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Tuesday, March 8, 2022

The Rohingya crisis and questions of accountabilit

Taylor & Francis Online
Adam Simpsona Justice and Society, University of South Australia, Adelaide, AustraliaCorrespondence
adam.simpson@unisa.edu.au

Nicholas Farrelly
Pages 486-494 | Published online: 08 Sep 2020


ABSTRACT


There is no obvious end to the ongoing tragedy that faces the Muslim Rohingya communities of western Myanmar. Yet, with two important international legal cases underway at the International Court of Justice and the International Criminal Court there are now important opportunities to maintain pressure on Myanmar’s government. Myanmar’s current government – a fusion of militarist, democratic, ethno-nationalist and conservative interests – has consistently sought to downplay the seriousness of the situation. This attitude, and the fraught, but politically effective, nexus between Aung San Suu Kyi’s National League for Democracy (NLD) and the military, has done much to encourage a culture of impunity among military and civilian decision-makers. Nevertheless, with crucial national elections scheduled for November 2020, and an economy battered by the global COVID-19 shutdown, Myanmar faces a confluence of grave challenges. Under these conditions, key decision-makers in Naypyitaw may hope that international scrutiny of violence against the Rohingya will fade. Given these court actions, however, this is unlikely. Whatever sympathy we may have for Aung San Suu Kyi’s predicament, she will not recover her reputation. And she will forever face hard questions about her inability to prevent, and, more importantly, refusal to condemn, ethnic cleansing.


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Re-introducing a tragedy

There is no obvious end to the ongoing tragedy that faces the Muslim Rohingya communities of western Myanmar. Yet, with two important international legal cases underway at the International Court of Justice (ICJ) and the International Criminal Court (ICC) there are now important opportunities to maintain pressure on Myanmar’s government and clarify mechanisms for accountability. Myanmar’s current government – a fusion of militarist, democratic, ethno-nationalist and conservative interests – has consistently sought to dismiss or downplay the seriousness of the situation. This attitude, and the fraught, but politically effective, nexus between Aung San Suu Kyi’s National League for Democracy (NLD) and Myanmar’s military, has done much to encourage a culture of impunity among national decision-makers. Nevertheless, with crucial national elections scheduled for November 2020, and an economy battered by the global COVID-19 shutdown, Myanmar faces a confluence of grave challenges (Simpson and Farrelly 2021a).

Under these conditions, key decision-makers in Naypyitaw may hope that international scrutiny of violence against the Rohingya will fade. Given these two ongoing court actions, however, this is unlikely. Analysis of the ICC case has already been undertaken in these pages (see, for example, Colvin and Orchard 2019) so in this article we focus instead on the ramifications of deliberations at the ICJ, where The Gambia has accused Myanmar of genocide against the Rohingya. The accusation relates to successive pogroms against Rohingya communities in northern Rakhine State, particularly the latest ‘clearance operation’ by the military beginning in August 2017. In December 2019, in scenes that would have been barely conceivable not long ago, Myanmar’s Nobel Peace Laureate, former political prisoner and former international human rights icon, Aung San Suu Kyi, travelled to the ICJ in The Hague and personally defended the Myanmar military against charges of genocide (Simpson and Farrelly 2021b). The same military leaders were, until 2010, her tormentors and captors. Now, in a complex and still partly contested compact, Myanmar’s democratic elite has common ground with the security establishment and its stern approach to ethnic and religious management. What impact will the ICJ case have on accountability for these crimes?

Persecution of the Rohingya

There are significant domestic barriers – institutional, legal and political – to the fuller inclusion of the Rohingya in Myanmar society. The Rohingya are not recognised by the 1982 Citizenship Law, which formally designated 135 ‘national races’, nor by the vast majority of the country’s population, resulting in them being refused citizenship and labelled ‘Bengalis’ – interlopers from Bangladesh – despite their long settlement in Myanmar (South 2009, 43; Wade 2019; Yegar 1972). They are at the bottom of Myanmar’s hierarchy of ethnic privilege (Simpson 2014; Walton 2013) and form the centerpiece of Myanmar’s broader citizenship crisis (Holliday 2014). In the lead-up to the 2010 general election, during a messy period of political re-configuration, the military provided space for Rohingya leaders and voters within the new electoral framework. However, rather than a pathway to greater inclusion for the Rohingya, this strategy simply cultivated Rohingya support to undermine ethnic Buddhist Rakhine parties and buttress wins for the military-backed Union Solidarity and Development Party (USDP). After that 2010 vote, five self-identfied Rohingya served as USDP representatives at the national and regional levels (for further details on Muslim political activity at this time see, Farrelly 2016).

