Myanmar: creation of UN mechanism a step toward accountability

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Today’s decision by the UN Human Rights Council to create an ‘independent mechanism’ to collect evidence of crimes in Myanmar, is a significant step toward accountability for gross human rights violations, the ICJ said.

“The creation of this evidence-gathering mechanism is a welcome concrete step towards justice,” said Matt Pollard, Senior Legal Adviser for the ICJ.

“But this is a stopgap measure, effectively creating a prosecutor without a court, that only underscores the urgent need for the Security Council to refer the entire situation to the International Criminal Court, which was created for precisely such circumstances,” he added.

The Council’s decision follows on conclusions and recommendations by the Independent International Fact-Finding Mission on Myanmar (FFM).

The FFM’s 444-page full report described large-scale patterns of grave human rights violations against minority groups in the country, particularly in Rakhine, Kachin and Shan States.

It also highlighted the need for criminal investigations and prosecutions for crimes under international law, something the FFM concluded that national courts and commissions within Myanmar could not deliver.

“National justice institutions within Myanmar lack the independence, capacity and often also the will to hold perpetrators of human rights violations to account, particularly when members of security forces are involved. The latest government-established inquiry in Rakhine State also seems designed to deter and delay justice,” Pollard said.

The Human Rights Council resolution did not create a new international court or tribunal.

Evidence held by the independent mechanism could be made available to international or national proceedings, whether at the International Criminal Court (ICC) or another ad hoc international tribunal, or to national prosecutors asserting jurisdiction over the crimes under universal jurisdiction or other grounds.

While there is no realistic prospect of effective national prosecutions within Myanmar in the near future, evidence held by the mechanism could also be available in future should national institutions eventually become sufficiently impartial, independent, competent, and capable to do so.

A preliminary examination of the situation of Rohingyas, being conducted by the ICC, may also lead to criminal proceedings but will likely be limited to those crimes that have partially occurred within Bangladesh, such as the crime against humanity of deportation.

Bangladesh is a State Party to the Rome Statute of the ICC whilst Myanmar is not.

The Security Council also has authority to refer the entire situation to the International Criminal Court.

“The Myanmar government should stop denying the truth and should work with the international community, and particularly the United Nations, to improve the horrific conditions facing the Rohingya and other ethnic minorities whose rights have been violated so brutally by the security forces, as documented by the Fact Finding Mission,” Pollard said.

“Myanmar’s international partners, including neighbours like India, China, and members of the Association of Southeast Asian Nations (ASEAN), should exercise their influence to help ensure that Myanmar addresses this serious threat to the stability of the country and the region, by ensuring respect, protection and fulfillment of the full range of civil, cultural, economic, political and social rights of the affected minorities,” he added.

The Council resolution makes several other substantive recommendations, including a call on the Government of Myanmar to review the 1982 Citizenship Law, and a recommendation for the United Nations to conduct an inquiry into its involvement in Myanmar since 2011.

Contact:

Matt Pollard, ICJ Senior Legal Adviser (Geneva), e: matt.pollard@icj.org, +41 79 246 54 75.

Frederick Rawski, ICJ Asia Pacific Regional Director (Bangkok), e: frederick.rawski@icj.org

Read also:

Why an IIIM and Security Council referral are needed despite the ICC ruling relating to Bangladesh (13 September 2018)

Government’s Commission of Inquiry cannot deliver justice or accountability (7 September 2018)

ICJ releases Q & A on crime of genocide (27 August 2018)

Myanmar: reverse laws and practices that perpetuate military impunity (16 January 2018)

Summary report of the Fact Finding Mission (12 September 2018)

Full report of the Fact Finding Mission (published 18 September 2018)

Text of the Resolution (unofficial version tabled in advance of the vote)

ICJ

AAPP’s statement on the arrest of Nang Mo Hom by Ta’ang National Liberation Army (TNLA)

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27th September 2018

It has been over one month since Nang Mo Hom, a Shan woman living in Ho Naung Ward, Namhkam City in Muse District, Shan State, was arrested at gunpoint from her home by the Ta’ang National Liberation Army (TNLA) on August 17, 2018. Read more

Tatmadaw snubs UK’s Hunt, who stresses accountability

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Top Tatmadaw (military) officers refused to meet with British Foreign Secretary Jeremy Hunt, who underscored the need for Myanmar to hold accountable those officers suspected of committing human rights abuses against Muslims in northern Rakhine State.

