On 8 February 2018, Reuters published a special report – Massacre in Myanmar: How Myanmar forces burned, looted and killed in a remote village.
In preparing the report, Reuters journalist Simon D. Lewis contacted me to comment on legal issues. Over several exchanges of emails and three lengthy telephone conversations, the primary discussion revolved around one central question: whether the recruitment of civilians to assist parts of the operation could be used to demonstrate intent. The extent of our discussions was reduced to a soundbite in print. Though it captures the essence of my assessment based on the factual predicate presented to me, the quote attributed to me warrants further elaboration considering that I invoked the crime of genocide as a possibility.
I was quoted as having said that there was evidence to show that the military organized Buddhist civilians (I hesitate to single out the Rakhine Buddhists, since Buddhist civilians from elsewhere may also be involved) to commit violence against the Rohingya it “would be the closest thing to a smoking gun in establishing not just intent, but even genocidal intent, since the attacks seem designed to destroy the Rohingya or at least a significant part of them.”
The special report makes a case against the military, showing that it is organizing Buddhist civilians to commit crimes that are arguably crimes against humanity, and may even be encouraging, if not inciting them, into a genocidal mindset. By this I mean the military is priming them into a state of mind to kill and commit other violent acts against the Rohingya because of who they are, and possibly, with the specific intent to permanently destroy, to extinguish, the Rohingya or at least a substantial segment of them – and not to just drive them out of Myanmar.
In previous posts on Myanmar, I had noted that genocide against the Rohingya was looming on the horizon (see here and here), drawing some parallels with what had occurred in Rwanda and how the US under the Clinton administration avoided using the term “genocide”, opting instead to claim that “acts of genocide” were occurring, so as not to be drawn into the events. I noted then, and my position remains unchanged, that what we have been seeing against the Rohingya are classic crimes against humanity, though the circumstances on the ground seem to be dangerously inching towards a genocide.
From what is being reported, it appears that the military’s intent (and I think you can include the civilian government here as well – given its inactions and failure to speak out) is to ethnically cleanse the area – to drive the Rohingya out of Myanmar. This intent may not, however, necessarily be the intent shared by the Buddhist civilians, who have turned into physical perpetrators. Their intent, which, as I have noted, is being or has been shaped by the military (and perhaps others, such as hardline monks and nationalist groups), may have evolved or is evolving into genocidal intent. And if this is so, a colorable argument can be made that the military could be held responsible for direct and public incitement to commit genocide or complicity in genocide under Article 3(c) or (e), respectively, of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.
Though the evidence remains inconclusive, it does appear that the military is encouraging and/or facilitating Buddhist civilians to assist them in their attacks against unarmed and unthreatening Rohingya civilians. As for determining what sort of intent to ascribe to those committing the crimes (which is not just limited to the physical perpetrators), unless there is some sort of documented or recorded remarks spelling out the intent of those who conceptualized and/or are orchestrating the crimes, it is the evidence surrounding the events (circumstantial evidence) and the acts of those involved in committing the crimes that are most revealing. Suffice it to say using civilians as proxies is a clear indicator of the military’s intentions that it wishes for these crimes to materialize.
In determining whether crimes were committed with specific genocidal intent in the absence of direct evidence, the International Criminal Tribunal for the former Yugoslavia (ICTY) in Jelisić identified certain indicators such as “the general context, the perpetration of other culpable acts systematically directed against the same group, the scale of atrocities committed, the systematic targeting of victims on account of their membership of a particular group, or the repetition of destructive and discriminatory acts.”1 Prosecutor v. Jelisić, IT-95-10-A, Judgement, 5 July 2001, para. 47.
While not an exhaustive list of indicators, it discerningly serves as a point of departure in examining the events in Rakhine State in general. So, if there is evidence that the military is inciting, arming, instructing, coordinating civilians, and giving them the green light to commit crimes such as purging villages of the Rohingya (attacking them, killing them, burning down their homes, and driving them away) – and in so doing, shielding perpetrators from scrutiny and punishment by also providing them with instructions and assistance on concealing their criminal activity – its intent to commit or facilitate the commission of these crimes becomes rather obvious. Simply put, if there is evidence of instructions and/or assistance from the military to the Buddhist civilians carrying out these crimes, this would be the closest thing to a smoking gun in establishing the military’s intent. Factoring in the Jelisić indicators – the general context, the perpetration of crimes against the Rohingya, the scale of crimes committed, the systematic targeting of victims based on their membership in the group (Rohingya Muslims), the repetition of the crimes – the evidence could point to specific genocidal intent.
What of the mass graves uncovered? Can any conclusions be drawn, other than that the killings are, at the very least, punishable as murders in the ordinary courts of Myanmar? If the ten Rohingya victims found in this mass grave were killed after being taken into custody by security forces, would there be implication in terms of international crimes? Could the summary execution of ten unarmed civilians detained by the military potentially be a crime against humanity?
An isolated killing of ten civilians and their subsequent burial in a mass grave – in the abstract and assuming that no other crimes are being committed on a widespread or systematic scale – as repugnant as it may be, would not amount to a crime against humanity. That said, a reality check is in order.
