Rohingya Symposium: The UN Security Council, the Rohingya Genocide and the Future of International Justice

[Simon Adams is the Executive Director of the Global Centre for the Responsibility to Protect.]

“We believe that mass killings and ethnic cleansing are underway across Rakhine State, and that there may be genocidal intent on behalf of the authorities.” That was my concluding comment at an informal briefing for members of the UN Security Council on the morning of 8 September 2017. The meeting took place in a building on Second Avenue in New York, a short walk from UN headquarters. The ambassadors and other diplomats who came to the briefing drank tea and coffee as they listened to our analysis and took notes.

Fifteen days earlier, on the other side of the world, Myanmar’s 33rd and 99th light infantry divisions had launched so-called “clearance operations” against the ethnic Rohingya population of Rakhine State, in the northwest of the country. There were two colleagues beside me at the briefing table. One, from Human Rights Watch, provided satellite evidence that revealed the systematic burning of dozens of villages during these operations. The images exposed the scorched outlines of incinerated mosques, huts and homes that had been the center of life for the local Rohingya population until 25 August when Myanmar’s military had been unleashed upon them.

The other briefer was from Fortify Rights, a human rights organization based in Southeast Asia. His colleagues had collected testimonies from desperate Rohingya refugees as they staggered across the border into Bangladesh, sharing stories of mass rape and systematic killings. Many of the fleeing villagers exhibited signs of extreme emotional trauma, as well as stab or bullet wounds. Again, the assembled diplomats took notes and asked questions.

The fifteen members of the UN Security Council represent the most powerful diplomatic body in the world. Together they form the only international institution mandated with the maintenance of global peace and security. They can deploy UN peacekeeping missions, impose sanctions, establish international criminal tribunals, and even authorize militarily intervention if they deem it necessary. Of the diplomats assembled around the briefing table that morning, not one voiced any doubts about the veracity of the evidence we presented. Not one of them challenged the idea that atrocities were underway in Myanmar. And not one of the diplomats appeared to believe that they were capable of doing anything to stop it.

It wasn’t supposed to be this way. The adoption of the principle of the “Responsibility to Protect” (R2P) at the historic UN World Summit in 2005 was supposed to usher in a new era of commitment with regard to preventing or halting the four “mass atrocity crimes” – genocide, war crimes, ethnic cleansing and crimes against humanity. As a mobilizing principle, R2P has gained remarkable political traction in a short period of time and has been invoked by the UN Security Council in more than 80 resolutions since 2006.

In the fifteen years since R2P was first adopted, international action halted atrocities in Côte d’Ivoire and in northern Iraq. Coordinated diplomatic pressure also helped prevent the worst from happening in Kenya, Burundi and The Gambia. Meanwhile in the Democratic Republic of the Congo, South Sudan and Central African Republic, action by the UN Security Council was belated or attenuated, but saved lives. But R2P has also provoked enormous controversy, with the 2011 military intervention in Libya and the failure to act with regard to Syria, causing bitter divisions between the Council’s five powerful permanent members. The international community also completely failed to halt atrocities in Sri Lanka, Myanmar and Yemen. While this is not an exhaustive list, it points to the enormity of the political challenge that currently faces us.

So far, the twenty-first century has been plagued by toxic nationalism and resurgent xenophobia. The number of people displaced by persecution, conflict and atrocities is at its highest levels since the Second World War. Meanwhile, multilateralism is under attack and the United Nations faces the danger of becoming, as one its former officials put it, a Remington typewriter in an iPhone world. In this context, Myanmar exposed two enduring weaknesses regarding international efforts to prevent atrocities.

The first is that despite an abundance of rhetoric around the importance of prevention, very few states or regional bodies are prepared to act on early warning of human rights violations or identity-based conflicts that could result in atrocity crimes. The second major failing is that the UN Security Council’s effectiveness remains constrained by the veto power of its five permanent members.

The ugly truth is that prior to August 2017 there had been more than a decade of warnings from human rights organizations about the system of apartheid Myanmar had imposed upon the Rohingya. Despite this, some sections of the UN and a number of governments had taken refuge in the idea that quiet diplomacy and not publicly mentioning the Rohingya would create space for gradual reform. Instead it had the reverse effect, encouraging those generals who desired a “final solution” in Rakhine State and wanted to test the limits of Nobel Peace Prize winner Aung San Suu Kyi’s moral authority. The military’s gamble paid off. Aung San Sui Kyi became a willing apologist for genocide and the foreign governments that had invested in her celebrity were left facing the grim reality that democracy in Myanmar could not be built on the bones of the Rohingya.

Meanwhile, the UN Security Council’s failure to uphold its responsibility to protect the Rohingya was a damning indictment of that body’s divisive dysfunctionality. Two of the so-called “P5,” the United Kingdom and France, have publicly committed to restrain from using their veto power to block meaningful international diplomatic action to prevent or halt atrocities. But Russia, China and the United States refuse to do so. The net result is that China defends Myanmar from international action, Russia protects Syria, and the United States continues to veto attempts to hold Israel accountable for its violations of international law.

