Today 25th August 2020 marked the third anniversary of the Rohingya Genocide and Mass Exodus of 2017. At the early hours of this day in 2017, the Arakan Rohingya Salvation Army (ARSA) launched coordinated attacks on a military base and up to 30 security force outposts across northern Rakhine State, in an apparent response to increased pressure on Rohingya communities and with the goal of global attention. A small number of minimally-trained leaders had some arms, and a significant number of untrained villagers wielded sticks and knives. Some had improvised explosive devices. Twelve security personnel were killed.
In response to this ARSA attack, the Myanmar security forces responded in the hours, days, and weeks that followed with operations. It encompassed hundreds of villages across Maungdaw, Buthidaung, and Rathedaung. The operations targeted and terrorized the entire Rohingya population and also their property. The authorities called them “clearance operations”. As a result, by mid-August 2018, nearly 725,000 Rohingya had fled to Bangladesh.
According to Amnesty International, in the 10 months after 25 August, the Myanmar security forces drove more than 80 percent of the Rohingya who lived in northern Rakhine State at the crisis’s outset into neighboring Bangladesh. The ethnic cleansing of the Rohingya population was achieved by a relentless and systematic campaign in which the Myanmar security forces unlawfully killed thousands of Rohingya, including young children; raped and committed other sexual violence against hundreds of Rohingya women and girls; tortured Rohingya men and boys in detention sites; pushed Rohingya communities toward starvation by burning markets and blocking access to farmland, and burned hundreds of Rohingya villages in a targeted and deliberate manner.
As per the report of the UN International Fact-Finding Mission on Myanmar, even though the operations were conducted over a broad geographic area, they were strikingly similar. Tatmadaw soldiers would attack a village in the early hours, frequently joined by other security forces, often by Rakhine men and sometimes men from other ethnic minorities. The operations were designed to instill immediate terror, with people woken by intense rapid weapon fire, explosions, or the shouts and screams of villagers. Structures were set ablaze, and Tatmadaw soldiers fired their guns indiscriminately into houses and fields, and at villagers.
As per the report of the UN International Fact-Finding Mission on Myanmar, the “clearance operations” constituted a human rights catastrophe. Thousands of Rohingya were killed or injured. Information collected by the mission suggests that the estimate of up to 10,000 deaths is a conservative one. Mass killings were perpetrated in Min Gyi (Tula Toli), Maung Nu, Chut Pyin and Gudar Pyin, and in villages in the Koe Tan Kauk village tract. In some cases, hundreds of people died. In both Min Gyi and Maung Nu, villagers were gathered together before the men and boys were separated and killed. In Min Gyi, women and girls were taken to nearby houses, gang-raped, then killed or severely injured. Houses were locked and set on fire. Few survived. In numerous other villages, the number of casualties was also markedly high. Bodies were transported in military vehicles, burned and disposed of in mass graves.
According to the documentation of the Amnesty International, the Tatmadaw committed large-scale massacres defined both by the scale of the killings and the fact that soldiers often carried them out through extrajudicial executions, that is, deliberately killing people who were unarmed and under their control. Members of the security forces pulled men and older boys out of their homes or herded them into an area with no obvious escape route; forced them to lie down or kneel, often after binding their hands; and then shot them at point-blank range or stabbed them with long knives. But while men and older boys were typically targeted in particular, often no one was spared. In two of the three incidents, scores of young children were killed, as soldiers opened fire on people fleeing. During each of the massacres, soldiers also raped and committed other sexual violence against women and girls. Some women and girls were killed after the rape.
In many parts of northern Rakhine State, soldiers attacked village after village over several weeks after 25 August. Rohingya men, women, and children from several dozen villages across the region described to various UN bodies and human rights organizations seeing family members or neighbors shot while everyone was fleeing a security force attack. Many of those who were shot were left for dead, as people fled in panic. Others made their way to the hills or to neighboring villages, where they at times received basic treatment from traditional doctors or from neighbors who tried to at least remove bullets and bandage wounds.
According to the report of the UN International Independent Fact-Finding Mission on Myanmar, rape, and other forms of sexual violence were perpetrated on a massive scale. Large scale gang rape was perpetrated by Tatmadaw soldiers in at least 10 village tracts of northern Rakhine State. Sometimes up to 40 women and girls were raped or gang-raped together. (UNHRC.2018)
Rapes were committed often in public spaces and front of families and the community, maximizing humiliation and trauma. Mothers were gang-raped in front of young children, who were severely injured and in some instances killed. Women and girls 13 to 25 years of age were targeted, including pregnant women. Rapes were accompanied by derogatory language and threats to life, such as, “We are going to kill you this way, by raping you.” Women and girls were systematically abducted, detained, and raped in military and police compounds, often amounting to sexual slavery. Victims were severely injured before and during rape, often marked by deep bites. They suffered serious injuries to reproductive organs, including from rape with knives and sticks. Many victims were killed or died from injuries. Survivors displayed signs of deep trauma and face immense stigma in their community. There are credible reports of men and boys also being subjected to rape, genital mutilation, and sexualized torture.
