Rohingya Symposium: Is Justice for the Rohingya Possible Within Myanmar?

[Jenny Domino is a legal adviser of the International Commission of Jurists, Asia-Pacific Program. (@jenny_domino). Photo credit: Jenny Domino, Maha Bandoola Park.]

Three years since the 2017 military “clearance operations” in Rakhine state drove hundreds of thousands of Rohingya to neighboring Bangladesh, various legal pathways have opened up in the field of international law to seek justice for the persecuted ethnic minority. Robust interpretations of jurisdiction have rendered possible the International Criminal Court’s investigation for crimes against humanity in Bangladesh/Myanmar. Myanmar’s obligation erga omnes to prevent and punish genocide is now being questioned by The Gambia before the International Court of Justice. Prosecution of Myanmar’s civilian and military leaders for genocide and crimes against humanity is underway in Argentina through the device of universal jurisdiction. The UN Fact-Finding Mission on Myanmar and the successor Independent Investigative Mechanism for Myanmar contribute to evidence-gathering. These initiatives tell the same story. The Rohingya’s quest for justice abroad reveals a bleak picture of access to justice at home, and the internal racial politics at play driving the reactions of the State and a polarized public.

These initiatives took off as genuine human rights accountability within Myanmar seemed elusive. It was only in January 2020, a few days before the ICJ was due to rule on The Gambia’s request for provisional measures, that Myanmar’s Independent Commission of Enquiry (ICOE) published an executive summary – not the full report – of its fact-finding of the 2017 “clearance operations.” The ICOE found that “war crimes and serious human rights violations may have occurred in the form of disproportionate use of force” on the part of military personnel. Soldiers were “caught by surprise” and “responded haphazardly to restore order” due to “individual fear, enmity, and historical grievances rather than by plan, design, or order.” The ICOE concluded that there may be instances warranting prosecution. The timing of the ICOE’s announcement helped reinforce Myanmar’s stand before the ICJ, and the State Counsellor’s public appeal, that the wheels of justice were turning, albeit slowly, from within.

In its provisional measures order, the ICJ enjoined Myanmar, as a State-party to the Genocide Convention, to prevent further acts of genocide against the Rohingya within its borders and to preserve relevant evidence of such crime. In response, the Government issued a directive to all ministries and regional and state governments to refrain from committing prohibited acts under the Genocide Convention. This was followed by a directive against spreading “hate speech” and another on preserving evidence and property in parts of northern Rakhine. The ICOE’s work is now continued by the Union Attorney-General’s Office (UAGO) – Myanmar’s justice department – and the Office of the Judge-Advocate General for further investigation and prosecution.

Despite these ostensible acts of compliance, serious impediments to domestic accountability remain. These systemic gaps acutely affect the Rohingya’s pursuit of justice, but also bear on the plight of other ethnic minorities across Myanmar.

Myanmar and the state of domestic institutions

Instead of strengthening permanent civilian institutions, such as the judiciary and Myanmar’s national human rights institution, the Government continues to fixate on ad hoc inquiries to address serious criminal allegations against military personnel. This is true of events in Rakhine. In December 2016, the Government established the Maungdaw Investigation Commission to establish facts and identify violations of law concerning the 2016 “clearance operations” in Maungdaw, Rakhine. In May 2018, the ICOE was formed to look into the 2017 “clearance operations” in northern Rakhine. Among other flaws, both bodies have limited fact-finding, recommendatory mandates and little to no authority or capacity to direct the implementation of their recommendations. Individual members of these bodies have also shown bias and partiality.

Consistent with this trend, the Government created another investigation committee when a World Health Organization (WHO) employee was killed in Rakhine state in April this year. Since 2019, Rakhine and southern Chin have been the battleground of the armed conflict between the Myanmar military and the Arakan Army. The WHO staff were transporting COVID-19 test samples when their vehicle, bearing the UN logo, came under fire. Both parties to the conflict denied responsibility and blamed each other for the incident.

The trend toward the specific, limited, and ad hoc in fact-finding effectively undermines the role of the Myanmar National Human Rights Commission (MNHRC), Myanmar’s national human rights institution, to consistently and systematically conduct inquiries into allegations of human rights violations throughout the country. Since its inception by executive ordinance in 2011 and an enabling law in 2014, the MNHRC has been perceptibly passive with respect to events in Rakhine state. Though the MNHRC finally opened a branch office in Sittwe, Rakhine this year and has started publishing information more regularly on its activities and the procedure for filing complaints, it has generally denied any human rights violations committed by the Myanmar military against the Rohingya. Tellingly, in its investigation of the Maungdaw attacks in 2016, the MNHRC only examined the involvement of the Arakan Rohingya Salvation Army (ARSA) and labeled Rohingya as “Bengali.” Filing a complaint with the MNHRC is also limited to citizens, notwithstanding the fact that human rights protection under international law generally applies to all persons regardless of citizenship, and that the very notion of citizenship in Myanmar raises human rights concerns. Among other flaws, the MNHRC has not made demonstrable efforts to protect the rights of other ethnic minorities.

Civilian prosecution of military personnel is the exception rather than the rule. Certain provisions under the 2008 Myanmar Constitution and laws such as the 1959 Defence Services Act bypass the UAGO’s authority to investigate and prosecute. Serious crimes against civilians are instead taken up in military tribunals, contrary to international standards. Since the ICJ ordered provisional measures, the UAGO’s Criminal Investigation and Litigation Unit has noticeably assumed a more active role in prosecuting cases in court, though significant progress remains to be seen.

