The Independence Commission of Enquiry’s biases are clear to see
On May 23, Myanmar submitted its first report to the International Court of Justice (ICJ), explaining what the country has done to defend the Rohingya minority from genocide.
In January this year, the International Court issued a provisional order asking Myanmar to protect the predominantly Muslim minority in western Rakhine state as part of the "provisional measures" at the start of the trial.
It all started in 2019 when Gambia raised allegations against Myanmar for committing genocide against the Rohingya community. These allegations were, however, strongly denied by the Myanmar government.
Myanmar’s defense against all the allegations was based on the final report of the Independent Commission of Enquiry (ICOE). This domestic inquiry body was probably constituted by the Myanmar government to deny accusations of genocide, sexual violence, ethnic cleansing, and crimes against humanity.
ICOE was supposed to give reports based on an investigation conducted on the forcible displacement of Rohingya Muslims from Rakhine to Bangladesh and the atrocities committed by the Myanmar military. Myanmar has used ICOE as a method to delay and postpone efforts by the international community to ensure fairness and transparency.
ICOE in its report claimed that they found no evidence of genocide or atrocities on Rohingya Muslims which proves that the report was frivolous in support of Myanmar's official version of events and government narratives.
The ICOE report does not challenge the position of the government and tries to justify the claims of the Myanmar government. Therefore, Myanmar's reliance upon the ICOEs' report on preparing its response to ICJ is not reliable and raises a lot of questions on its credibility and internal investigation process.
This article will try to establish why the report submitted by Myanmar is not acceptable as it does not disclose the truth of the ongoing atrocities happening in Rakhine state.
To begin with, Myanmar paid no attention to the ICJ 's provisional steps as part of the provisional measures ruling ordered by the ICJ. Two presidential directives were issued by Myanmar which stated compliance with the Genocide Convention and to protect the evidence and properties in Rakhine State.
However, it was not expected from Myanmar to genuinely comply with the court orders on provisional steps, as they were excessively vague and did not include a condition that Myanmar grants impartial inspectors access to Rakhine state.
After that, the ICOE report claimed that there was no evidence of genocidal intent and denied the huge scale of atrocities committed against the Rohingya community. They also rejected the findings of the International and Independent Fact-Finding Mission (IIFFM).
Myanmar in its report to the ICJ also dismissed ICC 's International Accountability Initiative and criticized the case filed by Gambia. They prioritized domestic investigation and accountability over international investigations.
It shows that the ICOE paper is more like a common Myanmar PR document and not an impartial investigative report. The report found no evidence which contradicts the findings of UN investigations and human rights organizations.
Moreover, the summary of the report has found similarities of the arguments Aung San Suu Kyi made at the International Court of Justice which includes internal armed conflict, war crime, and disproportionate use of force.
Myanmar blamed the Arakan Rohingya Salvation Army (ARSA), a terrorist group, for forcing the military to conduct an anti-terrorist operation against their attacks in the Rakhine State. According to the ICOE report, specific war crimes and human rights abuses, including the unlawful use of force, killing, and displacement of people, might have occurred during this time.
The report stated that an "internal armed conflict" between ARSA and Myanmar's security forces resulted in counter-terrorism attacks and the purpose was not to wipe out the Rohingya. The report blamed the ARSA attacks for the widespread violence and chaos in northern Rakhine state.
They sought to justify the war crimes as a clearance operation and admitted minor crimes and rejected major crimes by accusing ordinary soldiers and local commanders for violations. ICOE tried to justify that they had to counter-attack to fight off ARSA fighters and armed civilians for a national emergency but it didn't justify rape, arson and murder committed by the Myanmar military.
Moreover, the report made claims that ARSA received training from the Taliban which involved Afghani, Bangladeshi, and Pakistani terrorists to attack in the parts of northern Rakhine in 2016 and 2017. The Commission also found that "mass killings" of civilians by security forces occurred in the villages of Tula Toli, Chut Pyin, Maung Nu, and Gu Dar Pyin, but suggests that most of the killings occurred during armed clashes between the Myanmar Army and ARSA, contradicting the findings of the UN and human rights agencies.
Such remarks prove that ICOE tried to blatantly endorse Myanmar’s military propaganda, further highlighting their biasedness towards the government.
Moreover, the ICOE also alleged that ARSA set fire to houses to cause a major outflow from northern Rakhine State and that Muslims were encouraged to burn their homes and flee to Bangladesh to seek foreign aid and settlement.
In addition to this, ICOE finds no satisfactory answer or explanation as to why hundreds of thousands of Rohingya fled to Bangladesh in 2017 but argued that the mass outflow of Muslims from northern Rakhine State to Bangladesh occurred several times in the past and has almost become a natural protection instinct for them.
Also, according to the ICOE report, 14,000 ARSA fighters were up against the Myanmar security forces, implying a civil war or internal armed conflict. However, there was no noticeable casualty of Myanmar security forces which indicates that there was no such civil war going on in Myanmar at that time.
The Commission deployed two evidence collection and verification teams in Yangon and Naypyidaw but did not interview refugees in Bangladesh, where Rohingya could talk with less fear of retaliation. The composition, mandate, and previous comments of the members of the Commission have long raised serious concerns regarding the impartiality and independence of the Commission.
Furthermore, the ICOE report stated that the Rohingya came from the Bengal region during the British colonial period but they didn't mention the earlier history of the Rohingya who lived in Myanmar before it was colonized by the British. This is a clear distortion of historical facts which prove how unreliable the report is.
The ICOE review also indicates a selective approach to witness credibility. ICOE's report argued against internationalizing accountability and suggested that accountability be pursued through Myanmar's civilian and military justice system.
In addition to this, the report completely denied the allegations of sexual violence by the Myanmar security forces, claiming that the interviews conducted were second-hand information.
This again proves how biased and unreasonable the report is as second-hand information that supports the government's stance on various issues tends to be credited by ICOE but not second-hand information on cases of mass rape.
The above-mentioned reasons prove that there is no assurance that the sources relied on by ICOE were credible. There are wide gaps between ICOE findings as compared to the IIFFM due to the lack of access for international organizations in Rakhine State.
Also, the report did not mention that it was the government of Myanmar that restricted access for the organizations. Moreover, ICJ also rejected Gambia's request to admit a UN team of investigators in fact-finding which left the situation in a bit of flux and also made it difficult to verify Myanmar's assertions.
Moreover, ICOE is not aimed at pointing finger at anyone as Ms Manalo explained at the first press conference. There remains clear conflict of interest of some members.
One of its members has a controversial past. ICOE has a faulty inquiry process. It has denied all documented evidence which is widely accepted by the international community.
Overall, it can be said that the Commission's report represents a non-transparent investigation by a politically-skewed panel operating closely with the government of Myanmar.
Contrary to the findings of the UN, the study refuses to recognize the extent of the crimes committed against the Rohingya, surprisingly denies the extensive use of sexual abuse by the military, and fails to keep senior military officials accountable.
The report is not a credible basis for justice and accountability for mass crimes. The investigation of large-scale systemic human rights violations involves specific skills, significant human and material resources, a well-crafted work plan, and impartiality in the conduct of business.
Conducting an inquiry in an unprofessional way without due consideration, offers a skewed view of the incident that occurred in this case. That kind of attitude hinders victims' justice and allows criminals to commit even greater crimes in the future.
Tasmiah Nuhiya Ahmed is Advocate, Bangladesh Supreme Court.