Implications of the Myanmar ICJ and ICC Cases for Non-Rohingya Minorities

Source Justsecurity,31 July

(Editors Note: This article is the fourth and final piece of a special Just Security forum on the ongoing Gambia v. Myanmar litigation at the International Court of Justice and ways forward.)

As my colleagues Param-Preet Singh and Nadira Kourt laid out in the first two pieces of this forum, the International Court of Justice (ICJ) case concerning Myanmar's genocide of the Rohingya presents opportunities for Myanmar to finally dismantle the root causes of its longstanding persecution of Rohingya people and the international community to live up to its promise of "Never Again." In this final forum article, I look at what all the recent international attention paid to Myanmar's treatment of the Rohingya means for other ethnic minorities that have suffered atrocities at the hands of Myanmar's military (the Tatmadaw).

In some ways, international attention on the experiences of other ethnic groups in Myanmar is currently at a zenith. The intensifying conflict between the Tatmadaw and the Arakan Army – an armed group seeking increased autonomy for the multi-ethnic peoples in Rakhine state (referred to by the Arakan Army as "Arakan" state) – and the recent announcement of new military clearance operations by the Tatmadaw in ethnic Rakhine regions, have brought condemnation from American, Australian, British, and Canadian embassies in Myanmar.

In other ways, however, the attention of the international community remains fixated on the Rohingya. This is particularly true when discussing accountability efforts. Despite the flurry of activity on Myanmar at the ICJ, the International Criminal Court (ICC), foreign domestic courts (for example, Argentinian courts) and United Nations bodies, attention on the atrocities committed against a wider array of Myanmar's ethnic minorities has been wanting.

Myanmar's Other Atrocity Victim Groups

Since Myanmar's independence, numerous ethnically-based armed conflicts in the country's border regions have continued for decades. In engaging in these conflicts, the Tatmadaw has repeatedly and intentionally targeted civilians of the same ethnic background as that associated with whatever armed groups they were fighting at the time. Over the past several years, ethnic Rakhine, Kachin, and Shan civilians, and others, have been subjected to widespread attacks, indiscriminate killings, destruction and looting of property, food supplies, critical services, and places of worship.

Of special note is the Tatmadaw's repeated commission of sexual and gender-based violence against ethnic minority populations. While the specific context of each armed group's conflict with the Tatmadaw is distinct, the Tatmadaw's use of rape as a weapon of war has remained a universal tactic. Ethnic women's organizations have found time and again that widespread sexual violence is part of a deliberate and systematic pattern of targeting women and girls in their communities. Indeed, the U.N. Independent International Fact-Finding Mission on Myanmar (FFM), found that sexual and gender-based violence was a "hallmark of the Tatmadaw's operations against ethnic minorities in Kachin, Shan and Rakhine states" and that "[t]hese violations, for most part perpetrated against ethnic women and girls, were used with the intent to intimidate, terrorise and punish the civilian population and as a tactic of war." Even Aung San Suu Kyi, Myanmar's State Counselor and de facto leader, decried the targeting of ethnic minorities for sexual violence in 2011, stating that "[r]ape is used in my country as a weapon against those who only want to live in peace, who only want to assert their basic human rights. It is used as a weapon by armed forces to intimidate the ethnic nationalities and to divide our country."

The Focus on Crimes Against the Rohingya

Despite clear findings of grave human rights violations by local civil society, international fact-finders, and the de facto head of government, avenues for, or even conversations about, accountability for crimes against non-Rohingya ethnic minorities are virtually non-existent.

This is partly due to jurisdictional limitations and choices inherent in the ongoing investigations and cases, especially those at the ICJ and ICC. For example, the ICJ case is focused narrowly on the Rohingya because the facts indicate the Tatmadaw acted with an intent to destroy only the Rohingya – an essential element of the crime of genocide. Thus, while brutal and constituting crimes against humanity, the Tatmadaw's atrocities against other ethnic groups do not fit the definition of genocide, and thus these victims cannot avail themselves of the ICJ's jurisdiction, which is tied specifically to the Genocide Convention in the ongoing Gambia v. Myanmar litigation.

Similarly, the ICC investigation is focusing on crimes against the Rohingya because of the narrow jurisdiction available to that court – the crimes must be linked to the "clearance operations" in Rakhine state beginning in 2016 and, crucially, must have at least one element occurring in Bangladesh (the nation the vast majority of Rohingya victims have fled to). This is because unlike Myanmar, Bangladesh is a party to the ICC's Rome Statute, which confers the court with territorial jurisdiction. A universal jurisdiction case brought in Argentina by Rohingya human rights activists likewise targets members of the Tatmadaw and Myanmar government with alleged crimes against the Rohingya specifically.

