Sunday, 25 June 2017

“What is being prosecuted in Rakhine State is an effort to remove the Rohingya from the area.”

Benjamin Zawacki
In 2005, governments around the world unanimously agreed to the principle of the responsibility to protect (R2P), which holds that all states have a responsibility to protect their populations from genocide and mass atrocities, that the international community should assist them to fulfil this duty, and that the international community should take timely and decisive measures to protect populations from such crimes when their host state fails to do so. R2P is committed to peaceful interventions including assistance, peaceful persuasion, and financial sanctions.  The nature of collective action must exhaust the possibilities of “appropriate diplomatic, humanitarian, and other peaceful means” before ‘forceful means’ can be considered.

The means of determining whether a state has abdicated its responsibility to protect is an independent investigation that can be commissioned by the UN Security Council, UN Human Rights Council, UN General Assembly, or the UN Secretary General. An investigation can recommend that the UN Security Council refer the situation to the ICC.  Under Chapter VII of the UN Charter, the Security Council has the authority to determine measures, peaceful or, if necessary, forceful, “to maintain or restore international peace and security.”  This “international” provision does not imply that conflicts must threaten to spill over borders; certainly, the UN Security Council has acted to address numerous crises without “spillover power” on the basis that these crises necessitated UN intervention to reestablish international order.  Even so, the threat in Burma has definitively spilled over international borders, with thousands of refugees from the anti-Muslim conflict pouring into nations including Thailand, Malaysia, Bangladesh, and Indonesia.

This has caused significant regional conflict and has motivated regional ministers and groups to call for international action. The Organization of Islamic Cooperation (“OIC”) called on the European Union in June 2013 to increase pressure on the Burmese government to allow full humanitarian access to Rohingya in Arakan State.  In response to the escalating influx of Rohingya refugees in August 2013, the Association of Southeast Asian Nations (“ASEAN”) Parliamentarians for Human Rights (“APHR”) urged the ASEAN Inter-governmental Commission on Human Rights to develop a regional solution to the Rohingya crisis. Eva Kusuma Sundari, APHR president and Indonesian Member of Parliament, stated: “Our heads of state must recognise the significance of ASEAN’s action or inaction on this major international issue and the serious implications it has, not only for the Rohingya people, but the future stability of the region as a whole.”

At an ASEAN conference in January 2014, Indonesian Foreign Minister Marty Natalegawa said that Burma’s anti-Muslim violence has regional ramifications, even inspiring retaliatory terrorist plots in Jakarta.  Neighboring countries Thailand and Malaysia are facing international scrutiny for capacitating human trafficking rings of Rohingya asylees.  Religious violence involving Burmese living in Malaysia and Indonesia is growing, likely provoked by Burma’s anti- Muslim violence and refusal to provide accountability.  Yet Burma has dodged responsibility. When the Burmese government assumed the chairmanship of ASEAN in 2014, it unabashedly announced it would apply ASEAN’s “non-interference” policy to the Rohingya situation. It deemed the violence an “internal affair” that would not be discussed at ASEAN meetings, “even if other countries ask for it.”

UN officials, Nobel Peace laureates, and human rights organizations have thus recognized the applicability of R2P and the need for an independent investigation. UN High Commissioner for Human Rights Navi Pillay has called for a prompt, independent investigation into crimes in Arakan State since June 2012.  Twelve Nobel Peace laureates echoed and expanded Pillay’s call in June 2013, after violence spread beyond Arakan State, calling for an “independent investigation of the anti-Muslim violence in Burma” on the grounds that “some within Burma are propagating a politics of division—and using violence as a tool to manipulate feelings of fear and insecurity.”

In August 2013, after conducting an investigation inside Burma, Physicians for Human Rights (“PHR”) also called for an independent investigation due to the Burmese government’s failure “to properly protect its people and address human rights violations.”  PHR argued that anti-Muslim violence, bolstered by hate speech, systems of impunity, and inaction by Burmese leaders, “could lead to mass atrocities on a scale heretofore unseen in Burma” unless the international community were to implement an investigation.

In order for an independent investigation to be warranted, two points must be established:
1.    It must be likely or evident that minority Muslims are suffering from mass atrocity crimes, defined under the Rome Statute and Geneva Conventions as genocide, war crimes, crimes against humanity, or ethnic cleansing, 
2.    It must be likely or evident that the state has withheld justice and accountability for victims of these mass atrocity crimes.

Mass Atrocity Crimes
Muslims in Burma are suffering from two types of mass atrocity crimes: crimes against humanity and ethnic cleansing.

