Final judgment of Permanent Peoples' Tribunal on State Crimes Against the Rohingya, Kachin, and other groups in Myanmar

September 23, 2017

 

Session on

 

State Crimes Allegedly Committed in Myanmar against the Rohingyas,Kachins and Other GroupsUniversity of Malaya, Faculty of Law18-22 September 2017, Kuala Lumpur, MalaysiaJUDGMENT

 

I. GENERAL HISTORICAL AND JURIDICAL FRAMEWORK

 

I.1 The competence of the Permanent Peoples’ Tribunal


The Permanent Peoples’ Tribunal (PPT) is an international opinion tribunal, independent from any
state authority. It examines cases regarding violations of human rights and the rights of peoples.
Promoted by the Lelio Basso International Foundation for the Rights and Liberation of Peoples, the
PPT was founded in June 1979, in Bologna, Italy, by a broad spectrum of legal experts, writers and
other cultural community leaders from 31 countries. The PPT is rooted in the historical experience of
the Russell Tribunal on Vietnam (1966-67) and on dictatorships in Latin America (1974-1976). The
importance and strength of decisions by the PPT rest on the moral weight of the causes and arguments
to which they give credibility, as well as the integrity and capability to judge of the Tribunal members.
While fully recognising the reference role of the institutions of the international community of states
and the juridical instruments, the PPT assumed as its Statute the Universal Declaration of Peoples’
Rights (Algiers, 1976), which underlines its aim: to give visibility and legitimacy to the authority of
peoples when states and the international bodies fail to protect their rights, due to geopolitical reasons
or other motivations.


Complaints heard by the Tribunal are submitted by the victims, or by groups or individuals
representing them. The PPT calls together all parties concerned and offers the defendants the
possibility to make their own arguments heard. The panel of the judges is selected for each case,
combining members who belong to a permanent list and individuals who are recognised for their
competence and integrity. From June 1979 to the present, the PPT has held 43 sessions whose results
and judgments are available at: www.permanentpeoplestribunal.org.


The permanent and increasing challenge of the original working hypothesis has been confirmed by the
spectrum of cases which have requested the competence of the PPT as the instrument which could
make visible and qualify the violations of their fundamental rights to self-determination and to life, in
the absence of, or denial in, responses at the institutional, juridical and political level. In this sense, the
verdicts and deliberations of the PPT represent a narrative of international law as seen from the side of
peoples, when their status of victims is translated into that of the only legitimate subjects to whom the
public and private powers are accountable, beyond their legal impunity.


For the purpose of this case on the violations of the rights of peoples of Myanmar, it is useful to refer
specifically to the doctrine developed by the PPT in the deliberations where state crimes have been
committed against individuals and groups of the same countries, transformed from citizens into
enemies, and/or “other” and, as such, exposed in full impunity to processes of discrimination leading
to a genocide, recognised only too late, or even never: Argentina and its desaparecidos, 1980; East
Timor, lead case of the first neo-colonial genocide, 1981; Guatemala and its indigenous populations,

1983; the determinants and the responsibility for the Armenian genocide, 1984; the peoples of the ex-
Yugoslavia, 1995; victims of Islamic fundamentalism of Algeria, 2004; the communities of Colombia,

2006-08. An even more specific reference must be made to the two sessions on the case of Eelam
Tamils (Dublin, 2019; Bremen, 2013) which could be considered, from a methodological and
doctrinal point of view, an integral part and foundation for this deliberation.

 

I.2 The general context


After World War II, Burma, later to be known as Myanmar, formerly governed as part of British
India, was recognised as a nation state and granted independence in 1948 by the United Kingdom.
Within its borders were a large number of ethnic and religious minorities dominated by the majority
Bamar, or Burmese, mainly Buddhists, who had been the primary beneficiaries of colonial rule. From
1962, when a military coup brought a repressive regime to power, the minorities began to suffer
increasing discrimination and loss of human rights, including citizenship in varying degrees.
While the undemocratic nature and loss of human rights under the military junta was obvious to the
international community, little action was taken to bring about a change. Much moral support was
given to the oppositionists, in particular Aung San Suu Kyi, who was a political prisoner for nearly
two decades.


The current situation of mass flight from the country by the Rohingya and increased human rights
abuse against them and other non-Burman Buddhist minorities is not a new phenomenon. There have
been similar significant, if smaller, episodes of mass flights in previous years, notably in 1978, 1992
and 2012. Nevertheless, the international community did little to avert a catastrophe although the signs
were clearly there. It appears that placing an array of sanctions on the country, and supporting the
National League for Democracy and its leader Aung San Suu Kyi, winner of a Nobel Peace Prize for
her human rights struggle, was thought sufficient to bring about a significant change in Myanmar’s
human rights record. Eventually it seemed a good result had been achieved as Aung San Suu Kyi was
elected to Parliament in 2012, and made State Counsellor (effectively Prime Minister) in 2016, under

the new 2008 constitution. But that constitution essentially ensured real power remained with the
military.


Despite the widely acclaimed “transition to democracy”, a visit by President Obama in 2012 and the
lifting of sanctions, the human rights situation did not improve and was observed by many to be
getting worse. In response, no effective action was taken by the United Nations (nor by other
international institutions such as ASEAN), despite numerous warnings, e.g. from the Special
Rapporteur on the situation of human rights in Myanmar (four reports from 2014-2016 and another in
March 2017). To what extent the current anti-Muslim and anti-terrorism beliefs that have gained
strength since 9/11 have ensured sympathy for the Myanmar government and forestalled a unity of
commitment to act on behalf of the people of Myanmar is not clear. It may well be that such beliefs,
along with falling support in the country due to economic failures, led the government to embark on
an escalation of its repression and human rights abuses.


In these circumstances, the PPT moved to inquire into the situation consistent with its view that
genocide prevention is also a matter for the peoples of the world to be aware of and thence to demand
action. That it is now known that a Report by a UN commissioned expert who said the situation in
Myanmar demanded urgent action to prevent a catastrophe was ignored and even suppressed, makes
clear that peoples’ organisations such as the PPT, independent from states and from INGOs, have an
important role to play in bringing a judicial spotlight to bear, albeit without power of enforcement,
standing alongside the victims and letting their voices be heard in the unfulfilled task of preventing
such future human tragedies so that we can finally say with confidence: Never again.

 

I.3 The specificity and the term of reference of this session


The attention of the PPT for the situation of peoples of Myanmar dates back to 2013, at a time when
Myanmar’s (already ongoing) violations were hardly considered, and even less well known on the
world stage. This was the hidden face of a state seen as undergoing a transformation from military to
democratic control, with a woman icon of peace at the helm portrayed as an indisputable guarantee for
a future in which all the citizens of the country could be recognised as inviolable subjects of their
rights to a life in dignity.A clear alarm was sounded of an impending genocide at a number

of events leading up to this session,including a London conference at which the United Nations Special Rapporteur for Human Rights,


Tomás Ojéa Quintana stated “There are elements of genocide in Rakhine with respect to Rohingya”9
.
This was followed by the Opening Session of the PPT on Myanmar State Crimes against Rohingya,
Kachin and Other Groups, convened in London (Queen Mary University, 6-7 March 2017)10. The
reports, the Witness testimonies and in particular the closing remarks of that session, must be
considered and referred to as an integral part of this Judgment. Nevertheless, the findings of the PPT,
as well as of a number of other observers from various UN bodies, national and international NGOs
and research teams11 did not manage to draw the concerted attention of the international community
nor of wider public opinion, let alone any concrete preventive action.


The preparatory phase for this session was transformed into one of urgency due to the rapidly – even
if not unexpectedly – evolving situation with the dramatic “clearance” incidents of October 2016 in
Rakhine state, even more so because of the absolute invisibility to the world of what had already been
characterised by the PPT and others as a drastic case requiring immediate attention.


Only on the eve of this session, the suffering of the Rohingya peoples finally and belatedly seized
world attention, as the increasingly perilous situation of the Rohingya burst into press coverage of
hundreds of thousands of Rohingya fleeing a large-scale military build-up followed by massive attacks
launched by the Myanmar and police military forces as well as paramilitary and civilians, purported to
be in response to a number of coordinated assaults on Myanmar border posts on 25 August 2017. As a
result, within the three weeks leading up to this session, nearly half a million people crossed the
border from western Myanmar into Bangladesh, telling harrowing stories of the carnage they left
behind as they crammed into open fishing boats or trudged along muddy paths carrying babies and the
elderly and bundles of meagre possessions, seeing plumes of smoke soar into the air as their homes
and villages were burnt to the ground.


Many of these refugees arrived in Bangladesh presenting serious injury from these burnings, from
machete, knife and gunshot wounds, from rape and other sexual assault as well as from land mines
apparently laid even during the immediate past along the paths to the border. Of particular concern

 

London Conference on Decades of State-Sponsored Destruction of Myanmar’s Rohingya, London School of
Economics, 28 April 2014.


Opening Session of the PPT on Myanmar State Crimes against Rohingya, Kachin and Other Groups,
convened in London (Queen Mary University, 6-7 March 2017). See


https://tribunalonmyanmar.org/?s=london+session and, for the closing remarks of the panel of the

judges:http://permanentpeoplestribunal.org/closing-remarks-of-the-panel-of-the-judges-opening-session-on-
myanmars-state-crimes-against-rohingya-kachin-and-other-groups/.

 

For the list of some of the most notable reports, as presented by the Prosecution to this full session, see Annex

was the fact that more than half of these refugees were children12, many separated from their families,
a large number of whom reported having seen their parents and siblings killed before their eyes.
The consensus of many sources on the humanitarian crisis of the population of Rakhine state, both
within their land and in their search for refuge, could not have been clearer, and it was openly and
repeatedly underlined even by the UN Secretary-General António Guterres in his official letter to the
UN Security Council on 13 September, despite the constant denial of the civil and military authorities
of Myanmar.


As clearly set out in the indictment, which synthesised the available overwhelming written, visual,
factual and analytical documentation, together with requests from the three victim groups for the
convening of a full PPT session, our task went beyond giving more visibility to what already known,
to include the following, according to the terms of reference established in the London session:
a) to broaden the focus from the most tragically and acutely affected population of the
Rohingyas to the general policy of the Myanmar state on Kachins and other ethnic, national
and religious groups;


b) to document and qualify the historical and structural roots and causes of the events, to avoid
considering them as occasional incidents and strictly internal affairs of a still young and
“fragile democracy”, with no political, strategic, economic interactions with and impact on
regional and global actors and interests;


c) to qualify juridically the severity and the responsibility of the crimes not only in view of the
most pertinent criminal qualification, but to stress and justify with the greatest emphasis the
absolute priority for concrete responses to the urgency of the needs of the affected population.
This dramatic exodus of Rohingya widened the matters to be considered by the Tribunal to include the
enormous challenge to Bangladesh in receiving these refugees, in addition to the estimated 300,000
Rohingya refugees still in Bangladesh as a result of the previous waves of violence. While the
Bangladesh government initially hesitated to open the border, and reportedly even forcibly returned
some people to Myanmar, this policy changed in the face of the undeniable humanitarian crisis and
need to assist hundreds of thousands of desperate people, as expressed by the Bangladesh Prime
Minister, Sheikh Hasina, when she visited Kutupalong camp on 12 September.


12 Children were estimated by the International Organization on Migration (IOM) to comprise 58% of the
507,000 newly arrived re

fugees, “Situation Report: Rohingya Crisis”, Cox’s Bazar: Inter Sector Coordination
Group, 1 Oct 2017.


The affected people are not merely victims waiting for humanitarian responses – certainly essential,
though delayed and partial. They are, and must be considered first and foremost, the central subjects
of rights, whose recognition and restitution should be the first, structural implication of a judgment
based on the inviolable legitimacy of individual and peoples’ rights.


It is hoped that the participation of the victims themselves in this Tribunal is in a small way restitutive
such that they could reconstruct their lives once again.

 

II. THE PROCEDURE FOR THIS SESSION OF THE PPT

II.1 The Panel of Judges

 


The Panel of Judges was composed of:


Daniel Feierstein (Argentina), who chaired the panel
Zulaiha Ismail (Malaysia)


Helen Jarvis (Cambodia-Australia)


Gill H. Boehringer (Australia)


Nursyahbani Katjasungkana (Indonesia)


Shadi Sadr (Iran)


Nello Rossi (Italy)


Two of the judges appointed to the Permanent Peoples’ Tribunal were not able to attend: Denis
Halliday (Ireland), for severe and acute health reasons, and Bellur Narayanaswamy Srikrishna (India),
because a visa was unable to be arranged in time. For the professional profiles of the components of
the panel, see the Annex 1.


Gianni Tognoni and Simona Fraudatario assured the consistency of the procedures, the overall
coordination of the session and the material editing of this text.


