Geneva International Centre for Justice
August 2017

The humanitarian deterioration in Myanmar, particularly the widespread and systematic human rights violations against Rohingya Muslim minority in Rakhine state, remain within the discussion halls of the international community and the Myanmar government. Myanmar is repeatedly condemned for grave breaches of international human rights law and international humanitarian law. However, these violations are not adequately investigated, perpetrators enjoy impunity, and victims are denied the right to effective remedy and reparation. The excuses given by the government such as, ‘Myanmar is a young democracy’ and the ‘complexity of the situation’ is unacceptable. It is clear, Myanmar government is unable or unwilling to protect Rohingya ethnic minority and civilians in the areas of armed conflict in accordance with international law. It is time for the international community to take bold actions based on Chapter VII of the UN Charter to stop genocide and to ensure protection of civilians in the world's longest civil war running for almost 60 years since 1948.

MASS ATROCITIES AGAINST ROHIGNYA

The Myanmar government fails to ensure the halt of violence and serious abuses against ethnic minorities, particularly the Rohingya religious minority. The incitement to discrimination and violence based on national, racial and religious hatred is widespread and systematic. Within the general context of anti-Muslim rhetoric, the government and security forces have implemented persecution policies for decades. The ethnic minorities are targeted within the so-called “Burmanization” policy and the most shocking is the case of the Rohingya. Rohingya community of approximately 1,3 million members have mostly lived in Rakhine State for centuries with historical roots in Myanmar dating back to ancient times. Nevertheless, the government refuses to give them the nationality and instead it uses the term “Bengali” to refer to Rohingya as foreigners. Since 1982, the Citizenship Law severely violates the rights and freedoms of the Rohingya minority: restricts their right to freedom of movement, limits access to lifesaving health care and denies them rights to education and equal employment opportunities. Moreover, the revocation of all “white cards” (Temporary Registration Cards) in February 2016 upon the President’s decree was an effective impediment to the participation of Rohingya community members in the November elections simply due to lack of any form of identity document.

The year of 2016 in Myanmar was marked with a frightening rise in religious intolerance, especially anti-Muslim sentiments. Incidents of hate speech, incitement to hatred and violence and religious intolerance is very alarming. The growing influence of nationalist Buddhist groups and the adoption of discriminatory laws by the Parliament between May and August further aggravated the situation of minority groups. The new laws with the objective of “protecting race and religion” - Religious Conversion Law, the Buddhist Women’s Special Marriage Law, the Population Control Healthcare Law and the Monogamy Law - were enacted despite provisions violating human rights, including discrimination based on religious and gender grounds.

Security forces fired mortars and machine guns at fleeing Rohingya villagers (en-prothom-alo.com)

The situation in Rakhine State is outrageous. The waves of violence between Rakhine Buddhists and Muslims, especially Rohingya brought to the curfew imposed in 2012 that remains in place these days and further widens space for abuse by the authorities, security forces and Rakhine civilians. Over 100,000 ethnic minority Rohingya have taken a perilous journey to leave the country by sea; the Rohingya are fleeing horrific Apartheid-like conditions where 140,000 are confined in what many describe as "concentration camps"¹. UNHCR estimates some 350,000 Rohingya have fled Myanmar in search of protection in Bangladesh, including an estimated 74,000 who arrived in late 2016 as a result of a security crackdown in northern Rakhine state².

Whilst the national state and local government authorities carry out discriminatory policies, the security forces implement so called “clearance operations”. The Myanmar armed forces (Tatmadaw) and the Border Guard Police Force of Myanmar deliberately kill the Rohingya civilians by grenades, random and targeted shootings, stabbings, slitting throats, beating them up to death and burning them in houses. The most disturbing reports note the killings of babies and small children, in many cases in front of the eyes of their raped mothers. Rohingya children, pregnant women, persons with disabilities and others are subjected to torture and ill-treatment in public, in their houses and make-shift detention locations. This includes brutal physical assaults, death threats, forcing one to sit in the so-called ‘stress position’ for hours up to 3 days, psychological torture by forcing victims, even children, to watch suffering of their relatives. It is reported that hundreds of Rohingya boys and men are randomly “rounded up” by the Myanmar security forces, fertile women and girls separated from them and taken away; and their whereabouts are unknown. Women and girls, pregnant included, are raped and sexually abused either at home in front of their family members or in the places of displacement. In many cases gang rapes occur as punishment or with the aim to extract information about insurgents or simply as domestic service. Moreover, the Rakhine villagers dressed either in military uniform or in civilian clothing joined the abuses against the Rohingya community members by looting houses, beating, raping and other sexual abuses. There are recounts of cases when fire brigades poured petrol to fire that spread on burning houses of Rohingya.

