A Rohingya refugee man stands before Kutupalong camp in Ukhia near Cox's Bazar on August 13, 2018.Photo: AFP/Chandan Khanna
A Rohingya refugee man stands before Kutupalong camp in Ukhia near Cox's Bazar on August 13, 2018. Photo: AFP/Chandan Khanna

The one-year anniversary of the state-sponsored mass killings, rape and arson that brutally expelled over 700,000 Rohingya Muslims from Myanmar’s Rakhine state into neighboring Bangladesh is fast approaching, without any clear sign of resolution or accountability.

On August 28, the UN Security Council is scheduled to hold a meeting on Myanmar to assess efforts on addressing the conflict. It is unlikely to be a happy event for the ruling National League for Democracy (NLD) government, as it is expected to find a lack of progress in investigating the violence, improving conditions for the Rohingya who remain in Rakhine and creating conditions for their safe and dignified return from Bangladesh.

How much has the Myanmar government achieved on any of these fronts? From their perspective, at least judging from the incessant propaganda messaging which promotes its progress on building roads and infrastructure in Rakhine, a great deal. But to the outside world, nothing much of actual substance has happened.

Since signing a secret Memorandum of Understanding (MoU) with the UN Development Program (UNDP) and UN High Commissioner for Refugees (UNHCR) over two months ago, there has been no significant improvement in humanitarian access to northern Rakhine state, the epicenter of last August-September’s spasm of violence.

In fact, the UN issued a plaintive statement in recent days that said while there had been “encouraging steps” from Naypyidaw, such as the formation of an implementation committee and visits to northern Rakhine state and preliminary assessments by UNDP and UNHCR staff, the agencies called on the government to demonstrate “tangible progress” in “operationalizing the MoU.”

Requests for staff to be allowed to be based in northern Rakhine state’s Maungdaw were submitted a month ago, with no reply yet from Naypyidaw. In other words, the secret agreement is going nowhere fast, even as another workshop is being conducted this week in Naypyidaw with the UN on moving things forward.

This controversial MoU, “welcomed” by the UN Secretary General António Guterres as a “first step” for the government to demonstrate commitment to refugee returns, has still not been officially released, although a late draft version was leaked to the media several weeks ago.

UN Secretary General Antonio Guterres (C) talks during a press conference at the Kutupalong refugee camp  in Bangladesh’s Cox’s Bazar, July 2, 2018. Photo: AFP/Munir Uz Zaman

At the same time as the MoU was being touted by the government and the only two UN agencies privy to the “understanding” (but notably not other UN bodies or the many international relief agencies who would be needed to implement any quick humanitarian initiatives), an important report on UN and international action and inaction in Rakhine was released to dramatic effect.

“Time to Break Old Habits,” a report by research and analysis outfit Fieldview Solutions, is an excoriating denunciation of the complicity of relief agencies and donors in perpetuating the conditions in Rakhine state over many years that provided fertile ground for the recent violence.

Within the milieu of the MoU’s guarded optimism, Fieldview’s independent analysis damns these efforts as misguided at best, and mendacious at worst. The next several weeks will see the release of several investigations that will sharply raise the pressure on the civilian government and autonomous military in Naypyidaw.

These will include the UN’s Fact Finding Mission (FFM) report, which will entail not only documentation from the Rakhine violence, but other conflict zones in Myanmar’s north since 2011; a decision by the International Criminal Court (ICC) for jurisdiction of the crime of forced deportation under the Rome Statute; a report by the UN Special Rapporteur on Myanmar Yanghee Lee to the UN General Assembly; and a US State Department-commissioned report on the Rakhine violence.

Politico reported this week on supposed leaked details of the State Department’s report, which reputedly includes 15,000 pages of documentation. The report’s release, according to Politico, is being bogged down in disagreement over whether to brand the Rakhine violence as a “genocide”, an internal debate that has created deep divisions at the State Department and more broadly across Washington.

