A Rohingya girl grieves outside of a UNHCR tent in Bangladesh in a file photo. Photo: AFP

On September 18, the United Nations released its most damning account to date of the humanitarian crisis in Myanmar, in which it accused its military, or Tatmadaw, of genocide, war crimes, and crimes against humanity perpetrated against Rohingya Muslims in Rakhine state and other ethnic minorities in Shan and Kachin states.

Marzuki Darusman, the chair of the three-member Independent International Fact-Finding Mission on Myanmar, delivered an emphatic speech in releasing the scathing 440-page final report at the Human Rights Council in Geneva, in which he took hard aim not only at the Tatmadaw, but also Myanmar’s administrative-judicial setup in its much-touted but by any measure stunted transition to democracy.

In his speech, Darusman bluntly argued that the democratic transition in Myanmar, ushered in by 2015 elections that nominally ended decades of military or military-backed rule, “has come to a standstill.”

He accused the Tatmadaw of committing “genocidal” acts with specific “genocidal intent”, while narrating details of organized attacks by Myanmar soldiers and armed “civilian” vigilantes on Rohingya men, women and children in northern Rakhine state in retaliation for August 2017 militant attacks on security outposts.

On behalf of his UN appointed team, Darusman finally demanded an international criminal tribunal to prosecute Myanmar’s senior-most generals. The team, comprising of Darusman (Indonesia), Radhika Coomaraswamy (Sri Lanka) and Christopher Sidoti (Australia), also expressed its regret over the complete and utter non-cooperation of the Myanmar government with its mission.

While it had already released its preliminary findings and recommendations on August 27 through the first official report, the final full deposition represents the most comprehensive and detailed account of the Tatmadaw’s abuses in northern Rakhine, Kachin and Shan states in the recent past.

Genocidal intent

The landmark report attributes a broad set of serious war crimes and crimes against humanity to the Tatmadaw, namely: murder; enslavement; forcible transfer of a population; rape, sexual slavery and sexual violence; imprisonment, torture and enforced disappearance; and persecution.

“What we have found are not only the most serious human rights violations, but crimes of the highest order under international law,” Darusman told the UN’s Human Rights Council. Coming from an independent UN Mission, this is the gravest accusation any national army can face.

Darusman narrated a particularly horrific account of a massacre in the Rohingya-dominated village of Min Gyi (also known as Tula Toli) in which 750 men, women and children were allegedly mercilessly slaughtered by “Tatmadaw soldiers, including the 99th Light Infantry Division, accompanied by armed ethnic Rakhine and other ethnic minorities” in a single day.

United Nations’ Independent International Fact-finding Mission on Myanmar chairperson Marzuki Darusman presents the final report on alleged rights violations during a press conference on August 27, 2018 in Geneva. Photo: AFP/Fabrice Coffrini

He described how the men were systematically killed, the children thrown into rivers and fires, and the women tortured, raped and even bitten.

“This was not an incident of spontaneous inter-communal violence. The killing of civilians of all ages, including babies, cannot be argued to be a counter-terrorism measure […] It was a well-planned, deliberate attack on a specific civilian population,” Darusman said.

He said his team found the facts to be “in the light of the definition of genocide in international law” and that “all the circumstances are such as to warrant an inference of genocidal intent.” This is a definitive charge that is bound to have tangible legal consequences for Myanmar’s military leaders, possibly even criminal prosecutions at an international tribunal.

Notably, the report gives a death toll figure of at least 10,000 since August 2017 in northern Rakhine state alone, far higher than earlier estimates released by the Myanmar government and independent international organizations.

The report also pinpoints the use of sexual violence by the military as a “tactic of war.” According to the Fact-Finding Mission’s data, 80% of interviewed rape survivors said they had been gang raped, of which 40% were “subjected to mass gang rape.”

This fits with a signature tactic routinely employed by other perpetrators of genocide and ethnic cleansing: defiling an entire community by raping its women.

Similar methods were used in the past by dominant perpetrators to intimidate weaker communities, including during the Rwandan genocide, 1971 Bangladesh Liberation war, Bosnian war, and the Islamic State’s campaigns of violence against minorities in Iraq and Syria.

Pointed explanations

Unlike the Advisory Commission on Rakhine State headed by the late Kofi Annan, which released its final report on 24 August 2017, the UN’s Fact-Finding Mission categorically argues that the Rohingya Muslim community has disproportionately suffered in Rakhine state.

It states plainly that the Rohingya “may also be victims of the crime of apartheid.” The Annan Commission had avoided using the term “apartheid” and was accused by critics of downplaying the differential (mis)treatment that the Rohingya community in Rakhine has faced for decades.

“We take the occasion to emphasize that the same system of persecution would await any Rohingya who return,” Darusman warned in light of the supposed impending repatriation of refugees from Bangladesh to Myanmar’s northern Rakhine.

Rohingya Muslims wait to cross the border to Bangladesh in a temporary camp outside Maungdaw, northern Rakhine state, Myanmar November 12, 2017. Photo: Reuters/Wa Lone

Besides specific description of abuses in northern Rakhine, Darusman also offered a broad commentary on the Tatmadaw’s supremacist, anti-minority political-military vision.