The widespread, systemic and organised abuse of Rohingya minority in Myanmar with an obvious intent to destroy this group amounts to the international crime of genocide. The persecution of this ethnic group since 1982 in combination with the widespread criminal acts committed against them since 2012 fulfil the elements of genocide as defined by the Rome Statute of the International Criminal Court and the Genocide Convention. Namely, killing members of the group, causing serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part and imposing measures intended to prevent births within the group.

REPORT OF ADVISORY COMMISSION ON RAKHINE STATE (ANNAN REPORT)

In response to the situation in Rakhine State, the government formed Central Committee on Implementation of Peace, Stability and Development of Rakhine State in May 2016 chaired by the State Counsellor Aung San Suu Kyi (leader of the National League for Democracy, Nobel Peace Prize winner) to work on the issues of security and citizenship proved to be useless. In September 2016, the Advisory Commission on Rakhine State was established to be chaired by the former UN Secretary General Kofi Annan with the aim “to propose concrete measures for improving the welfare of all people in Rakhine State” and to present recommendations to the State Counsellor. On 24 August, the Chair, Annan, presented a report concluding a 1-year mandate of the Commission composed of nine members, including three international and six local experts. The 63-page report named “Towards a Peaceful, Fair and Prosperous Future for the People of Rakhine” (Annan Report) focuses on economic development, humanitarian access, freedom of movement, citizenship law and makes 88 recommendations to the Myanmar government.

With due respect to Mr. Annan and the work of the commission, Geneva International Centre for Justice (GICJ) affirms that their findings failed to fully reflect the gravity of the situation in Rakhine state. GICJ doubts the fairness of the Commission and hence questions their conclusions drawn on the mass atrocities taking place against the Rohingya. We welcome the highlights of the Commission’s report and its calls “to ensure equitable treatment of all citizens”, freedom of movement for all people in Rakhine and to review the controversial 1982 Citizenship Law. Indeed, these are relevant and important measures to be undertaken. Additionally, the commission’s recommendations for an “independent and impartial investigation” into the facts on the ground and to hold perpetrators accountable is praiseworthy. However, the vague reference of the report to minority Muslim groups without specifying Rohingya is surprising to say the least. Moreover, we have witnessed sham investigations conducted by the Myanmar government and the Commission on Maungtaw that in January 2017 denied the persecution of Rohingya and justified the actions of security forces. It is clear to us that the Myanmar government is unwilling to undertake impartial investigations into grave violations of international law, which can amount to genocide of Rohignya and to ensure accountability.

RESPONSE OF INTERNATIONAL COMMUNITY THROUGH UNITED NATIONS

The actions of the international community through the United Nations decision-making mechanisms gives an impression of close to total neglect of the armed conflict in Myanmar that has continued for almost 60 years now. Since 1948, the United Nations Security Council (SC) has adopted only one resolution recommending Myanmar (Burma) for the UN membership. In 2007 and 2008, SC issued two presidential statements “strongly deploring the use of violence against demonstrations and emphasising the importance of early release of prisoners” and “noting the commitment of the Myanmar government that the referendum would be free and fair and underlining the need for the government of Myanmar to establish the conditions and create an atmosphere conducive to an inclusive and credible process”³.  In  addition, the SC has issued several press releases in 2007-2008 on the release of all political prisoners and expressing serious concern at the conviction and sentencing of Aung San Suu Kyi. In 2007, the draft resolution presented by the UK, USA and the Northern Ireland “expressing deep concern at the slow pace of tangible progress in the process towards national reconciliation in Myanmar and at the continuing detention of political prisoners, including the prolonged house arrest of Daw Aung San Suu Kyi, and emphasizing that an inclusive National Convention offers an opportunity for effective dialogue” was vetoed by China and Russia⁴.