II.2 The Prosecution


The Indictment was drawn up and presented to the Tribunal by the Prosecution led by Ms Doreen
Chen, and consisting of a team of lawyers from the Centre for Human Rights and Advocacy
(Centhra) led by Mr Azril Mohd. Amin and including Dir Kheizwan Kamaruddin, Fahmi Abd. Moin,
Luqman Mazlan, Dr Mohd Afandi Salleh, Rafna Farin Abdul B. Ra’far and Dato Rosal Azimin
Ahmad, as well as Dr Thomas McManus from the School of Law, Queen Mary University, London
(Annexe 2).


III.3 The right to defence


In strict compliance with its Statutes, all the steps and official documents related to the case of this
session – from the results of the London Opening Session, to the first formal convocation of the Kuala

 


Lumpur Session to the official program and the Indictment – were transmitted: a) to the
representatives of the Myanmar civil and military authorities; b) to directly relevant international
agencies and governing bodies as shown below.

Myanmar authorities notified and invited to present a defence:

 

• Senior General Min Aung Hlaing, Commander in Chief, the Tatmadaw (Myanmar Armed
Forces), Naypyidaw


• Daw Aung San Suu Kyi, Minister of Foreign Affairs and Myanmar State Counsellor


• Vice President Myint Swe, Chair of the Myanmar Presidential Investigation Commission on
Rakhine, Former Lt-General and former Chief of Military Intelligence


• General Myat Tun Oo, Chief of Military Affairs and Security Office of the Commander in
Chief


• Win Mra, Chair of the Myanmar Human Rights Commission


UN, EU and other authorities invited to participate:


• António Guterres, Secretary-General of the United Nations

• Zeid Ra'ad Al Hussein, United Nations High Commissioner for Human Rights


• Professor Yanghee Lee, Special Rapporteur on the Human Rights Situation in Myanmar
• Ahmed Shaheed, Special Rapporteur on Freedom of Religion or Belief


• Fernand de Varennes, Special Rapporteur on Minority Issues


• Adama Dieng, Special Adviser of the Secretary-General on the Prevention of Genocide
• Federica Mogherini, High Representative of the European Union for Foreign Affairs and
Security Policy /Vice-President of the European Commission


• Kofi Annan, Chair, Rakhine Commission


• Kazi Reazul Hoque, Chairman of the National Human Rights Commission of Bangladesh.
While no answer was received from the Myanmar representatives, a formal acknowledgment of the
invitation was given by a number of the above representatives of international agencies, with a request
to be kept informed of the results of the session, and Mr Kazi Reazul Hoque directly addressed the
Tribunal regarding the impact of the impact of Rohingya refugees on Bangladesh.


The right to defence, which is central in the Statutes of the Tribunal and has been a carefully observed
practice throughout all its proceedings, was communicated to the concerned parties in this case also, in


due time. As no answer was received, at the beginning of each of the three days of public audience,
the Chairperson of the Panel of Judges asked if any representative of the Myanmar Government was
present in the room, and no response was received.


According to the Statutes, due to the absence of any response from the authorities, the PPT procedure
of an ex officio defence was activated, and the resulting text was read publicly by the representative of
the Secretariat of the PPT. The full text of the speech given by the State Counsellor, Aung San Suu
Kyi, on 19 September 2017 in an address to the assembled diplomatic corps in Naypyidaw, which had
already been listened to collectively by the Panel of Judges, and which was formally and partially
replayed in front of the audience, was assumed to be the most complete and updated expression of the
position of the Myanmar authorities. Because of its relevance, it is considered as an integral part of
this deliberation (Annex 3)

.

II.4. The proceedings


The public hearings of the PPT took place in the Faculty of Law, University of Malaya in Kuala
Lumpur, Malaysia. Videos of the hearings together with press coverage and some of the supporting
testimony and evidence can be found on the web site www.tribunalonmyanmar.org .The program,
together with essential information on the Prosecution and Experts who gave testimonies are provided
in Annex 4

 

II.5 Security measures


The Panel of Judges assured in camera hearings for those witnesses for whom it was determined
desirable to provide a close protection of their identity.

 

III. PRESENTATION OF THE FACTS

 

III.1. Serious violations of human rights and allegations of war crimes and crimes against
humanity against the Kachin people


“We are still birds in a cage”... in this way, the first Kachin witness before the Peoples’ Tribunal on
Myanmar in Kuala Lumpur (Mr Jimmy Hpang) summarised the condition of his people after reading a

long list of specific cases of torture and execution suffered since the 2011 breakdown of the 17-year-
long ceasefire between the Kachin Independence Army (KIA) and the Burmese Army.

Background


Since achieving independence from the UK on 4 January 1948, the state of Myanmar has been at
almost ceaseless war with the approximately 40% of its 55 million people who make up the country’s
135 recognised ethnic groups as well as minority religions and other unrecognised ethnic groups.
Kachin State, the most northerly state of the country in the foothills of the Himalayas bordering China
and India, “is one of the six, later to become seven, ethnic nationality states that were created when
Burma became independent in 1948.”13 The 1947 Constitution of the Union of Burma states:
“territories that were heretofore known as the Myitkyina and Bhamo Districts shall form a constituent
unit of the Union of Burma and be hereafter known as “the Kachin State.”14 In the 2014 census the
state’s population was reported as being 1.689 million or 3.3% of the total. 15


The Kachin people in Myanmar, who consist of six major subgroups, refer to themselves collectively
as Jinghpaw Wunpawng. They number between 1 and 1.5 million and are largely resident in Kachin
State but also form a substantial part of the population of the northern section of Shan State. Kachin
populations also exist across the borders from Kachin State in China and India. Under British colonial
rule, many of these previously animist people became Christian, now predominantly Baptist.16


13 Mandy Sadan, “History and Ethnicity in Burma: Cultural Contexts of the Ethnic Category 'Kachin' in the
Colonial and Post-Colonial State, 1824-2004”, PhD, School of Oriental and African Studies, University of
London, 2004, p. 18.


14Article 6 The Constitution of the Union of Burma, 24 September 1947
(http://burmalibrary.org/docs3/CONSTTTN.47)


15 2014 Myanmar population and housing census. [Yangon]: Ministry of Information, 2014.
16 ”Mandy Sadan, Testimony given at the London opening session of the Tribunal; see also her Being and
Becoming Kachin: histories beyond the state in the borderlands of Burma. Oxford: Oxford University Press,
2013.

 


War and increasing marginalisation have been the dominant features of life for the Kachin people
since at least the early 1960s. The KIA was established in 1961, and the 1962 military coup by
General Ne Win ushered in more than three decades of war, during which many previously Kachin
towns and villages were destroyed and thousands of people were killed. One disturbing feature of this
armed conflict is the extent to which child soldiers have been used along with forcible recruitment:
“Burma is believed to have more child soldiers than any other country in the world. The
overwhelming majority of Burma’s child soldiers are found in Burma’s national army,
the Tatmadaw Kyi, which forcibly recruits children as young as eleven. ... Children are
also present in Burma’s myriad opposition groups, although in far smaller numbers.
Some children join opposition groups to avenge past abuses by Burmese forces against
members of their families or community, while others are forcibly conscripted. Many
participate in armed conflict, sometimes with little or no training”.17

 

Under the national policy of Burmanisation and substantial inwards migration that took place during
that period of warfare, the Kachin progressively lost many of their customs and traditions, including
competence in the six Kachin languages which were, since colonial times at least, written in Roman
rather than Burmese script.


The ceasefire from 24 February 1994 until 9 June 2011 brought an end to intense fighting, but led
paradoxically to an ever increasing militarisation of the region with the stationing of many
Burmese/Myanmar central army battalions. The introduction of an oppressive developmental model
involving massive alienation of traditional lands and natural resources (notably their precious jade),
accompanied by increasing dispersal and marginalisation of the Kachin through significant urban
immigration of lowland Burmese people, including replacing many Kachin animist or Christian sacred
places with Buddhist shrines or pagodas, generated demoralisation and a debilitating drug scourge.18
This shift is reflected in the findings of the Myanmar 2014 census that 64% of the population in
Kachin state reported as Buddhist, and just 34% Christian.


17 “My gun was as tall as me”: child soldiers in Burma. New York: Human Rights Watch, 2002, p.2. See also
Kai Chen, Comparative study of child soldiering on Myanmar-China border: evolutions, challenges and
countermeasures. Singapore : Springer, 2014; and A Dangerous Refuge: Ongoing child recruitment by the
Kachin Independence Army, London : Child Soldiers International, 2015).


18 War and peace in the borderlands of Myanmar: the Kachin ceasefire 1995-2011, edited by Mandy Sadan.
Copenhagen: NIAS Press, 2016. On the economic transformation, see especially, Chapter 5, Kevin Woods, “The
commercialisation of counterinsurgency: battlefield enemies, business bedfellows in Kachin State” and his
article “Ceasefire capitalism: military–private partnerships, resource concessions and military–state building in
the Burma–China borderlands”, Journal of Peasant Studies, 38:4, 2011, p.747-770.


The KIA refused to transform into a Border Guard Force (BGF) under direct control of the central
Myanmar army, as stipulated in the 2008 Constitution. The KIO rejected such a process, demanding a
comprehensive political dialogue prior to any disarmament or demobilisation, and this was used as the
grounds for large-scale military assaults by the Myanmar Army. Since fighting resumed, it is
estimated that 10% of the population has been displaced, with at least 120,000 people now in IDP
camps (at least two-thirds are under KIO control and have faced numerous restrictions and denials of
humanitarian aid).


Testimony and evidence


Written and oral testimony was presented to the Opening Session of the Tribunal by the Kachin
Women’s Organisation (KWO). This related a number of incidents, including the aerial
bombardment followed by shelling of Laiza (the de facto capital of the KIO-controlled zone of Kachin
State) on 14 January 2013, killing three civilians and injuring others, as well as an attack on the same
day on Kahtan village far away from any conflict zone; the shooting of 9th grade school pupil Ja Seng
Ing in 2012 and the subsequent arrest and detention of her father when he tried to pursue the case of
her death; the shooting of civilians sheltering in a church and seizure and enforced disappearance of
Deacon Lum Hkwang in 2011; air and artillery attacks on many villages and churches and on three
IDP camps near Lai Hpawng in 2016; rape, murder, looting, and blocking of humanitarian assistance
to IDP camps.


The KWO’s written report described destruction of indigenous cultural and religious sites in addition
to Christian churches:

 

“In northern Kachin State, the Tatmadaw [Myanmar/Burmese military] has also shown a
total disregard for Kachin cultural heritage in Putao. In 2014, at a popular site at
Machyang Baw known as the ‘rock dragon’ and regarded as sacred in the folklore of
spirit-worshipping Kachin, a local army commander commissioned construction work to
attach a painted dragon head to the natural rock formation and built a pagoda at the top of
the site against the wishes of local people. A similar incident took place the following
year when a pagoda was constructed at National Jawng, an island in the Mali Hka River,
famous in Kachin cultural heritage as the gathering place of ancestral spirits.”20


Protection Sector Kachin, “Humanitarian Access in Kachin State, Protection Sector (PWG – GBV SS – CP
SS) Update Note,” November 2016.
20 War crimes and crimes against humanity: voices from the Kachin people of northern Burma. London: KWO,
2017, p. 7.


The Kuala Lumpur session likewise received both written and oral testimony from further witnesses,
including from the Kachin National Organisation (KNO) and the Kachin Women’s Association of
Thailand (KWAT).


Mr Jimmy Hpang and his colleague of the Kachin National Organisation (KNO) presented details and
supporting photographs of 20 cases of alleged war crimes of “Shelling, Killing and Torturing and
arbitrary arrest”, and ten cases of “Burning Houses, ransacking and blocking aids for IDPs”.
Ms Nang Htoi Rawng from the Kachin Women’s Association of Thailand (KWAT) presented
evidence on widespread sexual violence, including a detailed report on the rape and murder of two
volunteer teachers in Kawng Kha village in northern Shan State on 20 January 2015 (see further
below). 21


Original video footage, including a detailed analysis of a military attack by Myanmar Army battalions
74 and 276 on Nam Lim Pa village, Shwigu District, Kachin State, from 8 to 11 October 2011, and the
attack on Laiza on 14 January 2013 mentioned above, screened and was introduced as supporting
evidence to his Expert testimony by Mr Ryan Roco.


In addition, a number of witnesses testified in camera of crimes that they had suffered personally and
who had felt compelled to leave their homeland in fear for their lives, following forced labour serving
as porters for the Myanmar Army, sexual violence, beatings, torture, execution or jailing and enforced
disappearance of friends and relatives and/or military attack on their villages.


The direct testimony presented to the Tribunal corroborated a wealth of information given in a number
of substantial written reports by various human rights organisations and researchers that were also
submitted to the Tribunal by the Prosecution regarding, inter alia, the following acts against the
Kachin people:


Arbitrary detention


One Witness [name withheld] described the arbitrary arrest of her younger brother alleged to be a KIA
spy. After the family was unable to raise the demanded payment of 300,000 kyat to secure his release,
he was sent to trial and sentenced to 10 years’ detention. The Witness herself was then closely
followed and pressed to become involved in collection of drug money on behalf of soldiers or face a
similar allegation of KIA involvement. In fear of a fate similar to her brother she decided to flee
Myanmar and is now resident in Malaysia.