The making of a mass grave requires labor-intensive efforts that are hard to conceal – especially if, as in this instance, the military is ever-present and responsible for monitoring and securing the area. The execution and mass burial could be the work of a few civilians who have joined the fray of persecuting, attacking, and killing the Rohingya, civilians working as proxies for the military, some rogue soldiers, or the military itself. Going out on a limb, I suspect that were more mass graves to be found, (a very likely scenario), a pattern of widespread or systematic killings will invariably emerge.
While it may be hard to determine who directed the killings and mass burial in this instance, consideration must be given to a fact that is beyond dispute and beyond change: the military is firmly in control of the area where the killings and burial have occurred. As such, the military bears the brunt of responsibility. We now know that the military has owned up to the killings, though only to the extent of admitting that the killers were soldiers and acted on their own – not under orders.
Under command responsibility, failure to prevent and/or punish the commission of crimes – if there is effective command and control over the physical perpetrators – is punishable. If the military is behind these executions – either directly or indirectly through civilians – then the question is whether the military commanders/units/soldiers in situ acted on their own or were carrying out orders from above – and if so, how high up the chain of command?
Just as direct orders are not necessarily needed to affix responsibility, the same applies if superiors act with willful blindness; a high probability in this instance, considering the events in and around the area where the ten civilians who were in military custody were executed and then buried in a mass grave.
Whether the facts and circumstances concerning this execution establish a crime against humanity remains an open question in my mind, since I do not know all of the facts. That said, when considering what is in the Reuters special report, and knowing what we know about the massive exodus of the Rohingya, it is hard to fathom how this execution of ten unarmed civilians in military custody is some isolated incident. If it could be shown that it was part of a widespread or systematic campaign targeting the Rohingya population, then a case of crimes against humanity can be made against the military commanders responsible for these executions – linkage provided.
My natural inclination as a defense lawyer is to want more information before reaching any tentative conclusions based merely on prima facie evidence – the sort of evidence required for charging/indicting a person for crimes, as opposed to the more exacting evidence required to meet the standard of proof for conviction. However, if the military was indeed behind the executions and mass burial (as opposed to some rogue soldiers), it is highly improbable that anything reliable will be forthcoming from the military investigation (pointing to itself and up the chain of command). Expect opacity, obduracy, and obfuscation.
But when you factor in that villages are wholesale being burned to the ground and Rohingya civilians are indiscriminately being attacked (killed, raped, persecuted, etc.) under the watchful gaze of the military, this indicates a purposeful effort, a coordinated plan, a decisive drive to eliminate the Rohingya from Myanmar. Difficult to draw any alternative plausible explanations.
To argue that what is happening to the Rohingya is the handy-work of independent-minded disaffected and misguided soldiers gone rogue, is to ignore the strategic planning, tactical support, and physical and human resources needed to carry out the ongoing campaign of clearing villages through persecutory and deadly means. It is not without reason based on credible evidence that the United Nations (UN) High Commissioner for Human Rights Zeid Ra’ad al Hussein described the military offensive in Rakhine State as a “textbook example of ethnic cleansing,” or in legal parlance, the crime against humanity of forcible transfer (along with other associated crimes).
Where to go from here?
As it stands, there is no international(ized) criminal tribunal or court that is able and willing to exercise jurisdiction over these crimes in Myanmar – even if these executions (as well as some of other crimes being reported) are crimes against humanity.
Presumably the physical perpetrators and (shadowy) co-perpetrators could be charged in a domestic court in Myanmar. Realistically, however, if we can draw any conclusions from the Myanmar military’s behavior and the callous indifference of the de facto head of the civilian government, Aung San Suu Kyi, it is safe to conclude that about all we can expect is a charade: high-level whitewashing through low-level scapegoating (see Former US Ambassador to the UN Bill Richardson’s remarks during a CNN interview following his resignation from an advisory board on the Rohingya crisis).
With the military being the last to have detained the ten Rohingya civilians executed, the mass grave cover-up, and the ensuing attempts to conceal these events by arresting the two journalist who were responsible for uncovering the cover-up – there is strong circumstantial evidence of linkage between these crimes and the military, which may serve as further indicia of linkage between the military and other similar or associated crimes committed against the Rohingya.
But even if soldiers have admitted to having committed the executions, going beyond them will not be so easy, especially without some physical (documentary) proof. For command responsibility to come into play in moving up the accountability pyramid, evidence will be needed to establish a superior-subordinate relationship, awareness of a crime that is about to be committed or having been committed, and a failure to prevent or punish – assuming the superior has effective command and control over the perpetrators and has the capacity to act. Most, if not all of this can be established through circumstantial evidence, but to make a convincing iron-clad case, the evidence must be of such quality that however sliced and diced, no other plausible alternative inferences could be drawn.
This story is far from over. Detaining the messengers – the two Reuters journalists arrested and bogusly charged by the Myanmar military for exposing the executions and cover-up – is unlikely to pay any long-term dividends. Though I would also not count on the United Nations Security Council (which is finally being urged to take notice and action) to do much, if anything, in bringing to justice those who committed these crimes and all the other crimes that have lead nearly a million Rohingya to flee from Myanmar.
|↑1||Prosecutor v. Jelisić, IT-95-10-A, Judgement, 5 July 2001, para. 47.|