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Myanmar -- time for a legal reckoning

The wheels of international justice turn slowly, but have begun to move.

Many Rohingya Muslims remain in overcrowded camps in Bangladesh after over 750,000 have fled Myanmar since late 2016.   © Reuters

Nearly 18 months after Myanmar's military launched its first bloody crackdown on Rohingya Muslims in northern Rakhine State, the growing stream of compelling evidence highlights the need to establish accountability for serious crimes, including ethnic cleansing and possibly genocide. As evidence mounts, so does the call to bring those responsible to book.

While there is a long and difficult path to indictments, the gate has opened slightly. On April 9. the prosecutor of the International Criminal Court at The Hague took an important step. She requested the court to rule whether it may exercise jurisdiction over the alleged deportation of Rohingya people from Myanmar, which is not a party to the ICC's statute, to Bangladesh, which is a party.

Based on preliminary investigations, the prosecutor argued that the ICC does have jurisdiction.

For months, senior United Nations officials have been calling for criminal accountability in Myanmar. On March 13, Adama Dieng, U.N. Special Adviser on the Prevention of Genocide, said that "international crimes have been committed in Myanmar. Rohingya Muslims have been killed, raped, tortured, burnt alive and humiliated, solely because of who they are." Dieng made the comments in Bangladesh where overcrowded camps now house more than 750,000 mainly stateless Rohingya Muslims who have fled Myanmar since late 2016.

Just days before, the U.N. High Commissioner for Human Rights Zeid Ra'ad al-Hussein said he believed that the crimes committed in Rakhine State might be "acts of genocide."

Myanmar's civilian government, led by Aung San Suu Kyi, has said the crackdown was a legitimate response to low-level attacks on security posts by the Arakan Rohingya Salvation Army, a Muslim militant group. It has defended its actions by claiming that it is fighting "transnational terrorism."

U.N. investigators, human rights groups and humanitarian agencies, such as Medecins sans Frontieres, say that Myanmar's military campaign targeted tens of thousands of civilians, including women and children. MSF, which had extensive aid operations in Rakhine State, recently estimated that the mainly civilian death toll amounted to at least 6,700.

The Independent International Fact-Finding Mission on Myanmar, set up by the U.N. in 2017, plays a central role in international efforts to establish accountability. It will issue its report before the end of 2018.

The accusations are damning, particularly in the face of blanket denials by Myanmar, which flatly rejects allegations of wrongdoing and refuses to cooperate with the U.N.

On March 19, Myanmar's military commander-in-chief, Senior Gen. Min Aung Hlaing made one of his clearest condemnations of the Rohingya, whom he referred to as "Bengalis." He stated that "Bengalis do not have any characteristics or culture in common with the ethnicities of Myanmar. The tensions were fueled because the Bengalis demanded citizenship."

The statement drew a strong reaction from U.N. Secretary-General Antonio Guterres, who urged "all leaders in Myanmar to take a unified stance against incitement to hatred."

Northern Rakhine State has largely remained off-limits for relief agencies and journalists. Information about what happens there is sketchy. The government has embarked on large-scale reconstruction operations, which include bulldozing the remnants of at least 55 Rohingya villages, but has refused to divulge details of its plans.

International pressure on Myanmar is rising, but so is Naypyitaw's hostility to demands for accountability. The U.S. and EU, have arms embargoes in place but Myanmar's major suppliers of military equipment, including Russia, China and Israel, have not stopped arms shipments.

The ICC prosecutor has taken an important first step but concerned countries need to do much more to drive home the message of accountability.

First, it is never too late for Myanmar to recover some of the international goodwill it enjoyed in better times if it shows willingness to cooperate. Myanmar should acknowledge the vastly disproportional extent of the violence it has unleashed against the Rohingya in response to attacks by militants.

Second, Myanmar should collaborate with the U.N. to show it is serious about accepting back Rohingya refugees who want to return voluntarily, while ensuring their dignity and security.

Third, Myanmar should cooperate with the U.N. Fact-Finding Mission and grant it access. If it is true, as Suu Kyi claims, that the allegations of violence are vastly exaggerated, it is in Myanmar's interest to welcome a truly independent investigation.

Fourth, more pressure on Myanmar is needed, especially from the Association of Southeast Asian Nations and other Asian countries. The Rakhine conflict has caused cross-border problems for decades. Myanmar has invoked sovereignty to deny the consequences of its actions. This particularly affects Bangladesh where the economic, social and environmental impact of the massive refugee influx in border areas is high, as is the risk of destabilization and radicalization among young Rohingya.

Fifth, more governments should issue targeted sanctions against those thought to bear the most responsibility. Evidence clearly points to the armed forces. Only the U.S. and Canada have so far issued sanctions targeting Major-Gen. Maung Maung Soe, who oversaw operations in Rakhine State. As new evidence accumulates, other countries should follow this course, including EU members, who have been deliberating the issue for months.

Sixth, as the judges of the ICC deal with the prosecutor's request, there is still time for the U.N. Security Council to refer the Myanmar case to the court. This would be the preferred route but is unlikely given that China and Russia have consistently protected Myanmar against decisive U.N. action.

Some observers think that the quest for justice is illusory, not least because Myanmar is mired in a trap of its own making. At home, the government's denials have gone down well in an overwhelmingly Buddhist country that has consistently denied citizenship to the Rohingya. Support for the once widely vilified military has soared on the back of its campaign against this stateless minority, and Suu Kyi remains popular. A government admission of accountability could hurt its popularity ahead of elections in 2020.

International criminal justice tends to be slow. But there are cases of efforts once considered "illusory" resulting in trials. In 1993 when the International Criminal Tribunal for the Former Yugoslavia was established, few believed that suspects like Ratko Mladic and Radovan Karadzic, the Bosnian Serb leaders, would ever have to account for themselves. They ended up being tried in The Hague. This shows that it pays to prepare for the day when criminal proceedings are possible. Given Myanmar's brutal repression and expulsion of the Rohingya those who believe in justice must act now.


(c) 2018 Nikkei Asian Review


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