In the three years that have now passed since the genocidal “clearance operations” began in Rakhine State, the UN Security Council has still not adopted a single binding resolution on the situation in Myanmar. This inertia is all the more appalling given that all states who are signatories to the UN Genocide Convention are obligated to prevent and punish the crime. In 2017 the entire Security Council were informed, aware and fully briefed on the extent of the horrors underway in Rakhine State. They had access to multiple reports, intelligence sources and expert briefers who agreed that tens of thousands of Rohingya had been killed and over 750,000 people had been forcibly displaced. But fearing a Chinese veto, not a single draft resolution was ever put forward for a vote. Not then, not since.

Thankfully, the wider struggle for justice in Myanmar is not subject to a veto and did not end that September morning. A myriad of civil society organizations – working with Rohingya survivors and concerned states – continued to push for accountability. Partly as a result, in June 2018 the European Union (EU) and Canada imposed targeted sanctions on seven senior members of Myanmar’s military and police.

Subsequently, the Independent International Fact-Finding Mission (FFM) on Myanmar, mandated by the Human Rights Council, reported during August 2018 that atrocities committed against the Rohingya may amount to four of the five prohibited acts in the Genocide Convention. The FFM’s devastating 400-page report found evidence of “genocidal intent,” including discriminatory government policies designed to alter the demographic composition of Rakhine State, and a premeditated plan to destroy Rohingya communities.

According to the FFM, Myanmar’s authorities, including State Counsellor Aung San Suu Kyi, had not met their “responsibility to protect the civilian population” and were complicit in the commission of atrocities. The report called for several top military officers to be prosecuted for genocide, as well as for potential crimes against humanity and war crimes. The FFM also called upon the UN Security Council to refer the situation in Myanmar to the International Criminal Court (ICC) or create an ad hoc international criminal tribunal.

With a threatened Chinese, Russian or United States veto making an ICC referral via the UN Security Council highly unlikely, the Human Rights Council then proposed an independent investigative mechanism. The mechanism could collect and preserve evidence of atrocities in Myanmar and help prepare potential cases against alleged perpetrators. On 27 September, the HRC voted to establish an investigative mechanism for Myanmar, with only China, the Philippines and Burundi opposing the decision. Commenting on the outcome, Pakistan’s Ambassador said that it showed that the “UN works, the Human Rights Council works.”

The HRC decision sent a clear message to the permanent members of the UN Security Council that the broader membership was not prepared to passively accept their diplomatic failure. Following the vote, the FFM’s chair, Marzuki Darusman, told the Security Council that “national sovereignty is not a license to commit crimes against humanity or genocide,” and that the “Rohingya and all of Myanmar’s people, in fact the entire world, is looking at you to take action.”

In response to the FFM’s report, the European Union also began reassessing trade sanctions to potentially deny Myanmar tariff-free access to the world’s largest trading bloc. This was part of a process of escalating measures directed at those responsible for atrocities, including targeted sanctions imposed by the EU and Canada in June, and sanctions imposed by the United States during August that focused on two military units, depriving their commanders of access to foreign financial assets. At the end of October Australia, an important regional power, also imposed targeted sanctions on five senior officers from Myanmar’s military.

Finally, in late 2019, following a meeting of the Organization of Islamic Cooperation, it was announced that The Gambia would take Myanmar to the International Court of Justice (ICJ) for breaching the Genocide Convention. The public announcement of this historic case was made by Gambia’s Justice Minister, Abubacarr Tambadou, at an event co-hosted by Bangladesh and the Global Centre for the Responsibility to Protect on the margins of the UN General Assembly.

When the case commenced at the ICJ in December 2019, The Gambia immediately submitted a request for the Court to issue provisional measures in order to protect the Rohingya people and secure evidence of the crimes that had been committed against them. Meanwhile, State Counsellor Aung San Suu Kyi came to The Hague to defend the reputation of Myanmar’s murderous generals. The case received widespread global media attention when the ICJ judges largely accepted the arguments of The Gambia and issued a provisional measures order in January 2020.

The Gambia, the smallest country on the African continent, has already done more to uphold its responsibility to protect than the entire UN Security Council. Some other states are following its lead and are now reviewing their trade, investment and development programs in Myanmar, ensuring that they do not reinforce discriminatory structures or enable perpetrators of genocide to profit from the seizure of Rohingya lands. There is also an investigation at the ICC and a universal jurisdiction case in Argentina. The struggle for accountability continues.

While the ICJ case and bilateral sanctions imposed by some states sent a powerful message to Myanmar’s generals, they also provided a warning to the UN Security Council. If the Council fails to uphold its core responsibility to maintain international peace and security – which includes preventing mass atrocity crimes – it is destined for obsolescence. States who continue to believe in human rights and international law will look for other ways and means of upholding these norms and laws.

Before she became an apologist for the atrocities of Myanmar’s military, Aung San Suu Kyi once said that “it’s not power that corrupts, but fear.” The future of international justice may now depend upon the political will of committed states, like The Gambia, who are prepared to act when the UN Security Council can’t or won’t.