According to the report of the UN-backed International Fact-Findings Mission on Myanmar, satellite imagery and first-hand accounts corroborate widespread, systematic, deliberate, and targeted destruction, mainly by fire, of Rohingya populated areas across the three townships. At least 392 villages (40 percent of all settlements in northern Rakhine) were partially or destroyed, encompassing at least 37,700 individual structures. Approximately 80 percent were burned in the initial three weeks of the operations, a significant portion of which after the Government’s official end date of the “clearance operations”. More than 70 percent of the villages destroyed were in Maungdaw, where the majority of Rohingya lived. Most destroyed structures were homes. Schools, marketplaces, and mosques were also burned. Rohingya populated areas were specifically targeted, with adjacent or nearby Rakhine settlements left unscathed.
The International Reaction and Aung San Suu Kyi’s Response
In February 2017, the UN High Commissioner for Human Rights, Zeid Ra'ad al-Husse- in, published a report citing evidence of widespread abuses in Rakhine State. He accused the Myanmar government of "devastating cruelty" against the Rohingyas. In March, the UNHRC decided to send an "independent international fact-finding mission" to Myanmar to "establish the facts and circumstances of the alleged recent human rights violations by military and security forces" in Rakhine State "to ensure full accountability for perpetrators and justice for victims." This proposal was rejected by Aung San Suu Kyi, who felt that it was not "in keeping with what is happening on the ground." Ignoring her own repeated calls for international intervention in Myanmar's internal affairs over the past thirty years, she said, "We must work ourselves for our country's responsibilities because we are the ones who best understand what our country needs...We don't accept the UN's decision as it is not suitable for the situation of our country." She added that Myanmar would rely on its resources to investigate any accusations of abuses. A UN fact-finding mission was still appointed and went to Bangladesh, but it was refused entry to Myanmar.
In September 2017, the OHCHR stated that, as far as could be judged without access to the conflict zone, the treatment of the Rohingyas seemed to be “a textbook example of ethnic cleansing.” The high commissioner told the Human Rights Council that security operations being conducted in Myanmar were “clearly disproportionate and without regard for the basic principles of international law.” Three months later, the OHCHR’s position had further hardened. The high commissioner said that he “would not be surprised if a future court found the military campaign against the Rohingya people amounted to genocide.” This view has since been echoed by the UN’s special rapporteur on the situation for human rights in Myanmar, Yanghee Lee, who in late 2017 was told that she was not welcome in the country for the rest of her term of office. She stated in February 2018 that the military operations conducted against the Rohingya in Rakhine State “bear the hallmarks of genocide.” In March 2018, the OHCHR called for the UN General Assembly to refer alleged atrocities committed in Myanmar to the International Criminal Court for prosecution.
The Non-Cooperation with the UN Special Rapporteur
On 18 December 2017, the Government of Myanmar, just weeks before her planned seventh country visit, informed the Special Rapporteur that all access to the country had been denied and cooperation is withdrawn for the remaining duration of her tenure. The Special Rapporteur was due to visit Myanmar in January 2018 to help prepare her report to the Human Rights Council. While the Government had responded positively to all past requests to visit, the Special Rapporteur notes that access to some areas was consistently refused by the authorities citing security concerns. Moreover, she expresses disappointment regarding the Government’s irregular request that the undertaking of her July 2017 country visit was contingent on no association with the Independent International Fact-Finding Mission on Myanmar.
The Role of the UN Security Council
The international community has struggled to deal with the crisis. Since the military’s campaign of crimes against humanity against the Rohingya in Rakhine State forced more than 725,000 Rohingya across the border to Bangladesh, the UN Security Council has failed to take a stand against the gravest crimes under international law, instead opting for quiet diplomacy. In that time, Myanmar has continued to deny abuses, obstruct access of humanitarian workers and independent investigators, and entrench the system of apartheid under which the remaining Rohingya live.
Between August and October 2017 the UN Security Council met five times in response to a letter from the UN Secretary-General asking it to consider the Rohingya crisis. Due to the opposition of China and Russia, no formal resolution was passed, but the Security Council strongly condemned the violence that had occurred in Rakhine State, expressed alarm at the deteriorating humanitarian situation and called on the government of Myanmar to “grant immediate, safe and unhindered access to United Nations agencies and their partners.” On November 16th, the UN General Assembly approved a human rights resolution on Myanmar, reviving annual resolutions that had been dropped in 2016 in recognition of the election of Aung San Suu Kyi’s party and the gradual democratization process taking place in the country. In February 2018, the Security Council met again to discuss Myanmar and declared that it would keep the Rohingya crisis “high on its agenda.
