A heavy-handed security response that fails to respect fundamental principles of proportionality and distinction is not only in violation of international norms; it is also deeply counterproductive. It will likely create further despair and animosity, increasing support for HaY [Harakah al-Yaqin (Faith Movement)] and further entrenching violence. International experience strongly suggests that an aggressive military response, particularly if not embedded in a broader policy framework, will be ineffective against the armed group and has the potential to considerably aggravate matters.
International Crisis Group Report, Myanmar: A New Muslim Insurgency in Rakhine State, 15 December 20161International Crisis Group, Asia Report N°283, Myanmar: A New Muslim Insurgency in Rakhine State, 15 December 2016, Executive Summary, p. ii (“ICG Report”).
I have previously intimated that the Myanmar government may be flirting with acts of genocide by being involved in or turning a blind eye to the human rights violations against the Rohingyas in the northern Rakhine State (“nRS”). Three weeks later, on 3 February 2017, the United Nations (“UN”) Office of the High Commissioner for Human Rights (“OHCHR”) mission to Bangladesh issued a report (“OHCHR Report”). Apropos.
Though I do not consider myself a human rights advocate (international criminal defense lawyers are hardly viewed as humanitarians), I was prompted by the OHCHR Report to do a bit more digging. Recognizing the challenges involved in appreciating the complexities of the situation in Myanmar, the historical context of the Rohingyas in the nRS, and the ongoing events as they are unfolding (it is hard to get complete and accurate information), I will nonetheless attempt to offer an assessment of what I believe is the making of a perfect storm for a mass atrocity.
In this post, I will focus on recent events which have been widely reported in the press and by other organizations. Most notably, I will draw from the International Crisis Group (“ICG”), whose report Myanmar: A New Muslim Insurgency in Rakhine State is essential contextual reading for the OHCHR’s report Interviews with Rohingyas fleeing from Myanmar since 9 October 2016.2 Report of OHCHR mission to Bangladesh, Interviews with Rohingyas fleeing from Myanmar since 9 October 2016, 3 February 2017 (“OHCHR Report”). My conclusion is that crimes against humanity are occurring against the Rohingyas with virtual impunity. While the Myanmar government has every right to strike against Muslim insurgents in the nRS (an insurgency that, it appears, is the making of its own discriminatory practices against the Rohingyas), it cannot claim with any degree of plausibility that the attacks against the Rohingyas are impulsive, indiscriminate, irrepressible, or inexplicable. The facts as reported cast a shadow of complicity; not of mere indifference, and certainly not of powerlessness.
I will follow this post with a brief review of Azeem Ibrahim’s The Rohingyas: Inside Myanmar’s Hidden Genocide.3 Azeem Ibrahim, The Rohingyas: Inside Myanmar’s Hidden Genocide (Hurst 2016) (“The Rohingyas: Inside Myanmar’s Hidden Genocide”). It is timely, thought-provoking, and relevant to the events that have been unfolding in the nRS, especially since October 2016.
Recently published, The Rohingyas: Inside Myanmar’s Hidden Genocide offers historical insight on the Rohingyas in Rakhine, or Arakan, as it was previously known. Ibrahim argues, rather persuasively, that the Rohingyas are not modern Bengali who migrated to Myanmar in the past few decades (as the current narrative goes among some Buddhist Burmans), but rather, have been residing in Arakan since about the 9th century.
Ibrahim advances compelling arguments on the culpability of the military, the political elite, and the Buddhist religious establishment for the Rohingyas’ current predicament, warning that “Myanmar stands on the edge of genocide and that the persecutions of the Rohingyas has been quite deliberately constructed by the state since the early 1960s.”4Id., at 139. Perhaps.
Ibrahim is on more solid footing when addressing the historical origins of the Rohingyas than when attempting to ascribe concerted deliberateness or venturing into legal issues such as “genocide in international law.” Notwithstanding its shortcomings, The Rohingyas: Inside Myanmar’s Hidden Genocide is a worthy read for anyone wishing to enrich his or her understanding of the events in the nRS and the plight of the Rohingyas.