21 Justice delayed, justice denied: seeking truth about sexual violence and war crime case in Burma, with a
special focus on the Kawng Kha case, in Kachin Land. Legal Aid Network and KWAT, January 2016.


The acts detailed in her testimony were echoed by others, and support documentation in a special
dossier of 36 cases brought under the 1908 Unlawful Associations Act against people accused of
contact with the Kachin Independence Army researched and compiled in 2012 by independent human
rights defenders in Burma.


Forced labour


One Witness [name withheld] told the Tribunal that she had five times been pressed into serving as a
porter for Myanmar military units. This experience was recounted by a number of other witnesses,
including one who reported in camera that at 15 years of age on 10 November 2015 he was seized at
night and taken from his family tent in their field. Together with two other young men, he was forced
to carry a heavy basket of arms and ammunition, fed only scraps of food and forced to drink from a
stream which soldiers upstream had used for bathing and as a toilet. He managed to escape during a
fire fight and fled to Malaysia.


At least eight men from Nam Lim Pa were unlawfully arrested, detained and forced to serve as porters
for the Burma Army. Except for one who managed to escape, the fate and whereabouts of the
remaining men are unknown. An additional 35 porters were alleged to have been called from
neighbouring villages on 16 October 2011.23

 

Torture


Even as the Tribunal’s KL hearings were taking place, military officers reportedly confessed at a court
martial hearing on 19 September 2017 to torturing and murdering three Kachin civilians, who were
collecting firewood near their Mai Hkwang displaced persons camp in Mansi township on 25 May,
when they were detained by the 319th Light Infantry Battalion. Their mutilated bodies were found
three days later.


The Prosecution submitted to the Tribunal a report detailing the systematic use of torture and other
cruel, inhuman, and degrading treatment or punishment (“ill treatment”) of more than 60 civilians by
Myanmar authorities from June 2011 to April 2014 by members of the Myanmar Army, Myanmar
Police Force, and Military Intelligence. 

 

2Cases under the Unlawful Associations Act 1908 brought against people accused of contact with Kachin
Independence Army. Hong Kong, distributed by the Asian Human Rights Commission & Asian Legal Resource
Centre, January 2013


(http://www.burmalibrary.org/docs14/AHRC-Unlawful_Assoc_Act-Kachin.pdf).


Crimes in northern Burma: results from a fact -finding mission to Kachin State, [n.p.], Partners, November
2011, p.25-27.


“Tatmadaw officials admit to killing Kachin villagers”, Burma News International, 20 September 2017.
“I thought they would kill me”: ending wartime torture in Northern Myanmar. Bangkok: Fortify Rights, 2016.

 

Enforced disappearance


A number of witnesses described how their relatives or friends have not been see again after being

arrested or taken by force to serve as porters by Myanmar military or other authorities. The well-
known case of Su Ja Roi, taken in 2011, was also recounted.26

 

In December 2016 two ethnic Kachin Baptist leaders, who had guided journalists reporting on
Burmese airstrikes that allegedly severely damaged a Catholic church, were apparently forcibly
disappeared in Northern Shan State, and were last seen on 24 December being taken to a military
base.


Rape and other forms of sexual abuse


Witness Ms Nang Htoi Rawng reported that KWAT had documented more than 600 cases of rape and
sexual violence against Kachin women and girls, including in front of their family members, also gang
rape and detention with repeated rape over a period of time. She reported that these incidents have not
decreased since the formation of the new NLD-led government. Two sp

ecific incidents were described
in detail:

 

 the rape and murder of Ms Maran Lu Ra (20 years) and Ms Nan Tsin (21 years), two
volunteer teachers in Kawng Kha village in northern Shan State on 20 January 2015, alleged
to have been committed by a soldier from Light Infantry Battalion 503, who had occupied a
house within 200 metres of the crime scene inside a church compound. Despite considerable
physical and circumstantial evidence, no person has been prosecuted28;


 the rape of a 73 year-old bedridden widow, on 13 April 2015 by a soldier from Light Infantry
Battalion 438 who was caught by neighbours. Despite the crime not being committed as part
of his active duty, the case was taken to a military court for adjudication. The perpetrator was
convicted and sentenced to seven years’ detention, but it is not known whether he was indeed
gaoled or released as subsequent enquiries to Myanmar’s National Human Rights
Commission have been ignored.


Extra-judicial killing


One particularly harrowing account given by Expert Mr Ryan Roco, and summarised in the
Prosecution’s Closing Statement, described one incident in the aftermath of the Nam Lim Pa attack in


 Paul Vrieze, “Finding Roi Ja”, Frontier Myanmar, 2 December 2016 (https://frontiermyanmar.net/en/finding-
roi-ja).

 

 “Burma: Kachin Christians Feared ‘Disappeared’https://www.hrw.org/news/2017/01/16/burma-kachin-
christians-feared-disappeared

 

 Justice delayed, justice denied: seeking truth about sexual violence and war crime case in Burma, with a
special focus on the Kawng Kha case, in Kachin Land. Legal Aid Network and KWAT, January 2016.

which “a boy’s mother who, when she heard her son had been killed by mortar fire in the village, went
to retrieve his body from a group of Burmese soldiers, and then brought the body home to clean it and
prepare for burial. When she woke up the next morning, a group of 14 Burmese soldiers were in her
house, and they pointed at her son’s body and told her, ‘This is because of KIA soldiers, not because
of us. Instead of your husband dying, your boy died for him. Why don’t you agree to a peace
agreement, why don’t you ask your leaders for peace?’


“Because of this, she had no choice but to carry her son’s body out of her house and could not return,
as the Burmese soldiers remained in her house and freely helped themselves to her food. The soldiers
also committed theft when they stole 800,000 kyat (approximately 590 USD) worth of gold jewellery
and jade stones from her that fateful day.”


Confiscation of property and destruction of buildings


One Witness stated, “Every precious thing belongs to cronies and armies, not to us”, following his
presentation of the following summary list of minimum figures for damage inflicted: 367 villages
burned down or destroyed; also 254 schools, more than 70 local churches, 18 monasteries, 100
kindergartens, 42 primary schools, 15 elementary schools, 15 secondary schools, 29 high schools, 230
local clinics, 14,980 houses, 354 rice or vegetables barns, 120 rice mills, 1,289 pieces of farm
machinery, 42 small generators, 107 solar panels, 17,109 power generators, 148 sewing machines,
19,241 telephones, 457 radios, 169 VCD/DVD players, 16 TV satellite dishes, 140 carts, 269 bicycles,
552 motor bikes and 33 cars.


A detailed account of the losses inflicted in the military attack on Nam Lim Pa village on 8-11
October 2011 was submitted (together with photographic and video documentation), specifying “at
least 297 households, a township office, a United Nations Development Program (UNDP) clinic and a
Roman Catholic church were looted and vandalized by Burma Army battalions 74 and 276. At least
one house was destroyed by fire. At least seven cows, one buffalo and one chicken were killed. At
least two cows, two pigs, one buffalo and one elephant were injured. Total damage to civilian property
is estimated by Nam Lim Pa residents to exceed 15,000,000 kyat (15,000 USD). The scope of the
destruction of vacated civilian properties, primarily homes and home storefronts, suggests the damage
was not inflicted for military purpose. 


Forced displacement


The detailed account of the military attack on Nam Lim Pa village on 8-11 October 2011 reported the
following:

 

29 Crimes in northern Burma: results from a fact -finding mission to Kachin State, [n.p.], Partners, November
2011, p. 35.


“Victim interviews confirm there to be at least 49 people that were forcibly relocated
from their homes by Burma Army battalions 74 and 276. At least 1,564 people, 767 male
and 797 female, were displaced from their homes between 8 October 2011 and 11
October 2011. Although at least 49 civilians were directly ordered by soldiers to evacuate
their properties, the majority of those displaced chose to flee from fear of persecution and
general conflict. The sounds and sights of guns, bombs and general pandemonium were
the most common reasons found as to why villagers fled. Eighty households that fled
were found hiding in the surrounding jungle, living in crude shelters of bamboo, plastic
and leaves.”


Denial of humanitarian aid


United Nations agencies reports that some 50% of the 120,000 Kachin IDPs are receiving very little
humanitarian assistance due to restrictions, checkpoints and cumbersome travel authorisation
procedures, often amounting to an effective denial of access, especially to Kachin-controlled areas in
violation of humanitarian principles of humanity, neutrality and impartiality endorsed in General
Assembly resolution 46/182, which was adopted in 1991.


In addition to loss of life, property and livelihood, war and displacement have other serious impacts on
access to education, health services etc. by the Kachin people. While Kachin are considered one of the
indigenous national races of Burma/Myanmar, and appear not to have been prevented from acquiring
citizenship documents, loss of papers needed to prove identity and places of residence and inability to
travel across conflict zones to secure such documentation have consequential impact on their lives. 32
Persecution on ethnic and religious grounds


Witnesses testifying at both London and Kuala Lumpur sessions recounted being verbally insulted and
abused. One Witness stated: “We are not considered as human beings; not even sub-humans”.
A report submitted to the Tribunal described:

 

“Torture sessions were also typically infused with elements of ethnic and religious
discrimination. Survivors explained to Fortify Rights how soldiers, police officers, and
Military Intelligence officers verbally denigrated the Kachin ethnicity and Christian
religious identity during torture sessions. In several cases, these statements included


Crimes in northern Burma: results from a fact -finding mission to Kachin State, [n.p.], Partners, November
2011, p.29


Protection Sector Kachin, “Humanitarian Access in Kachin State, Protection Sector (PWG – GBV SS – CP
SS) Update Note,” November 2016.


 "Education takes a hit in Myanmar’s Kachin State," IRIN Humanitarian News and Analysis, 23 April 2013.


threats that the authorities would destroy the Kachin ethnicity. A Kachin survivor
described the threats he received from an army official during an interrogation session
where torture was employed: “You [Kachin] are our soldiers’ leftover kids, the products
of our military expeditions. We will eliminate all you Kachin.” Another survivor was
told, “We will kill you, and we will burn the children in the fire and then crush them”;
and another was told, “You are Kachin, and we will kill all the Kachin. Even if the
women are pregnant, we will kill them.”

 

Impunity


One Witness told the Tribunal “The law is not for us”. In many cases presented to the Tribunal, no
action has been taken against alleged perpetrators, even when detailed circumstantial and physical
evidence has been presented to the authorities. Indeed, in some cases those reporting the crimes were
instead themselves detained. The widespread practice of trying any military or police under military
rather than civilian courts (often closed to the public) and then detaining any convicted persons under
military control also effectively shields alleged perpetrators.


Forced exile


All the Kachin personal witnesses who testified before the Tribunal indicated that they had left their
native country of Myanmar due to a well-founded fear of persecution and indeed in many cases fear
for their life.

 

III.2. Serious violations of human rights and allegations of crimes against humanity and
genocide against Rohingya

 

Background


The Rohingya are an ethnic, linguistic and religious minority of Myanmar that has been subjected to
prolonged, institutionalised and systematic denial of identity, suffering serious violations of their
human rights for many decades. Indeed, they have been widely referred to as the world’s most
persecuted people.


The integral and fundamental parts of their identity, such as language, culture, religion and history
have been criminalised by the government and banned from the education curriculum, generally
suppressed and contradicted and refuted in public discourse. The word Rohingya is not officially

33 “I Thought They Would Kill Me”: Ending Wartime Torture in Northern Myanmar. [Bangkok] : Fortify
Rights, 2016, p. 14.


recognised by the government nor used in general discourse in Myanmar. Even the Annan Rakhine
Commission was prohibited from using the word Rohingya.


The Rohingya mainly live in the north of Rakhine State which borders Bangladesh. They represent
about one-third of the population of that state. The majority of them are Muslim with a minority of
Hindus. In Myanmar’s diverse population of about 51 million the Rohingya are a small minority.
Their number is impossible to verify since they were not allowed to participate in the 2014 census
unless they registered themselves as ‘Bengali’, which many people refused to do, either on principle
or because they feared this would automatically disqualify them from eligibility for citizenship. It is
estimated that well over a million Rohingya were living in Myanmar prior to 1978, but that pogroms
in 1978, 1991-92, 2012-15, 2016-early 2017 and now in the latter half of 2017, have reduced the
current population of Rohingya in Myanmar to about 500,000, while 1.5 million have been driven
outside the country, according to the testimony to the Tribunal by Expert Dr. Maung Zarni (See
Annex 6).


