Myanmar after the UN report on genocide

In September 2018 the UN fact-finding mission on Myanmar established consistent patterns of serious human rights violations and abuses with genocidal intent by the Myanmar security forces. The investigators recommend that the Myanmar generals should be investigated and prosecuted in an international criminal tribunal for genocide, crimes against humanity and war crimes. While the first Rohingya are returning to Myanmar’s killing grounds, Myanmar’s political leader Aung San Suu Kyi still struggles with the UN findings and mounting scrutiny from the international community.

In the early morning of 9 October 2016, after decades-long communal tensions between the Muslim Rohingya ethnic minority, the Buddhist Rakhine ethnic majority and the Burmese army (the Tatmadaw)1 a tipping point was reached. A little-known armed group with only limited support from   the Rohingya community – the Arakan Rohingya Salvation Army (ARSA) – raided several border guard outposts, killing 9 Burmese policemen in the process.2

In response, the Burmese army launched a military “clearance operation” in Myanmar’s western Rakhine State, which caused the largest refugee crisis in Southeast Asia – around 700,000 Rohingya people were displaced and fled across the border into Bangladesh. The international “terrorism” narrative and the 23/2014 Counter-Terrorism Law helped legitimise the non-proportional violence – the operation was carried out as a state secret and no talks were held with ARSA.

According to the UN investigators, the operation had a genocidal intent and ought to be qualified as ethnic cleansing

Two years later, on 18 September 2018, in Geneva, Switzerland a UN Fact-Finding Mission (hereinafter – “UN Mission”) released its full report on “massive” violations by Burmese military in Rakhine, Kachin and Shan States (hereinafter – “UN Report”).3 This report now serves as a base of evidence when deliberating international sanctions and criminal justice.

UN Mission’s findings
As expected, the UN Mission concluded that the Burmese military committed gross violations of human rights, breached international law and international humanitarian law.4 The mentioned “clearance operation” conducted in 2016 and 2017 was premeditated, involved planned and deliberately executed mass killings, and resulted in the deaths of an estimated 10,000 people.5  According to the UN investigators, the operation had a genocidal intent and ought to be qualified as ethnic cleansing.

One of the main conclusions of the UN Report is that the Rohingya community is not the only group which was being targeted. The Rohingya refugee crisis has been such a major human tragedy that it soaked up all the foreign media attention for two years, allowing the Tatmadaw to terrorise other ethnic groups mostly unnoticed.6 Based on several case studies, the UN Mission has established that the Tatmadaw also systemically targeted the Shan civilian population, a large ethnic minority living in the northeast part of the country.7  

Many foreigners might know Shan State for pleasant boat rides on Inle lake, a UNESCO world heritage site. However, within a few hours’ drive, in the “brown zone” behind military check points, a different reality unfolds for the local Shans. The UN Mission has uncovered several instances of unlawful detention, torture and execution of civilians by the Burmese military.8 This appears to happen in Myanmar on weekly basis, without any of the perpetrators being held accountable – laws and courts have been instrumental to oppression in the country since the 1962 coup d'état.

One important finding by the UN Mission is that the Tatmadaw continues hostilities against the signatories of the much celebrated 2015 Nationwide Ceasefire Agreement (NCA).9 At the beginning of November, Restoration Council of Shan State (RCSS) and Karen National Union (KNU / KNLA), the largest and most important signatories, temporarily suspended their participation in the peace process, which constituted a major setback. 

It is not expected that the Myanmar government will hand over the perpetrators to an international tribunal

This situation puts some 6,000 Shan refugees in a precarious situation. They cannot go back home, but the international donor aid has been cut on the account of NCA signature.10  Instead, investments have now been diverted towards the Joint Peace Fund which has received over a 100 million Euro’s in pledged capital. The yield, however, is increasingly low. But who will stand up and say less should be put in?

UN Mission’s recommendations and the question of International Criminal Court’s (ICC) jurisdiction
The UN Mission concludes its 440-page report with several recommendations, making this legal document politically charged. Most notably, the UN Mission calls for an investigation and prosecution of Myanmar’s Commander-in-Chief Senior General Min Aung Hlaing and five other military leaders for “crimes against humanity, genocide and war crimes”. The UN Security council is urged to refer these crimes to the ICC or create an ad hoc international criminal tribunal, while individual UN members should also exercise their jurisdiction.