The Harakah al-Yaqin Muslim insurgency of October 2016 – cause and consequence
On 9 October 2016, the Harakah al-Yaqin / Faith Movement (“HaY”), a Muslim insurgent group well versed in guerrilla war tactics, led by Rohingya émigrés in Saudi Arabia and commanded by Rohingyas in the nRS, waged a deadly attack against the Border Guard Police in the nRS.5 ICG Report, p. 12. The attack escalated on 12 November 2016, with a senior army officer being killed.
The HaY’s legitimacy is “provided by local and international fatwas (religious judicial opinions) in support of its cause and enjoys considerable sympathy and backing from Muslims in northern Rakhine State, including several hundred locally trained recruits.”6 Id., p. 13. To this extent, the ICG poignantly notes:
The government faces a huge challenge in calibrating and integrating its political, policy and security responses to ensure that violence does not escalate and intercommunal tensions are kept under control. It requires also taking due account of the grievances and fears of Rakhine Buddhists.7 Id., p. 21.
A tall order, considering Myanmar’s government has for all intents and purposes been complicit in denigrating, discriminating against, and, as of 2015, disenfranchising the Rohingyas.8 OHCHR Report, pp. 5-6; ICG Report, p. 5. Its past policies and contrived historical narratives have contributed to the perceived grievances and fears of Rakhine Buddhists.
The insurgency was inevitable
The Rohingya face severe restrictions on their freedom of movement. In nRS, they require official authorization to move between, and often within, townships (for example, a village departure certification is required to stay overnight in another village.) The procedures to secure travel are onerous and time-consuming, and failure to comply with requirements can result in arrest and prosecution. Restrictions routinely lead to extortion and harassment by law enforcement and public officials. Since the outbreak of violence in Rakhine in June 2012, a curfew was imposed in nRS, which offers broad discretionary powers to the authorities, including with regard to limitations on assembly and prohibiting movement between dusk and dawn. This curfew remains in place, having been extended in the wake of the 9 October events….10 OHCHR Report, p. 6, citing Report of the United Nations High Commissioner for Human Rights, Human Rights Violations and Abuses against Rohingya Muslims and Other Minorities in Myanmar, A/HRC/32/18, 29 June 2016, paras. 28-30 and Amnesty International Report, ASA 16/5362/2016, 20 December 2016.
It was only a matter of time before being on the receiving end (with no end in sight) of prejudice and persecution would lead to violent reactions from some Rohingyas (and other Muslims) in the nRS. The ICG is spot on:
Disenfranchisement prior to the 2015 elections severed the last link with politics and means of influence. At the same time, the disruption of maritime migration routes to Malaysia closed a vital escape valve, particularly for young men whose only tangible hope for the future was dashed. An increasing sense of despair has driven more people to consider a violent response, but it is not too late for the government to reverse the trend.11 ICG Report, Executive Summary, pp. i-ii.
Ibrahim (as of when his book went to press) claimed that there was “no evidence” to the “regular motif in the extremist Buddhist narrative” that there are “close links between the Rohingyas and states such as Saudi Arabia, or armed jihadist groups such as Al Qaeda or ISIS.”12 The Rohingyas: Inside Myanmar’s Hidden Genocide, p. 125. Considering the events of October and November 2016, and considering credible reports such as the one by the ICG, he may wish to reconsider this claim.
It is not as if Ibrahim has not predicted the possibility that radical Islamic terrorism could find traction among the Rohingyas. He warns – presciently as it appears, unless the Myanmar government decides to reverse its current discriminatory policies (disenfranchisement included) against the Rohingyas – that the Rohingyas of the nRS and those having escaped or having been driven to neighboring countries are “vulnerable to being targeted by a number of Islamic terrorist groups seeking to exploit any Muslim grievance, including Lashkar-e Taiba (LeT), Jama’atul Mujahideen Bangladesh (JMB).”13 Id., p. 126. Interestingly, Ibrahim observes that these terrorist groups build their deadly networks by calculatedly offering humanitarian assistance where states or international organizations refuse or fail to do so.14 Id.
Deadly – rather than interesting – times are ahead for Myanmar’s government, unless it changes course towards a more inclusive and more tolerant polity.
Action begets overreaction
Myanmar’s government’s response to the HaY insurgency of October and November 2016 was – at least by the OHCHR’s account – disproportionate, replete with human rights violations, and arguably resulted in crimes against humanity.