The government of Myanmar has progressively denied the right to nationality of Rohingya through
different laws and policies which have caused the deprivation of almost all civil, political, economic,
social and cultural rights. In particular, the 1974 Emergency Immigration Act and the 1982 Burmese
Citizenship Law (which classified citizens of Burma as 1. Full citizens 2. Associated citizens 3.


Naturalised citizens) have been used to strip the Rohingyas of their nationality and render them, in the
eyes of the government and the majority Buddhist population, merely foreigners. As a result of the
above-mentioned laws and policies, the Rohingya people have been subjected to different and
arbitrary verification processes which have gradually turned them into mere residents with few rights.
However, until the last general election in 2015, the Rohingya population were eligible to vote and in
the 1990s, they enjoyed the right to form political parties and elect their representatives.


Witnesses told the Tribunal that the denial of the Rohingya the right to nationality has caused
institutionalised deprivation or restriction of other basic rights. The 1988 Rohingya Extermination
Plan outlines a government policy to deny the Rohingya any access to higher education, the right to
property and to own land, buildings and shops, as well as other economic rights. It stated that "any
such properties under their existing ownership must be confiscated for distribution among the
Buddhists." Moreover, the Rohingyas’ right to worship has been subjected to many restrictions such
as the prohibition of construction or renovation of mosques, Islamic schools (madrasa) as well as the
deliberate destruction of places of religious gatherings.


As a result of a military offensive in 2012, as reported to the Tribunal by Expert Dr. Zarni, the
Rohingya were driven from public visibility in the cities and towns of Rakhine State. Some 100,000


fled across the border into Bangladesh, while an estimated 120,000 people were forcibly detained in
internal camps suffering food deprivation and very poor living conditions34. The denial of
humanitarian aid has been also widely reported against the Rohingya IDPs, and is continuing in the
present crisis.


According to the UN Special Rapporteur on the situation of human rights in Burma, since 1996 the
government has imposed severe restrictions on travel by the Rohingya population (restrictions which
have gradually included other Muslims), violating their basic rights to freedom of movement and
making their villages and places of living into virtual detention centres The Tribunal heard from a
Witness that due to the restrictions on movement, the way to Rakhine State for Muslims is “a one-way
street”. In other words, Muslims can travel from the other parts of the country to Rakhine but they are
not permitted to return(Witness Testimony of Myanmar Muslim: Thuzar Maung, session 2, Day 3, 20
September 2017, Kuala Lumpur hearing).


The findings of the Tribunal on the crimes against Rohingya under International Law will be
addressed in the following section. However, before examining them, the Tribunal would like to stress
that these crimes have occurred in a political context full of hate speech and what is essentially
supremacist propaganda produced by both state and national officials and Buddhist leaders. Such
Buddhist nationalist discourse denies the very existence of a Myanmar ethnic group called Rohingya,
and labels them as ‘Bengali illegal immigrants’ despite the fact that they have lived in Myanmar for
generations. Furthermore, the government, taking the advantage of the global discourse of the ‘war on
terror’, dehumanises the Rohingya and desensitises the international community towards the victims
by framing them as ‘Islamic terrorists’. This has been exemplified by the use of the terrorist label to
explain the military crackdown in mid-August after the alleged attacks on military outposts by the
Arakan Rohingya Salvation Army (ARSA), apparently a small group, poorly armed, that has sought to
protect the Rohingya from attacks on them by the military and other armed forces loyal to the state.
Expert Dr. Razia Sultana provided the Tribunal with a report of an attack in October 2016 by the
military, in which they raped women, killed some of the residents and burned a Rohingya village in
Maungdaw. Surviving villagers were called to the police station and forced by the military to falsely
testify before the camera that the Rohingya Solidarity Organisation (RSO) had burned their houses in
October 2016. Such narratives are often picked up by the media and used as fabricated news reports
and propaganda, supplementing the official narrative which has alleged that Rohingya women are too
dirty and unattractive to be raped by the Myanmar soldiers.

 

 Towards a peaceful, fair and prosperous future for the people of Rakhine: final report of the Advisory
Commission on Rakhine State, [n.p.]: Advisory Commission on Rakhine State, August 2017, p.35; Mixed
movements in South-East Asia. [n.p.]: UNHCR Office for South-East Asia, 2016.


The gross human rights violations in Myanmar have been massively documented by the UN,
International NGOs and Myanmar human rights and civil society organisations. The Prosecution
presented several fact-finding reports to the Tribunal as evidence (See Annex 5). They confirm the
testimonies which were heard by the Tribunal in London and Kuala Lumpur hearings as the following
crimes:


Arbitrary arrest, detention and torture


The Tribunal both in London and Kuala Lumpur sessions heard several accounts of the frequency of
arbitrary arrests of civilians by government armed forces. They included children and young people.
Several witnesses testified before the Tribunal about the different types of physical and mental torture
which they had been subjected to while in detention. During the 2016 crackdown, introduced by the
government as a “clearance operation”, the security forces arrested more than 600 civilians accused as
terrorists. The government said later that eight of them had died in custody. Their bodies showed clear
signs that they had been tortured. None of their families were notified. (Testimony of U Ba Sein,
London hearing).


Enforced disappearances


Both Experts and Witnesses testified before the Tribunal about many cases of those who had been
arrested by the government forces who have been disappeared in recent years and the families still do
not know their fate or whereabouts. The survivors of the recent crisis have also reported many
thousands of cases of missing family members.


Rape and other forms of sexual abuse


The Tribunal heard first-hand horrific accounts of Rohingya women who had been raped in their
homes, their villages and the IDP camps by the military forces. They also witnessed other women
being raped or gang-raped in front of their eyes.


Many incidents were reported in which a group of young girls have been selected, kidnapped and
gang-raped by the military forces. The evidence presented at the London hearing confirmed a case of
15 girls of a Rohingya village murdered after being taken into the forest and gang-raped. (Muhammad
Faris Bin Hussain Ahmed testimony, London hearing). Four survivors of rape gave in camera
testimony to the Tribunal on their ordeal, adding that the perpetrators usually used vulgar terminology
and sexual insults, while combining such words with calling them as ‘kalar’ which is a derogatory
word referring to their so-called non-Burmese and foreign origin. One woman said: “when they were
raping me, they kept saying bad words which I cannot repeat and then something like you, kalar, you
do not belong to this country, go away!”


The memories of the victims of rape are usually combined with horrendous stories of the killings,
disappearances and injuring of their family members, often including babies and young children, and
neighbours, as well as the burning of their homes, and destruction of their belongings.
The use of rape and gang-rape is a widely practiced military tactic historically and in many parts of
the world and is today being used in Rakhine State, taking place in front of the eyes of the relatives or
even neighbours in public. It clearly aims to terrorise the community and create an atmosphere of fear,
part of the plan to eliminate the Rohingyas’ presence in the country. It is an instrument of terror, as the
Tribunal found its scars on both minds and bodies of the Witnesses even years after the incident.
These Rohingya women also reported being subjected to other forms of physical and psychological
sexual violence such as violation of their bodies' integrity by groping of their private parts during body
searches as well as forcing them to undress in public.


The four survivors' testimonies also presented a horrific pattern of physical abuse as they tried to flee.
Having been raped by the soldiers of the Myanmar army, they were raped again several times, in some
cases many times over a period of months, by smugglers and others who took advantage of the
situation as they travelled from Rakhine to Thailand and Malaysia. Furthermore, they reported that,
traumatised and impaired, they often do not receive the support they are in desperate need of.
Evidence presented to the Tribunal by the Prosecution, including the expert testimony of Dr Razia
Sultana, as well as the UN Office of the High Commissioner of Human Rights’ report, demonstrated
clearly that in Rakhine State, rape has been used against Rohingya women and girls in a widespread
and systematic manner, particularly since the 2016 crisis.


Extra-judicial killing and causing bodily harm


The survivors of the Rohingya persecution shared with the Tribunal unimaginable experiences of their
relatives, friends and neighbours being severely injured or even shot dead, slaughtered with knives or
burned alive. Several massacres in different villages across Rakhine State were reported to the
Tribunal by the Experts. These reports also included some details of throwing the bodies of the
victims into mass graves, namely at Kyauk Pyin Seik and Kanyin Tan Myoma villages during the
2016 offensive “clearance” operation. (Testimony of U Ba Sein, London hearing).


In a video testimony, obtained by an Expert a few days before the Kuala Lumpur hearing, a survivor
of the Tola Toli village massacre said she saw 200-250 women and children being killed. Her husband
having been killed, she escaped alone with their children. She said many had already been shot dead,

 


and those lying on the ground were picked up, chopped, and later thrown into the river. Mutilated
bodies were piled up and set on fire, while bodies of many small children were thrown into the fire.
Expert Professor Chowdhury Abrar drew the attention of the Tribunal to the fact that among the
refugee flows that have been recently arriving in Bangladesh, one major component of the population
was missing. This missing component was young people and the middle-aged, with a particular
emphasis on men, which would be a sign to that the Rohingya male people had been more targeted for
extra-judicial killing.


Confiscation of property and destruction of buildings


Several accounts presented to the Tribunal described looting, confiscation of property and destruction
of homes, shops, workplaces, mosques and other buildings and numerous entire villages in the
locations where Rohingya people had lived.


In many cases that were brought to the Tribunal, armed government forces or non-state actors were
reported to have taken all valuable belongings of the Rohingya people and subsequently burned or
destroyed the buildings. There were several accounts of confiscation of land and other properties by
either the government or ultra-religious Buddhist groups. (Testimony of U Ba Sein, London hearing).
The video evidence showed Rohingya villages all along the western shore of Rakhine State in flames,
while satellite imagery gave graphic before and after images revealing total destruction of these
villages, with adjacent Rakhine villages intact. In addition to causing terror among the population,
causing their flight, these arson attacks may serve an ulterior motive, as openly declared by the

responsible Myanmar government minister: "According to the law, burnt land becomes government-
managed land," Minister for Social Development, Relief and Resettlement Win Myat Aye told a

meeting in the Rakhine state capital of Sittwe, the Global New Light of Myanmar newspaper
reported.


Internal displacement and forced exile


Over the course of only three weeks in August-September 2017, more than 400,000 Rohingya, mostly
women, children and elderly had to flee their homes and entered Bangladesh. However, the number of
Rohingya refugees who have had to escape persecution over the past few decades is even higher, in
the several significant waves of Rohingyas fleeing their homeland in 1978 (290,000), in 1992
(260,000), again in 2012 (100,000 refugees and 120,000 IDPs) and 2016 (100,000), as Expert Dr.
Maung Zarni presented to the Tribunal in his testimony (see Annex 7).

35 Simon Lewis, Reuters, 27 Sept, 2017, 10:11 AM.


The Tribunal heard several testimonies of Rohingya refugees forced to leave their homes and their
country by border guards and other army forces accompanied by Rakhine Buddhist mobs, sometimes
including, and even led by, Buddhist monks. According to the testimonies and other evidence, forced
exile from Myanmar occurs as a result of direct physical pressure on Rohingya communities and
villages, often terrorising them by burning their homes, seizing their belongings, killing their relatives
and other villagers, or indirectly through imposing severe and intolerable hardship on them.
In 2012, “the military and the border police suddenly came and forced us from our home. We had to
go without carrying anything with us.” (Testimony of Jamilah, London hearing).


“They even forcibly drag us to board a boat. One of the boats is already overloaded with people. There
were 180 people on that boat”. (Testimony of Hidayat bin Abdul, London hearing)

Impunity


According to witness testimonies and other evidence brought before the Tribunal, the perpetrators of
crimes against Rohingya people enjoy absolute impunity. Paragraph 10 of the 1988 Rohingya
Extermination Plan states: "whenever there is a case between Rakhine and Muslim, the court shall
give verdict in favour of Rakhine; when the case is between Muslim themselves, the court shall favour
the rich against the poor Muslim so that the latter leaves the country with frustration." In such
situation, the Rohingya victims of human rights violations are left completely unprotected by the legal
system from “law enforcers” through to courts and upward to those in positions with supervisory
responsibility such as Cabinet ministers.


The witnesses identified for the Tribunal two categories of perpetrators:
State perpetrators


State perpetrators of the crimes in violation of International Law in Rakhine State mainly consist of
government armed forces including the Myanmar Army, the Myanmar Border Force Guards and the
Police. However, it is noteworthy that almost all government offices are involved with the wide range
of denial and deprivation of the basic rights of Rohingya people.


Non-state perpetrators


The Witnesses repeatedly referred to the monks, the Buddhists and Rakhine people as non-state
perpetrators. Describing events prior to the latest wave of the crackdown, the non-state actors reported
as unarmed people who would usually follow the military operation by acts such as beating people,
looting, destructing the building etc. In recent statements obtained in the aftermath of the August 2017
events, witnesses testified about non-state perpetrators who were not uniformed but were armed and
participated in military operations alongside regular troops.