Hunt arrived in Myanmar on Thursday for a two-day official visit, during which he met with State Counsellor Daw Aung San Suu Kyi and visited northern Rakhine.

Hunt underscored the need for accountability and justice for any atrocities that have been perpetrated in the restive state. He said that if there is no accountability and justice in Myanmar, then the international community needs to look at all options, including referring the case to the International Criminal Court.

‘’The latter would need the support of the (UN) Security Council, which it may not get, so we need to look at other options too,” Hunt said.

He confirmed that he will discuss what the international community should do with the Rakhine issue at the UN general assembly.

‘’Britain can’t act alone. We need to act in concert with other countries – we are a believer in the international rules-based order. It’s incredibly important for all of us that the perpetrators face justice,’’ Hunt said.

On Monday, the UN general assembly’s high-level meeting and general debate begins, and the Rakhine issue is likely to be among the top agenda items.

Earlier this month, a UN fact-finding mission on Myanmar released a report that called for Myanmar military leaders to be investigated for crimes against humanity. Most of UN’s member countries have backed its proposals, and Hunt has said Britain will use all the tools at its disposal to try to make sure there is accountability.

‘’What is essential now is that the perpetrators of any atrocities are brought to justice, because without that, there can be no solution to the huge refugee problem,’’ Hunt said.

President’s Office spokesperson Zaw Htay talks about the northern Rakhine crisis during a press briefing on Friday. Photo - EPA

President’s Office spokesperson Zaw Htay talks about the northern Rakhine crisis during a press briefing on Friday. Photo – EPA

U Aung Myo Min, executive director of social advocacy group Equality Myanmar, said Myanmar can have wider access to the international community through the ICC.

“The government should consider whether to continue placing itself into a tighter situation,” he said.

He added that the government should start cooperating with the international missions in dealing with the Rakhine crisis.

U Thein Than Oo, a lawyer, said the government took the wrong approach of making blanket denials when faced with the possibility of an ICC referral by the international community.

“Under the procedures of the UN, it’s not easy for the case to reach the ICC. However, the situation is in flux, so the government needs to be careful,” he said.

However, U Nandar Hla Myint, spokesperson of the military-backed Union Solidarity and Development Party, described Hunt’s actions as interference in the country’s internal affairs. ‘’We reject what [Hunt] said when he met with the State Counsellor. This is interference,” he said.

He added that the Rakhine crisis is an internal matter that must be solved through cooperation between the government, military and political parties under the country’s laws.

At a press conference on Friday, President Office’s spokesperson U Zaw Htay said the fact-finding mission’s report on northern Rakhine was issued unilaterally, was aimed at the dissolution of Myanmar, and did not follow accepted international procedures.

“Tremendous pressure is being put on the government, which might hinder our democratic transition,” said U Zaw Htay.

On August 25 last year, the Arakan Rohingya Salvation Army launched deadly attacks on government security outposts in northern Rakhine, prompting a brutal military crackdown that was considered by the international community as “overkill.” It accused government forces of perpetrating massive human rights abuses against the Muslim minority in the state.

The United Nations and other international humanitarian agencies estimated that the crackdown forced over 700,000 Muslims from northern Rakhine to flee to neighbouring Bangladesh.

Myanmar Times

UN: ‘Wanted for mass murder’ posters target Myanmar’s top general

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“Wanted” pictures of Min Aung Hlaing, the Commander-in-Chief of the Myanmar military who oversaw atrocities against the country’s Rohingya population, were posted around New York overnight, as part of Amnesty International’s campaign for accountability in Myanmar.

