Leveraging International Justice for Lasting Peace in Myanmar

(Editors Note: This article is part of a special Just Security forum on the ongoing Gambia v. Myanmar litigation at the International Court of Justice and ways forward.)

In recent years, international institutions such as the International Court of Justice (ICJ) and others have finally formally responded to protracted persecution and large-scale violence committed against ethnic minority groups – particularly the Rohingya – in Myanmar. This forum recognizes that these institutional responses are significant, and my colleagues’ contributions highlight how international accountability can illuminate ways forward toward justice and the rule of law in Myanmar. This article recaps the various forms of accountability – judicial and otherwise – that have emerged and considers how these various efforts could contribute toward a more comprehensive approach to secure lasting peace and democratic development in Myanmar. To those ends, I suggest that efforts to secure justice internationally must be linked to grassroots domestic initiatives aimed at strengthening inclusion, nondiscrimination, and the rule of law in Myanmar.

Background

Myanmar is home to some of the world’s longest-running civil wars, partly stemming from the fraught process of gaining independence from British rule in 1948. These conflicts cover large swathes of the country, including the Shan, Chin, Kachin, Kayin, and Rakhine states, with armed groups seeking greater equality and autonomy in a nation that has been dominated by the majority Bamar ethnic nationalist Burmese military. Over decades, human rights and humanitarian groups have documented the displacement of hundreds of thousands of people, with the military accused of systematically targeting civilians, burning villages, committing sexual violence, and killing men, women, and children. The COVID-19 pandemic has only intensified fears for ethnic groups, particularly in the midst of the world’s longest internet shutdown in Rakhine and Chin States.

Impunity for military leaders has remained a constant, even as the country embarked on an ostensibly democratic transition in 2011, releasing political prisoners, including then pro-democracy leader and now de facto head of government Aung San Suu Kyi, among other reforms. As colleagues in this forum point out, foreign actors, including certain United Nations agencies, largely overlooked military abuses, including the worsening plight of the Rohingya minority in Rakhine State, as donors and investors calculated that they could incentivize the reform process by not pushing too hard for accountability.

In 2016 and 2017, decades of persecution foreseeably culminated in large-scale violence when the Myanmar military responded with overwhelming force to attacks on police posts by a small Rohingya armed group. The exodus of over 740,0000 Rohingya to neighboring Bangladesh, creating the largest refugee camp in the world, could not be downplayed. A slew of international accountability measures – including cases at the ICJ and International Criminal Court (ICC) – emerged in a remarkably compressed period of time.

International Accountability Initiatives

At least eight international accountability initiatives regarding Myanmar are briefly reviewed below, including the ICJ case. All have come about on the basis of evidence of atrocity crimes, including crimes against humanity and genocide.