The dramatic escalation of the persecution, with mass reprisals wreaked on the Rohingya population,
purportedly in response to the 25 August 2017 attacks, was outlined in the Prosecution’s Opening
Statement, which provided a substantial amount of real-time testimony, video and other evidence to
the Tribunal to support the evidence prepared in advance for the Kuala Lumpur hearings. This video
testimony focused on the extent of the damage inside Rakhine State, including notably satellite
imagery of the burned out villages and interviews on the manner in which this destruction was caused,
including the use of incendiary rocket launchers. There were also individual accounts of massacres
and rapes. All these violations continued to occur long after the statement of State Counsellor Daw
Aung San Syu Kyi of 18 September 2017 in which she declared that so-called “clearance operations”
had ceased on 5 September.


The Chairman of the National Human Rights Commission of Bangladesh, Mr Kazi Reazul Hoque,
responded positively to the invitation issued by the PPT to participate in the Kuala Lumpur hearings,
addressing the Tribunal and providing information on the extent of the challenges faced by
Bangladesh in carrying the burden of the Rohingya genocide. He informed the Tribunal that on 12
September 2017, the Bangladesh Prime Minister, Sheikh Hasina, visited Kutupalong camp, saying
“We gave them shelter in our country on humanitarian grounds. Our houses were also burnt down in
1971. Our people fled to India when they had nowhere to go. So we are doing everything in our power
to help the Rohingya”.“If we can feed 160,000,000 people we can also feed an additional 500,000 to
700,000 people at their time of distress. If necessary, we will eat one meal a day and share another
meal with theses distressed people.”36 At the same time she pressed for urgent international assistance
in this task, and for pressure to be put on Myanmar.


The Commissioner reiterated Bangladesh’s urgent call for assistance in meeting these needs, and
concluded by saying: ‘human dignity and respect is the very fabric of human rights - each one of us,
as a member of humanity must continue to weave this fabric to make it stronger so human rights will
not fall through its loops’.


III.3. Serious violations of human rights and allegations of crimes against humanity against
Myanmar Muslims

 

Background


The PPT received its third complaint from the Myanmar Muslim community in July 2017, and while
allegations of persecution have been somewhat less catastrophic, tragic and severe in intensity

36 “PM Hasina stands up for the Rohingya”, and “Bangladesh PM: if necessary we will eat one meal a day to
feed the Rohingya”, Dhaka Tribune, 12 September 2017.


compared to the Rohingya community, they nevertheless demonstrate a purposeful institutional
strategy of outright abuse towards other Muslims in Myanmar.


Records of human rights abuses of the Muslim community in Myanmar became conspicuous with the
coup under General Ne Win in 1962, which established the superiority of the Burman (Bamar)
Buddhists over other groups. Since 2012 the situation has deteriorated further and, much to the
disappointment of the Muslim community, the transition to the joint NLD-military rule in 2015 has
seen instead the acceleration of human rights abuses plus documented evidence of crimes against
humanity towards Muslims in general. The Burma Human Rights Network, BHRN has documented
compelling evidence of the ongoing institutional persecution of Muslims under the new civilian
government since March 2016.


In the closing session of this Tribunal hearing in London in March 2017, the panel of judges found
identity framing by exclusion – the process of creating Myanmar as a supreme Burman Buddhist
entity – to be the prime ideological cause of ensuing allegations of war crimes and crimes against
humanity towards other ethnic communities in Myanmar. From a historically pluralistic society of
diverse ethnicities and religions, Myanmar underwent a demographic transformation process that was
buttressed by the passing of its Citizenship Law in 1982. In targeting the Muslim community, which
had traditionally been accorded equal citizenship rights, the new law required all Muslims to show
proof of ancestry dating back to 1824. Those who held National Registration Cards (NRC), had to
surrender them when the enforced renewal deadlines (at ages 12, 18 and 35) came up as it was an
unwritten law that a ‘full citizen’ cannot be a Burmese and a Muslim at the same time. In return they
were asked to obtain National Verification Cards, signalling a lower status ID that does not
acknowledge full citizenship, rendering the holder ineligible for passports and the loss of freedom of
movement.


Alienation cum rejection of the Burmese Muslims in the political, economic and social sectors has
then become a corollary to their much reduced status. Currently there are no Muslims in Parliament.
Neither the military-allied Union Solidarity and Development Party (USDP) nor Aung San Suu Kyi’s
NLD fielded a single Muslim candidate in the 2015 election, and many Muslims (including non
Rohingya) were disenfranchised. Further, according to a number of testimonies given to the Tribunal
by both Experts and Witnesses, Muslims are reportedly being effectively excluded from senior levels
of the civil and military services, including the police and academia. This picture of the situation of
the Burmese Muslims is corroborated in the Justice Delayed Justice Denied report which documents

 

Persecution of Muslims in Burma: BHRN Report. Burma Human Rights Network, 2017.

 

the pattern of police and judicial operations

 

. Instead of enforcing the ‘Rule of Law’ in which they
exercise neutrality, they practise ‘Rule by Law’ in which government authorities are above the law or
even, as remarked by Expert Dr Maung Zarni, mock the rule of law. The expert testimonies revealed a
calculated strategy with intent and knowledge to persecute the Muslims. The absence of adequate
accountability mechanisms has resulted in gross impunity, thereby eroding further the rule of law and
making the road to sustainable peace an impossible goal.


From the research reports as well as testimonies of five Experts and Witnesses, this systematic and
institutionalised persecution of Burmese Muslims can be demonstrated in numerous ways:
1. Increased difficulties in securing an NRC


As mentioned earlier, this forms the crux of all ensuing abuses since failure to provide proof of the
NRC subjects the individual to harassment and the possibility of a penalty, consisting of a fine or
arrest or both.


Such institutional denials of the right to nationality, which is a fundamental human right, further
translate into much reduced exercise of civil and political rights, as well as job opportunities and much
reduced financial standing for the individual, and fundamentally contravenes the Universal
Declaration of Human Rights and Myanmar’s treaty obligations under the United Nations Convention
of the Rights of the Child since the individual is thereby placed in a situation that is interpreted as
being rendered “stateless”.

 

2. Increasingly acute restrictions on access to education and healthcare


Following the violence in Rakhine state in 2012, all Muslims in Myanmar faced severe restrictions on
access to education and healthcare. The inability to produce the NRC compounded the problem even
further in the case of tertiary education and access to emergency and life-saving care in public
hospitals.


3. Institutionalised forms of religious intolerance


The testimonies received clearly attest to cases of outright religious intolerance, and in many
instances, verging on religious persecution.


a) Restrictions on building and repairing mosques

 

30 Justice delayed, justice denied : seeking truth about sexual violence and war crime case in Burma, with a
special focus on the Kawng Kha case, in Kachin Land. Legal Aid Network and KWAT, January 2016.
31 Convention on the Rights of the Child, art. 24; Convention on the Elimination of All Forms of Discrimination
against Women, art. 12; Convention on the Rights of Persons with Disabilities, art. 25.


Prohibition on building new places of worship for both Muslims and Christians, along with targeted
destruction of mosques and confiscation of such properties have seen the Muslims facing reduced
access to communal prayer services, in contravention of Article 18 of the Universal Declaration of
Human Rights. The testimonies of both the Expert and one Witness corroborated the findings of
available documentation on the subject, which noted that this had been carried out to some extent in
the wake of Cyclone Nargis in 2008, but seems to have been employed more widely since the 2012-
2013 anti-Muslim attacks. The Witness, who kept meticulous personal records with photographs that
were shown to the Tribunal, added that when mosques were destroyed or confiscated, they were either
sealed off, the land resold for profit or converted into another facility. She reported that in one town,
some 11 of the existing 14 mosques had been shut down, and only four mosques were allowed to
operate, and that several madrasah (religious schools) were sealed off, while the communities were
prohibited from performing their communal daily prayers in places other than the existing mosques.


b) Creation of ‘Muslim-free zones’


The concocted perceived threat of Muslims to the majority Buddhist community has seen the creation
of Muslim-free villages by various local authorities. Some 21 such villages have been identified with
signboards warning Muslims from entering. Some of the signboards displayed derogatory remarks
about the Muslims, referring to them as ‘kalar’.


c) Ongoing highly organised boycott of Muslim owned businesses


This rigorous campaign, led by several Buddhist monks using various forms of social media, has even
infiltrated the public school system with the slogan “Do not buy from Muslim shops”. Muslim retail
businesses in the cities of Yangon and Mandalay have been severely affected.


d) Increased evidence of hate speech and discriminatory campaigns


Two siblings who have since fled to Malaysia, testified to the barrage of discrimination and referred to
continual verbal harassment as ‘kalar’. They also reported their difficulties in securing ID cards.
Unlike other students in their high school, one had to travel some distance to the regional capital of
Mandalay and, since the other could not afford to pay the stipulated ‘fine’ of 50,000 kyats, he was
denied an ID card.

 

4. Evidence of Religious Persecution


Since the 1990’s ultra nationalist Buddhist organizations like the Ma Ba Tha have actively promoted

messages of intolerance against Muslims and other religious minorities. On 15 May 2001, anti-
Muslim riots broke out in Taungoo, Pegu division, resulting in the deaths of about 200 Muslims, in the


destruction of 11 mosques and the setting ablaze of over 400 houses. After the violence, many local
Muslims moved away from Taungoo to nearby towns and to Yangon.


From March 2013, violent riots have flared up in various cities in central and eastern Myanmar. The
violence has coincided with the rise of the 969 movement, a Buddhist nationalist movement opposed
to what it sees as the influx of Islam into traditionally Buddhist Myanmar. The sporadic cases of
violence between Muslims and Buddhists led by ultra-nationalist monk Sayadaw U Wirathu of 969
appear to have given the monks additional license to pursue their acts of impunity. The common
trigger event is frequently an allegation of rape or other honour crime by Muslim perpetrators against
Buddhist victims, as was the case with Mandalay riots of July1-2 2014.33 Reports of such allegations
are disseminated rapidly through 969’s extensive social media network. A Witness testified that
Wirathu continues to enjoy patronage of the highest levels of authority in Myanmar, particularly the
military.


Two instances of religious persecution were specifically presented to the Tribunal:


a) Forced evacuation of an entire village to a Buddhist cemetery after a mosque was bulldozed,
February 2000


One Witness testified about the forced elimination of the Muslim part of Ta Khwet Hpoe village
which consisted of 400 households. The community religious leader received a notice on 23 February
2000 from the most influential monk in the area which gave only two choices: to evacuate the village
or risk being attacked by outraged religious followers and militia (See Annex 8). Abbot Reverend
Thuzana reasoned his notice with the fundamental difference between the two faiths, the fact that the
Muslims eat beef and that their mosque is very close to the Buddhist temple in the village.34 The
Muslim community leaders sent an appeal to the government but the reply was that nothing could be
done, and that the Muslim villagers should comply with the chief monk’s order.


A few days after that, the Buddhist militia troops entered the village, bulldozed the mosque overnight
and threatened the Muslim villagers that if they did not evacuate their homes, they would face the
same fate as the mosque. They were eventually forced to leave the village and move to the other side
of the river to a designated plot for them, as directed by the monk. That area was a former Buddhist
cemetery. The Buddhist monk then distributed the lands and farms of the Muslims in Ta Khwet Hpoe
among Buddhist families and gave no compensation whatsoever to the Muslim villagers. The monk's

 

 Burma, planned religious and Racial Riots Against Muslims: A Historical Overview. www.thestateless.com,
 July 2012


Hidden Hands Behind Communal Violence in Myanmar: Case Study of the Mandalay Riots. Justice Trust


Policy Report, March 2015.


 See Annex 8 for the translated version of the letter from the Chief Monk.


people then put the sign 'No Kalar allowed here' in all public places of the village and the river
became the border between the new location of the Muslims and their old village.


This forced transfer shattered the community as they were forced to stay in cramped living conditions
and had lost their heritage. Some families remained in the designated area and sought ways to make a
living since they were deprived of their farmlands; some went to other places where they had relatives.
Some, like the Witness, decided to leave the country and went to Malaysia. It has been reported that
they were have been denied permission to build a mosque in their new location.


b) The Meikhtila Massacre, March 2013


The episode that has been widely documented, and known as the Meikhtila Massacre in Mandalay,
was further elaborated by an eye Witness who saw an argument between a Muslim couple who owned
a jewellery store and a Buddhist deteriorating into a fist fight. In a matter of minutes a mob came
running down the street calling for the killing of all ‘Kalar’. This eye Witness saw a woman and her
baby being killed in full view of police officials. He also saw Buddhist monks killing students, and
observed police standing by watching the attacks but doing nothing to stop them or to protect the
victims. He had to run for his life after being injured by a machete, managing to escape only by saying
“I am Burmese, not Muslim”. His testimony was corroborated by that of his brother who concluded
that sooner or later they would be exposed as Muslims, so they took a train bound for Yangon. From
there they had to subject themselves to profiteering by traffickers before they finally arrived in
Malaysia more than a year later


While the Witnesses believed that the number of Muslims slaughtered was much higher, Reuters
reported that up to 44 Muslims were killed, and their corpses set on fire or butchered in a swamp,
with a further 13,000 driven from their homes and businesses. It was further reported that the
bloodshed here was followed by Buddhist-led mob violence in at least 14 other villages, fitting a
pattern of Buddhist-organised violence and governmental inaction.35 BBC news also released video
footage of such atrocities.