The UN Secretary-General on Children and Armed Conflict in Myanmar submitted several reports on children and conflict in Myanmar (in 2007, 2009, 2013). In 2006 and 2010, the UN General Assembly reviewed reports of the Special Rapporteur on the situation of human rights in Myanmar. Similarly, the UN Human Rights reviewed several reports of the Special Rapporteur and continued to extended her mandate that was established in 1992. The Special Rapporteur on Myanmar has conducted field missions and has submitted numerous reports to the Human Rights Council (HRC). Several HRC special mandates requested the government of Myanmar for visits. The UN Secretary-General and the High Commissioner for Human Rights issued various reports and warned about patterns of crimes against humanity.

CHAPTER VII OF THE UNITED NATIONS CHARTER

Civil society is doubtful that the Myanmar government will ensure that the atrocities taking place against Rohingya minority will end with justice. It failed to ensure an independent investigation and trial of the alleged perpetrators of large-scale crimes. The National Commission was established by the Myanmar government following the international pressure on State Counsellor Aung San Suu Kyi to investigate the army’s military response to border clashes in 2016. However, the Commission’s interim report released in January 2017 denied the persecution and genocide of Rohignya in Myanmar⁵.  Moreover, the Commission justified the response of security forces as legal and adequate⁶.

RECOMMENDATIONS

Geneva International Centre for Justice, along with a group of NGOs, has submitted several written statements to the Human Rights Council calling to take actions on widespread and systematic violations against the Rohingya Muslim community that amount to genocide and to ensure protection of civilians as well as corporate accountability of transnational corporations that have and currently operate in Myanmar for grave human rights violations in zones of armed hostilities. GICJ hereby calls for UN action based on Chapter VII of the Charter to restore peace and security in Myanmar and to protect Rohingya from genocide.

As well, the UN Special Rapporteur on the human rights situation in Myanmar in her October report to the UN General Assembly should analyse the genocidal intent and alarm the General Assembly members. The Myanmar government should grant full access to the UN fact-finding mission and international humanitarian aid workers, observers and journalists to conflict areas, especially Rakhine State. The Government should repeal discriminatory legislative and policy measures targeting religious and ethnic minorities, lift restrictions on movement that impede access to health and education services, intensify its efforts to address discrimination, to counter incitement to hatred and hate speech leading to violence and it should enact legislation and implement policies to grant Rohingya the Myanmar nationality. The government should adopt a comprehensive international law compliant legal and policy framework that would prevent the ability of multinationals to profit from human rights abuses and ensure that corporate activity on its territory, especially in the extractive industry, follows international norms. The home states of transnational corporations should issue instructions to businesses prohibiting any activity in a foreign country that would contribute to existing or bring about human rights abuses. The Myanmar government should enhance cooperation with the UN agencies and special-mandate procedures to coordinate strategies to address the current and prevent future mass atrocities.

1. “The Rohingya: Not Just a Name, A People at Risk of Genocide”, United to End Genocide at http://endgenocide.org/conflict-areas/burma/ 

2. “Give the Rohingya hope for a future” urges UNHCR chief, 11 July 2017 at http://www.refworld.org/docid/5964c3a24.html 

3. SC Presidential Statements S/PRST/2007/37 (11 October 2007) and S/PRST/2008/13 (2 May 2008).

4. SC draft resolution, S/2007/14 (12 January 2007).

5. Interim Report of the Investigation Commission on Maungtaw, Republic of the Union of Myanmar, Ministry of Information, 3 January 2017 at: http://www.moi.gov.mm/moi:eng/?q=news/4/01/2017/id-9542 

6. “Myanmar government 'following the law' in Rakhine, probe panel says”, Reuters, Yangon, 14 December 2016 at: http://www.reuters.com/article/us-myanmar-rohingya-idUSKBN1430SU 

النص بالعربية: هنا

Other articles on Myanmar by GICJ