Will Aung San Suu Kyi face genocide charges?
December 25, 2017, 9:37 pm
By COLONEL R HARIHARAN
United Nations Human Rights chief Zeid Ra’ad Al Hussein, speaking to the BBC from the UN headquarters in Geneva, recently said he was not ruling out the possibility of genocide charges levied against Myanmar’s de facto leader and democratic icon Aung San Suu Kyi or the army chief Min Aung Hlaing.
He said: “Given the scale of the military operation, clearly these would have to be decisions taken at a high level [as the thresholds for proof were high].” He would not be surprised if Myanmar leaders were one day held accountable in an international court.
The UN rights chief added that even before the August-end resurgence of violence, he had personally called on Aung San Suu Kyi to intervene to bring these military operations to an end. “I appealed to her emotional standing … to do whatever she could to bring this to a close, and to my great regret it did not seem to happen.”
International medical aid group Doctors without Borders has said its field survey has revealed that 6700 Rohingya were killed in the military crackdown from August to September 2017.
The UN refugee agency (UNHCR) in Dhaka, has reported in the first week of December that Rohingyas have continued to flee Myanmar, even after Naypyitaw and Dhaka last month agreed upon a timetable for their return home in the Rakhine state. International rights watchdog, Human Rights Watch has reported that as late as December 2, there was evidence that Rohingya villages were still being damaged, contradicting Myanmar government’s assurances that the violence had ceased before it signed the agreement with Bangladesh to start the repatriation process from January 2018.
This has caused concern to international observers, since continued violence could lead to radicalisation of the Rohingya refugee population in Bangladesh, and their counter-attacks on the Myanmar military could worsen the situation.
However, Myanmar leaders do not appear to be serious in responding to international concerns over the future of over 650,000 Rohingya refugees, which is causing heavy social and economic burden on Bangladesh. This was evident in Naypyidaw’s refusal to issue a visa to UN special rapporteur Yanghee Lee, who was to visit Myanmar in January 2018 to find out procedures in place for the return of refugees, and investigate increased fighting in Myanmar’s Kachin and Northern Shan areas.
Commenting on Myanmar’s refusal, Lee said, “They have said that they have nothing to hide, but their lack of cooperation with my mandate and the fact-finding mission suggests otherwise.” She added that she was disappointed, as Myanmar’s representative at Geneva Htin Lynn had told the UN Human Rights Council that they would cooperate.
The Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG) was adopted by the UN General Assembly (Resolution 260) in December 1948, and came into force on January 12, 1951. Till December 2017, 149 states have ratified or acceded to the treaty. Myanmar (then Burma) acceded to the genocide treaty on December 30, 1949 and ratified on March 14, 1956. So, Myanmar is obliged to take action in letter and spirit against genocide, both in times of war and peace in accordance with the Genocide Convention.
The convention defines genocide as “acts committed with intent to destroy, in the whole or in part, a national, ethnic, racial or religious group”. It was based on the internationally recognized definition of genocide incorporated in the criminal legislation of many countries, and also adopted by the Rome Statute of International Criminal Court that established the International Criminal Court (ICC).
According to the definition, acts such as killing members of the group, causing serious bodily harm or harm to mental health to members of the group, deliberately inflicting acts calculated to bring about physical destruction of the whole group or in part, imposing measures intended to prevent births within the group, and forcibly transferring children of the group to another group would constitute genocide.
However, the military junta, which came to power in 1962, never bothered about international treaty obligations. Its operations against Communists and over a dozen non-Bamar ethnic insurgent groups were notorious for gross human rights violations bordering on genocide.
In fact, the military junta, which ruled Myanmar till the 2008 constitution was enforced, had systematically worked to curtail the rights of the indigenous population and “Burmanise” them.
The seven judges of the Rome-based International Peoples Tribunal, after holding hearings on the Rohingya issue in London and Kuala Lumpur in September 2017, have held that Myanmar was fully responsible for genocide against the Rohingya people. The tribunal judgment was based on witness testimonials both in person and over videos, as well as a long list of well documented atrocities including systematic rape, murder and eradication of identity and culture, presented by a team of prosecution lawyers.
But the moot question is, can Aung San Suu Kyi and the Myanmar Army chief be charged for genocide as suggested by the UN Human Rights Chief?
Aung San Suu Kyi, the de-facto head of state, is holding the extra constitutional appointment of state counsellor specially created for her. Officially, only the foreign ministry is under her direct control. So, her status as head of state exists only as long as the army accepts it. As only the army controls the ministries of defence, border affairs and internal security as per the 2008 Constitution, it is doubtful whether she can be successfully prosecuted for genocide by the international tribunal.
This was not the first time the Rohingya issue had drawn the attention of the world body; in the past collective UN action was decided more on considerations of real-politic than on humanitarian needs.
