freedom of movement, and receive minimum protection due to their stateless status.

2015-16: Renewed tension in northern Myanmar

Between 2012 and 2015, more than 120,000 people in the region were displaced, most of them Rohingya seeking refuge in neighboring countries like Bangladesh, Malaysia, Thailand and Indonesia. The displacements followed the 2012 rape and death of a Buddhist woman and the subsequent killing of more than 280 people and burning of Rohingya homes.

Tensions renewed in the Rakhine State in October 2016 when a group of Rohingya militants attacked three police border posts near Maungdaw. In response, government forces initiated “clearance operations” and a lockdown of the area. 

Civil society organizations have received numerous local reports of human rights violations. Amnesty International and Human Rights Watch have documented and reported various instances where military forces allegedly targeted Rohingya civilians and entire villages with arson, unlawful killings, and multiple rapes. Police violence against Rohingya civilians has even been captured on video – authorities detained the perpetrators and stated they were investigating.  

According to the United Nations (UN), from 9 October to January 2017, military operations displaced an estimated 66,000 people, and access was denied to humanitarian aid groups, independent media and rights monitors. The situation is “getting very close to what we would all agree are crimes against humanity,” said UN Special Rapporteur on the situation of human rights in Myanmar, Ms. Yanghee Lee.

Civil society gives Myanmar chance to respond

Even before the Commission’s establishment, civil society organizations had been calling on Myanmar to uphold its responsibility to protect against grave human rights abuses by investigating alleged military and police conduct. 

Amnesty International requested a “prompt, thorough, and impartial investigation into the conduct of Myanmar’s security forces”. Toward this end, FORUM-ASIA called on the government to immediately ensure access for human rights and humanitarian aid workers and journalists to the Rakhine State.

However, after the government denied allegations of rights abuses in early January 2017, a UN fact-finding mission reportedly encountered a worrying lack of access to some areas in the Rakhine State as well as to independent witnesses.

What can the international community do?

Under the International Criminal Court (ICC) founding treaty, the Rome Statute, widespread or systematic attacks against civilian populations can amount to crimes against humanity. The UN Office of the High Commissioner for Human Rights had already in June 2016 found patterns of gross violations against the Rohingya suggesting such attacks.

Since Myanmar has not joined the ICC, the situation there would need to be referred to the Court by the UN Security Council before the ICC could intervene.

Even if Myanmar were an ICC member state, the ICC is ultimately a court-of-last-resort – meaning member states have primary responsibility to investigate and, if necessary, prosecute suspected grave crimes on their own territories or by their nationals. Under the principle of complementarity, the ICC only comes into play when a state is unwilling or unable to do so.

Recommendations to ensure Myanmar upholds its international responsibility have been extensive and include not only accountability, but that the country’s broader peace process address sensitivities surrounding the situation in the Rakhine State, as well as political dynamics between military and civilian leadership.

For APHR, the interim report highlights the need for any government-led inquiry to genuinely promote justice for all civilians – and not to serve as a public relations tool in the face of international pressure.

A fair and impartial investigation would not only bring justice to Rohingya victims and deter further serious abuses, but set Myanmar on the path to inclusive and lasting peace.