It is notable that not one major human rights group, foreign government or UN body has officially called the violence a “genocide”, although the UN’s Lee has had it both ways by referring to “hallmarks of genocide.” She has proposed the formation of a three-year accountability research body to be established in Bangladesh’s Cox’s Bazar to continue the documentation of serious crimes with a view to future “justice initiatives.”

UN Special Rapporteur on Human Rights Situation in Myanmar Yanghee Lee speaks during a news conference in Yangon, Myanmar July 21, 2017. REUTERS/Soe Zeya Tun

The US State Department report is likely to further denude what limited influence Washington now has in Naypyidaw, given the latter’s stubborn culture of official denial of reports of serious crimes being perpetrated by its security forces. The US has been commendably principled in its condemnation of the Rakhine violence, including at the UN.

But what really worries Naypyidaw and the leadership of Myanmar’s armed forces, or Tatmadaw, is the potential for an ICC investigation that could potentially lead to court proceedings at The Hague on charges of crimes against humanity against top military and government leaders.

Last week, State Counsellor and de facto national leader Aung San Suu Kyi’s office released its first lengthy rebuttal of the ICC’s actions. In an unusually detailed and legally cogent argument suggestive of some new harnessing of expertise within the NLD’s inner circle, the statement rejected the ICC’s gambit as being in bad faith, irregular in its procedures and lacking in transparency.

The release also rejected the admission of amicus curiae (unsolicited briefs from people or organizations not directly involved in the proceedings but having information to share on the case) submissions from rights groups and Rohingya victims. The rebuttal went on to tout the government’s MoU with the UN and recent formation of a joint international-domestic Commission of Inquiry (CoI) into the Rakhine violence.

Peppered with Latin legalese, the government’s statement is a more refined version of its other repudiation of international outrage over the Rakhine violence. There is also an undertone of seething anger at Bangladesh’s cooperation with the ICC, to which it submitted a brief in recent months. The request by the ICC for Myanmar to cooperate with its proceedings was rejected several weeks ago, while the press release termed the ICC’s case as “meritless.”

Myanmar State Counsellor and Foreign Minister Aung San Suu Kyi in Yangon, July 19, 2018. Photo: AFP/Ye Aung Thu

The government initially responded to the ICC’s initiative by announcing the formation of an “independent” Commission of Inquiry (CoI) of its own. That initiative, announced on May 31 in tandem with the UN MoU, called for an investigation by a three-person team with one “international personality.”

It then languished for almost two months until the administration recently announced it had formed instead a four-member CoI, to be led by a former Philippine ambassador, Rosario Manalo, and high-ranking Japanese diplomat, Kenzo Oshima. Myanmar officials Aung Tun Thet and Mya Thein round out the CoI.

Manaloy and Oshima arrived in Myanmar in recent days to start their work, promising at a press conference that the inquiry “will observe the principles of independence, impartiality, objectivity, discretion, transparency, confidentiality, integrity and professionalism.”

Manalo has a strong reputation for work on women’s rights issues for the Committee for the Elimination of all forms of Discrimination Against Women (CEDAW), an international treaty passed by the UN in 1979. Most of her experience as a diplomat, though, has been in Europe and not the more gritty dealings of her own ruthless region, typified by the state-sponsored killing spree underway in her home country.

The optics may look good for a fellow Association of South East Asian Nations (Asean) figure to be appointed, but it is doubtful this will assuage the ultra-nationalist hectoring in Myanmar’s National Assembly, from the previous ruling and military-linked Union Solidarity and Development Party (USDP) and other political parties that are virulently resistant to any international involvement in investigating the Rakhine violence.

Kenzo Oshima, a former UN undersecretary for humanitarian affairs and vice-head of the Japanese International Cooperation Agency (JICA), is an impressive inclusion. As a former Japanese ambassador to the UN, he’s a widely respected heavy hitter and underlines the quiet role Japan has played in assisting the Myanmar government during the Rakhine crisis.