  1. Independent International Fact-Finding Mission for Myanmar (IIFFMM). In March 2017, the U.N. Human Rights Council launched an independent international fact-finding mission “to establish the facts and circumstances of the alleged recent human rights violations by military and security forces, and abuses, in Myanmar.” The mission submitted its 440-page report in September 2018, which detailed clear patterns of human rights abuses and violations of international humanitarian law in Kachin, Shan, and Rakhine states. It called for the investigation and prosecution of military leaders for war crimes, crimes against humanity, and genocide, the latter in connection with violence against the Rohingya minority in Rakhine state.
  2. Permanent People’s Tribunal of Myanmar (PPT). Established in 1979 and based in Rome, Italy, the PPT was modelled after the Russell Tribunals on Vietnam and Latin America of the 1960s and 70s. It is an independent non-governmental body with the aim “to give visibility and legitimacy to the authority of peoples when states and the international bodies fail to protect their rights.” It hears complaints submitted by victims or their representatives. All parties concerned are invited to make arguments, and a panel of judges drawn from an international network of experts hear the sessions and render judgements, thus far totaling 47. The session on State Crimes Committed against the Rohingyas, Kachins, and Other Groups took place in Malaysia in September 2018. Myanmar officials chose not to appear. The panel concluded that the state of Myanmar is guilty of genocide against the Rohingya and has the intent to commit genocide against the Kachin and other Muslims in Myanmar.
  3. Independent Investigative Mechanism for Myanmar (IIMM). In September 2018, the U.N. Human Rights Council established the Independent Investigative Mechanism for Myanmar (IIMM), which received the IIFFMM’s report. The IIMM’s mandate is to collect evidence of the most serious international crimes and international law violations, and prepare files for criminal prosecution in national, regional, or international courts or tribunals that have or will in the future have jurisdiction over these crimes. Its mandate is not limited to crimes against any single ethnic group and it pledges to conduct outreach with civil society and victims’ groups. As the IIMM is an investigative body whose work is ongoing, it has not issued any significant reports or other documents summarizing what it has found thus far.
  4. International Criminal Court (ICC). On November 14, 2019, Pre-Trial Chamber III of the ICC authorized the Prosecutor to proceed with an investigation of alleged crimes against Rohingya victims within the court’s jurisdiction. While Myanmar is not a state party to the ICC’s Rome Statute, Bangladesh is a state party. Accordingly, the ICC’s investigation is limited to alleged crimes against humanity of deportation across the Myanmar-Bangladesh border and associated acts of persecution against the Rohingya population, as at least part of these crimes appear to have been committed on the territory of Bangladesh. The ICC currently lacks jurisdiction over crimes committed completely in Myanmar, however further crimes connected to the exodus of Rohingyas fleeing to Bangladesh could be added.
  5. International Court of Justice (ICJ). Also in November 2019, Gambia initiated proceedings at the ICJ, alleging that Myanmar violated the Genocide Convention. Former Gambian Justice Minister and former attorney at the International Criminal Tribunal for Rwanda, Abubacarr Tambadou, spearheaded Gambia’s case. In January 2020, the ICJ granted Gambia’s request for provisional measures requiring Myanmar to prevent any acts that contribute to genocide, avoid destroying related evidence, and report on measures taken. On May 23, 2020, Myanmar submitted its report to the Court. The report was not made public, but observers note that Myanmar has issued three Presidential Directives seeking to prevent official hate speech, and ordering compliance with the Genocide Convention and preservation of evidence. The government commissioned an Independent Commission of Inquiry, which referred admissions regarding war crimes to military justice procedures “if there is credible evidence.” Activists also claim that Myanmar has nonetheless continued attacks on Rohingya villages since the ICJ’s January decision. Worsening conflict between the Myanmar military and ethnic Rakhine Buddhists further raises doubt about government commitment to prevent genocide and other atrocities.
  6. Argentinian Universal Jurisdiction Case. Also in November 2019, and in line with the IIFFMM’s call for countries to pursue universal jurisdiction cases against members of Myanmar’s Tatmadaw military for crimes against the Rohingya, the Burmese Rohingya Organization UK (BROUK), represented by prominent Argentinean human rights lawyer Tomás Ojea Quintana, filed a petition in an Argentinian court to open an investigation into the role of Myanmar’s civilian and military leaders in committing genocide and crimes against humanity against the Rohingya. On June 2, 2020, the court requested information from the ICC to ensure the case in Argentina would not duplicate justice efforts in the Hague.
  7. U.S. Investigation and U.S./EU Sanctions. In spring 2018, the U.S. State Department surveyed over a 1,000 Rohingya refugees in Bangladesh to document atrocities committed during military operations conducted in Myanmar in 2016 and 2017. The resultant report characterized relevant events as “ethnic cleansing,” but received criticism for avoiding the legal labels “crimes against humanity” and “genocide.” In August 2018, the U.S. Treasury Department imposed economic sanctions on four Myanmar military and border guard commanders and two military units. In July 2019, the State Department issued travel bans against four top military commanders, including commander-in-chief Min Aung Hlaing, and their families. In April 2020, the EU decided to maintain existing sanctions, including travel bans and asset freezes, against 14 top-ranking Myanmar security officials.
  8. Corporate Responsibility. In line with the recommendations of the IFFMM, outside organizations have launched boycott campaigns and petitions in efforts to force individuals and organizations to cease doing business with military-owned corporations in Myanmar. In February 2020, Japanese beverage corporation Kirin began to review its association with the Myanmar military. In 2018 and 2019, Facebook and Twitter suspended the accounts of General Min Aung Hlaing and others for using the platform to spread hate speech against the Rohingya. Corporate responsibility is nonetheless stubbornly anemic in light of the scale of crimes allegedly committed.

