Rohingya Symposium: Some Thoughts about the Role of the International Community

[Laetitia van den Assum is a diplomatic expert who has served as Netherlands ambassador on four continents. She was also a member of the Rakhine Advisory Commission, chaired by the late Kofi Annan.]

Myanmar’s reluctance to embrace its rich ethnic, religious and cultural diversity remains the biggest stumbling block towards peace, stability and development.  It stands in the way of other major challenges, particularly high inequality and an economic system with predatory characteristics. The situation of the Rohingya as well as the overall current station in Rakhine state must be seen against this background.

Ethnic conflicts are mostly found in the border areas and Myanmar has been in the habit of ‘freezing’ them. The term ‘frozen conflict’ describes situations where violence has largely ceased but no peace agreement is in place, leaving the underlying causes of the conflict unresolved.  In such situations, peace and stability remain hostage to the parties’ unwillingness or inability to address the political issues that divide them, including negative ethnicity.

Rakhine state is an exception: its conflict is active. The state was thrown into chaos after the brutal response by the Tatmadaw (the military) to the 2016/2017 attacks by the Arakan Rohingya Salvation Army (ARSA). Subsequently, the insurgent Arakan Army (AA) began to manifest itself more prominently, and from late 2018 until today, the state has been engulfed in violent conflict that analysts call the largest and costliest since independence.

On 19 August 2020, when Commander-in-Chief Senior General Min Aung Hlaing spoke at the fourth session of the Union Peace Conference, he denied the causes of the frozen and active conflicts and suggested that seeking ethnic rights is not only redundant but also dangerous: “It is necessary for all of us to avoid terms and feelings like ethnic rights and minority rights that can undermine trust and encourage disunity, inferiority, and doubts.”  With these words, the Tatmadaw’s preference for assimilation resurfaced.

It is important to look at the situation of the Rohingya from the wider perspective of Myanmar’s treatment of ethnic minorities.  While all are victims, there is no dispute that the Rohingya have clearly suffered the brunt of violence and oppression, not only from the Tatmadaw but also from other ethnic groups, notably the Rakhine.

Many in the international community continue to speak of the ‘Rohingya crisis’. While it is obvious that accountability for the decades of neglect, marginalisation and oppression of the Rohingya is urgently needed, a singular focus on the Rohingya alone will not lead to long-term solutions. The international community must also look at the crisis of Rakhine state and even beyond that, to the crisis of the state of Myanmar.

This was the premise that guided the work of the Rakhine Advisory Commission (RAC), chaired by Kofi Annan (2016 – 2017). And that is why its  report and recommendations have withstood the test of time. It remains valid as the roadmap that it was intended to be. But sadly, the violent conflict that flared up since the end of 2018 has made it difficult to do justice to its recommendations.

The RAC report, now three years old, has a complement in a new study, Freedom of Movement in Rakhine State, released by the Independent Rakhine Initiative (IRI) in March 2020. It follows up on one of RAC’s most important recommendations: to undertake a mapping exercise identifying all existing restrictions on movement in Rakhine affecting the state’s diverse ethnic communities and to develop a roadmap for the lifting of restrictions. It is one of the most important studies about Rakhine state in recent years.

It clearly shows the devastating impact of freedom of movement and how its cross-cutting nature affects other basic rights, such as health, education and livelihoods. It is obvious that the Tatmadaw’s newly imposed movement restrictions the Tatmadaw has imposed on all communities have been having devastating consequences for all communities. It also shows that enforced ethnic segregation, or apartheid, remains a stark reality for the Rohingya population, a fact that will no doubt interest those in the international justice sector who document international crimes.

Importantly, the IRI report also delivers a comprehensive roadmap of detailed recommendations:  for the people of Rakhine, for the government, for humanitarian agencies and for the wider international community. It deserves much more attention than it has received until now. More background here.

Since 2017, Rakhine state has witnessed a significant increase in programming for reconciliation between the Rohingya and Rakhine communities. Both national and international actors have taken an interest in such social cohesion activities. While this is welcome, such efforts can only lead to sustainable outcomes if they go beyond mere intercommunal reconciliation. 