So, UN’s punitive action against Myanmar over its conduct on the Rohingya issue will continue to be inconclusive and lukewarm, because Myanmar is seen as critical to China’s growing influence in South and Southeast Asia.
The plight of Rohingyas is closely tied to the lack of full-fledged democracy in Myanmar. Unless the country’s 2008 Constitution is amended to abolish the reservation of one fourth of the seats in the legislatures for the army, its stranglehold on governance will continue. Under the circumstances, the plight of Rohingyas is likely to continue despite the loud global rhetoric on the issue.
(Col R Hariharan, a retired Military Intelligence specialist on South Asia, has rich experience in terrorism and insurgency operations.) Courtesy: India Today
Myanmar: Who are the Rohingya?
The Rohingya are often described as “the world’s most persecuted minority”.
They are an ethnic group, majority of whom are Muslim, who have lived for centuries in the majority Buddhist Myanmar. Currently, there are about 1.1 million Rohingya who live in the Southeast Asian country.
The Rohingya speak Rohingya or Ruaingga, a dialect that is distinct to others spoken in Rakhine State and throughout Myanmar. They are not considered one of the country’s 135 official ethnic groups and have been denied citizenship in Myanmar since 1982, which has effectively rendered them stateless.
Nearly all of the Rohingya in Myanmar live in the western coastal state of Rakhine and are not allowed to leave without government permission. It is one the poorest states in the country with ghetto-like camps and a lack of basic services and opportunities.
Due to ongoing violence and persecution, hundreds of thousands of Rohingya have fled to neighbouring countries either by land or boat over the course of many decades.
Muslims have lived in the area now known as Myanmar since as early as the 12th century, according to many historians and Rohingya groups.
The Arakan Rohingya National Organisation has said, “Rohingyas have been living in Arakan from time immemorial,” referring to the area now known as Rakhine.
During the more than 100 years of British rule (1824-1948), there was a significant amount of migration of labourers to what is now known as Myanmar from today’s India and Bangladesh. Because the British administered Myanmar as a province of India, such migration was considered internal, according to Human Rights Watch (HRW).
The migration of labourers was viewed negatively by the majority of the native population.
After independence, the government viewed the migration that took place during British rule as “illegal, and it is on this basis that they refuse citizenship to the majority of Rohingya,” HRW said in a 2000 report.
This has led many Buddhists to consider the Rohingya to be Bengali, rejecting the term Rohingya as a recent invention, created for political reasons.
|The UN has called the current exodus of Rohingya ‘the most urgent refugee emergency in the world’ [Showkat Shafi/Al Jazeera]
Shortly after Myanmar’s independence from the British in 1948, the Union Citizenship Act was passed, defining which ethnicities could gain citizenship. According to a 2015 report by the International Human Rights Clinic at Yale Law School, the Rohingya were not included. The act, however, did allow those whose families had lived in Myanmar for at least two generations to apply for identity cards.
Rohingya were initially given such identification or even citizenship under the generational provision. During this time, several Rohingya also served in parliament.
After the 1962 military coup in Myanmar, things changed dramatically for the Rohingya. All citizens were required to obtain national registration cards. The Rohingya, however, were only given foreign identity cards, which limited the jobs and educational opportunities they could pursue and obtain.
In 1982, a new citizenship law was passed, which effectively rendered the Rohingya stateless. Under the law, Rohingya were again not recognised as one of the country’s 135 ethnic groups. The law established three levels of citizenship. In order to obtain the most basic level (naturalised citizenship), there must be proof that the person’s family lived in Myanmar prior to 1948, as well as fluency in one of the national languages. Many Rohingya lack such paperwork because it was either unavailable or denied to them.
As a result of the law, their rights to study, work, travel, marry, practice their religion and access health services have been and continue to be restricted. The Rohingya cannot vote and even if they jump through the citizenship test hoops, they have to identify as “naturalised” as opposed to Rohingya, and limits are placed on them entering certain professions like medicine, law or running for office.
Since the 1970s, a number of crackdowns on the Rohingya in Rakhine State have forced hundreds of thousands to flee to neighbouring Bangladesh, as well as Malaysia, Thailand and other Southeast Asian countries. During such crackdowns, refugees have often reported rape, torture, arson and murder by Myanmar security forces.
After the killings of nine border police in October 2016, troops started pouring into villages in Rakhine State. The government blamed what it called fighters from an armed Rohingya group. The killings led to a security crackdown on villages where Rohingya lived. During the crackdown, government troops were accused of an array of human rights abuses, including extrajudicial killing, rape and arson – allegations the government denied.
In November 2016, a UN official accused the government of carrying out “ethnic cleansing” of the Rohingya. It was not the first time such an accusation has been made.
In April 2013, for example, HRW said Myanmar was conducting a campaign of ethnic cleansing against the Rohingya. The government has consistently denied such accusations.
