If Myanmar’s generals thought the season of accountability for atrocity crimes in Rakhine state had blown over, they were gravely mistaken.
In Geneva, the full report of the United Nations Human Rights Council’s Independent International Fact Finding Mission (FFM) was released today, following its initial report on August 27 which called for senior members of the Myanmar military, or Tatmadaw, to be investigated and prosecuted for genocide, crimes against humanity and war crimes for abuses in Rakhine state against Rohingya Muslims and against civilians in Kachin and Northern Shan states.
The report also calls on the government to pursue what many people throughout Myanmar voted for Aung San Suu Kyi to ensure in 2015: the removal of the Tatmadaw from Myanmar’s political life, including the removal of its current leadership under Senior General Min Aung Hlaing. The 444-page report, containing 875 interviews with eyewitnesses to serious crimes, and another 250 interviews with diplomats, researchers and others, is arguably the most comprehensive single human rights document on Myanmar.
The full report overviews crimes in the war zones of Northern Myanmar, Rakhine state, the attack on free speech and the suppression of basic freedoms of expression that make countering violent hate speech so much harder, and the alleged connivance of military and monastic elites in stoking Islamophic rhetoric and pro-Bamar Buddhist ideology as a justification for mass violence, making it a uniquely comprehensive investigation.
The Myanmar Ministry of Foreign Affairs, which had refused access to and cooperation with the FFM since it was announced in March 2017, issued a terse statement of defiance consistent with its rejection of the FFM and almost the entire human rights office of the United Nations.
It stated on August 31 the report “will only serve to create further divisions and mistrust in Rakhine State and the entire country.” The government will look even more callously foolish if it refuses to take seriously the full report, and what it could mean for the nation’s fragile democratic transition.
The FFM’s full report is markedly different from the series of detailed reporting from many human rights groups and the international media because it includes dense sections on military abuses in Kachin and Northern Shan states since 2011, often overlooked in international coverage since communal violence wracked Rakhine state in 2012.
While the patterns of abuses perpetrated by security forces against a host of civilian communities in the north are some of the strongest sections of the whole report at nearly 100 pages, they have been long-standing and confound all efforts at accountability and an end to impunity.
But the full report leading with these patterns of abuses in the fighting zones of Kachin and Shan States will help to bolster support around the country for the Tatmadaw and civilian government to face further investigation for the systematic culture of sadism that units such as the Light Infantry Divisions (LID) 33 and 99 honed in those northern hills, and named in the FFM study and US sanctions.
It is also rare to see included allegations of human rights violations perpetrated by ethnic armed organizations (EAO’s), especially forced labor, forced recruitment as child soldiers, and forcible taxation, often overlooked by the international media and rights groups.
But it is Rakhine state that consumes the FFM’s full report, as the public comments of the three Commissioners, Christopher Sidoti, Radkhine Coomeraswamy, and chair Marzuki Darusman have made clear since they formed the mission 18 months ago, and their relentless criticism against State Counsellor Aung San Suu Kyi, whom Sidoti claims has provided a ‘fig-leaf’ to the military over the Rakhine violence.
There is no doubt that Suu Kyi has maintained an appallingly aloof and emotionally detached disdain throughout this crisis, and dismissed all calls for international justice.
The last half of the full report on the inferno unleashed on the Rohingya post-August 25 is harrowing reading; an orgy of mass violence, militarized mass-murder, rape and pillage that forced 700,000 terrified people into Bangladesh. The hundreds of interviews from survivors serve as the strongest calls for accountability for the most serious of international crimes.
Yet the sections on the period between the communal violence which ripped apart Rakhine state in 2012 to the post-October 2016 “clearance operations” when Rohingya militants attacked Border Guard Police (BGP) outposts, are lamentably weak.
This part of the report is a mixture of hastily pieced together, factually weak, “evidence” and conspiracy theories to arrive at a pre-determined conclusion of an inevitable conflagration. The FFM simply does not provide strong enough evidence to make this claim.
But the bigger question is how much more pressure can the FFM exert beyond calls for an investigation into charges of possible genocide, and more than likely crimes against humanity and war crimes?
None of these charges are new, although the carnage of Rakhine state was the apex of over three decades of repressive state violence that had resulted in several mass expulsions, but not on the horrific scale of August 2017.
What has changed is the language being used by the FFM. The report’s main conclusion was striking given how long there have been calls for justice and accountability for 70 years of internal armed conflict and authoritarian repression, patterns of abuse often ignored or deemed exaggerated by the international community.
The investigation writes, “(t)he gross human rights violations and abuses…are shocking for their horrifying nature and ubiquity. They are also shocking because they stem from deep fractures in society and structural problems that have been apparent and unaddressed for decades. They are shocking for the level of denial, normalcy and impunity that is attached to them…these abusive patterns are reflective of the situation in Myanmar as a whole.”
