Why the UN has a genocide case on Myanmar

Even after taking part in past United Nations human rights investigations in Sri Lanka and North Korea, nothing quite prepared former Indonesian attorney general Marzuki Darusman for the harrowing stories of the Myanmar Army’s bloody 2017 rampage that killed more than 10,000 Rohingya Muslims and drove over 700,000 into neighboring Bangladesh.

As founding chairman of Indonesia’s Human Rights Commission, Darusman has an intimate knowledge of the Indonesian Army’s own record of abuse. But in the refugee camps of southern Bangladesh he and his United Nations fact-finding team (FFM) discovered the horrors of what it now calls “genocidal intent.”

“This was in a league of its own,” Marzuki, chairman of the UN’s Fact-Finding Mission on Myanmar, says of the orgy of mass murder, rape, torture and village burnings. “Doing the interviews you get to a point where you are just numbed. It’s a soul-searching exercise. You ask yourself ‘are we doing our jobs by just taking down these accounts. Where will it all lead to?’”

Where indeed? Unprecedented in its tough language and unrelenting in its conclusions, the UN fact-finding team’s full 400-page report to the UN Human Rights Council, to be released on September 18, now goes to the UN Security Council, where China and also Russia could prevent its referral to the International Criminal Court (ICC).

The report specifically targets Myanmar armed forces commander Senior General Min Aung Hlaing, deputy commander Vice Senior General Soe Win and four other generals, two of whom were in charge of the infantry divisions flown in to carry out the bloodletting across the country’s western state of Rakhine.

The names of at least six other senior officers remain sealed and in the custody of the UN Commissioner for Human Rights, but can be shared with any “credible and competent body,” presumably the US and European agencies which have been quietly pursuing their own investigations into the carnage.

“We are not saying categorically it is genocide, only that it needs to be looked into further,” Darusman told Asia Times in an interview. ”We are only at the entry point to the next phase of accountability, which is the preparation of case files for ICC prosecutors.”

While collusion cannot “for the moment” be legally laid at the door of Aung San Suu Kyi, the largely powerless State Counsellor, Darusman says her passivity and that of the civilian authorities “contributed to the worsening of the situation.”

Equally disappointing has been the once-democratic icon’s lack of reaction to the recent jailing of two Myanmar journalists who work for Reuters, but Darusman remembers what she told a recent audience in Singapore: “No outsider can understand what we understand within.”

The investigators want an independent inquiry into the UN’s own role in Myanmar since 2011 – a year before an earlier wave of so-called “ethnic cleansing” against the Rohingya – to assess whether everything possible was done to mitigate the unfolding crisis.

The ICC has already started proceedings on Myanmar’s eviction and forced displacement of the Rohingya, both judged to be crimes against humanity because an element of the crime occurred in Bangladesh, which unlike its neighbor is a signatory to the 1998 ICC Rome Statute.

A September 6 court ruling also allowed the prosecutor to invoke Article 5 of the statute covering genocide, crimes against humanity and war crimes, but only a Security Council referral would ensure the whole range of violations in the report are addressed.

Darusman explains that while genocide can be inferred by the actions of Myanmar security forces, jurisprudence requires proof based on documentary evidence, a more difficult challenge that may only be met by phone and field radio intercepts if they pass the test of reliability, relevance and probative value.

Even then, politics remains an obstacle, evidenced by what Darusman calls the “open and shut” case of Cambodia, where instead of being prosecuted for genocide, ageing Khmer Rouge leaders were belatedly accused of crimes against humanity, a lesser charge.

If the Security Council does stand in the way, the UN Human Rights Council can fall back on ad hoc tribunals, such as those established by the UN General Assembly in the cases of Yugoslavia and Rwanda, which led to a total of 151 convictions.

Darusman has few doubts the evidence the team gathered showed the intensity of the violations “went beyond the threshold of violence that qualified as genocidal.”

During the Khmer Rouge reign of terror of the 1970s, in which 1.7 million Cambodians died, it was often difficult to find refugees who had actually witnessed a killing. Always they seemed to happen at night and away from villages.

In Rakhine, according to the interim report, it was mass murder in public view, launched in disproportionate retaliation for a claimed earlier attack by rag-tag Muslim militants.

Backed by police, border guards and Rakhine civilians, the rampaging soldiers left more than 390 villages in flames and therefore subject to seizure by the state under a newly-enacted law.

As with Cambodia, Darusman is aware that there might be distortions or exaggerations in the re-telling of personal experiences, but he says the visible scars and the reconstruction of events were verified again and again — and in the same horrific detail.

Looking to the future, he wonders how it will be possible to change the culture of a military which came to power during decades of isolation and has been free to brutalize its civilian population with impunity and little regard for international opinion.

He says the roots of the problem lie in the majority Burman population’s struggle for predominance. “The Myanmar armed forces is simply a Burman armed group, it is not a national army,” he asserts, seeing little to differentiate it from Myanmar’s other ethnic armies except for its size and power.

Concentrated in the central plains and southern panhandle, Burmans make up 30 million of Myanmar’s 53 million-strong population, with the Karen, Shan and Rakhine among the largest of 14 other sizeable ethnic minorities.

Those also included the Rohingya, but with 1.1 million sheltering in squalid Bangladesh camps, and as many as 1,000 refugees still crossing the border each week, there are only an estimated 200,000-300,000 remaining in Rakhine.

Certainly, Burmans not only appear to be predominant in the state’s 406,000-strong armed force, widely known as the Tatmadaw, but there is also an unwritten rule that an officer must be both a Burman and a Buddhist to rise above the rank of major.

Current second vice president Henry Van Thio, an ethnic Chin Christian, left military intelligence service after he was told he could only be promoted if he changed his name and religion. He subsequently went to study theology in New Zealand, where he picked apples to supplement his income.

Another example is Hkam Awng, Myanmar’s former head of drug abuse control, who despite being a very Burmanized Kachin still failed to gain promotion and finally left the military to the join the police force – as a colonel.

Darusman says there is a need for a “total reconstruction” of the Tatmadaw, but he acknowledges that unlike the Indonesian military in the post-Suharto period, there is no sign of any change in its “irrational mindset” or of reformists rising through the ranks.

“I don’t see any evidence of a group of officers who could emerge as more moderate actors,” he says. “We still see some hope of driving them towards a reform process, but it will be long and drawn out because their role is so dominant in the policy area. And they are pervasive everywhere.”

Darusman is also not sure from where the pressure will come to affect change, noting that only the recent takedown of 18 of the military’s Facebook accounts and over 50 other pages, later negated by the Russians in putting up an alternative platform, seems to have disturbed the generals to any degree.

After briefing Indonesian Foreign Minister Retno Marsudi, Darusman is particularly curious how the Association of Southeast Asian Nations will react to the report, as divided as it is over interference in each other’s domestic affairs.

”If it’s crimes against humanity, they can fudge it,” he says. “But if it’s genocide, it’s a stain on Myanmar and it’s a stain on the region.”