Renewed Impetus for Accountability: Implications of the Myanmar Fact-Finding Mission report

[Priya Pillai is a lawyer and international law specialist, with expertise in the areas of international justice, international human rights, transitional justice, peace and conflict, and humanitarian issues.]

Marking a year since the recent exodus of Rohingya from Rakhine state to Bangladesh, the U.N. Human Rights Council mandated Independent International Fact-Finding Mission (FFM) released its final report on 18 September 2018. The hard-hitting report, assessing violations of human rights and humanitarian law in Rakhine, Shan and Kachin states from 2011, raises key concerns, and proposes measures for justice and accountability in Myanmar. These should be followed through, given the evidence of international crimes, and prevalent patterns of impunity.

The FFM has found patterns of the “gravest crimes” under international law, which must be investigated and prosecuted. There are “factors allowing the inference of genocidal intent”, based on the evidence gathered, and an analysis of the jurisprudence of international tribunals on the crime of genocide. To be clear, while the FFM is not saying that the crime of genocide has definitively occurred – it is however saying that such intent very likely exists, with substantial evidence to back up this assertion. Key components of the FFM’s assessment to reach this conclusion include the rhetoric of hate speech, plans to alter the demographic composition of the populace in Rakhine, the level of organization, as well as the extreme brutality and scale of the atrocities. Due to stringent requirements of specific intent and standards of proof, the crime of genocide is challenging to prove, but has been proven in Srebrenica and Rwanda. The FFM also details crimes against humanity, including murder, torture, forms of sexual violence, and potentially persecution and apartheid. The use of rape and sexual violence as a weapon of war has been documented in detail, making for particularly difficult reading. The FFM report lends further credence to the work of the two jailed Reuters journalists Wa Lone and Kyaw Soe Oo, in exposing a massacre in Inn Din, referring to it as the ‘tip of the iceberg’ of crimes committed.

The role of social media in permitting a climate of hate to flourish is an aspect of the report worth highlighting, in its links to the commission of mass atrocities. The FFM found the response of Facebook “slow and ineffective”, lamenting the inability of the company to provide country specific data requested regarding hate speech. It is perhaps no coincidence that on the day the FFM preliminary report was released in August, Facebook removed various accounts, including that of the Myanmar Army chief. However, this is a matter of too little, too late. The potential complicity of social media enterprises in mass atrocities – akin to the role of radio stations, media and other business enterprises before the Rwandan tribunal and the South African Truth and Reconciliation Commission – should be explored.

The FFM report now provides a firm foundation to move on to the next steps for accountability – a consolidation of the evidence and a move towards an assessment of responsibility. The FFM is clear that accountability in Myanmar is impossible due to the absolute impunity enjoyed by the Myanmar military. The FFM comprehensively dismisses the Independent Commission of Enquiry recently constituted by the Myanmar government. The Myanmar government has as much as admitted the commission was meant to dispel “false allegations” by the UN and the international community – essentially a whitewash. After naming senior military officials, the FFM recommends the referral of Myanmar to the International Criminal Court by the UNSC, and/or the creation of an ad-hoc international tribunal. Either way, international accountability is necessary in the words of the FFM for “a first crack in the massive impunity wall”.

A UNSC referral may be difficult given the position and veto power of Russia and China, but it is an avenue that must be attempted. While there have been ICC referrals previously for non-state parties (for Libya and Darfur), these have not resulted in concrete action. However, it is debatable whether the reason for such inaction is the referral per se, or other variables including lack of enforcement and political circumstances. While ad-hoc international courts have precedent, these tribunals have been established either by the UNSC (such as the Former Yugoslavia and Rwanda tribunals), or with agreement of the country concerned (Cambodia, Sierra Leone and Lebanon). While in all these instances there will be operational and logistical challenges, these are not insurmountable. It also must be noted that in the aftermath of a positive decision of a pre-trial chamber of the ICC, the prosecutor has just announced a preliminary examination into the crime of deportation. This is limited in scope however, and as rightly pointed out by the FFM, may result in partial accountability.

Importantly, in the interim, the FFM recommends the General Assembly or the Human Rights Council establish an independent and impartial mechanism for the collection and preservation of evidence. A similar mechanism has been established for atrocities in Syria. This is of great importance as the loss of evidence and the re-traumatization of survivors are real fears. The FFM also recommends establishing a trust fund for victims.

While the major powers should be pushed to ensure accountability, it is necessary to engage with ASEAN states as well, that have hitherto been seen as shying away from criticism of Myanmar. While a joint communiqué of ASEAN foreign ministers in August was predictably tepid, recently 132 sitting parliamentarians from five ASEAN countries have called for the UNSC referral of Myanmar to the ICC. This indicates that ASEAN and other Asian states should not be disregarded in advocating for accountability. Rather, there should be a concerted effort to engage with Asian states, in advocacy not only for the ICC or an ad-hoc court, but also to explore the possibility of cases filed on the basis of universal jurisdiction.

The FFM report lays bare the extent and gravity of the international crimes in Myanmar. There are a range of recommendations of the FFM, for which there must be sustained engagement, advocacy and action. The U.N. Human Rights Council is currently in session till month end and is seized of the FFM report. The onus is now clearly on the council to recognize the gravity of the crimes, and to take concrete action, as befitting its mandate and role. A failure to do so will have serious repercussions. Accountability and justice are critical, lest the adage ‘never again’ be repeated meaninglessly.