That is the strength of the full report, tying together not just the heart-wrenching testimony of ethnic cleansing, torture and the wanton killing of unarmed civilians in all corners of Myanmar, but making bare how the Tatmadaw appear smugly immune, with so many prominent people providing cover and support, all with a rising popular nationalist sneer at international pressure as widespread official denials prevail. It is this culture of complicity between perpetrators and bystanders that have nourished this national conflict.
But this could be changing domestically. There is more than a growing realization of the gravity of international pressure, of which the FFM is just one element. On September 6, the Pre-Trial Chamber of the International Criminal Court (ICC) ruled that the court had jurisdiction to open an investigation into the crime against humanity of forced deportation of the Rohingya from Myanmar, because an element of the crime, crossing a border, had occurred in the territory of a party to the Rome Statute of the ICC.
This is both an innovative evolution of international law, and possibly the one international justice initiative that could unsettle the Tatmadaw. The calls for accountability have elicited support from various ethnic armed groups and political factions for the FFM and ICC.
The Palaung State Liberation Front/Ta-ang National Liberation Army (PSLF/TNLA) issued a statement pledging cooperation and to “share relevant evidences we have with the UN”, which is welcome given that the TNLA are documented in the FFM’s report with a number of human rights violations in Northern Shan state.
The KNU Concerned Group led by former Karen National Union General Secretary Naw Zipporah Sein, stated on September 14 their support for Myanmar to be referred to the ICC, as the patterns of crimes against the Karen are “designed to terrorize, subjugated (sic) and ethnic cleansing as it is the same happening to Rohingya people in Rakhine state.”
Ethnic minorities from Kachin and Kayah states continuing to face discrimination and abuses by the Tatmadaw, and frustrated with the broken nationwide ceasefire process, have also voiced support. Calls for international accountability such as the FFM could be a catalyst for more vocal calls domestically for an end to years of discrimination and denial of fundamental freedoms.
International pressure, at least in the West, is unrelenting, even if it is wavering in many other states whose commitment to justice has waned for years. What should worry the government and Tatmadaw is one of the FFM’s main recommendations to the United Nations.
“The Security Council should ensure accountability for crimes under international law committed in Myanmar, preferably by referring the situation to the International Criminal Court or alternatively by creating an ad hoc international criminal tribunal.”
The FFM also recommended the creation of an independent, impartial mechanism to collect, consolidate, preserve and analyze evidence of violations of international humanitarian law and human rights violations and abuses and to prepare files to preserve evidence for future domestic or international investigations, along the lines of what the incoming High Commissioner for Human Rights Michelle Bachelet has recently suggested.
In the interim between any future Security Council referral, or the ICC’s own investigation into forced deportation, such efforts should be supported by state actors, and ensure it covers the entire country. These recommendations have been backed by many in the United Kingdom parliament, with 160 MPs led by Rushanara Ali (MP for Bethnal Green and Bow) to Prime Minister Theresa May on September 13, calling on the UK to support an ICC investigation and an evidence collection mechanism.
The US State Department’s report on Rakhine, commissioned to a DC-based law firm, has still not be publically released.
At this stage, it’s hard to see what the delayed report could actually add beyond what Amnesty International documented in the early (and later) stages of the violence, what the FFM began doing after it was mandated in March 2017, and what the international media has maintained almost daily for over a year. Indeed, much of the accounts emerging are now increasingly repetitive.
But the US government has also to contend with diminishing standing for its stated support for human rights and justice in Myanmar. In June, US Ambassador to the United Nations Nikki Hayley officially withdrew America from the Human Rights Council, calling it “a protector of human rights abusers and a cesspool of political bias… a hypocritical and self-serving organization that makes a mockery of human rights.”
On September 10, US National Security Advisor John Bolton essentially declared war on the ICC just days after the Pre-Trial Chamber had approved the Prosecutors brief for opening a case on the crime of forced deportation. Addressing a lunch at the Federalist Society, Bolton said the “court has been ineffective, unaccountable, and indeed, outright dangerous.”
Denouncing the ICC’s investigation’s into possible war crimes committed by US troops in Afghanistan, Bolton further said “We will not cooperate with the ICC. We will provide no assistance to the ICC. We will not join the ICC. We will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead to us.”
These strong statements are not lost on Myanmar, especially the aged Machiavellian hawks of the Ministry of Foreign Affairs now flocking around Suu Kyi, veteran defenders of military rule who are bracing for another caning at this year’s General Assembly and thinking of another more isolated time Myanmar endured. It is these gatekeepers that the international community has to work through to pressure the Tatmadaw.
But this arrogance must be confronted with unrelenting pressure for justice, and support for growing voices inside Myanmar that 70 years of military repression has to change sometime. And that Suu Kyi is clearly not the one to lead that long overdue emancipation.
David Scott Mathieson is a Yangon-based independent analyst