Most recently, Myanmar’s military has imposed a crackdown on the country’s Rohingya population after police posts and an army base were attacked in late August.
Residents and activists have described scenes of troops firing indiscriminately at unarmed Rohingya men, women and children. The government, however, has said nearly 100 people were killed after armed men from the Arakan Rohingya Salvation Army (ARSA) launched a raid on police outposts in the region.
Since the violence erupted, rights groups have documented fires burning in at least 10 areas of Myanmar’s Rakhine State. More than 500,000 people have fled the violence, with thousands trapped in a no-man’s land between the two countries, according to the UN refugee agency (UNHCR).
The UN has also said that hundreds of civilians who have tried to enter Bangladesh have been pushed back by patrols. Many have also been detained and forcibly returned to Myanmar.
|Myanmar does not recognise the Rohingya as an ethnic group [Showkat Shafi/Al Jazeera]
Since the late 1970s, nearly one million Rohingya have fled Myanmar due to widespread persecution.
According to the most recently available data from the United Nations in May, more than 168,000 Rohingya have fled Myanmar since 2012.
Following violence that broke out last year, more than 87,000 Rohingya fled to Bangladesh from October 2016 to July 2017, according to the International Organization for Migration.
Many Rohingya also risked their lives trying to get to Malaysia by boat across the Bay of Bengal and the Andaman Sea. Between 2012 and 2015, more than 112,000 made the dangerous journey.
Prior to the violence that began in August, the UN estimated that there are as many as 420,000 Rohingya refugees in Southeast Asia. Additionally, it said there were around 120,000 internally displaced Rohingya.
Since the violence in Myanmar’s northwest began, more than 500,000 Rohingya have fled to Bangladesh, UNHCR said. It added that more than 1,000 people, mostly Rohingya, may have been killed in Myanmar.
State Chancellor Aung San Suu Kyi, who is the de facto leader of Myanmar, has refused to really discuss the plight of the Rohingya.
Aung San Suu Kyi and her government do not recognise the Rohingya as an ethnic group and have blamed violence in Rakhine, and subsequent military crackdowns, on those they call “terrorists”.
The Nobel Peace Prize laureate does not have control over the military but has been criticised for her failure to condemn indiscriminate force used by troops, as well as to stand up for the rights of the more than one million Rohingya in Myanmar.
The government has also repeatedly rejected accusations of abuses. In February 2017, the UN published a report that found that government troops “very likely” committed crimes against humanity since renewed military crackdowns began in October 2016.
At the time, the government did not directly address the findings of the report and said it had the “the right to defend the country by lawful means” against “increasing terrorist activities”, adding that a domestic investigation was enough.
During Pope Francis’ visit to Myanmar in November 2017, Myanmar’s army chief told the pope that there was “no discrimination” in the country and praised the military for maintaining “peace and stability”.
In September 2016, Aung San Suu Kyi entrusted former UN chief Kofi Annan with finding ways to heal the long-standing divisions in the region. While many welcomed the commission and its findings, which were released this August, Azeem Ibrahim, a senior fellow at the Center for Global Policy, argued it was just a way for Aung San Suu Kyi to “pacify the global public opinion and try to demonstrate to the international community that she is doing what she can to resolve the issue”.
Annan was not given the mandate to investigate specific cases of human rights abuses, but rather one for long-term economic development, education and healthcare.
When setting up the commission, Aung San Suu Kyi’s government said it would abide by its findings. The commission urged the government to end the highly militarised crackdown on neighbourhoods where Rohingya live, as well as scrap restrictions on movement and citizenship.
Following the release of the August report, the government welcomed the commission’s recommendations and said it would give the report “full consideration with the view to carrying out the recommendations to the fullest extent … in line with the situation on the ground”.
On the latest round of violence, Aung San Suu Kyi condemned a “huge iceberg of misinformation” on the crisis, without mentioning the Rohingya who have fled to Bangladesh.
On September 19, she gave a televised address, condemning “all human rights violations” in Rakhine.
She said that Myanmar was ready “at any time” to verify the status of those who have fled the violence in the last month. She did not specify who would be qualified to return and did not elaborate on how the verification process would work.
Her speech was criticised by Rohingya refugees, as well as activists who accused her government of “burying their heads in the sand”.
The government has often restricted access to northern Rakhine States for journalists and aid workers. Aung San Suu Kyi’s office has also accused aid groups of helping those it considers to be “terrorists”.
In January, Yanghee Lee, a UN special rapporteur on human rights in Myanmar, said she was denied access to certain parts of Rakhine and was only allowed to speak to Rohingya who had been pre-approved by the government.
The country has also denied visas to members of a UN probe investigating the violence and alleged abuses in Rakhine.
What does Bangladesh say about the Rohingya?
There are more than half a million Rohingya refugees living in mostly makeshift camps in Bangladesh. The majority remain unregistered.