At the behest of the UN High Commissioner for Human Rights, an OHCHR four-member team conducted interviews of Rohingyas who had fled the nRS to Bangladesh. More than 220 persons were interviewed from 8 to 23 January 2017,15 OHCHR Report, p. 3. “in addition to numerous representatives of UN system agencies, NGOs, health professionals and other experts in Dhaka and Cox’s Bazar.”16 Id., p. 9. The OHCHR Report draws from various sources considered reliable (such as Amnesty International, Human Rights Watch, and the ICG). Though the authors conducted no in situ interviews, investigation, or collection of evidence (generally a significant weakness), they collected audio-visual material, photographs, and satellite imagery. Thus, even in the absence of a credible in situ investigation, the OHCHR’s conclusions seem reasonably well-sourced and certainly worth deliberating.
Before I list the alleged crimes, it is worth looking at who was involved in the events in the nRS – other than the insurgents. Based on the testimonies of those interviewed, it appears that two main security forces were involved: the Myanmar armed forces (Tatmadaw) and the Border Guard Police (“BGP”).17 Id., p. 11. It was also reported that Rakhine villagers “dressed in security-force uniforms, indicating that villagers [who] had recently been provided with such uniforms and weapons” were involved.18 Id., p. 12. And it was also reported that Rakhine villagers in civilian clothing were supporting the security forces, and “would engage in looting, beating, or sexual abuse on their own initiatives (but in the presence of security forces who did nothing to stop it).”19 Id., pp. 12-13.
By all accounts, the security forces and other armed elements operating in the nRS were de jure or de facto associated with or controlled by Myanmar’s government or its armed forces. Their conduct during the events seemed coordinated, orchestrated, and tolerated.20 See OHCHR Report, pp. 11-13; ICG Report, p. 6. Hard to imagine that the Tatmadaw and the BGP in Rakhine would be operating without the knowledge, acquiescence, and support of their superiors. And while the civilian authorities may have no control over the armed forces (as is the case both de jure under the Constitution and de facto in practice),21 Constitution of the Republic of the Union of Myanmar, September 2008, Chapter I, Art. 20(b): “The Defence Services has the right to independently administer and adjudicate all affairs of the armed forces.” Available in English here (unofficial translation). it also boggles the mind that the civilian leaders, including the Nobel laureate Aung San Suu Kyi, were left (and remain) in the dark – thus accounting for their pathetic response.
alleged crimes are significant and troubling
- extrajudicial executions and other killings, including by random shooting;
- enforced disappearance and arbitrary detention;
- rape, including gang rape, and other forms of sexual violence;
- physical assault, including beatings;
- torture and cruel, inhumane or degrading treatment or punishment;
- looting and occupation of property;
- destruction of property; and
- ethnic and religious discrimination and persecution.22 OHCHR Report, p. 40.
The OHCHR report concludes that the “widespread as well as systematic” crimes committed against the Rohingyas indicate “the very likely commission of crimes against humanity (as the High Commission concluded already in June 2016).”23 Id., p. 42. This conclusion seems rather charitable when considering these observations, which, even if half-accurate bear the whiff of genocidal intent:
The “calculated policy of terror” that the Tatmadaw has implemented in nRS since 9 October cannot be seen as an isolated event. It must be read against the long-standing pattern of violations and abuses; systematic and systemic discrimination; and policies of exclusion and marginalization against the Rohingya that have been in place for decades in nRS…. Even before 9 October, widespread discriminatory policies and/or practices targeting them on the basis of their ethnic and/or religious identity had led them to an acute deprivation of fundamental rights. The information gathered by the OHCHR indicates that the victims of killings, rape and sexual violence, arbitrary detention, torture, bearings and other violations outlined in this report, were targeted based on their belonging to a particular ethnicity and religion.24 Id.
Why the perfect storm?
The evidence gathered by the OHCHR suggests that Myanmar’s government is directly linked to and/or responsible for the crimes being committed against the Rohingyas.25 Id., p. 42-43. A relatively minor insurgency (as insurgencies go) apparently has resulted in mass atrocities. These atrocities – and what appears to be an ethnic-cleansing campaign – are likely to drive more embittered and vulnerable Rohingyas to join the ranks of or to be manipulated by Islamic terrorist groups, which, in turn, will result in more insurgencies, and which will then in turn lead to more excesses by Myanmar’s security forces and armed element. And so on.
