Last week’s decision by the International Court of Justice (ICJ) in The Gambia v. Myanmar is a big deal in the world of atrocity prevention. The court unanimously accepted Gambia’s request to order Myanmar to protect its Rohingya population from genocide. In so doing, the court showed that international law can be a vehicle to help end atrocities, while also reviving some faith in the concept of erga omnes obligations – grounded in the idea that some laws are so fundamental that all states have an interest in seeing them upheld.

Media coverage of the decision correctly noted that the ICJ has no direct enforcement power. But an ICJ order gives Rohingya advocates another means of pressuring those who can change the government of Myanmar’s calculus – and every bit counts.

The day before the decision was handed down, in a Hail Mary attempt to sway the court, the Myanmar government released the executive summary of the report from its “Independent Commission of Enquiry” (ICoE). The ICoE summary was dismissed by human rights activists as the propaganda that it was, and the media quickly moved onto covering the ICJ decision. But the summary is worth revisiting as another example of an emerging playbook for real-time genocide denial.

The Rohingya, a minority Muslim population, have faced decades of persecution in Myanmar. Discrimination against them is so entrenched that most Burmese refuse to utter the term “Rohingya,” instead referring to them with as “Bengalis,” which is used as a derogatory – and inaccurate — indication of their ostensible foreign status. Unable to claim citizenship, they also face restrictions on marriage and childbirth. And, despite the immense hopes of the international community, life for the Rohingya has only worsened since Nobel Peace Prize laureate Aung San Suu Kyi became the de facto head of the Myanmar government in 2016.

The formation of the ICoE was announced in 2018 after a United Nations Fact Finding Mission (FFM) released its damning report, which concluded that there were reasonable grounds to believe that the Myanmar military had committed genocide against the Rohingya. The ICoE was, in the words of the Myanmar government, a response to “false allegations made by the UN agencies and other international communities.”

Statements like these, in addition to commission member conflicts of interest, led the International Commission of Jurists to conclude that the ICoE could not be viewed as independent of the government of Myanmar. Unfortunately, that conclusion was borne out in the resulting executive summary of the report.

Denial Even as the Brutality Unfolds

The practice of genocide denial stretches back generations. But historically, it has mostly been an after-the-fact phenomenon due to the relative rarity of external scrutiny while genocide was actually underway. More recently, though, external actors have been able to spur a major and sustained outcry over atrocities that has forced governments to respond as the brutality unfolds. Human rights activists have been aided by a combination of satellite imagery and social media that allows information to flow out, even as governments have mostly barred journalists and investigators from entering the conflict zone.

The Sudanese government of then-President Omar al-Bashir gained early experience in the practice of real-time genocide denial during the Darfur atrocities. In writing Fighting for Darfur, I tracked every public statement from 2003 to 2010 offered by the Sudanese government on the violence. What emerged was a script that ran something like this:

The government in response to initial reports:

We have been seeking to protect our government and people from insurgents.*  In attempting to quash this rebellion, war crimes have probably been committed. Yes, villages have been burned, property has been looted. We take these issues seriously, but it must be recognized that such things happen in war. Sometimes things get out of control. We are working hard to ensure security.

* The insurgents are, or are perceived to be, part of the group that is being persecuted.

The government in response to external investigations:

This is part of an international campaign to tarnish the image of our country. These investigators do not understand our culture. And they have only spoken to alleged victims who are outside the country.* Such people have become highly politicized, and their testimony is not reliable. People who are still inside the country tell a different story. There is no genocide. And these claims of rape are simply untrue. We have not had anyone tell us they have been raped. If they did, we would prosecute under our own domestic system. These outsiders criticize our domestic accountability mechanisms, but we have just prosecuted 10 people for theft, and they do not even mention this.**

* This is because the government denied in-country access to investigators.

** Anyone prosecuted was of low rank and prison time, even for more serious crimes, was minimal or a pardon was given.

With this script in mind, the ICoE summary feels eerily familiar, as a step-by-step dissection illustrates.

`We’re Responding to an Insurgency’

In Myanmar, the government claims that its actions are in response to an insurgency by the Arakan Rohingya Salvation Army (ARSA), which the government has declared to be a terrorist group. The report opens:

“On 25 August 2017, 30 police outposts and stations and one military battalion headquarters in northern Rakhine State were attacked by an armed group identified as Arakan Rohingya Salvation Army (ARSA). In the following days, subsequent attacks took place against 26 additional police outposts and stations. Myanmar’s Defence Services (Tatmadaw) and the Police Forces … carried out security operations (so called ‘clearance operations’) to restore peace and stability in the affected areas.”

The government report then uses alleged connections between the insurgents and the targeted group to justify attacks against civilians:

“Data provided by Myanmar’s Police Force and interviews with police personnel reveal that over 14,000 fighters and collaborators were involved in ARSA’s armed attacks in August-September 2017. ARSA recruited local youth, villagers, and village-heads, and trained them … ARSA members could disguise themselves as villagers making it difficult to separate ARSA fighters from others. According to Myanmar’s Defence Services, ARSA had between 500 and 1300 formal members, but with the proven capacity to mobilize several thousand villagers for the purposes of attacks.”