World leaders, including representatives from Myanmar’s government, are meeting in New York this week for the 73rd session of the UN General Assembly (UNGA).

Senior General Min Aung Hlaing is responsible for overseeing crimes against humanity in Myanmar.
Kumi Naidoo, Amnesty International’s Secretary General

Accountability for the atrocities committed against the Rohingya and Myanmar’s other ethnic minorities is expected to be high on the agenda. The UN Human Rights Council is currently discussing the establishment of an evidence preservation mechanism which could see Min Aung Hlaing and other suspected perpetrators come closer to prosecution.

Amnesty International’s posters have been plastered on sidewalks in 30 locations around the city, including iconic landmarks.

“Senior General Min Aung Hlaing is responsible for overseeing crimes against humanity in Myanmar. He was top of the chain of command during the Myanmar army’s vicious campaign of murder, rape, torture and village burning which forced hundreds of thousands from their homes,” said Kumi Naidoo, Amnesty International’s Secretary General.

“His army has also committed war crimes against ethnic minority civilians in northern Myanmar, where conflicts continue to rage. We want world leaders to have his face in their minds this week when they discuss next steps for accountability.

“For too long Min Aung Hlaing has managed to stay out of the spotlight and escape international attention, despite overseeing the horrendous crimes against the Rohingya. It’s time to expose those responsible for these atrocities, and make sure they are held to account.”

The posters put up around New York overnight read: “Wanted for mass murder – Don’t let him get away with it”, and also include harrowing quotes from Rohingya survivors.

“I heard the baby cry, then they shot, then nothing,” one Rohingya woman, 45, said. She was referring to her seven-month-old granddaughter who was murdered by soldiers in August 2017.

More than 80% of northern Rakhine State’s Rohingya population have fled to neighbouring Bangladesh to seek safety since military operations began on 25 August 2017.

Command responsibility

Amnesty International’s research shows that many of the crimes committed against Rohingya women, men and children were planned and orchestrated at the highest levels in the Myanmar military. At the very least, the Myanmar military’s command structure means it is inconceivable that Min Aung Hlaing and other senior military officials would not have been aware of what was happening on the ground in northern Rakhine State, yet they failed to take action to prevent or stop the crimes, or to punish those responsible.

In fact, top military commanders, including Min Aung Hlaing, travelled to the region before or during the ethnic cleansing campaign to oversee parts of the operation and documented their visits in Facebook posts.

World leaders must commit Min Aung Hlaing’s face to memory,
Kumi Naidoo

Amnesty International also identified specific military units operating under the direct command of the Senior General’s War Office which were on the ground in northern Rakhine State from August 2017 and responsible for many of the appalling abuses against the Rohingya. Amnesty International has also implicated these same units in war crimes and other human rights violations against ethnic minority civilians in Kachin and Shan States in northern Myanmar.

Amnesty International is calling for the UN Security Council to refer the situation in Myanmar to the International Criminal Court without delay.

“World leaders must commit Min Aung Hlaing’s face to memory,” said Kumi Naidoo.

“He and his fellow commanders were in command of forces that committed shocking crimes under international law – it’s time they faced justice.”

Amnesty International

US Accuses Myanmar Military of ‘Planned and Coordinated’ Rohingya Atrocities

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WASHINGTON — A US government investigation has found that Myanmar’s military waged a “well-planned and coordinated” campaign of mass killings, gang rapes and other atrocities against the Southeast Asian nation’s Rohingya Muslim minority.

The US State Department report, which was released on Monday, could be used to justify further US sanctions or other punitive measures against Myanmar authorities, US officials told Reuters.

But it stopped short of describing the crackdown as genocide or crimes against humanity, an issue that other US officials said was the subject of fierce internal debate that delayed the report’s rollout for nearly a month.