 

5. Forced exile


All the five witnesses who gave testimony before the Tribunal reported that they fled the country
fearing persecution and retaliation from the Myanmar authorities. They are all now seeking refugee
status and support abroad, but reported that this is frequently denied. They see access to justice as

35 “Special Report: Buddhist Monks Incite Muslim Killings in Myanmar”, www.reuters.com, 8 April 2013.
36 BBC news, http://dai.ly/x2u6nez, 16 June 2015.


victims of human rights violations and religious persecution as almost impossible, given the
widespread negligence of international bodies to impose accountability on perpetrating states.

 

IV. THE STATE OF MYANMAR AND THE QUESTION OF IDENTITY

 

The state of Myanmar: purported to be a limited democracy under military guardianship, but
displaying continuing extreme intolerance, persecution and lack of justice
Even after the notional return of the country to democracy, the 2008 Constitution has preserved a
dominant and privileged role for the military, guaranteeing them 25 per cent of the seats in Parliament,
creating what is presented to the world as a developing democracy under military guardianship.
However, on closer scrutiny a different picture emerges.


The heads of the Myanmar/Burmese Army – who have spent the last 70 years at war with the
country’s ethnic minorities – retain effective control over the economy, natural resources and the
riches of the country, and appear strongly interested in maintaining a degree of internal conflict in
order to legitimate the idea that only the military can preserve the state and, consequently, their
dominant position.


Furthermore, these ongoing conflicts give the rationale for these same military leaders (whether still in
uniform, or as newly minted civilians) to present themselves in the international arena as the only true
representatives of the country.


Therefore most observers stress that the Myanmar/Burmese military remains the major obstacle to
achieving key democratic and human rights reforms and to carrying out the perspective of becoming a
state that acknowledges its ethnic diversity, chooses to be really federal in structure and favours
religious tolerance.


The misleading picture of Myanmar as an emerging democracy can be seen not only in specific
provisions in the 2008 Constitution but in the day to day life of its citizens who are not Bamar
Buddhists, as documented in some detail above with regard to the three groups who brought their
cases to the Tribunal. In the much-touted 2015 “democratic election”, for example, it is estimated that
some 1 million people were disenfranchised (500,000 from recognised ethnic/national groups and a
further 500,000 Muslims, mainly but not exclusively, Rohingya)
.

The framework of a limited democracy is completed by the absence of an independent and
authoritative judicial power. During its 31st Session (March 2016), the Asian Legal Resources Centre

37 The 2015 General Election in Myanmar: What Now for Ethnic Politics? Amsterdam: Transnational Institute,
17 December 2015 (Myanmar Policy Briefing), esp. p.5


stated that Myamar and its people are “for all practical purposes still under the influence of
militarisation that has gripped the country since 1959” and recalled that “the people of Myanmar and
their institutions do not have a memory of independent justice institutions. Concepts like presumption
of innocence, right to silence, and independent adjudication of disputes have never been given a
chance to take root in the country”. This state of affairs contributes strongly to the abuse of power and
to the crimes against minorities and guarantees the impunity of the powerful.


Identity and citizenship


The 2008 Constitution38 keeps alive Myanmar’s incredibly restrictive approach to citizenship, inspired
by the idea that only those ethnicities which are considered nationals of Myanmar (namely,
Arakanese, Burmese, Chin, Kachin, Karen, Kayah, Mon or Shan as enumerated in the Election Act of
1948) are able to have citizenship and to give that citizenship to their children, and that any other
group outside those nationalities has to prove their presence in the territory of Burma back to 1823,
even if in 1990 an official list of 135 different ethnic groups in Myanmar was made public.
The Advisory Commission on Rakhine State (led by Kofi Annan, whose report was issued in August
2017) also drew attention to this question, stating:


The 1982 Citizenship Law explicitly states that those who prior to its enactment were
already citizens would retain their citizenship rights. But the law – and the way it was
implemented – significantly narrowed the prospects of citizenship for the Muslims in
Rakhine. In 1989, a citizenship inspection process was carried out across Myanmar, and
those found to meet the new requirements had their National Registration Cards
(NRCs) replaced with new “Citizenship Scrutiny Cards” (CSCs). The majority of
Muslims in Rakhine with NRCs surrendered their documents, but were never issued
with CSCs, rendering them de facto stateless.


From 1995, the authorities began issuing Temporary Residency Card (TRCs, or “white
cards”) to Muslims in Rakhine State who did not have identity documents, as well as to
returning refugees. In early 2015, the Government invalidated all TRCs, and the
Constitutional Tribunal ruled that TRC-holders were ineligible to vote. In the so-called
democratic elections in November 2015, Muslims from Rakhine were neither allowed
to participate as candidates, nor as voters – unlike in all previous elections since
independence in 1948.

 

38 Constitution of the Republic of the Union of Myanmar (2008). [Yangon]: Ministry of Information, September,
2008, especially Chapter VIII: “Citizen, fundamental rights and duties of the citizens”.


Through this process of gradual marginalization, Muslims in Rakhine have ended up in
a particularly vulnerable position, almost entirely deprived of political influence or
representation and living under severe restrictions which affect basic rights and many
aspects of their daily lives. While some of these restrictions are based on legislation,
others derive from local orders and regulations, often issued by local security officials.
Some 120,000 members of the community – including some who hold valid citizenship
documents – remain confined to IDP camps.


The 1982 law and the accompanying 1983 procedures define a hierarchy of different
categories of citizenship, where the most important distinction is that between
“citizens” or “citizens by birth” on the one side, and “naturalised citizens” on the other.
“Citizenship by birth” is limited to members of “national ethnic races”, defined as the
Kachin, Kayah, Karen, Chin, Burman, Mon, Rakhine and Shan and ethnic groups
which have been permanently settled in the territory of what is now Myanmar since
before 1823 (in 1990, an official list of 135 “ethnic races” was made public).
For both categories, the transmission of citizenship to a child depends on the status of
both parents. However, while the child of a “citizen” automatically qualifies for
“citizenship” unless the other parent is a foreigner, the child of a “naturalised citizen”
only acquires “citizenship” if the other parent is a “citizen”, or if this parent is the child
of two “naturalised citizens”. In all other circumstances, the child of a “naturalised
citizen” will have to apply for “naturalised citizenship”, for which the applicant needs
to fulfill the following criteria: being over the age of 18; being able to speak one of the
national languages well; being of good character; and being of sound mind. However,
children’s names may be added to a parent’s naturalized citizenship certificate when the
child’s birth is registered. Even with this possibility, the distinction remains that
eligibility for “naturalized citizenship” is not automatic. Moreover, “naturalized
citizenship” may be revoked more easily than “citizenship”, for instance for committing
offences involving “moral turpitude” (such as theft, adultery, rape or drugs offences).
Although Myanmar is not the only country that has different categories of citizenship,
in other countries more than one category is only allowed for very specific
circumstances. Having just one citizenship category is generally preferable. It meets the
important objective of equal rights for all citizens.


Unlike previous citizenship legislation, the law of 1982 provides limited possibilities of
acquiring citizenship based on residence. Individuals who do not have at least one
citizen parent can only acquire citizenship if they or their ancestors entered the country
prior to 1948, or they were legal residents in Myanmar and married to a citizen before
the law came into force.


On this basis, full membership of the country has been denied until now to the Rohingya, exemplified
by the use of the name “Muslims of Rakhine” in the Annan Rakhine Commission Report. Indeed, the
use of the name Rohingya was forbidden by the government when the Commission was established.
The government’s policy has been, and remains, to refuse to name the Rohingya according to the
name that they, and others, have used for decades and which they rightfully recognise as their own."
The policy ignores the substantial documentation of their presence in the area now known as Rakhine
State from at least the 18th century40 (other sources assert their presence even from the 8th century).
Such a policy is certainly lacking in reasonableness and is in violation of the 1961 United Nations
Convention on the Reduction of Statelessness, which states in Article 1: “A Contracting State shall
grant its nationality to a person born in his territory who would otherwise be stateless”.


These laws and governmental decisions on identity have also affected other Muslim groups. The
Tribunal was informed by several different Witnesses of their experience that to be accepted as
citizens of the country they were given the choice of either keeping their Muslim religion and
recording a foreign ethnicity (such as Malay, Bengali or Indian or another of the recognised
nationalities like Shan or Karen) or renouncing their religion and being recorded as Buddhist with
Burmese ethnicity.


Even if the Rohingya are the ones in the worst position, the whole question of managing identities in
the state of Myanmar is a matter of deep concern and, in the opinion of this Tribunal, is one of the
main causes of the conflicts and atrocities which are under scrutiny and which we will analyse below.
Two different analyses of genocidal social practice both establish the construction of identity as its
first stage (“stigmatisation and construction of negative otherness” in Feierstein ́s model,41
“classification” in Stanton ́s model42).

 

39 Towards a peaceful, fair and prosperous future for the people of Rakhine: final report of the Advisory
Commission on Rakhine State, [n.p.] : Advisory Commission on Rakhine State, August 2017, p. 30-31.
40 Francis Buchanan, “A comparative vocabulary of some of the languages spoken in the Arakan Empire”,
Asiatic Researches, vol. 5, 1799, p.219-240, reprinted in SOAS Bulletin of Burma Research, Vol. 1, No., 1,
Spring 2003 (http://eprints.soas.ac.uk/8050/1/BuchananComparativeVocabulary.pdf).
41 Daniel Feierstein, Genocide as social practice. New Brunswick NJ and London : Rutgers, 2014, p.109-121,
and Daniel Feierstein “The concept of genocide and the partial destruction of the national group”, Logos: a
journal of modern society & culture. Winter 2012 ( http://logosjournal.com/2012/winter_feierstein)
42 Gregory H. Stanton, Expert testimony at the Kuala Lumpur Session of the People’s Tribunal on Myanmar.
Also at: http://genocidewatch.org/genocide/tenstagesofgenocide.html


In the state of Myanmar there is a permanent process of classification, stigmatisation and construction
of negative otherness against different groups: firstly, the various groups that were not recognised as
nationals of the country, if they cannot prove their presence back to 1823, which is an almost
impossible task. Then, even other Muslims who were previously considered members of the accepted
nationalities. And later, even with the non-Burmese accepted nationalities, as testified in evidence
before this Tribunal regarding the case of the Kachin group, and probably also the case regarding
other non-Burmese groups that did not have a chance to present their cases before this Tribunal but for
which some information was provided during the proceedings, albeit not in an explicit and
documented way.


Ethnicity and religion have played a very important role in this construction of negative otherness as a
tool to divide the population. The state of Myanmar has more and more developed a nationalistic and
racist understanding of its constituency as a Burmese Buddhist community instead of the original
Union of Burma plurinational and multireligious community. In our analysis, this was the first step for
legitimising and fuelling the atrocities described in the previous section and that will be qualified
below regarding the alleged commission of war crimes, crimes against humanity and genocide.
Following the 1982 Citizenship Law, a whole process of persecution has been advanced in recent
years, as described in the Final Report of the Advisory Commission on Rakhine State:
Based on the 1982 Citizenship Law, a citizenship verification process has been advanced
by both the former and current governments. According to government figures,
approximately 4,000 Muslims (as well as 9,000 Kamans43) have been recognized as
citizens or naturalized citizens – out of a population of around one million stateless
Muslims in the state. Around 10,000 Muslims have also received National Verification
Cards (NVC), considered a preparatory step for applying for citizenship. For the benefit
of all communities in Rakhine – and in order to provide clarity on the legal status of all –
the verification process should be accelerated. The process was first introduced in the
shape of a pilot project in Myebon Township in 2014, where Temporary Resident Card
(TRC)-holders were allowed to apply for citizenship on the condition that they listed their
ethnicity as “Bengali”. The process was suspended following protests from both
communities, but was restarted and expanded to all of Rakhine State in January 2015.
After announcing the cancellation of the TRCs in February 2015, the Government started
issuing its replacement – Identity Cards of National Verification (ICNV) – in June 2015.

43 Kaman are another Muslim minority predominantly living in Rakhine State. Unlike Rohingya, Kaman are
among the 135 officially recognised ethnic groups mentioned above.


To obtain this card, applicants were again required to register as “Bengali” in the
application form. A year later, the NLD Government restarted the process, issuing
National Verification Cards (a renaming of the ICNV), which no longer required
applicants to indicate their ethnicity or religion in the application form (although the
Commission has received complaints that ethnic references have still been included on
some occasions).