The fuse was lit. Nationalist activism within the Rakhine Buddhist community against the Rohingya resulted in communal violence in Rakhine State from June 2012 that left dozens of Rohingya killed and more than 140,000 people, mostly Rohingya, displaced to internment camps (Cheesman 2017a; 2017b, 3; van Klinken and Su Mon Thazin 2017). Communal violence then spread throughout the country, with Muslims regularly targeted by Buddhist chauvinists. While Buddhist monks were at the forefront of democratic protests against the authoritarian military regime in 2007 (McCarthy 2008), some Buddhist monks now formed the centre of a movement against Muslims, and against the Rohingya in particular. Aid from international humanitarian organisations, the providers of sustenance to the displaced Rohingya, was halted in early 2014 due to harassment and attacks from Rakhine Buddhist groups. Rather than offering a chance to support the rights of the Rohingya, the opening of democratic political space, amplified by newly accessible social media, resulted in widespread hostility (see Galache 2020).

Slaughter and displacement

When Aung San Suu Kyi and the NLD took power after the 2015 general election they began efforts to promote what they considered neutral language on sensitive ethnic issues, which caused further consternation among nationalist Buddhists. The NLD also attempted to address international criticism of the treatment of the Rohingya by the appointment of an international advisory commission in August 2016, led by former UN Secretary General Kofi Annan. In October 2016 coordinated armed raids by a group known as Harakah al-Yaqin, or the Arakan Rohingya Salvation Army (ARSA), on three border posts near Maungdaw township in northern Rakhine State, killed nine Myanmar police officers. In response, there were large-scale deployments of police and army units, with widespread allegations of security forces abusing Muslim communities (OHCHR 2016; 2017).

On 24 August 2017, the Annan-led Advisory Commission on Rakhine State delivered their final report to the Myanmar government. The Commission recommended that the government take concrete steps to end enforced segregation of Rakhine Buddhists and Rohingya Muslims, ensure full and unfettered humanitarian access throughout the state, deal with Rohingya statelessness, hold perpetrators of human rights violations accountable and end restrictions on freedom of movement. These suggestions were well-received, including by the Office of State Counsellor Aung San Suu Kyi, which released a statement announcing that the government would implement the recommendations ‘to the fullest extent, and within the shortest timeframe possible’. For the first time since the outbreak of violence in 2012, there appeared to be cause for optimism in Rakhine State.

By early the next day, however, reports emerged that ARSA had mounted coordinated overnight attacks on 30 police posts and an army base in the towns of Maungdaw, Buthidaung and Rathedaung in northern Rakhine State (Simpson 2017). They also attacked predominantly Hindu villages, slaughtering or abducting the inhabitants, and were brutal in their killing of suspected Rohingya informers (Amnesty International 2018). It was clear from the level of coordination that the attack had been long-planned and timed to coincide with the release of the Annan report. Clearly a military response was required from Naypyitaw, but a just response would have been targeted at ARSA, rather than driven by a philosophy of collective punishment for the entire Rohingya community.

As the military build-up in the region since October 2016 suggested, Myanmar’s armed forces were prepared to respond with overwhelming force, although few anticipated the scale of the slaughter to come. Following the ARSA attacks, the Myanmar military engaged in what the UN High Commissioner for Human Rights labelled a ‘brutal security operation’, which he said constituted ‘a textbook example of ethnic cleansing’ and resulted in 270,000 predominantly Rohingya fleeing to Bangladesh within a three-week period (Al Hussein 2017). He later named northern Rakhine State as one ‘of the most prolific slaughterhouses of humans in recent times’ (Al Hussein 2018). The seriousness of the situation resulted in the UN Security Council displaying rare unity by calling on Myanmar for ‘immediate steps’ to end the violence (Landry 2017). By the beginning of 2020, 740,000 Rohingya had arrived in Cox’s Bazaar on the Bangladesh side of the border, with most arriving in the first 6 weeks, resulting in almost a million exiled Rohingya living in border refugee camps (UNHCR 2020).

International justice?

While there has been debate about prosecuting top military commanders, such as Senior General Min Aung Hlaing, at the International Criminal Court (ICC), there are a number of difficulties associated with this route. Myanmar is not party to the Rome Statute, which created the court, and any attempt to force the ICC to take a case through the UN Security Council would almost certainly be blocked by China, and probably by Russia as well. Nevertheless, since Bangladesh is party to the Rome Statute, and the Rohingya fled across the border, the ICC ruled in 2018 that it had jurisdiction over the case (Colvin and Orchard 2019). As a result, in November 2019, the ICC approved a full investigation into the allegations of ‘systematic acts of violence’, deportation as a crime against humanity, and persecution on the grounds of ethnicity or religion against the Rohingya (AFP 2019). By February 2020, a team of investigators from the ICC Office of the Prosecutor was visiting the Rohingya refugee camps to collect evidence for the case (Alam 2020).