From International Justice to Peace: Limitations and Leverage

On the one hand, the range of accountability responses to the plight of the Rohingya and other ethnic groups in Myanmar described above is impressive, and is a testament to the coordinated advocacy on the part of transnational Rohingya and other Burmese activist networks. Arguably, the main mechanism still missing would be a judicial body with jurisdiction to prosecute atrocity crimes committed wholly within Myanmar. Such a body could be constituted either through a U.N. Security Council referral of the situation in Myanmar to the ICC, or through the creation of a special ad hoc tribunal, as Burmese human rights defender Khin Omar advocated at the U.N. Security Council in mid-July. The Association of Southeast Asian Nations (ASEAN), of which Myanmar is a member, could also have played a more robust role all along. A 2019 ASEAN declaration encouraged progress in finding a “comprehensive and durable solution,” but was criticized by rights groups for avoiding the term Rohingya and lacking “teeth.”

However, as colleagues in this forum recognize, these accountability processes are not a panacea for holistic justice and peacebuilding. These processes can take years, with uncertain outcomes which are difficult to enforce. As Nadira Kourt asserts, “The cost of simply waiting for the final judgment [at the ICJ] is too high.” While the ICC could theoretically convict and imprison one or more individual perpetrator(s) (assuming an arrest warrant could be executed and personal jurisdiction obtained), as a criminal court, the ICC cannot amend Myanmar’s Constitution, eliminate discriminatory laws, provide restorative justice among divided communities, or change hearts and minds. The ICJ could potentially order reparations, but enforcement depends on Myanmar’s compliance. International accountability must therefore be viewed as complementary to and not a substitute for long-term solutions.

Advocates can nonetheless leverage the various justice-seeking processes under way to reduce atrocity risks, and work toward lasting peace and rule of law in Myanmar. Whatever their eventual outcomes, together, these accountability measures are creating a strong record of documented abuses in a context in which narratives remain vehemently contested. They also put all parties to a conflict on notice that they could be held liable for atrocity crimes. They sustain discourses of justice that go beyond whether individuals go to prison, even as those discourses might simultaneously highlight the limitations of legal accountability. For instance, in a May 2020 op-ed, Rohingya youth leaders made clear that:

For us, justice means going home as soon as possible. It means being given rights and citizenship in Myanmar. It means security, and the ability to call ourselves ‘Rohingya.’ We do not need an international court to tell us that what happened to us was a genocide. We know it was genocide. The world knows it was genocide. The world has already heard our story and knows our pain.

The sheer breadth of international accountability initiatives thus denotes the gaping lack of access to justice, security, and basic rights for minorities in Myanmar of which the Rohingya youth leaders speak. As colleagues in this forum suggest, the way forward toward an improved situation in Myanmar – and meaningful compliance with the ICJ’s provisional measures order to prevent genocide – requires addressing these gaps. While the U.S. Holocaust Memorial Museum has noted that the Genocide Convention “does not elaborate on what the obligation to prevent genocide entails,” a basic consideration of genocide risk factors and common sense point to, as forum contributor Param-Preet Singh elaborates, guaranteeing access to health care and humanitarian assistance, and repealing the web of discriminatory laws and policies that have denied the Rohingya citizenship and other minorities basic rights, among other measures. Kourt meanwhile, rightly mentions “safe return.” Finally, as Grant Shubin points out, “unless and until Myanmar addresses root causes of the ongoing acts of violence and persecution being committed against the Rohingya – and discrimination against all of Myanmar’s ethnic minorities – the risk of atrocities will persist and the rule of law will languish.” These recommendations in turn imply a link between fulfilling obligations to prevent genocide and establishing conditions for peace and rule of law.