The key Myanmar member of the CoI is Aung Tun Thet, whose short bio in the official announcement merely claims he previously worked for the UN’s children’s fund, UNICEF, and was the former head of a UN staff college in Italy. But he is actually a classic insider choice, being a former economic advisor to ex-president and former general Thein Sein, and a member of the government’s dubious Peace Commission.

Rohingya refugees walk after crossing the Naf river from Myanmar into Bangladesh in Whaikhyang. Photo: AFP/Fred Dufour

He is also chief coordinator of the Union Enterprise for Humanitarian, Relief and Development (UEHRD) that is leading the reconstruction of northern Rakhine state. It is potentially a conflict of interest for a CoI appointee to investigate a series of events that in a parallel capacity he is arguably seeking to cover up via an opaque public-private partnership development scheme that has bulldozed many potential evidence sites.

Mya Thein, meanwhile, is the deposed former head of the Myanmar Constitutional Tribunal and reputedly a loyalist of ex-parliamentary speaker Thura Shwe Man, a former senior military commander and USDP official now closer to Suu Kyi than the Tatmadaw. His appointment could thus indicate the military’s top brass will be even less likely than usual to cooperate with the CoI’s investigations.

As a prominent lawyer and former director general of the Supreme Court, Mya Thein’s inclusion is arguably the right idea. But with the country still in the serpentine grip of a corrupt judiciary and the military enjoying almost total impunity for its crimes, it’s not clear he will have the will or fortitude to challenge the generals.

There is also justifiable criticism from the Rohingya community and broader civil society that well-qualified civil society members who could have bolstered the questionable credibility of the entire CoI exercise were excluded.

At the same time, the military’s absence from the CoI means they are likely enraged it was even formed. In any event, they already conducted their own investigation, via the Tatmadaw True News Information Team, which predictably denied any security force abuses occurred in Rakhine.

At the recent Union Peace Conference (UPC) in Naypyidaw, the Tatmadaw parceled out a new publication in Burmese and English entitled “Myanmar Politics and the Tatmadaw Part 1”, a glossy compendium of their official denials and condemnation of independent reports on their alleged crimes and abuses in Rakhine.

The military will likely do everything in its substantial power to limit, divert, or derail the CoI’s investigation, as ultimately it’s the Tatmadaw’s toes that over the fire.

Myanmar military troops take part in a training exercise, February 3, 2018. Photo: Reuters/Lynn Bo Bo/Pool

To be sure, the CoI’s promise to draw on national and international legal and technical experts has merit at face value. At the same time, the commission so far lacks well-defined terms of reference, scope, and timeframe, and as long as Myanmar’s security forces obstruct and forestall then its ability to pursue credible forensic investigations will be limited.

The dilemma for the international community is whether to assist and conditionally support the CoI, even as the predictably powerful forthcoming international reports are made public. The problem with the profusion of documentation on the Rakhine violence is that it is all starting to sound the same, especially after months of exemplary reporting from Amnesty International and other rights groups, as well as some groundbreaking and courageous international media reporting.

Will the CoI languish in inaction and insincerity like so many of the government’s previous Rakhine crisis initiatives and be hoisted on its own petard? The amateur-hour theater of the NLD government’s recent efforts to address international reports and criticism is receiving even worse reviews than it received over the last year.

The risk is that while the government thinks the CoI will be enough to placate the West, it almost certainly will not – regardless of how it plays in Yangon, Tokyo, Moscow, Beijing, New Delhi, Bangkok or Singapore. The reality is that trust in the NLD government is at rock bottom in most Western capitals.

Many Western observers already view the CoI as yet another attempt to whitewash abuses and deflect the imminent season of human rights documentation of what really happened in Rakhine state. And it’s not clear its apparent new “Look East” policy of exoneration will quiet rising global calls for justice and accountability.

David Scott Mathieson is a Yangon-based independent analyst.

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