It is not expected that the Myanmar government will hand over the perpetrators to an international tribunal, whereas the Tatmadaw remains the most powerful organisation in the country, and with Min Aung Hlaing as the head of this organisation.11  Concerning the UN Security Council, Russia and China are expected to block the move, although several hearings have gone ahead.

However, the ICC investigates and prosecutes not only the crimes referred to it by the UN Security Council, but also by court’s own initiative. Recently, its chief prosecutor Ms Fatou Bensouda has pursued an attempt to broaden the interpretation of the court’s jurisdiction, suggesting it may handle the Rohingya case after all.

The 1998 Rome Statute established the ICC with jurisdiction over crimes committed by nationals of the signatories: crimes against humanity, genocide, war crimes and crimes of aggression. Myanmar is not among the 120 signatories of the statute, thus under most legal interpretations crimes against the Rohingya population fall outside the jurisdictional scope of the ICC. Nevertheless, on 18 September 2018, a preliminary examination of possible crimes against humanity was launched.

The reasoning is the following: forced deportation of the Rohingya involves Bangladesh as a receiving country, and the latter is a member of the ICC. So far it is difficult to see such an interpretation materialise into a new rule under international law - the principle of “sovereignty” appears to provide effective security. Expanding the scope of ICC’s jurisdiction would set a precedent unfavourable to non-signatories, notably the USA, which starkly criticised the preliminary examination.

The Myanmar minister of the Office of the State Counsellor (Aung San Suu Kyi) has “resolutely rejected” the move by the ICC and objected to the UN Mission’s establishment, composition, and mandate, calling it “one-sided”.12

Deliberating political and economic sanctions    
To the international community, the UN Mission recommends applying an arms embargo and not to enter into financial relationship with enterprises controlled by the members of Tatmadaw.13 The families of Tatmadaw generals, current or retired, have vast business empires in the country. Targeted economic sanctions may be the most effective of the countermeasures.

It seems justified to criticise Aung San Suu Kyi for her silence

However, blanket economic sanctions would unfairly harm regular citizens of Myanmar. Also, they are likely to be perceived by the local people as bullying and misunderstanding on the side of international community, rather than mismanagement of the Rohingya crisis by the National League for Democracy (NLD - political party led by Aung San Suu Kyi). It is unlikely that economic sanctions will force Aung San Suu Kyi to confront the military either, since they are partners in the government.14  

It seems justified to criticise Aung San Suu Kyi for her silence. It is indeed shocking that as Nobel Peace Prize laureate and a state leader she failed to take a stance with regard to the war crimes committed against Rohingya, Shan, Kachin and other ethnic civilians. As to why she took this stance or how she really feels about the military, remains a riddle for international community and national actors alike. After two years of international scrutiny, she recently admitted in Davos that the Rohingya crisis “could have been handled better”.15

It is, however, hard to justify criticism directed toward Aung San Suu Kyi’s inaction, whereas she has very little leverage against the military. According to the 2008 Constitution, the Tatmadaw holds 25% of seats in the parliament and 3 key ministries, including the General Administration Department - the civil servants. Furthermore, the Constitution foresees that the military may take power, if this is necessitated by the “instability in the country”. It is clear to many inside the country that the Tatmadaw is in position to trigger such instabilities itself, if it chose to. Also, with a stalling economy, a financial crisis remains a possibility.16

In October, as a result of the UN Report, Myanmar was confronted with a set of international sanctions and mounting pressure to hold the perpetrators of atrocities to account. In an apparent attempt to remedy the situation, Myanmar recently agreed with Bangladesh on the repatriation of Rohingya refugees. However, the UN refugee agency said conditions in Rakhine State were “not yet conducive for returns” and blocked the move, thus constituting a new major stand-off in international relations.17  Currently an independent peace keeping mission by either the UN or ASEAN is also being deliberated, but Myanmar is unwilling to accept it. 

International powers like the US, Turkey, China and Russia are increasingly taking interest in the situation in Myanmar. In the UN General Assembly Turkey has spearheaded the attack on Myanmar’s government and the military. Mr. Recep Tayyip Erdoğan has made wide-ranging political gains by raising the Rohingya issue with the UN and, while chief of the Organisation of Islamic Cooperation (OIC), consolidated leaders of Muslim countries to apply pressure on Myanmar. Mr. Erdoğans interest in the issue should be read as part of his aspiration to become the leader of the Sunni-Muslim world.18

In the ensuing uproar, China, having a vested interest in Myanmar as its largest single investor, has stepped up to shield Myanmar in the UN.19 Beijing supports the Myanmar government and the peace process, but simultaneously provides shelter, weapons and other assistance to armed ethnic organisations in northern Myanmar.20

Concluding remarks
Old habits die hard. It appears the Burmese military became used to having a closed country where all human rights violations can be managed as an in-house secret. Now, as it faces the scrutiny and sanctions of the international community, it learns that openness comes at a price. In the globalised context the country cannot be selectively open only to donor funding and foreign investments, while discarding the international human rights standards and respective political covenants.     

