U.N. Security Council: Refer Myanmar to the International Criminal Court

Source FortifyRights, 8 May

Security Council concluded visit to Myanmar and Bangladesh on May 1

(NEW YORK, May 8, 2018)—The United Nations Security Council should refer the situation in Myanmar to the International Criminal Court (ICC) to investigate and possibly prosecute atrocity crimes, including the crime of genocide, against Rohingya Muslims and others, Fortify Rights said today.

From April 29 to May 1, a 15-member U.N. Security Council delegation visited Bangladesh and Myanmar to meet with Rohingya survivors of human rights violations in Myanmar as well as senior diplomats and government officials.

"Impunity is entrenched in Myanmar," said Matthew Smith, Chief Executive Officer of Fortify Rights. "Domestic remedies have been exhausted—the government failed to properly investigate the heinous crimes that have taken place, and that's precisely why a referral is warranted."

In a report published in November 2017, Fortify Rights and the United States Holocaust Memorial Museum documented how the Myanmar Army massacred untold numbers of Rohingya men, women, and children, gang-raped masses of women and girls, and committed widespread arson attacks, razing hundreds of villages in northern Rakhine State, making it impossible for Rohingya to survive in their native areas.

Based on hundreds of testimonies from eyewitnesses and survivors collected during a yearlong investigation, the report found "mounting evidence" of genocide.

Since October 2016, the Myanmar authorities forced more than 775,000 Rohingya refugees to flee to Bangladesh, causing a humanitarian crisis. Myanmar Army-led attacks on Rohingya civilians were in response to violent assaults on security forces by the Arakan Rohingya Salvation Army in October 2016 and again in August 2017.

The Government of Myanmar continues to deny aid groups, journalists, and human rights monitors—including a U.N.-established Fact-Finding Mission—unfettered access to areas of northern Rakhine State.

Myanmar authorities also continue to deny allegations of atrocities in Rakhine State. Following a meeting with the U.N. Security Councildelegation on April 30, Myanmar Commander-in-Chief Senior General Min Aung Hlaing claimed, "No sexual violence happened in the history of the country's military." State Counselor Aung San Suu Kyi's office previously described allegations of rape by security forcesas "rumors," "fabricated stories," and "one-sided accusations." In August 2017, the Office of State Counselor Suu Kyi claimed "extremist terrorists" were burning down civilian homes.

Prior to the most recent wave of mass atrocity crimes, state-run publications alluded to Rohingya as "detestable human fleas" and "thorns" that need to be removed. The government continues to deny Rohingya equal access to citizenship rights.

"The Myanmar government's wholesale denials and dehumanizing rhetoric are signals, in the very least, of an unwillingness to hold perpetrators accountable," said Matthew Smith. "The government is crying foul, but the facts demand an ICC referral now."

On April 29, Rohingya refugees in Kutupalong refugee camp in Bangladesh staged a demonstration for visiting Security Council representatives, demanding guarantees for a safe and voluntary return to Myanmar's Rakhine State and accountability for atrocities perpetrated by Myanmar state security forces. Representatives of the Rohingya community provided the visiting delegation with a list of demands, including an international security presence in Rakhine State and the provision of full citizenship rights in Myanmar.

War crimes and crimes against humanity in Kachin and Shan states in Myanmar should also be the subject of an ICC referral, Fortify Rights said.

Fighting between the Myanmar military and the Kachin Independence Army has displaced more than 100,000 civilians in Kachin State since armed conflict reignited in June 2011. An escalation in the conflict in recent weeks forcibly displaced an additional 6,800 civilians.

Fortify Rights documented killings, systematic torture, human shielding, forced labor, arbitrary arrest, and other violations by Myanmar state security forces in Kachin and northern Shan states since in 2011. The Government of Myanmar has effectively denied humanitarian aid to displaced populations.

In a 2014 report, Fortify Rights documented torture and other cruel, inhuman, and degrading treatment or punishment of more than 60 Kachin civilians by members of the Myanmar Army, military intelligence, and the Myanmar Police Force. These violations constitute war crimes and crimes against humanity.

On April 23, more than 30 Kachin civil society organizations called on the U.N. Security Council to urgently refer Myanmar to the ICC. This week, peaceful demonstrations occurred in several locations in Myanmar with protesters calling for an end to the armed conflict in Kachin State and for the Myanmar government to ensure that civilians trapped in Tanai Township and Kamai sub-township can safely travel to areas free of conflict. Protesters face potential charges for their involvement in the demonstrations.

In addition to a referral to the ICC, the Security Council should also implement a global arms embargo on Myanmar and targeted sanctions against those responsible for mass atrocity crimes, Fortify Rights said.

"The absence of concerted and timely international action paved the way for mass atrocities in Kachin, Shan, and Rakhine states," said Matthew Smith. "The international community should immediately disrupt the culture of impunity."

Background

On April 16, United Nations Secretary-General António Guterres announced the inclusion of Myanmar's Armed Forces on a blacklist of groups that are "credibly suspected" of carrying out sexual violence during conflict. The report found that the Myanmar military's "widespread threat and use of sexual violence was integral to their strategy, humiliating, terrorizing and collectively punishing the Rohingya community."

On November 12, 2017, the U.N. Special Envoy on Sexual Violence Pramila Patten said the Myanmar Army's widespread use of sexual violence against Rohingya women and girls was "a calculated tool of terror aimed at the extermination and removal of the Rohingya as a group," adding that she documented the basis for characterizing the crimes as genocide.

In a statement during a Special Session of the U.N. Human Rights Council on December 5, 2017, U.N. High Commissioner for Human Rights Zeid Ra'ad al-Hussein referred to the crime of genocide with regard to the attack on Rohingya, saying, "can anyone rule out that elements of genocide may be present?" In a BBC film that aired later that month, High Commissioner Zeid said that members of the military as well as the civilian government in the country may be liable for genocide. The U.N. Special Rapporteur Yanghee Lee likewise said on February 1 that the situation of Rohingya in Myanmar "bears the hallmarks of genocide."

In 2015, a legal analysis prepared for Fortify Rights by the Allard K. Lowenstein International Human Rights Clinic at Yale Law School found "strong evidence" that the Government of Myanmar was responsible for genocide against Rohingya Muslims.

A 79-page report by Fortify Rights in 2014 exposed Myanmar government documents, orders, and enforcement methods restricting Rohingya freedom of movement, marriage, childbirth, and other aspects of daily life in northern Rakhine State. The restrictions were based on ethnicity and religion and remain in effect today.