Crimes against humanity
Crimes against humanity, defined in the ICC’s Elements of Crimes, consist of prohibited acts committed as part of a “widespread or systematic attack against a civilian population.”  The most relevant prohibited acts committed against Muslims include the crimes of murder, deportation or forcible transfer of population, imprisonment or other severe deprivation of physical liberty, torture, rape, sexual slavery, sexual violence, apartheid, and persecution.

An “attack”, ‘in Rome Statute, is defined as a “course of conduct involving the multiple commission” of prohibited acts.” According to the Harvard Law School International Human Rights Clinic, and scholars, “Widespread”, attacks are commonly understood to be “large-scale” with many victims.  “Systematic” refers to well-organized attacks or attacks of a patterned or methodical nature.  Attacks against non-Rohingya Muslims in Burma throughout 2013 were coordinated and widespread; indicating that prohibited acts against non-Rohingya Muslims may constitute crimes against humanity.

As for acts against Rohingya Muslims, the verdict is even clearer. UN Special Rapporteur on the human rights situation in Burma, Tomás Ojea Quintana, concluded in 2014 “that the pattern of widespread and systematic human rights violations in Rakhine State may constitute crimes against humanity as defined under the Rome State of the International Criminal Court.”  In April 2014, after the government banned Doctors Without Borders (MSF) from Arakan State and failed to protect UN and NGO aid workers from attacks with the intention of blocking aid to Rohingya, Quintana issued a special statement condemning the “discrimination and persecution against the Rohingya community which could amount to crimes against humanity.”

In February 2014, Fortify Rights published official documents that show government policies restricting the rights of Rohingya in Arakan State, including marriage, childbirth, and movement.  Evaluated through the Rome Statute, these policies provide a “prima facie finding that Rohingya in [Arakan] State are victims of the crime against humanity of persecution, perpetrated by Myanmar government officials.”  The report establishes that government officials had knowledge that these policies deprived Rohingya of basic rights, having written, distributed, and enforced them.

Ethnic cleansing
Human rights violations against the Rohingya also amount to ethnic cleansing. Ethnic cleansing is identified as a mass atrocity crime in customary international law, but it has not received an official legal definition. A 1994 UN Commission of Experts defined ethnic cleansing as a “purposeful policy designed by one ethnic or religious group to remove by violent and terror- inspiring means the civilian population of another ethnic or religious group from certain geographic areas.”  Using this definition, ethnic cleansing precisely defines the plight of the Rohingya, who have been systematically moved from their neighborhoods and land, even from areas that were not affected by violence, and exiled to makeshift government camps.  The local Arakan population, Burmese government officials, and in many cases, the general Burmese public, are remarkably straightforward about their intent to achieve a Rohingya-free Burma.

Human Rights Watch concluded in March 2013, after extensive investigative research into the human rights violations in Arakan State, that the Rohingya were prima facie targets of ethnic cleansing.  The OIC Secretary General has called the Rohingya situation in Arakan State ethnic cleansing as well.  Scholar Benjamin Zawacki of the International Commission of Jurists argued the same, maintaining that “what is being prosecuted in Rakhine State is an effort to remove the Rohingya from the area.

Prohibited acts committed against Muslims in the context of widespread and systematic attacks are ongoing, with flare-ups in August 2013 in Sagaing Division where a 1000-strong Buddhist mob attacked the homes and shops of Burmese Muslims, displacing many, and in October 2013 in Arakan State where Buddhist mobs killed five Kaman Muslims and again displaced hundreds.  In January 2014, security forces and Buddhist mobs slaughtered up to seventy Rohingya, including many women and children, in Du Chee Yar Tan, a western Arakan State village.  Government participation and complicity in anti-Muslim violence and systematic impunity have created a ripe legal and social context where mass atrocity crimes continue unabated.

Withholding Justice and Accountability
In order to establish an independent investigation into these crimes, it must be demonstrated that the Burmese government has failed to pursue justice for the victims and perpetrators of these crimes. Under the Rome Statute and R2P, the Burmese government shoulders the sovereign responsibility to protect its own people against mass atrocity crimes. The ICC cannot have jurisdiction over the case unless the individual state’s judicial system fails to act.