Because social cohesion is intrinsically linked to critical issues of human rights and inclusive governance, it cannot be successful if it precludes discussion on how the government’s discriminatory policies and practices create division in Rakhine state. The government itself must become an important enabler of social cohesion.

Turning to international judicial remedies, it is clear that strong support by the UN, governments and NGO’s continues to be critically important.  But actors have to be careful to ensure consistency in their approach. Advocating international criminal accountability and supporting credible efforts towards achieving political transformation in Myanmar itself are two sides of the same coin.

Unfortunately, it appears that quite a few members of the international community felt relieved to leave criminal accountability issues in the hands of international lawyers, so that they themselves might focus on improving their relations with Myanmar’s government and armed forces.

This became clear from September 2018 onwards, when the prosecutor of the International Criminal Court (ICC) announced a preliminary investigation concerning the “alleged deportation of the Rohingya people from Myanmar to Bangladesh”. Subsequently, in November 2019,  the ICC judges allowed the prosecutor to proceed with her preliminary investigation, while The Gambia instituted proceedings against Myanmar at the International Court of Justice (ICJ) under the Genocide convention, and a separate suit was filed against Myanmar’s de facto head of government Aung San Suu Kyi in an Argentine court under the principle of universal jurisdiction.

The absence of a consistent approach by the international community clearly showed itself in the case of the Independent Commission of Enquiry (ICOE), established by Myanmar in July 2018. It was tasked to investigate allegations of human rights violations following attacks by the Arakan Rohingya Salvation Army (ARSA).  Several diplomatic actors in Yangon were prepared to support this new government initiative even though, from day one, justifiable doubts pointed to a lack of credibility and likelihood of failure.

In September 2018, the International Commission of Jurists (ICJ) issued a thorough legal brief that assessed the inquiry in reference to standards for the conduct of investigations. It found that the ICOE could not reasonably be seen as having any chance of being independent, impartial, or making an effective contribution to justice or accountability for crimes under international law. On the contrary, it concluded that giving any recognition to the ICOE would likely undermine and delay effective measures for justice and accountability.

However, embassies supporting the ICOE felt that it made good diplomatic sense to give the government the benefit of the doubt. In doing so, they helped to undermine work already done by the UN’s Independent International Fact-Finding Mission. Even though their governments had lauded this mission’s report at the UN, in Yangon they chose a wait-and-see attitude towards the flawed IOEC inquiry.

The IOEC presented its final report on 20 January 2020. It has not been released. Only an executive summary is available. It contains no information about the methodologies used for the conduct of its investigative work. Its main findings echo the presentations State Counsellor Aung San Suu Kyi gave a month earlier, when she appeared before the International Court of Justice in The Hague. At that time, she chose to admit to some international crimes against the Rohingya but rejected any suggestions of genocide and mass rape.

As analyst David Scott Mathieson concluded in an Asia Times article: “the report bids to peddle a sense of official partial closure on what happened in Rakhine state and that government may now return to normal”.

The lesson for the international community is that a wait-and-see attitude cannot be an option in the face of highly questionable domestic investigations.

A final point about charges of genocide and the importance of being sensitive to the perception of differential treatment of the Rohingya and other groups. What in the case of a protected group like the Rohingya can be construed as part of a genocidal process, may in the case of other groups be war crimes and crimes against humanity. This could lead to a backlash against the Rohingya.

While there is no agreement on a clear hierarchy of international crimes, in practice genocide is often perceived as the crime of crimes. That perception is also prevalent in Myanmar public opinion. As a result, minorities who themselves have suffered decades of brutal treatment and oppression find it difficult to understand why the Rohingya are singled out for what they see as differential treatment.

It is important to be sensitive to their feelings and to explain that crimes committed against other minorities may also constitute international crimes.  The UN’s Independent International Fact-finding Mission did cover crimes committed against minorities along Myanmar’s border with Thailand.  Also, the Independent Investigative Mechanism for Myanmar (IIMM) was established as a mechanism to collect, consolidate, preserve and analyse evidence of the most serious international crimes and violations of international law committed in Myanmar since 2011. Its mandate is nation-wide and not limited to the Rohingya or to Rakhine state.