Bangladesh considers most of those who have crossed its borders and are living outside of camps as having “illegally infiltrated” the country. Bangladesh has often tried to prevent Rohingya refugees from crossing its border.
In late January, the country resurrected a plan to relocate tens of thousands of Rohingya refugees from Myanmar to a remote island that is prone to flooding and has also been called “uninhabitable” by rights groups. Under the plan, which was originally introduced in 2015, authorities would move undocumented Myanmar nationals to Thengar Char in the Bay of Bengal.
Rights groups have decried the proposal, saying the island completely floods during monsoon season. The UN also called the forced relocation “very complex and controversial”.
Most recently, Bangladesh’s foreign minister labelled the violence against the Rohingya in Myanmar “a genocide”. The country’s National Commission for Human Rights also said it was considering “pressing for a trial against Myanmar, and against the Myanmar army at an international tribunal” on charges of genocide.
Bangladesh’s Prime Minister Sheikh Hasina visited a Rohingya refugee camp in September and called on the UN and the international community to pressure Myanmar’s government to allow the return of hundreds of thousands Rohingya refugees.
She said that Bangladesh would offer the refugees temporary shelter and aid, but that Myanmar should soon “take their nationals back”.
Rohingya refugees in Bangladesh have told Al Jazeera that the government’s aid thus far as been inadequate, with many saying they haven’t received any kind of government help.
Refugees in Bangladesh have been banned from leaving the overcrowded border areas. Police check posts and surveillance have been set up in key transit points from stop Rohingya from travelling to other parts of the country.
|The Rohingya have effectively been stateless for decades [Showkat Shafi/Al Jazeera]
The international community has labelled the Rohingya the “most persecuted minority in the world”.
The UN has said that it is “very likely” that the military committed grave human rights abuses in Rakhine that may amount to war crimes, allegations the government denies.
In March, the UN adopted a resolution to set up an independent, international mission to investigate the alleged abuses. It stopped short of calling for a Commission of Inquiry, the UN’s highest level of investigation.
The UN investigators must provide a verbal update in September and a full report next year on their findings.
Rights groups have criticised the government’s reluctance to accept the UN investigators.
Human Rights Watch warned that Myanmar’s government risked getting bracketed with “pariah states” like North Korea and Syria if it did not allow the UN to investigate alleged crimes.
In response to the latest round of violence, UN Secretary-General Antonio Guterres warned of the risk of ethnic cleansing, calling on Aung San Suu Kyi and the country’s security forces to end the violence.
In early September, Guterres also warned of a looming “humanitarian catastrophe” if the violence does not end.
UN human rights chief Zeid Ra’ad al Hussein urged Myanmar to end its “brutal security operation” against the Rohingya in Rakhine, calling it a “textbook example of ethnic cleansing”.
Both UN officials said they completely supported the findings of the advisory commission, led by Kofi Annan, and urged the government to fulfil its recommendations.
In November 2017, Pope Francis visited Myanmar and while he did not explicitly say Rohingya, he said that there needs to be acceptance and respect for all ethnic groups in the country.
The Arakan Rohingya Salvation Army (ARSA), formerly known as the al-Yaqeen Faith Movement, released a statement under its new name in March 2017, saying it was obligated to “defend, salvage and protect [the] Rohingya community”.
The group said it would do so “with our best capacities as we have the legitimate right under international law to defend ourselves in line with the principle of self defence”.
The group is considered a “terrorist” organisation by the Myanmar government.
In its March statement, the ARSA added that it does “not associate with any terrorist group across the world” and does “not commit any form of terrorism against any civilian[s] regardless of their religious and ethnic origin”.
The statement also said: “We […] declare loud and clear that our defensive attacks have only been aimed at the oppressive Burmese regime in accordance with international norms and principles until our demands are fulfilled.”
The group has claimed responsibility for an attack on police posts and an army base in Rakhine State. According to the government nearly 400 people were killed, the majority of whom were members of the ARSA. Rights groups, however, say hundreds of civilians have been killed by security forces.
Rights group Fortify Rights said it has documented that fighters with the ARSA “are also accused of killing civilians – suspected government ‘informants’ – in recent days and months, as well as preventing men and boys from flee Maungdaw Township”.
On September 9, the group declared a month-long unilateral ceasefire in Rakhine to enable aid groups to address the humanitarian crisis in the area.
“ARSA strongly encourages all concerned humanitarian actors resume their humanitarian assistance to all victims of the humanitarian crisis, irrespective of ethnic or religious background during the ceasefire period,” the group said in a statement, adding that it calls on Myanmar’s military to also temporarily lay down arms.
According to the International Crisis group, the ARSA has ties to Rohingya living in Saudi Arabia.
The Myanmar government formally categorised the group as a “terrorist” organisation on August 25.
SOURCE: AL JAZEERA