The sporadic implementation of the process – as well as the general lack of
communication, consultation and outreach from the Government – has undermined
public trust in the exercise within both communities. On the Rakhine side, many fear that
corrupt officials may allow a high number of unqualified Muslims to obtain citizenship –
a fear strengthened by alleged reports of non-Kaman Muslims posing as Kamans in the
verification process.


Some fear that the Government may eventually succumb to pressure from the
international community, which they see as biased in favour of Muslim citizenship.
Muslims, on the other hand, object to the NVC as an interim step that will subsequently
qualify holders to apply for citizenship at some point in the future. They are worried that
this procedure follows a familiar pattern of successive Myanmar governments issuing
documents with a promise that citizenship will follow, with the latter repeatedly failing to
materialize. Many are also reluctant to hand in their existing documents for fear of being
left undocumented. Others have lost their previous identification documents, and are
apprehensive that a process which is not based on bona fide will simply be used against
them. Trust is also undermined by the lack of tangible benefits for those who successfully
go through the process, as verified Muslim citizens continue to face travel restrictions
and other forms of discrimination.


Even if the Commission accepted as valid the fear that the process could result in identity cards being
given to “unqualified Muslims” (one wonders what else could by meant by the term “unqualified
Muslim” than a way to legitimate negative otherness?), the description of the process and the numbers
recognised by the government (a couple of thousand people verified among a population of more than
one million) make clear that the objective of the system is not to give citizenship to the people who are
being persecuted but, on the contrary, to make them stateless, without any possibility to enjoy any
kind of rights.


Rakhine Commission Report, op cit, p. 26-27.


Moreover, the growing anti-Muslim understanding of identity was quickly brought into the picture in
the widespread connection made in the media between Islam and terrorism. Indeed, Aung San Suu
Kyi’s speech made during the proceedings of the Tribunal (included as a part of the Defence Case)
qualified attacks against police and outpost stations as “terrorist attacks” and invoked the Antiterrorist
Act to persecute them. Use of that label has served to justify forced displacement, massive attacks on

civilians, burning of villages and other actions committed by Myanmar security forces, other para-
military groups or by Rakhine nationalists, which were on two separate occasions (October 2016 and

August 2017) presented only as a consequence of those attacks even if many of those persecutions
were committed long before the attacks took place.


It is clear that amongst the Burman Buddhist majority there is a long standing antipathy toward the
Rohingya that has been instrumentalised through the military and its paramilitaries, as well as
nationalist Buddhist gangs. But it would be wrong to ignore the economic conditions that also enter
into the complex of motives and other causes of the social process of genocide to which the Rohingya,
and others, are being subjected. Social conditions are not uni-dimensional. They are overdetermined,
arising from multiple causes. To understand why a pogrom of genocidal proportions occurs in a
certain period, it is unlikely to be an adequate analysis that sees the situation as resulting from a
“natural” enmity toward a group with an ethno-religious background differing from the perpetrators.
Such an analysis is just descriptive; furthermore, it is for the perpetrators -- and perhaps in the minds
of many watching from afar -- a justifying explanation, it being “only natural” that like should live
amongst like. Such analyses are not only highly misleading, they are dangerous.


However, we learn from history that diverse populations have lived peacefully for long periods in the
past. In the specific case before the Tribunal, we received convincing evidence that the Rohingya, as
well as other minority groups, have lived in the area now known as Myanmar, for several centuries
and in some cases much longer. Certainly they suffered discrimination, and were largely relegated to
the over-whelming number of poor in the country by the operation of an economic system that
produced massive inequality between a very small elite and the vast majority. But they have only
recently been targeted as a group deserving elimination.


As we have seen in recent decades, when authoritarian states begin to open up their economies and
attempt a degree of democratisation, internal conflicts often follow, including attacks on minorities
accompanied by an upsurge of extreme nationalism and supremacist ideology. This process seems to
have occurred in recent years in Myanmar.


In times of national economic hardship and political tensions such as exist in contemporary Myanmar,
governments have generally found it extremely useful to target the “Other” as the cause of problems
afflicting the majority. Given the situation in Myanmar, with an authoritarian government challenged
to provide democracy and an effective economic performance failing to meet either challenge, it is not
surprising that extreme measures have been put in place by the government to target minorities,
thereby diverting attention from its own failures.


It is important to consider that the failure of the NLD-military government to solve the country’s
social, political and economic problems has resulted in placing groups already discriminated against
such as the Rohingya, other Muslims and the Christian Kachin in the position of scapegoats. In this
way, not only do they seek to divert attention from their failings but also to divide opposition to and
mobilise support for, its continuance in power.

 

V. QUALIFICATION OF THE FACTS

 

Preliminary Note on the term “ethnic cleansing”


In this judgment we have not used the term “ethnic cleansing” for several reasons. In general, it is a
euphemistic expression used to avoid the use of the term genocide when it (and other terms recognised
in law) are appropriate in the circumstances of mass violations of human rights that meet the
requirements of international law. The expression “ethnic cleansing” has no formal status in
international law. It has been and still is used by perpetrators of genocide (inter alia), most notably by
President Milosevic in the former Yugoslavia, to rationalise and justify acts in the hope of avoiding
the stigma and potential sanctions that adhere to committing genocide, war crimes and crimes against
humanity.


The term “ethnic cleansing” has been used to qualify the current persecution of the Rohingya by the
United Nations, nation states and international civil society organisations. This avoids confronting the
reality on the ground: a social process of genocide and commission of crimes against humanity. In
such cases the use of language is political. “Ethnic cleansing” misleads and allows those who use it to
describe a genocidal situation to do little or nothing in response. For the use of the term genocide
would, indeed should, necessitate absolute condemnation of the perpetrators, strong action to prevent
further human rights violations and a commitment to undertake costly and politically awkward
programs for rehabilitation and reparations.


The Tribunal also rejects the expression “ethnic cleansing”, in that it implies that a society having a
diversity of ethnic and/or religious minorities is somehow dirty and needs to be cleansed. It thereby
appeals to extremist nationalism and supremacist ideology. The importance of avoiding such usage is
manifest in a Tribunal concerned with the actions of the Myanmar government against the Rohingya,
non-Rohingya Muslims and the predominantly Christian Kachin. Accordingly, we present our
findings below qualified in terms of war crimes, crimes against humanity and genocide.

 

V.1. War crimes


From the full and detailed documentation admitted during the Tribunal session and described in Part
III above, in the presentation of the cases, the accusations advanced in the indictment regarding war
crimes against the Kachin people of northern Burma, as defined by Article 8 c) of the Rome Statute


for armed conflicts not of an international character, have been fully proved, including the following
acts:


(i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and
torture;


(ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;
(iii) Taking of hostages (such as the use of prisoners as “human shields”);


(iv) The passing of sentences and the carrying out of executions without previous judgment
pronounced by a regularly constituted court, affording all judicial guarantees which are generally
recognised as indispensable.


The Rome Statute (Article 8 d) also includes other serious violations of the laws and customs
applicable in armed conflicts not of an international character, within the established framework of
international law, namely, any of the following acts:


(i) Intentionally directing attacks against the civilian population as such or against individual civilians
not taking direct part in hostilities (such as the murder of Kachin civilians by military forces);
...
(iv) Intentionally directing attacks against buildings dedicated to religion, education, art, science or
charitable purposes, historic monuments, hospitals and places where the sick and wounded are
collected, provided they are not military objectives (such as the destruction of houses, churches and
other monuments, that is, the human and cultural heritage of Kachin);


(v) Pillaging a town or place, even when taken by assault;


(vi) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation
and other forms of sexual violence, also constituting a serious violation of article 3 common to the
four Geneva Conventions (reported in many Kachin testimonies);


(vii) Conscripting or enlisting children under the age of 15 years into armed forces or groups or using
them to actively participate in hostilities;


(viii) Ordering the displacement of the civilian population for reasons related to the conflict, unless
the security of the civilians involved or imperative military reasons so demand;


(ix) Killing or wounding treacherously a combatant adversary;


(xii) Destroying or seizing the property of an adversary unless such destruction or seizure be
imperatively demanded by the necessities of the conflict.


In particular, the Tribunal believes that systematic targeting of civilians and other acts committed by
the Burmese/Myanmar Army must be qualified, for all legal purposes, as war crimes committed as
part of a plan or policy or as part of a large-scale commission of such crimes.


The course of historical events demonstrates that for many years in the state of Kachin there has been
an ongoing internal armed conflict – war of self-determination – to which is applicable the Geneva
Convention of 12 August 1949, according to the explicit recognition of the 1973 General Assembly
Resolution 3103.

 

The perpetrators of the crimes above enumerated are combatants; the victims are not combatants; the
criminal acts of military soldiers may be said to serve the ultimate goal of a wide military campaign.
In other words, the attack is intentionally directed against the civilian population or against individual
civilians not taking direct part in hostilities and against civilian objects, that is, objects which are not
military objectives. The Tribunal watched on the screen the shelling of Kachin villages, was shown
photographic evidence of dead bodies and of tortured persons and heard accounts of violence from
witnesses and victims.


From the foregoing testimonies and documents submitted, the Tribunal is of the view, beyond
reasonable doubt, that the state of Myanmar is guilty of war crimes perpetrated against the
Kachin people.


V.2. Crimes against humanity


From the full and detailed documentation admitted during the Tribunal session and described in Part
III above, the accusations advanced in the indictment regarding crimes against humanity against the
Rohingya, other Muslim civilian populations in Myanmar and the Kachin people have been fully
proved, including the following acts, as defined by the Rome Statute:


(a) Murder: the Tribunal heard testimony from a number of witnesses that they had witnessed
murders and received reports that murders had been carried out by the Myanmar military and Buddhist
gangs against the Rohingya, Kachin, and non-Rohingya Muslims;


(b) Extermination: such as the 2013 Meikhtila massacre of Muslims; the numerous extrajudicial
killings of Kachin and Rohingya; several massacres of Rohingya people in different villages across


Rakhine state, with a dramatic escalation starting in August 2017; the extermination or murder of
Kachin civilians, including women, children and the elderly, by military forces;
...
(d) Deportation or forcible transfer of population: as in the case of the Kachin people, the creation of
a large number of IDP, now estimated at over 120,000; the internal displacement and forced exile of
more than 400,000 Rohingya, mostly women, children and elderly, who had to flee their homes and
entered Bangladesh only during the last three weeks, joining hundreds of thousands forcibly displaced
in several earlier waves;


(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of
international law: such as the forcible confinement of Rohingya in camps, suffering from starvation
and very poor living conditions, denial of citizenship rights which had earlier been accorded to them,
arrests of Rohingya civilians, including children and young people, by armed government forces
without providing any reason;


(f) Torture: such as the different types of physical and mental torture which the Rohingya have been
subjected to while in detention;


(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation or any other
form of sexual violence of comparable gravity: as reported in numerous Rohingya and Kachin
testimonies;


(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic,
cultural, religious, gender ... or other grounds that are universally recognised as impermissible under
international law, in connection with any act referred to in this paragraph or any crime within the
jurisdiction of the Court: such as the persecution against the Burmese Muslims on ethnic and religious
grounds during the Meikhtila massacre, the confiscation of property and destruction of buildings;
(i) Enforced disappearance of persons: as reported in the case of the Kachin and the Rohingya;
(j) The crime of apartheid (such as the project to create “Muslim-free villages”), as well as the
different practices of discrimination against the Rohingya and other Muslim groups.


From the foregoing testimonies and documents submitted, the Tribunal is of the view, beyond
reasonable doubt that crimes against humanity were committed against the Rohingya, other
Muslim civilian populations in Myanmar and the Kachin.

 

V.3. Genocide


The term genocide was coined by the Polish jurist Raphael Lemkin, who wrote, “By genocide we
mean the destruction of a nation or an ethnic group”. Lemkin went on to argue that “Genocide has two
phases: one, the destruction of the national identity of the oppressed group, the other, the imposition of
the national identity of the oppressor.”45


The concept of genocide was codified in the United Nations Convention on the Prevention and
Punishment of the Crime of Genocide (approved in 1948 and ratified by the state of Myanmar in
1956, later included in the Rome Statute for the International Criminal Court in 1998) which defines
genocide as any of enumerated acts committed with intent to destroy, in whole or in part, a national,
ethnic, racial or religious group, as such (as outlined below in section V.3.2). :


The distinctive feature of genocide, according to Lemkin and to the Convention, is that it aims to
destroy a group rather than the individuals who make up the group. The ultimate purpose of genocide
is to destroy the group’s identity and impose the identity of the oppressor on the survivors. This idea
gives us a useful insight into the workings of power systems in the modern era and, particularly, in the
case of the state of Myanmar, which is under scrutiny in this judgment.


Lemkin also wrote that nation states have tended to destroy the identities of ethnic and religious
minorities within their boundaries and impose a new identity on them: the national identity of the
oppressor. That is the intent of the process which started in Myanmar decades ago regarding the
different non-Burmese groups, even if it has not developed at the same pace with all of them.


