Arakan Army soldiers on the march at an undisclosed location in Myanmar's Rakhine state. Image: Facebook

BANGKOK –  As long-anticipated international accountability measures for Myanmar gather pace, recent developments which at first seem to promise evidence for justice, on closer examination could potentially disrupt such investigations.

On September 8, the American nongovernmental organization Fortify Rights released a statement, in conjunction with the New York Times, of testimony by two Myanmar Army, or Tatmadaw, soldiers who claim to have perpetrated under military orders the murder of Rohingya Muslims in Rakhine state in 2017.

The statement and the story named the soldiers, provided personal details, and in video clips made available to some media outlets and initially produced by the insurgent Arakan Army (AA) who captured the soldiers in May, listed an alleged chain of command of Tatmadaw officers who gave specific orders to kill Rohingya civilians.

The two captured soldiers are now reported to be in The Hague and in contact with international courts. Fortify Rights called the admissions “a monumental moment for justice”, and the New York Times called it “a first.” However, the video interviews were neither, despite the hyperbole.

There has been exhaustive documentation of the crimes perpetrated by Myanmar’s security forces against the Rohingya beginning in August 2017 by the United Nations, rights groups and the media. There have also been certain admissions of serious crimes by the Myanmar government’s own, deeply flawed Independent Commission of Enquiry (ICOE) from early 2020.

As investigations and the collection of evidence by the International Court of Justice (ICJ), the International Criminal Court (ICC) and the UN’s Independent Investigative Mechanism on Myanmar (IIMM), proceed, are the specific details released by Fortify Rights and the New York Times deleterious to aspects of these investigations?

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

Some lawyers and other observers think so. The publicity, they say, potentially endangers the safety of the two soldiers, their family members and close friends and associates still in Myanmar to reprisals, and thus could deter other potential witnesses to atrocities from coming forward.

There are three factors related to the media episode that warrant exploration.

The first is the nature of the collusion between the rights groups and the newspaper, and why a decision was made to release this sensitive information at that specific time with so much detail?

To what extent did Fortify Rights have access to the insurgent AA who produced the footage, and to what extent were the admissions, the first of which publicly appeared in May but were “repacked” in July, suggest cooperation in packaging “evidence?”

How admissible now are the soldier testimonies in any court proceeding, even as low-level “insider witnesses”, after being so publically aired? What role did Bangladeshi authorities play in transporting the two Myanmar soldiers to The Hague?

What level of clearance was granted by either the insurgent organization, the Bangladeshi government, or court officials to release their testimony, and in the manner in which it was published?

These are all questions – and there are more – that have arisen because of the media publicity generated.

Critics say more discretion was clearly required. In November 2019, the ICC Office of the Prosecutor (OTP) announced its investigation into the crime of forced deportation of the Rohingya, and stated in formulaic language it employs for all cases.

Specifically, the ICC said: “The Office urges media to refrain from publishing speculations or circulating rumors about on-going investigations. This is essential not only to protect the integrity of the investigations but also to ensure the safety and security of victims, witnesses and all those with whom the Office interacts.”

What Fortify Rights and the New York Times, and the press writ-large, failed to address is to what extent the AA is engaged in the commodification of war captives to feed its public relations machinery?

Arakan Army soldiers take aim from an undisclosed location in Myanmar. Photo: Arakan Army Video

Formed in 2009, the AA has over the past two years become Myanmar’s deadliest anti-government insurgency, staging attacks in large areas of Rakhine and Chin states. The upstart insurgents have inflicted hundreds, if not thousands, of casualties on Myanmar’s security forces, and potentially perpetrated grave violations of the laws of war itself.

Its relatively sophisticated press release system routinely uses captured Tatmadaw or police personnel, and alleged defectors and deserters, as public performers to demonize the Tatmadaw.

For instance, the AA maintains a “POW” section on its website, where video interviews are displayed and where one of the two aforementioned witnesses was first interviewed on May 29.  

The AA’s site also lists captured prisoners, including their names, ranks and serial numbers, news of their welfare – some of them are clearly wounded and traumatized – including “mercy” releases of elderly Tatmadaw soldiers. AA also maintains a YouTube channel, a VK account and several Twitter feeds.

On September 19, AA released three new videos showing two soldiers, including an officer, and a policeman captured nearly a year ago, appealing to be returned to their units and for peace talks to be pursued. The AA claims to be holding captive 17 policemen and over 30 Tatmadaw soldiers.

As a party to a non-international armed conflict, the AA is not bound by the rules of the Third Geneva Conventions on Prisoners of War (Article 13), which nevertheless states prisoners are; “protected against any act of violence, as well as against intimidation, insults, and public curiosity.”

But it is bound to respect Common Article Three of the Conventions which “requires humane treatment for all persons in enemy hands, without any adverse distinction. It specifically prohibits murder, torture, cruel, humiliating and degrading treatment, the taking of hostages and unfair trial.”

The AA is clearly reveling in using prisoners – it’s not clear if the personnel was captured, surrendered, or defected and currently under what, if any, level of duress – as tradeable spectacles for their own propaganda purposes, which may be in breach of the public curiosity prohibition, and potentially amount to humiliating and degrading treatment.

A Myanmar Light Infantry Battalion commander captured and held by the Arakan Army, March 10, 2020. Source: www.arakanarmy.net

For an insurgency with alleged links to the international narcotics trade struggling to wrest the moral high ground from the Myanmar military, it is possible the AA is in serious breach of the laws of war in its use of prisoners as well as its increasingly abusive behavior against civilians.

The AA also engages in the disturbing tactic of taking civilian hostages, including members of parliament, political party officials (one subsequently killed in their custody by Tatmadaw artillery), local officials, firemen and even Indian engineers.

A Chin human rights group, meanwhile, claims AA is responsible for at least 18 enforced disappearances of civilians over the past two years.

Much of the media coverage of the Tatmadaw deserters story failed to mention the ongoing armed conflict or the scale of civilian suffering, of which the ethnic Rakhine population has borne the brunt since late 2018.

Over 150,000 mostly Rakhine civilians have been internally displaced, an estimated 300 killed in the last year from indiscriminate artillery, airstrikes and small arms fire, and scores arrested under counterterrorism laws for alleged support of the AA. Chin civilians have also suffered at the hands of the AA.

On September 14, the UN High Commissioner for Human Rights, Michelle Bachelet, stated, “Currently, people from the Rakhine, Chin, Mro, Daignet and Rohingya communities are increasingly affected by the armed conflict in Rakhine and Chin states…In some cases, they appear to have been targeted or attacked indiscriminately, which may constitute further war crimes or even crimes against humanity.”

Rohingya men look at smoke billowing above what is believed to be a burning village in Myanmar’s Rakhine state, as members of the Muslim minority group take shelter in a no-man’s land between Bangladesh and Myanmar, in Ukhia on September 4, 2017. Photo: AFP/ K M Asad

Continued abuses against other communities throughout Myanmar often receive less media coverage than the Rohingya’s plight. The mishandled testimony of the two Myanmar soldiers could thus potentially have a negative impact on accountability efforts for these systematic and widespread abuses.  

Principled observance of what is termed “deconfliction” to avoid the accidental collision of painstaking and confidential justice initiatives with public human rights and media reporting should be a more widely-observed imperative.

Rash public exposure of sensitive narratives, while good for advocacy groups and media scoops, risks imperiling justice for those who have suffered the most.

David Scott Mathieson is an independent analyst working on human rights, peace and conflict issues in Myanmar

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