The report, which was first reported by Reuters, resulted from more than a thousand interviews of Rohingya men and women in refugee camps in neighboring Bangladesh, where almost 700,000 Rohingya have fled after a military campaign last year in Myanmar’s Rakhine State.

“The survey reveals that the recent violence in northern Rakhine State was extreme, large-scale, widespread, and seemingly geared toward both terrorizing the population and driving out the Rohingya residents,” according to the 20-page report. “The scope and scale of the military’s operations indicate they were well-planned and coordinated.”

Survivors described in harrowing detail what they had witnessed, including soldiers killing infants and small children, the shooting of unarmed men, and victims buried alive or thrown into pits of mass graves. They told of widespread sexual assault by Myanmar’s military of Rohingya women, often carried out in public.

One witness described four Rohingya girls who were abducted, tied up with ropes and raped for three days. They were left “half dead,” he said, according to the report.

Human rights groups and Rohingya activists have put the death toll in the thousands from the crackdown, which followed attacks by Rohingya insurgents on security forces in Rakhine State in August 2017.

UN Report Found “Genocidal Intent”

The results of the US investigation were released in low-key fashion – posted on the State Department’s website – nearly a month after UN investigators issued their own report accusing Myanmar’s military of acting with “genocidal intent” and calling for the country’s commander-in-chief and five generals to be prosecuted under international law.

The military in Myanmar, previously known as Burma, where Buddhism is the main religion, has denied accusations of ethnic cleansing and says its actions were part of a fight against terrorism.

US Senior State Department officials said the objective of the investigation was not to determine genocide but to “document the facts” on the atrocities to guide US policy aimed at holding the perpetrators accountable. The report, however, proposes no new steps.

One of the officials, speaking on condition of anonymity, said it would be up to US Secretary of State Mike Pompeo whether to make such a “legal” designation in the future and did not rule out the possibility.

A declaration of genocide by the US government, which has only gone as far as labeling the crackdown “ethnic cleansing,” could have legal implications of committing Washington to stronger punitive measures against Myanmar. This has made some in the Trump administration wary of issuing such an assessment.

The International Criminal Court last week said it had begun an examination of whether the alleged forced deportations of Rohingya could constitute war crimes or crimes against humanity.

Asked whether the new US findings could be used to bolster such international prosecution, the State Department official said no decision had been made on seeking “judicial accountability” over the Rohingya crisis.

The Trump administration, which has been criticized by human rights groups and some US lawmakers for a cautious response to Myanmar, could now face added pressure to take a tougher stand.

Sarah Margon, director of the Washington office of Human Right Watch, said: “What’s missing now is a clear indication of whether the US government intends to pursue meaningful accountability and help ensure justice for so many victims.”

The United States on Monday announced it was almost doubling its aid for displaced Rohingya Muslims in Bangladesh and Myanmar, with an extra $185 million.

“The stories from some refugees show a pattern of planning and pre-meditation,” the report said, citing the military’s confiscation in advance of knives and other tools that could be used as weapons.

About 80 percent of refugees surveyed said they witnessed a killing, most often by military or police, according to the report.

“Reports of mutilation included the cutting and spreading of entrails, severed limbs or hands/feet, pulling out nails or burning beards and genitals to force a confession, or being burned alive,” the report said.

Later on Monday, the Public International Law and Policy Group, a Washington-based human rights law firm contracted by the State Department to conduct the refugee interviews, issued a companion report saying it provided 15,000 pages of documentation of “atrocity crimes.”

The State Department’s investigation was modeled on a US forensic examination of mass atrocities in Sudan’s Darfur region in 2004, which led to a US declaration of genocide that culminated in sanctions against the Sudanese government.

Any stiffer measures against Myanmar authorities could be tempered, though, by US concerns about complicating relations between civilian leader Daw Aung San Suu Kyi, a Nobel Peace Prize laureate, and the powerful military which might push Myanmar closer to China.