V.3.1. General intent


Many sociological works have shown that genocide is a process that involves different kinds of
actions and, so, different stages, even if they are neither linear nor exclusive. Professor Gregory
Stanton, founding president of Genocide Watch and former president of the International Association
of Genocide Scholars, testified in this Tribunal analysing that process in ten different stages. The
report Countdown to Annihilation46 referred explicitly to the case of the Rohingya population in
Myanmar and presented before the Tribunal in the London hearings (and provided to the Judges by
the Prosecution in the current procedures) applied Feierstein’s six-stage model of the genocide process

45 Raphael Lemkin, Axis rule in occupied Europe. Washington, DC : Carnegie E

ndowment for International


Peace, 1944, Chapter IX Genocide, p. 79-95.


 Penny Green, Thomas McManus and Alicia de la Cour Venning, Countdown to annihilation: genocide in
Myanmar. London : International State Crime Initiative, School of Law, Queen Mary University, 2015.

 


to the case of the Rohingya group. It found that the first four stages had been reached in the then
current situation of the Rohingya in Myanmar: stigmatisation, harassment, isolation and systematic
weakening, and that the stages of extermination and symbolical enactment could happen at any
moment.


Moreover, the 1988 Peace and Development Council (SPDC)’s Rohingya Extermination Plan, also
submitted by the Prosecution in evidence and cited by the International State Crime Initiative,
precisely articulated a government policy not to provide Rohingya with citizenship cards.


The Tribunal found that the denial of the Rohingyas’ right to nationality has caused institutionalised
deprivation or restriction of their other basic rights, such as the right to education and health services.
The 1988 Rohingya Extermination Plan outlined the government policy of denying the Rohingya any
access to higher education, right to property and other economic rights, stating “any such properties
under their existing ownership must be confiscated for distribution among the Buddhists”.


From all of these analyses and from the other evidence presented before this Tribunal, it is clear that
the general intent of the government of Myanmar has been to destroy (and in the case of the Rohingya
population and the Burmese Muslims also to deny) the identity of these different groups as a part of
the Myanmar community. That intent applied not only to the three groups under scrutiny (Kachin,
Rohingya and other Muslims of Myanmar) but also probably to other groups that were not part of
these proceedings (some references about their situation were provided to the Tribunal).


The stages of the execution of that general objective of identity destruction have been different, but it
is important to highlight that all the “non-Burmese” groups and the Muslim Burmese are suffering a
common process. The stages which that process has reached at present are not the same, which only
means that some groups could suffer in the near future the same process other groups are suffering
today. Accordingly, we believe that combining in a single Tribunal the analysis of these various
genocidal practices developed by the state of Myanmar against different parts of its community could
be a way to strengthen the ties among those communities in order to confront the genocidal aims of
the state of Myanmar.

 

 “SPDC Rohingya Extermination Plan”, English translation reproduced in Countdown, p.36, described as
having been “adopted in 1988 on the basis of the proposals submitted by Col. Tha Kyaw (a Rakine), Chairman
of the National Unity Party.”

 

V.3.2. Implementation of genocide


Even if the general objective of destruction of the group is applied to all the non-Burmese groups, the
implementation of it is in different stages regarding each of the groups.


First of all, even in the legal structure of the state of Myanmar, the Rohingya group has been deleted
and is now excluded entirely. In the current situation, the Rohingya cannot be Myanmar citizens as
Rohingyas. That group is not recognised as part of the community, and it is even prohibited to use the
word Rohingya to refer to them. That is the last stage in any analysis of genocidal social processes as
either “denial” or “symbolical enactment”, which means not only that the group is attacked in a
material form with the intention to annihilate it, but even its symbolic existence is also denied.


In the case of other Muslims, if they state their religion as Muslim, that is recognised and recorded,
but then is interpreted to mean they cannot be recognised as ethnic Burmese and are forced to add a
second qualifying ethnicity/nationality, such as Karen, Shan, Indian, Pakistani, Bangladeshi,
regardless of whether they have any such ancestry. Moreover, if the group is not one of the recognised
ethnic groups, they have to prove their origins in the land back to 1823.


In the case of the Kachin, because they are one of the recognised nationalities, they seem not to have
experienced denial of their identity to the same extent. Nevertheless, the Tribunal was informed that
Kachin identity, especially as revealed in names, has over time gradually led to increasing
discrimination, such as blocking of employment, appointments and promotion.


After proving the general intention of destruction of the three groups under scrutiny (even if at
different stages) and qualifying the facts as genocide under the Genocide Convention, the Tribunal
went on to identify three of the five practices of the UN Genocide Convention applied with the
specific intent to destroy the Rohingya population in whole or in part, namely:


(a) Killing members of the group;


(b) Causing serious bodily or mental harm to members of the group;


(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical
destruction in whole or in part.


On the strength of the evidence presented, the Tribunal reached the consensus ruling that the
state of Myanmar has the intent to commit genocide against the Kachin people and the other
Myanmar Muslims. Further, the state of Myanmar is guilty of the crime of genocide against the


Rohingya. Moreover, that genocide against the Rohingya is now taking place with ongoing acts
of genocide. There is a strong possibility that the number of casualties of that genocide will be
even higher in the future if nothing is done to stop it.


Regarding the other Myanmar Muslims and the Kachin, even if the implementation of the
genocide is not yet taking place, the Tribunal hereby issues a clear alert that the continuation of
the persecution, together with the crimes against humanity and war crimes, could amount to the
implementation of genocide in the near future.


To make matters worse, the wholesale lack of justice leads to systematic impunity of perpetrators of
the crimes so far specified, since it is impossible or useless to make a complaint to police, judiciary or
military authorities.


All these unpunished crimes have been committed and are currently being committed – with an intent
to commit the same – by the Myanmar/Burmese Army and by the regime in power in the state of
Myanmar, and seem to be part of a plan: to deny every expression of autonomy and self-government
of the people of Kachin state and, more generally, to humiliate and to destroy the ethnic and cultural
identity of minorities living in the country.


The limited and incomplete democracy of a Myanmar still heavily dependent on military power,
shows intolerance and lack of respect of human rights, revealing its negative and dark side which
conflicts with the principles of civilisation and with the religious beliefs of most of its people.
This unacceptable and dangerous state of things can no longer be described and justified as the
inevitable result of a difficult transition to a full and mature democracy, as claimed by State
Counsellor Aung San Suu Kyi as recently as 19 September 2017, but must be defined as a regime of
oppression and of denial of fundamental rights of the Kachin people, Rohingya and other Muslim
groups.


Even an imperfect form of democracy requires an adequate protection of ethnic and religious
minorities, of all minority groups and of the weak, that now does not exist in the state of Myanmar.
This absence of protection and of respect for fundamental human rights of minorities living in
Myanmar appears to be the common denominator among the different conditions of Kachin, Rohingya
and other Muslim groups of that country.

 

VI. RECOMMENDATIONS

 

Numerous reports on the situation in Myanmar have appeared in recent months, each making
significant recommendations. It is not the intention of the PPT simply to repeat what is already a
substantial list of well-informed and valuable recommendations.


In making our recommendations we intend to indicate what in our view, based on the evidence we
have considered, needs to be done under conditions that exist currently, as well as longer term actions
that need to be taken to heal the wounds suffered by the people of Myanmar and to prevent further
injury to them.


We do this, cognisant of the State Counsellor’s invitation to “friends of Myanmar”, as we consider
ourselves, to join with her government in helping to restore peace, to achieve reconciliation and to
point the way to social, political and economic development toward a fair, just and prosperous
Myanmar under the rule of law.


We also are aware that, despite the best intentions of the international community in establishing the
United Nations and bringing forth the Universal Declaration of Human Rights in the shadow of
dreadful events such as the Holocaust in World War II, genocide and other atrocious crimes have been
repeated time and again since 1948. Therefore, we have taken this opportunity to make some general
suggestions that we believe will aid in the universally desired end, unfulfilled since 1948: Never
Again.


The recommendations that follow are articulated with attention to their potential for being
implemented in the current intense period of international debates and proposals accompanying the
events of Myanmar:


1) to stress the urgency of and the need for concreteness to face effectively the immediate-short term
needs of the humanitarian crisis;


2) to protect and promote the struggles for democracy of the communities most affected by
discriminatory and persecutory measures and policies;


3) to assert that the failure of key national and international actors to assume effective measures in this
instance would contribute to the growing crisis of credibility on the role of international laws and
principles in providing peaceful solutions for conflicts where regional or global political and economic

51


interests prevail over fundamental rights universally recognised as indicators of a sustainable
democracy.


Measures for the government and people of Myanmar


Urgent measures to minimise further harm


1. A ceasefire package and de-militarisation should be negotiated by government and ASEAN

representatives with all armed groups in Rakhine State and the Myanmar military, including a de-
militarised zone along the border in the northern region of Rakhine State.

 

2. The “verification process” proposed by Aung San Suu Kyi and others should, without any
further delay, guarantee that all persons born or naturalised in Myanmar are considered full citizens of
Myanmar and are issued national identity cards, with all the rights of full Myanmar citizenship.


3. Myanmar must grant visas and full access to the fact-finding mission of the UN Human
Rights Council and others in order to investigate and document human rights abuses against the
Rohingya, other Myanmar Muslims, Kachin and other groups.


Democracy, participation and citizenship


4. Myanmar must end its official discrimination and persecution of the Rohingya, Kachin,
Myanmar Muslims and other groups. Myanmar must repeal or amend the 2008 Constitution, the 1982
Citizenship Law and other discriminatory law and policies in order to extend full citizenship to the
Rohingya and other groups, ensuring all rights guaranteed by the treaties and conventions to which
Myanmar is a party as well as the Universal Declaration of Human Rights.


5. Military representation in Parliament should be abolished, and all members of Parliament
should be democratically elected. Minorities should not be barred from representation in Parliament.
6. The 2008 Constitution should be amended in order to place the armed forces and police under
full civilian authority.


Justice and the rule of law


7. Myanmar must prosecute in its courts perpetrators of human rights abuses, hate crimes,
genocidal massacres, rape, torture, arson and ethnic and religious violence against the Rohingya,

52


Kachin, Myanmar Muslims and other groups. There must be no more impunity for military personnel,
police or militias.


Human rights and accountability


8. An independent, non-governmental Commission should be established to develop a program
for rehabilitation and compensation to all those injured through violation of human rights.
Transformation, inclusion and equality


9. Recognition of the capacity of the peoples in the different states to administer their own
affairs consistent with commitment to a united, federal Myanmar. The reality of internal colonialism
and the policy of Burmanisation need to be confronted and transformed.


Measures for the government of Myanmar and its neighbouring countries


10. Myanmar and neighbouring nations must allow humanitarian, human rights and religious
organisations as well as journalists unobstructed access to Rakhine State and Rohingya refugees, and
to areas with Kachin and other national groups.


11. There is a tendency to view the refugee flow through a security lens. Such a perception is not
only flawed but may also result in improper policy responses. We urge all concerned to view refugees
with compassion and humanity, and thus to highlight threats to the human security of refugees rather
than viewing them as a national security threat. We recognise and applaud the efforts of the
Bangladesh authorities in dealing with the unprecedented challenge of receiving almost half a million
people in just over three weeks, and which appears to be continuing. As it discharges its stated
commitment to provide sanctuary for those people, we urge the Bangladesh government to:
a) issue a temporary identity document that will protect the Rohingya refugees, including those
arriving in previous years, from detention for illegal entry.


b) ensure treatment of the wounded and in due course put in place psychological support to the
refugees, especially affected children and abused women.


Measures for ASEAN and other members of the international community


12. ASEAN nations are encouraged to share responsibility for the emigration crisis and open their
borders to Rohingya asylum seekers in accordance with the ASEAN Charter, and permit them to settle
in refugee camps until Rohingya are granted full citizenship rights in Myanmar.

53


13. The EU, USA, Japan, China and other prosperous nations should provide the financial and
material resources necessary to support the burden borne by Bangladesh, Malaysia and other nations
that welcome Rohingya refugees.


14. The hosting countries’ law enforcement agencies and community organisations must remain
vigilant, while NGOs and the media should be encouraged to raise awareness about traffickers’
methods and the consequences of trafficking. Women and unaccompanied children are particularly
vulnerable to both internal and cross-border trafficking.


Measures for international and regional institutions


15. Impose an immediate arms embargo on the government of Myanmar.


16. Targeted sanctions should be imposed on Myanmar government officials and perpetrators of
human rights abuse, e.g. freezing of overseas bank accounts, a ban on travel outside Myanmar and a
plan to escalate sanctions should the government fail in its general duty to protect its people and to
stop the human rights violations by the military and by private persons and organisations.


17. An independent, international non-governmental Commission should be established in order
to investigate the causes of and responsibility for the harms about which the world has now been made
aware.

____________________________________________________________________________________________________________________

(c) 2017 Permanet Peoples Tribunal 

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