In what was a much more surprising legal manoeuvre, on 11 November 2019, the Republic of The Gambia filed an ICJ application instituting proceedings against Myanmar concerning alleged violations of the Genocide Convention (International Court of Justice 2020). It was this case that led Aung San Suu Kyi, by her own to decision, to travel to The Hague in December 2019 to personally defend the military’s actions. She could easily have sent a more junior member of the government, which would have at least indicated some reticence from the NLD regarding the military’s actions. Instead, the former international democracy icon led a full-throated defence of the military’s clearance operations as necessary to preserve Myanmar’s security and the rule of law. As Aung San Suu Kyi clearly calculated, her ICJ defence was interpreted as defending the nation and the national interest, as well as the military (Bowcott 2019), and was supported by large rallies throughout the country, with only a few brave protesters displaying an interest in opposing genocide (Naw Betty Han 2019).

In her statements, Aung San Suu Kyi admitted that ‘[i]t cannot be ruled out that disproportionate force was used by members of the defence services in some cases, in disregard of international law’ and that ‘they did not distinguish clearly enough between ARSA fighters and civilians’ but insisted that any breaches would be investigated internally. This defence, essentially arguing that crimes were committed by ‘bad apples’ in the military (Simpson 2020) rather than systematically by design, has been debunked by the accumulated evidence, including satellite imagery, that shows the erasure of the Rohingya communities was systematic (Amnesty International 2017). In addition, internal judicial redress within Myanmar has been shown to be largely ineffectual; there have already been several compliant internal inquiries, all of which have cleared the military of any systematic crimes in the face of overwhelming evidence to the contrary. The government-appointed Independent Commission of Enquiry (ICOE) broke the taboo on criticism of the military by finding that security forces and civilians committed war crimes and violated human rights in Rakhine State, but continued to insist that these were rogue elements rather than outcomes of a systematic policy (Sithu Aung Myint 2020).

In late January 2020, the ICJ unanimously declared that The Gambia had established prima facie a breach of the Genocide Convention. It issued several urgent measures for Myanmar to take to prevent further breaches of the Convention including the prevention of the destruction of evidence and regular reporting to the Court (International Court of Justice 2020). The Gambia had until 23 July 2020 to submit its full case (subsequently extended due to COVID-19 to 23 October 2020) and Myanmar had until 25 January 2021 (extended to 23 July 2021) to submit its response. Owing to COVID-19, The Gambia’s full case is now due to be submitted two weeks before the national elections due on 8 November, which will once again thrust this issue into the domestic and international spotlight.


Political battlegrounds

It is widely understood that the NLD has no effective oversight of the Myanmar military and clearly the Commander-in-Chief, Senior General Min Aung Hlaing, and his generals, rather than Aung San Suu Kyi and the NLD leadership, bear most of the responsibility for the ruthless 2017 military operation (Farrelly and Simpson 2018). Nevertheless, she is the undisputed moral and political leader of the country and is perhaps the only person in the country who could have successfully communicated to its citizenry the suffering and abuse experienced by the Rohingya. In contrast, her silence on the military’s brutality and her active attempts to exculpate it from wrongdoing further the normalisation in Myanmar of what, under any reasonable assessment, constitute ethnic cleansing and crimes against humanity. The gathering of evidence will be key to the next steps in the international process seeking accountability (see Selth 2018).

When Aung San Suu Kyi came to power in April 2016 she faced an enormous range of political and economic issues, a legacy from a half century of military rule. These problems cannot be underestimated, but her efforts to placate the hardline elements in the armed forces and among Buddhist nationalist cohorts have destroyed much of her former global standing. The difficulties faced by the government in Rakhine State, and elsewhere, have been exacerbated by the ferocious civil war with the Arakan Army. The group was formed in 2009 but by 2019 it had become one of the most prominent ethnic armed groups in Myanmar and a serious insurgent challenge for Myanmar’s military, with dozens of deaths on both sides and 100,000 new IDPs created in Rakhine State, affecting both Rakhine and Rohingya civilians (Davis 2020; International Crisis Group 2019).

To deal with the insurgency, internet blackouts were imposed from June 2019 in nine townships across Rakhine and Chin States, impacting on the ability of civilians from various communities in these areas to communicate with each other but also to report human rights abuses or communicate with journalists (Simpson 2019). Compounding earlier restrictions on aid groups and journalists imposed due to the Rohingya conflict, by February 2020, 8 of Rakhine’s 17 townships had either severely restricted access or were completely off-limits, resulting in both aid and information blockages to and from the region (Htusan 2020). The internet blackouts were removed in some townships in September 2019 but were reimposed unexpectedly on 3 February 2020, the same day that the Arakan Army published a statement online declaring that it would release evidence of mass graves of Muslims killed and buried by the Myanmar military in Rakhine State (Fortify Rights 2020). Similar internet and mobile restrictions were imposed on the Rohingya refugee camps on the Bangladesh side of the border in September 2019 (Simpson 2019). During the evolving COVID-19 pandemic in 2020, these restrictions exacerbated misinformation within the camps, where social distancing was impossible. This was further aggravated by a ‘complete lockdown’ of the camps by the Bangladesh government on 8 April 2020, which restricted aid deliveries and the flow of information in and out of the camps (AFP 2020).