“[The Tatmadaw] enforces a vision of a Bamar-Buddhist nation that dominates the other 135 officially recognized ethnic minority groups, in which the Rohingya have no place,” he said.

Darusman also clearly argued that the Tatmadaw used the process of democratic transition to “actively shore up its dominance by promoting the vision of a Bamar-Buddhist identity of the national, unilaterally breaking ceasefires, and portraying the Rohingya as an existential threat.”

He went further in dressing down Myanmar’s broad administrative and judicial setup, whereby the military appoints 25% of the seats in parliament and maintains autonomous control over the defense, border affairs and home ministries, arguing that “there is no law and no institution in Myanmar that is above the Tatmadaw.”

His team concluded that Myanmar’s national justice system lacks independence and legal competence, which makes the provision of justice and truth to the victims impossible in a local context.

“Far from uncovering the truth, Myanmar’s domestic justice system will, on the contrary, punish those who seek it,” Darusman said in reference to the recent sentencing of two Reuters reporters to prison on bogus charges under the Official Secrets Act.

Both journalists had reported on a security force massacre of Rohingya in Rakhine state before being set-up by police for possessing supposed secret documents.

He also said that every single internal investigation launched by the Myanmar government into the Rohingya situation so far has lacked “independence, impartiality and rigor.” In such a situation, he argued, the “impetus for accountability must come from the international community.”

Channels of accountability

In that direction, the report offers a “five point framework of accountability.” Of these, the most decisive is its call to the UN Security Council to establish an “international judicial mechanism to try Myanmar’s top generals and others.”

This includes the Tatmadaw’s commander-in-chief, Senior General Min Aung Hlaing. The other consequential recommendation is for the UN General Assembly or Human Rights Council to set up an “independent mechanism to conduct criminal investigations and prepare for prosecutions, until a judicial tribunal has jurisdiction.”

The Pre-Trial Chamber of the International Criminal Court (ICC) had already issued a decision on September 6 that it has jurisdiction over the alleged deportation of the Rohingya to Bangladesh.

Myanmar military chief Senior General Min Aung Hlaing salutes during military exercises, February 2018. Photo: AFP/Pool

On September 18, the same day as the Fact-Finding Mission’s report’s release, ICC prosecutor Fatou Bensouda announced the commencement of preliminary investigations. The lengthy deposition and report by Darusman’s team will certainly have a bearing on the ICC’s own investigations and possibly strengthen Bensouda’s case against Myanmar.

While acknowledging the ICC’s Pre-Trial Chamber verdict, the UN’s Fact-Finding Mission argued that its jurisdiction “allows for only a limited set of crimes relating to only one small part of the country to be tried by the Court” and is insufficient in bringing all the perpetrators to account for the full spectrum of crimes allegedly committed.

Since Myanmar is not a state party to the Rome Statute, the ICC’s enabling legislation, the Hague-based court cannot exercise direct jurisdiction over the country unless the UN Security Council makes a referral.

Bangladesh, where the as many as 800,000 refugees are now languishing in abysmal conditions, is a party to the Rome Statute. Thus, the Fact-Finding Mission’s critical take on the verdict is a crucial step towards establishing full accountability and justice, instead of a truncated prosecution of select individuals.

Impending justice?

While the UN had already ramped up its criticism of Naypyitaw’s policies towards the Rohingya since an October 2016 spasm of violence, the Fact-Finding Mission’s report takes the narrative to a whole new level of unfettered criticism and categorical attribution of responsibility.

The report itself cannot have a direct legal bearing on Myanmar; its content, however, definitely adds to the existing pool of evidence against the Tatmadaw that, in turn, can serve as a framework of punitive action against Myanmar for international legal regimes, most prominently the ICC.

The report is also expected to strain Myanmar’s diplomatic relations with other countries, particularly those aligned with the United States and European Union-led Western bloc.

Myanmar State Counselor Aung San Suu Kyi attends the 13th Asia Europe Foreign Ministers Meeting (ASEM) in Naypyitaw, Myanmar, November 20, 2017. Photo: Reuters/Stringer

Australia has already declared its intention to impose targeted sanctions on Myanmar, joining Washington and Brussels in their earlier impositions. The Canadian parliament, too, passed a motion declaring the Rakhine situation as a “genocide.”

Yet Myanmar’s own neighbors, including China, India, and the Association of Southeast Asian Nations (Asean), have remained deafeningly silent over the mounting allegations of serious war crimes in their neighborhood. None have so far responded to the Fact-Finding Mission’s report; in Thailand, military junta authorities this month banned a press event that planned to discuss the report’s findings.

In fact, the Tatmadaw is still being welcomed warmly in certain regional forums, most recently the BIMSTEC army chiefs’ conclave and at a joint military exercide in Pune, India. A nine-member Tatmadaw delegation also recently visited the Indian Army’s Eastern Command at the invitation of India’s army chief.

It remains to be seen if Asean takes a stand against the Tatmadaw at its upcoming Defense Ministers’ Meeting, though if history is a guide silence will prevail in the name of non-interference in member states’ internal affairs, even when faced with UN allegations of genocide and war crimes.

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