The US government on Aug. 17 imposed sanctions on four military and police commanders and two army units but Myanmar’s military chief, Min Aung Hlaing, was spared. Further targeted sanctions have been under consideration, officials said earlier.

The Rohingya, who regard themselves as native to Rakhine State, are widely considered as interlopers by Myanmar’s Buddhist majority and are denied citizenship.

Irrawaddy News

UK’s Hunt Says Pressed Suu Kyi on ‘Justice and Accountability’ for Rohingya

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NAYPYITAW — Myanmar must ensure there is “no hiding place” for those responsible for crimes against its Rohingya minority if it is to avoid a lasting stain on the country’s reputation, Britain’s foreign secretary, Jeremy Hunt, said on Thursday.

Hunt told Reuters he pressed Myanmar’s civilian leader, Daw Aung San Suu Kyi, on the importance of holding the armed forces accountable for any atrocities, adding that if that did not happen within the country other options should be considered, including referral to the International Criminal Court (ICC).

“If there isn’t accountability through domestic processes the international community will not let it rest at that,” Hunt said in an interview at the end of a two-day visit to the former British colony previously known as Burma.

“We need to be absolutely clear that there can be no hiding place for anyone responsible for these kinds of atrocities.”

Myanmar’s main government spokesman, U Zaw Htay, was unavailable for comment.

United Nations-mandated investigators have said Myanmar’s military carried out mass killings and gang rapes of Rohingya with “genocidal intent” in an operation in Rakhine State, in the west of the country, that drove more than 700,000 refugees across the border to Bangladesh.

The investigators called for commander-in-chief Senior General Min Aung Hlaing and five generals to be prosecuted for genocide and crimes against humanity.

Myanmar has rejected the UN findings as “one-sided.” It says the military action, which followed militant attacks on security forces in August last year, was a legitimate counterinsurgency operation.

Myanmar has launched several domestic probes that have largely dismissed allegations made by Rohingya refugees. In July, Daw Aung San Suu Kyi appointed a commission chaired by retired Filipino diplomat Rosario Manalo to investigate the allegations of human rights violations.

Reuters case raised

Hunt said he had witnessed a “climate of fear” during a visit to Rakhine, where he was taken to empty centers built by Myanmar to house Rohingya the government says it is ready to welcome back. Refugees needed to see “accountability and justice” for atrocities to feel confident enough to return, he said. “If there isn’t accountability and justice, this will be as big a stain on Burma’s history as the Khmer Rouge are for Cambodia.”

Asked whether he would support referring Myanmar to the ICC, Hunt said there were “a number of different options.”

In separate comments on Twitter, Hunt noted an ICC referral would need the support of the UN Security Council “which it may not get so we need to look at other options too.”

A Security Council referral would need nine votes in favor and no vetoes from the permanent members Russia, China, the United States, Britain and France. Diplomats say Russia and China are unlikely to agree to such a move.

The ICC declined to comment. On Tuesday, the ICC prosecutor said her office had begun a preliminary examination into whether alleged forced deportations of Rohingya from Myanmar into Bangladesh could constitute war crimes or crimes against humanity.

During his trip, Hunt visited a group supporting political prisoners in Yangon and met Daw Aung San Suu Kyi in the capital, Naypyitaw. The military declined Hunt’s request for a meeting, he said.

Hunt said he was “extremely concerned” about the case of two Reuters journalists who were arrested last December while investigating a massacre in Rakhine.

Reporters Ko Wa Lone and Ko Kyaw Soe Oo were sentenced to seven years in prison after being convicted this month under the colonial-era Official Secrets Act.

Hunt said he raised specific concerns with Daw Aung San Suu Kyi about the conviction and asked her to consider giving them a pardon.

“She indicated that the judicial processes would probably need to be concluded before that could be considered, but I did put that squarely on the table as something I hoped she would consider,” he said.

“This is a critical moment for Burma as one of the newest democracies in the world to show that its court system is effective and there is due process, and I think there are a number of grounds for concern that that didn’t happen in this case.”

Irrawaddy News