All forum contributors further recognize that legal compliance – and creating conditions for peace and rule of law – depends on political pressure and political change. Kourt emphasizes that other states must make a “political decision” to live up to their own obligations to prevent genocide and enforce Myanmar’s compliance with the ICJ’s order. Political pressure must build to impose steeper economic costs on the Myanmar government, to compel other states to increase refugee quotas, and to develop a diplomatic strategy to hasten a peace process that enables safe return.

The international community clearly has a political role to play, but a closer examination of how international accountability relates to domestic political dynamics is also critical, as lasting solutions will depend on social and political change within Myanmar. In framing the plight of victims in terms of nondiscrimination and accountability for abuses of state power, these international processes help to legitimize domestic advocacy that genuinely seeks peace, rule of law, and equity among ethnic groups in Rakhine state and within Myanmar more generally.

Domestic initiatives have increased to promote concepts of transitional justice, reconciliation, and shared identity in order to lay the foundation for structural changes required to end atrocities and sustain peace. As Shubin notes, persecuted ethnic groups have expressed solidarity with each other’s struggles in the past, but members of diverse groups are also seeking to work toward inclusive identity, “de-imagining” the exclusionary, divide-and-rule politics inherited from the British colonial system. For several years, some groups, though compelled to keep a low profile, have sought to promote interfaith harmony and pluralism. Rohingya and ethnic Rakhine activists appeared together for the first time on a July 2020 panel to support reconciliation between their communities. Remarkably, the Rakhine activist insisted that his community “cannot deny the genocide” perpetrated against the Rohingya, including the role of some ethnic Rakhine participants therein. A Rohingya activist asserted that “I am proud to call myself Arakanese,” referencing the pre-colonial period Rakhine state (which remained the independent Arakan Kingdom until approximately 1785), where diverse religious and ethnic groups coexisted and prospered. The IIFFMM, and conflict and rule of law scholars, have affirmed the importance of amplifying these inclusive visions within Myanmar – along with deepening commitment to legality and more substantive conceptions of rule of law that prominent Burmese lawyers such as the late U Ko Ni have championed. Strengthening these basic values can shift public consciousness to help bring about legal reforms favoring ethnic autonomy and equal access to citizenship and other rights – reforms that would help to prevent genocide.

Bridging International and Domestic Efforts

The international community has institutionalized its solidarity with persecuted groups in Myanmar through diverse accountability measures, ranging from U.N. treaties and mechanisms, to international courts, to the creation of investigative bodies. Increasing focused support for domestic initiatives favoring inclusive national identity and substantive rule of law improvements, and emphasizing the agency of victims and those in Myanmar most directly affected by ongoing violence and impunity, would give fuller expression to the same ideals of atrocity prevention, non-discrimination, and peace that underlie the Genocide Convention and these other international institutions. Building these bridges between international commitments to atrocity prevention and protection of marginalized groups and domestic movements for peace, nondiscrimination, and rule of law becomes ever more urgent in a world worryingly beset by polarization and nationalist ideologies.

Image: Karen ethnic people hold posters and shout slogans during a protest against Myanmar Army for the allegedly arbitrary killings, raping, shelling and for the removal of the army camps, at Hpapun in Kayin State on July 28, 2020. (Photo by STR/AFP via Getty Images)

 

About the Author(s)

Katherine Southwick

Katherine Southwick is an international lawyer and consultant currently working with the United States Holocaust Memorial Museum on a project on the role of criminal justice systems in atrocity prevention. Follow her on Twitter (@katsouthwick).