While the new conflict in Rakhine State is creating a new phase of suffering there are also tangible differences between its impact on ethnic Rakhine and Rohingya communities. Around 600,000 Rohingya remain in Rakhine State – with around 100,000 still behind the barbed wire of internment camps – but they are effectively stateless, with no citizenship, no political representation and very little freedom of movement (Simpson, Holliday, and Farrelly 2018). The ethnic Rakhine, by contrast, have citizenship, voting rights and control over the Rakhine State legislature. They used this power by voting unanimously to press the government to block the resettlement of the Rohingya, should they ever want to return (Wade 2019, 402).

Hard judgments for Aung San Suu Kyi

When the NLD government took power after the 2015 general election, there were widely-held, but largely mis-placed, concerns that the dim prospect of a military coup implied Aung San Suu Kyi’s actions were severely restricted. Even if the NLD leadership felt insecure when it first took office, it was increasingly clear, as the years rolled by, that a coup was extremely unlikely. As her outspoken defence of the military in The Hague now shows, they simply have too much to gain from Aung San Suu Kyi’s permanent co-optation. What, then, motivated Aung San Suu Kyi to travel to The Hague and provide such a strident defence of the military’s actions? Our only reasonable conclusion is that she did not disagree, or disagree strongly enough, to differentiate her own position from that of the military and that her success in the looming 2020 general election overrode clear evidence of crimes against humanity.

In this key respect, Aung San Suu Kyi elevated her own political survival above the survival of the Rohingya on Myanmar soil. Once the security forces made their moves she claimed to have no power to stop them. Her lack of public criticism of military decision-makers also indicated that the Rohingya, for her, do not belong in Myanmar. This is not inconsistent with her earlier writings on threats to Burmese ‘racial survival’ and ‘racial purity’ (Thant Myint-U 2020, 41).

One of the inadequate defences highlighted by the remaining Aung San Suu Kyi supporters outside Myanmar is that she is not a democracy activist or icon, but rather ‘a politician’, as she herself has repeatedly stated (Rhodes 2019). But serving as a politician should not obviate the ability, or need, to act ethically. Even if compromise might sometimes be required, politicians need to have principles, particularly when it comes to crimes against humanity. Aung San Suu Kyi and the NLD may not control the military or the constitution but they do have a legislative majority that could make or repeal any laws in the country. Damningly, they they have not deployed this power to undo either colonial-era or subsequent security laws that impede freedom of speech and other democratic rights (Simpson and Farrelly 2021b).

Whatever sympathy we may have for Aung San Suu Kyi’s predicament, therefore, she will not recover her reputation. And she will forever face hard questions, as she did in The Hague in 2019, about her inability to prevent, and, more importantly, refusal to condemn, ethnic cleansing. As State Counsellor, Aung San Suu Kyi leads the elected government and her political alignment with crimes against humanity will now tarnish what was once an impressive reputation (see Human Rights Watch 2017; Wa Lone, Lewis, and Slodkowski 2018). She will be known for her unwillingness to protect vulnerable Rohingya communities from the full might of the Myanmar armed forces and for failing to denounce obscene atrocities. For as long as the Rohingya are excluded from Myanmar society, future governments will struggle to achieve social cohesion, a sustainable and just development model, and normalised international relations. On any objective measure, it is difficult to avoid the conclusion that as a result of her actions at the ICJ, Aung San Suu Kyi has consolidated her place in history as an apologist for military crimes.

Disclosure statement


No potential conflict of interest was reported by the author(s).Notes on contributors

Adam Simpson is Program Director of the Master of Communication in Justice & Society, at the University of South Australia. He is the author of Energy, Governance and Security in Thailand and Myanmar (2014, 2017) and is co-editor of the Routledge Handbook of Contemporary Myanmar (2018) and Myanmar: Politics, Economy and Society (2021, Routledge).

Nicholas Farrelly is Professor and Head of Social Sciences at the University of Tasmania, Australia.He was previously Associate Dean of the College of Asia and the Pacific at the Australian National University and is co-editor of the Routledge Handbook of Contemporary Myanmar (2018) and Myanmar: Politics, Economy and Society (2021, Routledge).


Correction Statement


This article has been republished with minor changes. These changes do not impact the academic content of the article.

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