As cases involving the 2017 “clearance operations” go through the civilian court process, this could present a pivotal moment for a country in transition to build a legal system and culture based on the rule of law. For one, courts do not assume their traditional function in a system of checks and balances. As a constitutional law scholar observes, it is the legislature (commonly acting jointly as the Pyidaungsu Hluttaw) that checks the judiciary, not the other way around. Secrecy also still pervades judicial proceedings involving allegations of gross human rights violations and crimes under international law. For instance, though the UAGO announced that “91 cases have been filed for legal proceedings” based on the ICOE report, it is not clear who the defendants are and which Myanmar law is invoked to support the charge.

Such opacity is also apparent in court martial proceedings. Just last month, the military found army officials and a soldier to have violated the rules of engagement in the killing of 19 Rohingya in Gutar Pyin village in August 2017. Little else was disclosed, including any crime charged or the sanction imposed. The military justified minimal disclosure by invoking security reasons and “esprit de corps.”

Rakhine and the prospect of coming home

As of writing, armed conflict in Myanmar rages on, this time between the Myanmar military and the Arakan Army. The Arakan Army is distinct from ARSA, the object of the 2016 and 2017 “clearance operations.” The Arakan Army was founded in 2009 in Laiza, Kachin state with the stated objective to “defend the Fatherland of Arakan [Rakhine]” and “protect” the Rakhine, an ethnic group co-existing with the Rohingya in Rakhine state. Importantly, the Arakan Army enjoys collective support from the Rakhine, who themselves harbor enduring political and economic grievances.

Since 2019, fighting between the warring parties has affected Rakhine, Rohingya, Chin, Mro, and Daignet communities caught in the crossfire. Thousands have been displaced, most recently when the Rakhine state government announced that the Myanmar military would conduct “clearance operations” yet again. For people who remember all too well the 2016 and 2017 military campaigns, the announcement served as a portent of what was to come. Persons who have nothing to do with the conflict, including women and children, have been victims of shelling, heavy artillery, and landmines.

Mass arrests and detention of people suspected to be associated with the Arakan Army have taken place. The Government also imposed a protracted internet shutdown in selected townships in Rakhine and Chin states. Although internet is now restored, only 2G connection is available, which significantly restricts the types of online activity that people can do.

As COVID-19 gripped the country in March, the Government designated the Arakan Army as a terrorist organization. This mirrors the designation of the ARSA as a terrorist organization in 2017, and evokes to an extent the narrative spin on the Rohingya as an existential threat to Bamar-dominated Myanmar, thereby justifying military authority. The terrorist designation has been described as an attempt to “stigmatize and isolate” the Arakan Army. For instance, the group was not invited to this year’s Union Peace Conference. Journalists have also now shied away from seeking the views of the group when reporting on the conflict, lest they be associated and accordingly charged under Myanmar’s Counterterrorism Law or the Unlawful Associations Act. The terrorist designation would also facilitate prosecution as a practical evidentiary matter.

Needless to say, the conflict has exacerbated Rakhine-Bamar ethnic tensions and further undermine stability in the region (with respect to the Rohingya, tensions are dispersed along ethnic (Rohingya-Rakhine-Bamar) and religious (Muslim-Buddhist) lines). In the lead-up to the national elections on November 8, a Rohingya Muslim politician was not allowed to contest based on citizenship grounds.

These developments weaken prospects for voluntary repatriation of the Rohingya. The saga of violence, persecution, and impunity also make it unlikely for the Rohingya to find justice domestically, compelling them to seek justice elsewhere.

Thereafter

In December 2019, as State Counsellor Daw Aung San Suu Kyi faced international discredit for representing Myanmar at the ICJ, a different narrative took shape in the country’s commercial and political capitals. Crowds gathered in the streets of Yangon and Naypyitaw cheering their beloved leader for defending the nation against “Western bias.” Billboards with the message “We Stand with You, Daw Suu” lined major thoroughfares as proceedings before the ICJ were streamed live in downtown Yangon’s Maha Bandoola Park. In marked contrast, various ethnic groups, waging their own decades-long struggle against the Government, expressed solidarity with the Rohingya in anticipation of the court hearings.

These polarized reactions call for a project to render the language of international law accessible to a nation emerging from decades of conflict and military rule. The International Commission of Jurists has initiated and assisted efforts within the country to explain these international proceedings to the Myanmar public.

As the Rohingya watch justice unfold in various international fora, it is undeniable that these court proceedings are making waves on the ground. Beyond bringing justice to the Rohingya, these accountability initiatives carry significant implications for Myanmar’s political transition, its recently revived justice system, and the longstanding struggle of Myanmar’s ethnic groups all playing behind the scenes of mainstream foreign media coverage. As the world sees justice for the Rohingya rightly take center stage, the international community must also contend with the necessity of building the conditions for justice inside Myanmar for the long term. This includes confronting and working through the “racial injustice” built in the history and structure of international law and transitional justice, a difficult but indispensable task if we were to make peace and general respect for human rights possible in Myanmar long after the curtain falls and the foreign actors leave the stage.