Burma’s national judicial system has failed to act. No system of legal recourse or redress for Muslim victims of violence has been implemented. Domestic attempts at justice have been discriminatory and violent, resulting in mass arrests of Muslims, convictions under trumped-up charges, and the continuing sexual violence and extrajudicial killings of unarmed Rohingya.  Two of the most horrific massacres—the slaughter of twenty-eight Muslim children in Mrauk-U, Arakan State on October 28, 2012 and the executions of at least thirty-two Muslim schoolchildren and four teachers in Meiktila on March 21, 2013, who were forcibly marched to their deaths by soldiers as cheering crowds and officials looked on—have been unaddressed by authorities. Those who assist Muslims, including humanitarian aid workers, Buddhists who sell products to Muslims in defiance of the apartheid-style 969 campaign promoted by outspoken monks, and those who have helped smuggle Muslims to safety, are targets of threats and intimidation.

The Burmese government has not only abdicated its responsibility to protect its people, but also denies that the Rohingya are a legally legitimate people. In July 2012, the Home Affairs Minister announced that the government would actually tighten restrictions on the Rohingya’s rights to travel, marry, bear children, migrate, construct buildings, and own land in the wake of the attacks against them.  After government forces shot dead three displaced Rohingya women in June 2013, UN Special Rapporteur Quintana wrote: “[T]here continues to be absolutely no accountability for what is occurring there. There is no way of glossing over this state of affairs.”

Investigative reports commissioned by the Burmese government under international pressure have failed to address abuses by government authorities and hold accountable those responsible for the attacks. An official July 2012 report denied all government involvement in the attacks and shamefully declared that there were no outstanding humanitarian needs in Arakan State.  In April 2013, the government released a second report, which discriminatorily refers to the Rohingya as illegal “Bengali,” recommending a higher presence of security forces in Arakan State and genocidal birth control tactics to limit the Rohingya population, and suggesting that the international community update Burma’s weaponry so the army can better control people trying to cross the Bangladesh border.  The report’s language is severely incendiary, with the Burmese version more racist than the strategically translated English version.  The UN, international agencies, and the human rights community, who have called repeatedly on the Burmese government to pursue justice and accountability, met the report with great skepticism.

After the large-scale killings of Rohingya in Du Chee Yar Tan in January 2014, the government at first refused to commission any investigation whatsoever. It called a UN statement that condemned the attacks unacceptable, barred access to the village, and threatened the Associated Press and other media outlets for investigating the incident.  It vehemently refused the U.S. Ambassador unprecedented request that the government establish an independent investigation commission with international officials.  The government did eventually commission investigations under the Office of the President and the Myanmar Human Rights Commission, but both investigations preposterously concluded that no killings had taken place.

To compound matters, the government refuses to honor its November 2012 commitment to allow the UN High Commissioner for Human Rights to open an office in Burma to monitor the human rights situation.  Moreover, the government has banned Rohingya persons from self-identifying as Rohingya in the national census.  It is also pursuing national legislation to criminalize marriage between Buddhist women and non-Buddhists and to ban non-citizens (i.e. Rohingya) from forming political parties.

The government has also constructed or enabled significant obstacles to researchers and aid workers attempting to enter conflict zones. When UN Special Rapporteur Quintana visited Burma in August 2013, around 200 Buddhists, the identity of whom remains unclear, attacked his UN convoy in Meiktila.  Quintana stated afterward that government forces failed to protect him from the mob, just as they had failed to protect the victims of March 2013 violence in Meiktila.  President Thein Sein’s office subsequently alleged that Quintana had fabricated the attack and that the mob had only meant to give Quintana a letter and a t-shirt.

This government defiance is the status quo. Far from pursuing justice, the government has persistently denied allegations of human rights violations against Muslims, and has “strongly rejected” human rights reports from the United Nations and other organizations.  These public refutations of violence demonstrate how the Burmese government has not only intentionally failed to provide justice; it has also become emboldened by the lack of international pressure to stop the violence.  Further international calls to stop violence would thus be redundant and ineffectual.

As repression in Burma continues unabated, it is reasonable to expect that calls for intervention will continue to be heard from around the world.

The willingness and ability of the international community to get involved will continue to be crucial elements in resolving Burma's problems. The political will of the UN must be regarded as a particularly important factor in determining how and when Burma will finally shed the burden of repressive rule. The creation of an independent international commission on intervention would be a promising move, and Burma should certainly be one of the first cases to receive careful consideration and study.

In fact, there are already options that could be used to save the lives of people, if the international community - including the Asean leadership - could find the will to use all of the tools at its disposal, from political engagement to radical action. The chains of oppression can be broken, but only if the world recognizes that human security is an issue that transcends national boundaries.