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Suu Kyi must act on UN’s genocide charge

  • Published at 06:00 pm August 29th, 2018
Suu Kyi
All eyes are on Suu Kyi REUTERS

The UN’s report on Rakhine is a damning indictment of Myanmar’s crimes against humanity

The UN’s independent human rights investigators have issued the toughest verdict yet on Myanmar’s war-torn Rakhine state. The report does not mince words and is scathing in its conclusions, and is going to have major ramifications. 

It is the most comprehensive and damning report yet compiled on the situation, which has left Myanmar’s leaders shell-shocked, according to an Asian diplomat who closely follows Myanmar affairs.

But the UN Security Council has yet to adopt the report, though it will discuss it at length in the coming days. While the evidence is yet to be published, the summary report that has been released is compelling. Nevertheless, the report calls on the UNSC to refer the Myanmar situation to the International Criminal Court (ICC) or for an ad hoc international criminal tribunal to be created.

“Impunity is deeply entrenched in Myanmar’s political and legal system, effectively placing the Tatmadaw [the name for Myanmar’s army] above the law,” the report states. Justice has therefore remained elusive for the victims throughout the country for decades.

The violence in Rakhine caused more than 700,000 Rohingya Muslims to flee to safety in neighbouring Bangladesh.

In their report the three international legal and human rights experts believe there is sufficient evidence against Myanmar’s top military leaders to warrant an investigation into genocide in Rakhine and crimes against humanity in other conflict areas in Myanmar.

The report, based on hundreds of extensive interviews over the last 18 months calls for the strongest international condemnation possible. It suggests the UN can no longer dodge the issue, and must refer it to the top international courts for further action.

The report names six senior military officers -- including the commander-in-chief, Senior General Min Aung Hlaing, and his deputy General Soe Win -- who it says should be referred to the ICC on charges of genocide and crimes against humanity. It is a shocking indictment of the Myanmar army’s actions in Rakhine over recent years -- and certainly lays the foundation for legal proceedings.

The report documents crimes in Kachin, Shan, and Rakhine that include murder, imprisonment, torture, rape, sexual slavery, persecution, and enslavement, which it says “undoubtedly amount to the gravest crimes under international law.” The report also found elements of extermination and deportation “similar in nature, gravity, and scope to those that have allowed genocide intent to be established in other contexts.”

The military and the government have consistently defended the army’s actions, claiming the operations targeted militant and insurgent threats. But the report believes the army’s methods were “consistently and grossly disproportionate to actual security threats.” Though the report does mention the atrocities committed by ARSA, it leaves no doubt that the main culprit is Myanmar’s Tatmadaw.

The report is also extremely critical of Aung San Suu Kyi for failing to intervene with the violence -- though it acknowledges that she and her government have little control over the military’s operations. But it suggests her silence has made her unwittingly complicit in the violence and “through their acts and omissions, the civilian authorities have contributed to the commission of atrocity crimes.”

But while the UN fact-finding mission may have completed its job, this is far from the end of the episode. Coming as it does on the eve of the UN Security Council discussion on Myanmar and a couple of weeks before the annual UN General Assembly, this report will force the international community to face the Myanmar crisis head on.

The mission is adamant that only an ICC inquiry and prosecution can provide justice for the victims of the atrocities. There are several options that the international community can consider. One is referring the case of genocide and crimes against humanity against Myanmar directly to the ICC. This would need a UN Security Council resolution, which both China and Russia are expected to veto.

Myanmar has already vigorously rejected international intervention, and denied that the ICC has any jurisdiction in the matter. Aung San Suu Kyi’s office issued a statement several weeks ago repeating the government’s continued stance that the international court has “no jurisdiction over Myanmar whatsoever” because the country is not a party to the Rome Statute which established the international tribunal.

Myanmar is staunchly committed to opposing any international legal intervention into Rakhine. It continues to support the Tatmadaw in this regard, according to government insiders. Over the past year, Ms Suu Kyi has privately insisted that she would not allow Min Aung Hlaing to face the ICC. In her mind, it is an internal national issue.

The government insists if there is credible evidence of “wrongdoing” brought to their attention, they will not hesitate to act on it.

In part it was a national alternative to the UNHRC’s independent fact-finding mission, with which Myanmar refused to cooperate. And it aimed at staving off all international efforts to have the Rakhine situation referred to the ICC.

But the latest UN report has put the cat among the pigeons. The UN does not use the word “genocide” lightly. But in the fact-finding mission’s views, the crimes against the Rohingya Muslims could meet the strict legal definition, used to highlight and condemn state-supported abuses in places like Bosnia, Rwanda, and Sudan’s Darfur region.

The most viable recommendation of the UN fact-finding mission is for UN member states to urgently establish an international, independent, impartial mechanism -- similar to one which investigated the situation in Syria, or the special tribunal by the UN Security Council, to prosecute the crimes committed in the former Yugoslavia -- to preserve evidence and assist in investigations for future prosecution of those responsible for atrocity and crimes in Myanmar.

This may not need a UN Security Council resolution, but may be passed by the UN General Assembly -- without the veto being involved.

Now the Myanmar government can no longer defer taking action against the army. The ball is firmly in Ms Suu Kyi’s court, but she needs to act quickly and decisively if she is going to deflect efforts at concerted international intervention, and protect the army commanders from being tried as war criminals.

This may also be the opportunity she needs to confront the military head on and secure a measure of democratic constitutional change. If she can negotiate her primary objective, since she was released from house arrest in 1995, to get the soldiers back into the barracks, she may yet find a credible and acceptable compromise that may at least appease the international community and satisfy the Myanmar public.

Larry Jagan is a Myanmar specialist and former BBC World Service News Editor for the region. This article was first published in the Bangkok Post.