The Tatmadaw is still the most powerful institution in the country. In the wake of the Rohingya crisis Aung San Suu Kyi faced a difficult choice - should she go against the Tatmadaw and lose its support, or keep them as a powerful ally and see them gradually erode her own reputation and political power? From day one she chose the latter. The international community might be less disappointed with her choices, if we were to lower our expectations regarding the rapid improvement of the human rights situation. While Western countries might have made a human rights icon out of Aung San Suu Kyi while she was still a political martyr under house arrest, her agency to deliver the promised change remains limited.  

The next general elections in the country are scheduled for 2020 and the NLD is poised to lose the ruling majority in the federal parliament. Aung San Suu Kyi’s popularity has been falling inside the country as much as it has internationally, although it’s not because of international scrutiny. She will likely need to form a coalition and she is showing preference for the Union Solidarity and Development Party – the affiliate of the Tatmadaw. After all, most of the larger political parties are based on ethnic minority identities; for her, as an ethnic Burmese, it is difficult to trust that such alliances could endure after decades of antagonism between the ethnic groups.

Meanwhile, the international community is waiting to see if a criminal tribunal will be formed and legal charges pressed over the mass killings. Even if so, political and economic pressure might not be enough to persuade the Myanmar government to extradite the suspects. For now, the generals and the sovereign are indivisible, and the international legal principle of sovereignty is ring-fencing the perpetrators. This having been said, it might just be the case that we have witnessed another instance of ethnic cleansing that goes down in history as a failure of the UN and human rights organisations. Firstly, they failed to preclude violence, and secondly, they failed to achieve criminal justice and retribution for the aggrieved community.

• 1Underlying communal tensions are complex and go beyond religious divide. Ethnic Arakan majority also appear to have a longer standing claim to Arakan state as their homeland. Furthermore, Rohingya are viewed as Bengalis - illegal immigrants from Bangladesh. “Rohingya” is a highly contested term in Myanmar where most don’t accept them as a distinct ethnic group; acceptance would also imply that Rohingya have more political and economic rights than currently admitted.
• 2Reuters, Myanmar says nine police killed by insurgents on Bangladesh border, 9 October 2016
• 3UNHRC, Myanmar: UN Fact-Finding Mission release its full account of massive violations by military in Rakhine, Kachin and Shan States, 18 September 2018
• 4Report A/HRC/39/CRP.2, para 1671
• 5Report, P. 209, A/HRC/39/CRP.2, para 892
• 6Report A/HRC/39/CRP.2, para 1672
• 7According to the UN investigators, the operation had a genocidal intent and ought to be qualified as ethnic cleansing
• 8Report A/HRC/39/CRP.2, para 149
• 9Report A/HRC/39/CRP.2, para 107
• 10Reliefweb, Shan refugees face massive cut in international assistance, 31 August 2017
• 11New York Times, Myanmar General’s Purge of Rohingya Lifts His Popular Support, 26 November 2017
• 12UN News, Myanamr “resolutely rejects” ICC ruling on Rakhine; voices “serious concerns” over UN human rights report, 28 September 2018
• 13Report A/HRC/39/CRP.2, para 1717
• 14Asia Times, Myanmar’s Economy in Danger of Standing Still, 22 October 2018
• 15Hannah Beech for NY Times, Rohingya Crisis ‘Could Have Been Handled Better,’ Aung San Suu Kyi Says, 13 September 2018
• 16Peter Janssen for Asia Times, Myanmar’s economy in danger of standing still, 22 October 2018
• 17Reuters, Bangledesh, Myanmar agree to begin Rohingya repatriation by mid-November, 30 October 2018
• 18ICE Business Times, Interviews: Dr. Imtiaz Ahmed, Professor of International Relations & Director of Centre for Denocide Studies, University of Dhaka, 4 February 2018
• 19Directorate of Investment and Company Administration, 2018/September Foreign Direct Investment by Country, 30 September 2018
• 20United States Institute of Peace, China’s Role in Myanmar’s Internal Conflict, 14 September 2018