Findings of the Independent International Fact-Finding Mission on Myanmar
In the face of Security Council inaction, in September 2018 in its resolution 34/22, the UN Human Rights Council established the Independent International Fact-Finding Mission on Myanmar. The President of the Council appointed Marzuki Darusman (Indonesia) as chair and Radhika Coomaraswamy (Sri Lanka) and Christopher Sidoti (Australia) as members. A secretariat was recruited by the Office of the United Nations High Commissioner for Human Rights.
Based on the body of information collected, the UN Independent International Fact-Finding Mission on Myanmar has concluded that the national armed forces of Myanmar (Tatmadaw) and other security forces have been committed genocide, a crime against humanity and the war crime which are serious crimes under international law that warrant criminal investigation and prosecution.
The ICC Authorization for Investigation
On 4th July 2019, the Prosecutor of the International Criminal Court ("ICC"), Fatou Bensouda ("OTP"), requested authorization from its Pre-Trial Chamber- III to initiate an investigation into crimes within the jurisdiction of the International Criminal Court in which at least one element occurred on the territory of the People's Republic of Bangladesh a State Party to the Rome Statute and within the context of two waves of violence in Rakhine State on the territory of the Republic of the Union of Myanmar, as well as any other crimes which are sufficiently linked to these events" since at least 9 October 2016.
On 14 November 2019, Pre-Trial Chamber- III of the International Criminal Court ("ICC" or the "Court") authorized the Prosecutor to proceed with an investigation for the alleged crimes within the ICC's jurisdiction in the Situation in the People's Republic of Bangladesh/Republic of the Union of Myanmar ("the situation in Bangladesh/Myanmar").
The Gambian Case before ICJ
In this ICJ hearing, Gambia was represented by Mr. Abubacarr Marie Tambadou, Mr. Payam Akhavan, Mr. Andrew Loewenstein, Ms. Tafadzwa Pasipanodya, Mr. Arsalan Suleman, Mr. Pierre d’Argent, Mr. Paul Reichler, Mr. Philippe Sands.
On the other hand Union of Myanmar was represented by its Councilor Aung San Suu Kyi, Mr. William Schabas, Mr. Christopher Staker, Ms. Phoebe Okowa.
In its case, Gambia specifically argues that "from around October 2016 the Myanmar military (the 'Tatmadaw') and other Myanmar security forces began widespread and systematic 'clearance operations' the term that Myanmar itself uses against the Rohingya group. The genocidal acts committed during these operations were intended to destroy the Rohingya as a group, in whole or in part, by the use of mass murder, rape and other forms of sexual violence, as well as the systematic destruction by fire of their villages, often with inhabitants locked inside burning houses. From August 2017 onward, such genocidal acts continued with Myanmar's resumption of 'clearance operations' on a more massive and wider geographical scale."
The Gambia contends that these acts constitute violations of the Genocide Convention. It states that it has made this claim known to Myanmar since September 2018, but that Myanmar has continued to deny any wrongdoing. The Applicant seeks to found the Court’s jurisdiction to entertain this dispute on Article 36, paragraph- 1, of the Statute of the Court and Article IX of the Genocide Convention, to which both States are parties.
At the end of its Request, apart from other remedies, the Gambia asked the ICC to indicate the following provisional measures:
“(a) Myanmar shall immediately, in pursuance of its undertaking in the Convention on the Prevention and Punishment of the Crime of Genocide of 9th December 1948, take all measures within its power to prevent all acts that amount to or contribute to the crime of genocide, including taking all measures within its power to prevent the following acts from being committed against [any] member of the Rohingya group: extrajudicial killings or physical abuse; rape or other forms of sexual violence; burning of homes or villages; destruction of lands and livestock, deprivation of food and other necessities of life, or any other deliberate infliction of conditions of life calculated to bring about the physical destruction of the Rohingya group in whole or in part;
(b) Myanmar shall, in particular, ensure that any military, paramilitary or irregular armed units which may be directed or supported by it, as well as any organizations and persons which may be subject to its control, direction or influence, do not commit any act of genocide, of conspiracy to commit genocide, or direct and public incitement to commit genocide, or of complicity in genocide, against the Rohingya group, including extrajudicial killing or physical abuse; rape or other forms of sexual violence; burning of homes or villages; destruction of lands and livestock, deprivation of food and other necessities of life, or any other deliberate infliction of conditions of life calculated to bring about the physical destruction of the Rohingya group in whole or in part;
(e) Myanmar and The Gambia shall each provide a report to the Court on all measures taken to give effect to this Order for provisional measures, no later than four months from its issuance.”(ICJ.2019)
The Role of the State Counselor Aung San Suu Kyi
According to the Independent International Fact-Finding Mission on Myanmar, theconstitutional powers of the civilian authorities afford little scope for controlling the actions of the Tatmadaw, nor is there any indication that they participated directly in planning or implementing security operations or were part of the command structure. Nevertheless, nothing indicates that the civilian authorities used their limited powers to influence the situation in Rakhine State where crimes were being perpetrated. The State Counselor, Daw Aung San Suu Kyi, has not used her de facto position as Head of Government, nor her moral authority, to stem or prevent the unfolding events, or seek alternative avenues to meet a responsibility to protect the civilian population. On the contrary, the civilian authorities have spread false narratives, denied the wrongdoing of the Tatmadaw, blocked independent investigations (including that of the fact-finding mission), and overseen the destruction of evidence. Through their acts and omissions, the civilian authorities have contributed to the commission of atrocity crimes.