The one exception to this narrow focus on the Rohingya is the Independent Investigative Mechanism for Myanmar (IIMM), created by the U.N. Human Rights Council. The IIMM's mandate empowers it to investigate the most serious international crimes occurring anywhere in Myanmar, and therefore against any ethnic group, since 2011. Yet, the IIMM's work has been overshadowed by the exclusive focus on the plight of the Rohingya at the ICJ, ICC, in Argentinian courts, and more generally in press coverage and U.N. statements.

The picture is not much different in international political spheres, where fear of alienating Myanmar, an emergent economic partner, has clipped the responses of countries and international organizations. Though to be fair, Australia, the EU, U.K. and United States have all levied targeted sanctions against certain Tatmadaw officials for their roles in atrocities against Shan, Kachin, and ethnic Rakhine victims – along with Rohingya ones. Relevant U.N. General Assembly and Human Rights Council resolutions similarly name human rights violations against multiple of Myanmar's ethnic groups. At the same time however, the Security Council has failed to take action outside the Rohingya context, with the infamous "Rosenthal Report" describing a systemic failure at the U.N. in addressing all atrocities by the Tatmadaw. Meanwhile, key economic partners, such as Japan, have turned a blind eye to the gaping hole in accountability for crimes against Myanmar's ethnic minorities.

This is not to take away from the uniquely brutal character and scale of crimes committed against the Rohingya. As pointed out above, unlike other groups, the Rohingya were targeted for destruction by the Tatmadaw. This, coupled with the displacement of nearly 1,000,000 Rohingya, calls for an urgent and comprehensive response. However, it is also important to acknowledge that all atrocity crimes, whatever their specific character, continue to be integral aspects of the Tatmadaw's standard operating procedures in operations against ethnic minorities. Justice and accountability for such crimes is essential.

Indeed, human rights defenders from Myanmar's ethnic communities have shown broad support for international efforts aimed at justice for the Rohingya. Karen, Shan, Mon, and Kachin groups have all put out statements of solidarity, each highlighting that until the Tatmadaw is held accountable, atrocities against ethnic communities will continue. Collectively, the statements paint a broader, much more comprehensive picture of crimes in Myanmar, by detailing the decades-long patterns of similar abuses against ethnic minorities.

The patterned nature of these violations is what renders the various Rohingya cases potentially such potent aids in accountability efforts by other ethnic groups. The same military and government leaders that are responsible for the Rohingya genocide are implicated in the crimes against other ethnicities. The FFM found that "[t]he consistent tactical formula employed by the Tatmadaw exhibits a degree of coordination only possible when all troops are acting under the effective control of a single unified command." At the top of this chain of command are Myanmar's Commander-in-Chief, the Deputy Commander-in-Chief, and numerous other Lieutenant and Brigadier Generals.

Conclusion: Justice for All or Stability for None

The international community has the tools and knows what to do when centralized commands and high-level perpetrators commit mass atrocities. The Security Council should refer the situation to the ICC, as it did in Sudan and Libya, to widen the scope of the prosecutor's ongoing investigation to encompass crimes committed exclusively on the territory of Myanmar. Or, the Council could instead create an ad hoc tribunal, like it did following atrocities in the former Yugoslavia and Rwanda, and empower it to investigate and prosecute crimes occurring against all of Myanmar's ethnic minorities. A third-party state could also demand the extradition of alleged perpetrators, or a regional country could propose a special tribunal, both of which were steps that contributed to the trial and conviction of Chadian dictator Hissène Habré. In the very least, the international community should sever all military and economic relationships with the Tatmadaw's leaders.

Too often justice and accountability are seen as barriers to achieving stability in Myanmar. The Tatmadaw's pattern of human rights violations against ethnic communities are a grim reminder that the opposite is actually true – justice and accountability are necessary preconditions for a true democratic transition. Justice for all is the only path forward, and until it is achieved, the Tatmadaw will continue its decades-long practice of scapegoating and targeting all of Myanmar's ethnic minorities.

Image: Ethnic Chin people hold placards during a protest asking for an end to conflict in Chin state and Rakhin State in Yangon on July 13, 2019. Around 1,000 Chin people have been displaced as fighting continues between the Myanmar military and the Arakan Army (AA) in the area between Chin State and Rakhine State. (Photo credit should read SAI AUNG MAIN/AFP via Getty Images)