‘Bad Things Happen in Conflict’

The conflict between the government and the insurgents then provides a more general “fog of war” cover. In the report:

“The unexpected uprising by ARSA and other Muslims shocked the regular troops, especially those at the frontline. Myanmar’s security forces did not know how to react to the massive numbers of ARSA-fighters and armed civilians. In responding to this national emergency, discretionary actions were taken in the field, in rapidly changing situations on the ground, by soldiers and their immediate commanders deployed at the village level.”

The ICoE acknowledges the possible commission of war crimes, though plays down abuses and equivocates:

“[W]ar crimes and serious human rights violations may have occurred in the form of disproportionate use of force by some members of Myanmar’s Defence Services and Police Force in the course of the internal armed conflict against ARSA.”

“Some lootings were committed by Myanmar security personnel, but these were fewer than those committed by civilians. However, witnesses recounted several occasions of dereliction of duty or omission of action on the part of Myanmar’s security forces personnel who did not intervene to prevent looting even when they were capable of doing so.”

“It is reasonable to conclude that some members of Myanmar’s Defence Services and the Police Force intentionally killed or displaced civilians…” 

And, wielding the language of international law, genocide is flatly denied:

“There is insufficient evidence to argue, much less conclude, that the crimes committed were undertaken with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, or with any other requisite mental state for the international crime of genocide.”

Domestic Justice 

The ICoE highlights domestic prosecutions.

“Myanmar’s Defence Services conducted an internal investigation … This resulted in several personnel being found guilty, dismissed from Myanmar’s Defence Services, and each sentenced to imprisonment for 10 years with hard labour … They were however, later given a military pardon as regards the prison sentence.” 

And expresses frustration that outsiders are not taking domestic accountability mechanisms seriously:

“It is unfortunate that the group of actors who has brought these cases before international courts has shown minimal interest in Myanmar’s domestic processes…” 

‘Outsiders Fail to Appreciate the Cultural Context’

This general point is true:

“[Conclusions] must be posited within the proper context and comprehensive understanding of the complex situation on the ground, including the historical and political background which often goes back to British colonial rule.”

But especially where the government has denied outsiders access to the country, the claim can be used cynically:

“There is remarkable polarization, or wide gaps, in the narratives of international reports, on the one hand, and Myanmar’s national accounts, on the other. Restrictions to access encountered by international organizations may be one reason for such gaps …”

See No Evil

As Akila Radhakrishnan of the Global Justice Center put it, the ICoE summary is a “masterclass in how to erase the gendered experiences of conflict and genocide.” While the FFM had described “rape and other forms of sexual violence [as] one of the hallmarks of Tatmadaw (Myanmar military) operations,” the ICoE concluded:

“There were no credible statements on allegations of gang rape committed by Myanmar’s security forces. Although some interviewees mentioned rape cases, these were all secondhand information heard from someone else.”

Politicized Victims

One of the ICoE’s “principal observations” is to question the credibility of victims and witnesses:

“One important lesson the ICOE has learned is that interviewees cannot always be expected to recall the whole truth. In a situation of armed conflict, there is a risk that both victims and non-victim interviewees could be pressured or influenced by someone else.”

Of course, it is true that especially in relation to traumatic situations, recall is imperfect, and trained investigators are always on guard for the risk of witness tampering. The FFM, for instance, sought multiple credible sources of first-hand information for the incidents it reported. The ICoE’s concern, however, is focused on a particular category of victims and witnesses – namely those who are now outside the country as refugees:

“The allegations of violations contained in United Nations and NGO reports rely almost exclusively on interview statements made by refugees residing in the camps in Cox’s Bazar in Bangladesh, as recounted in the report of the [FFM]. The veracity of these potential witness statements must necessarily be scrutinized and evaluated, including through normal practices of due process and contradistinction. Such testing has yet to take place.”

It is unclear what else the ICoE would wish for in terms of “testing,” given the carefully outlined methodology in the FFM’s report – something that was conspicuously absent in the executive summary of the ICoE. But the intent seems to be to cast doubt on the testimony of victims and witnesses now outside the country. And with those still inside the country unlikely to speak freely with anyone connected to the government, the net result is to denigrate or stifle all testimony. 

The Need to Understand – and Address — Propaganda

For those inclined to trust documentation done by international organizations, there is an understandable instinct to dismiss products like the ICoE report as propaganda and move swiftly on. But for atrocities to be stopped, provisional measures like those announced by the ICJ have to be implemented, which means the offending state must be pressured to change its behavior. And the reality is that often those who have the leverage to do this — consider China, for instance — may well be inclined to value the narrative of the state in question over that of outside organizations. In other words, those seeking to stop atrocities ignore this propaganda at our own peril.

The framework above is a first cut at drawing together some initial observations on the practice of real-time genocide denial. Unfortunately, there are likely to be additional case studies through which to build this out in the years ahead. Understanding the different ways in which states respond to an outcry against atrocities that they are in the midst of committing is the first step in figuring out how to counter their disinformation efforts.

 IMAGE: Rohingya refugees watch Aung San Suu Kyi in ICJ proceedings on a television at a restaurant in a refugee camp on December 12, 2019 in Cox’s Bazar, Bangladesh. The UN’s International Court of Justice in The Hague was hearing a case filed by The Gambia against Myanmar over the Rohingya genocide case. (Photo by Allison Joyce/Getty Images)