The solution requires significant political will as well as a serious national dialogue.
For starters, Myanmar’s government (and armed forces) needs to commit to investigating the crimes that have been occurring since October 2016. Since transparency has thus far been in short supply, international assistance in carrying out the investigations – with the intent to prosecute and punish the perpetrators – should be invited and given wide berth. There is credible evidence that crimes against humanity have occurred. Failure to do anything about it (too late to prevent, but not too late to punish) could give rise to perceived liability of military and civilian government leaders under superior/command responsibility – even if no one is ever charged and prosecuted before a credible (international) tribunal. The consequences of their inaction (though arguably some at the very top may well have acted in precipitating the excess and crimes that followed the insurgency of October and November 2016) are included in the inaction itself.26 Paraphrasing George Orwell’s line in 1984: “The consequences of every act are included in the act itself.” George Orwell, 1984 30 (Penguin Books, 2008 ed.).
Next, Myanmar’s government needs to revisit the citizenship issue of the Rohingya (and others). This will require significant changes to the current Constitution. No easy task, but there is no getting around it. Of course, this will require a collective re-think (not just by the government and the military, but by most of the Myanmar people) on the origins of the Rohingya, and the acceptance that for centuries (well before the British colonized the area, bringing their own discriminatory practices) the Rohingya were indigenous to Arakan, modern day Rakhine.
Simplistic as these suggestions may be, the powers that be in Myanmar are well advised to act before it’s too late.
Next: The Rohingyas: Inside Myanmar’s Hidden Genocide.
Footnotes [ + ]
|1.||↑||International Crisis Group, Asia Report N°283, Myanmar: A New Muslim Insurgency in Rakhine State, 15 December 2016, Executive Summary, p. ii (“ICG Report”).|
|2.||↑||Report of OHCHR mission to Bangladesh, Interviews with Rohingyas fleeing from Myanmar since 9 October 2016, 3 February 2017 (“OHCHR Report”).|
|3.||↑||Azeem Ibrahim, The Rohingyas: Inside Myanmar’s Hidden Genocide (Hurst 2016) (“The Rohingyas: Inside Myanmar’s Hidden Genocide”).|
|4.||↑||Id., at 139.|
|5.||↑||ICG Report, p. 12.|
|6.||↑||Id., p. 13.|
|7.||↑||Id., p. 21.|
|8.||↑||OHCHR Report, pp. 5-6; ICG Report, p. 5.|
|9.||↑||OHCHR Report, pp. 5-7; ICG Report, pp. 3-5.|
|10.||↑||OHCHR Report, p. 6, citing Report of the United Nations High Commissioner for Human Rights, Human Rights Violations and Abuses against Rohingya Muslims and Other Minorities in Myanmar, A/HRC/32/18, 29 June 2016, paras. 28-30 and Amnesty International Report, ASA 16/5362/2016, 20 December 2016.|
|11.||↑||ICG Report, Executive Summary, pp. i-ii.|
|12.||↑||The Rohingyas: Inside Myanmar’s Hidden Genocide, p. 125.|
|13.||↑||Id., p. 126.|
|15.||↑||OHCHR Report, p. 3.|
|16.||↑||Id., p. 9.|
|17.||↑||Id., p. 11.|
|18.||↑||Id., p. 12.|
|19.||↑||Id., pp. 12-13.|
|20.||↑||See OHCHR Report, pp. 11-13; ICG Report, p. 6.|
|21.||↑||Constitution of the Republic of the Union of Myanmar, September 2008, Chapter I, Art. 20(b): “The Defence Services has the right to independently administer and adjudicate all affairs of the armed forces.” Available in English here (unofficial translation).|
|22.||↑||OHCHR Report, p. 40.|
|23.||↑||Id., p. 42.|
|25.||↑||Id., p. 42-43.|
|26.||↑||Paraphrasing George Orwell’s line in 1984: “The consequences of every act are included in the act itself.” George Orwell, 1984 30 (Penguin Books, 2008 ed.).|