On 23 August 2016, Aung San Suu Kyi announced the establishment of the Advisory Commission on Rakhine State, chaired by late former UN Secretary-General Kofi Annan and tasked with proposing “concrete measures for improving the welfare of all people in Rakhine State.” The Commission published its final report on 24 August 2017, in which it made detailed recommendations towards ensuring freedom of movement and equal access to essential services, the closure of displacement camps, and access to citizenship among other things. The government welcomed the report and announced the establishment of a mechanism to oversee the implementation of its recommendations. Just hours later, ARSA attacked security posts across northern Rakhine State townships.
While the civilian government of Suu Kyi has repeatedly stated its commitment to implement the Commission’s recommendations following the 25 August ARSA attacks. However, the administration also has so far shown itself to be unwilling to implement this recommendation or unable to stand up to the military when it comes to accountability for serious violations in Rakhine State, and elsewhere in the country. Government officials, including Aung San Suu Kyi herself, have largely dismissed allegations of human rights violations by security forces in Rakhine State, even in the face of clear and mounting evidence.
Government attempts to investigate human rights violations in the aftermath of the October 2016 ARSA attacks were neither independent nor impartial and in March 2017 the UN Human Rights Council (HRC ) adopted a resolution mandating the creation of an independent, international Fact-Finding Mission (FFM) to establish the truth about human rights violations and abuses in Myanmar, in particular in Rakhine State. The move was met with strong opposition by Aung San Suu Kyi and her government which disassociated itself from the resolution and refused to cooperate with the FFM or allow its investigating team access to the country.
Time to Demand the Trial of Western Darling Aung San Suu Kyi
When NLD came in power in 2015 under the leadership of western darling and so-called champion of democracy Aung San Suu Kyi and formed a hybrid civilian-military government most of the western government considered it a political development towards democratic reform.
For instance, in September 2016, US President Barack Obama described the situation in Myanmar as a “good news story in an era in which so often we see countries going in the opposite direction.” The casting of Myanmar as a “good news story” captured the international narrative around the country’s political transition. In line with this narrative, international policy conversations shifted away from a focus on human rights concerns toward bolstering development and political reforms in the country. Sanctions against Myanmar were largely removed.
But in that 2015 election Rohingya was deprived of their voting rights, even a sitting member of parliament was not allowed to participate in the election. To appease the anti-Muslim ultra Buddhist group Aung San Suu Kyi nominated a single candidate neither from the Rohingya community nor from the Muslim community as a whole from Myanmar. Rather she nominated many former Tatmadaw officials to show her commitment to the armed forces establishment as well as to form a hybrid government.
As a result of these shifts in narratives, the Myanmar military remains unreformed and responsible for severe human rights violations against civilians, including Myanmar’s Rohingya.
Now the question remained wither non-use of de facto position or moral authority and blocking the investigation, using false rhetoric to safe the perpetrator of genocide, appeasing the ultra Buddhist group that committed the crime against humanity and finally declining to acknowledge the well-documented crime of genocide, a crime against humanity and war crime committed by the Tatmadaw and other security forces which are a serious crime under international law that warranted criminal investigation and prosecution is the same thing?
Not only that Aung San Suu Kyi herself was present in ICJ hearing to misguided the court and defended these crimes. So, it is not merely the question of moral authority but also the collaboration and active patronizing of the gravest international crime that requires international investigation and prosecution. Therefore, it is high time to demand the trial Aung San Suu Kyi in the International Criminal Court (ICC) or the International Court of Justice (ICJ).
Fazlous Satter is a human rights and human security activist & researcher from Bangladesh. He authored “UNDERSTANDING THE WORLD’S LONGEST CIVIL WAR: COLONIAL STATE FORMATIONS, GEOPOLITICS, CONFLICT OVER NATURAL RESOURCES AND THE GENOCIDE"
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