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Wed 11 December 2019
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Steve Shaw explains the attempts by The Gambia and Argentina to hold Myanmar’s military to account over the killing of tens of thousands of people belonging to the country’s Muslim minority.


Over a period of six months, it is estimated that more than 24,000 Muslim Rohingya people were killed in Myanmar. Entire villages were torched, thousands of women and girls raped, and many others were beaten, tortured and burnt alive.

Those who were lucky enough to survive the killing fields in the northern Rakhine State fled across the border to neighbouring Bangladesh, where today more than 700,000 languish in the world’s biggest refugee settlement with no indication that they will ever be allowed home.

The horrors that began in August 2017 were perpetrated by the country’s military and described by the UN High Commissioner for Human Rights as a “textbook example of ethnic cleansing”.

On 11 November, two years after the atrocities began, The Gambia filed a lawsuit with the UN’s highest court, the International Court of Justice (ICJ), formally accusing Myanmar of genocide. It was filed with the support of the 57-member Organisation of Islamic Cooperation (OIC) and is being done under the pretext that both The Gambia and Myanmar are signatories to the 1948 Genocide Convention, which commits them to preventing and punishing the crime of genocide.

While the filing is a landmark move which could help bring justice for the thousands who suffered unimaginable horrors at the hands of Myanmar’s military, it also highlights just how significantly the West has failed to hold the country to account for one of the most serious crimes in recent history.

The UK has traditionally taken the lead on issues relating to Myanmar at the United Nations Security Council and former British Prime Minister Theresa May once vowed to tackle the “inhuman destruction of the Rohingya people”. But, as the atrocities faded from the headlines, the pledge was forgotten and all 15 nations on the Security Council ignored the pleas from the UN for Myanmar to be referred to the International Criminal Court (ICC).

No sanctions were placed on the companies which represent a vital source of funding for the military. Not a single country backed a global arms embargo. When the US admitted that the military leader Min Aung Hlaing was responsible for gross human rights violations, he was only banned from visiting America.

“To date, the international community has pretty much ignored all the recommendations of the United Nations Fact Finding Mission which investigated what took place, including the recommendation for a referral to the International Criminal Court,” Mark Farmaner, director of Burma Campaign UK, said.

“The UK used to lead on promoting human rights in Burma, now even small nations like Gambia are doing more than the UK. The ICJ can only arbitrate on disputes between states, in this case that Burma violated the genocide convention. It can make a determination that genocide took place, but not put on trial or convict any individuals responsible for genocide. 

“More countries including the UK, EU, Canada and USA should be joining Gambia in this case. So far, their only response to genocide has been to ban a small number of military personnel from taking holidays in their countries. It is critical that the UN Security Council refer Burma to the ICC so that all crimes committed by the military against all ethnic groups can be investigated, not just crimes against the Rohingya.”

While Gambia’s ICJ filing may be unable to hold specific people to account, this could be fulfilled by another case filed in Argentina, aimed at top military and civilian leaders under the principle of “universal jurisdiction”. Under this principle, the country is saying that some crimes are so serious that they go beyond being specific to a single nation and the whole world should have an interest in addressing them.

Argentina’s case is particularly significant as it names Myanmar’s former human rights and democracy icon Aung San Suu Kyi – the first time the Nobel Laureate has been made a legal target over the crimes. Suu Kyi led the National League for Democracy (NLD) to a majority win in Myanmar’s first openly contested election in 25 years and, at the time, it was seen as a landmark moment for the country and a huge step forward for bringing peace.

But, her Government faced two big questions. The first, how there could be stability when the military continued to operate in a political role, retaining 25% of the seats in Parliament and control over all law enforcement and military operations. The second question was where Suu Kyi stood with regards to the minority Rohingya population – a question that remained unclear until the genocide began two years after she was elected.

Her first response to the atrocities was silence, but this was followed soon after with denials and a rejection of calls from the UN for her Government to investigate. As the UN was accusing the country’s military of treating the Rohingya with “devastating cruelty” and described how rape and sexual mutilation was being “perpetrated on a massive scale”, Suu Kyi’s Facebook account had the words “fake rape” plastered across it.

She claimed the events in Rakhine State were nothing more than a product of terrorists and misinformation campaigns and now, following the Gambia filing, she has said she will travel to The Hague and defend the military against the allegations.

Mr Farmaner explained that there could be several reasons why she has acted in this way.

“She genuinely does not think genocide took place despite the evidence and she has always been opposed to international courts or tribunals acting on past military crimes,” he told Byline Times. “She calls international legal action revenge or retribution, rather than justice. She may also see this as tactically useful in her efforts to try to persuade the military that herself and civilian rule are not a threat to them. She can take on the role of their defender. 

“The military are unlikely to be impressed though. The military can sit back and enjoy Aung San Suu Kyi’s already diminished international reputation being further damaged as she defends their actions.”

In a third legal process being levelled against Myanmar, judges at the International Criminal Court authorised prosecutors to begin investigating “crimes against humanity of deportation” across the Myanmar-Bangladesh border, as well as persecution on grounds of ethnicity.

In a statement, the court stated: “The Chamber received the views on this request by or on behalf of hundreds of thousands of alleged victims. According to the ICC Registry, victims unanimously insist that they want an investigation by the court and many of the consulted alleged victims believe that only justice and accountability can ensure that the perceived circle of violence and abuse comes to an end.”

With these investigations underway there is a chance that Myanmar’s military will be held to account. Sadly, for many in Rakhine State, they have come two years too late. Since the 2017 genocide, the UN has extensively documented the continued violence against the Rohingya people who remain in the country, which has resulted in the displacement of a further 65,000 people. Meanwhile, the charred ruins of several villages have been transformed into military bases. 

Citing the lack of accountability for the 2017 crimes, a UN-appointed independent panel concluded in September “that the evidence that infers genocidal intent on the part of the state… has strengthened” and “that there is a serious risk that genocidal actions may occur or recur”.


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