Two Steps Forward, One Step Back for Justice for the Rohingya

Earlier this month, former members of the Myanmar Army provided the first public admission of guilt by soldiers who carried out the 2017 genocidal attacks against the Rohingya, marking a significant development in the effort to ensure justice and accountability for perpetrators. As Fortify Rights noted, the men are believed to be the first military witnesses in the custody of the International Criminal Court (ICC), and could be the first perpetrators tried for crimes against the Rohingya at the ICC. Moreover, they could provide critical evidence against more senior officers who directed the attacks.

In video testimony recorded by the rebel Arakhan Army in July, Army Private Myo Win Tun, 33, and Private Zaw Naing Tun, 30, confessed to their role in committing atrocities against Rohingya civilians. They asserted these crimes were directed by senior commanders within the Myanmar military, and named nearly two dozen other senior officers and soldiers who committed similar crimes and issued orders to “exterminate all” Rohingya.

The crimes to which the men admitted are chilling, and reflect the patterns of violence documented by the UN’s 2018 Independent International Fact-Finding Mission on Myanmar and others. Private Myo Win Tun said he received orders to “shoot all that you see and hear,” and admitted to killing more than 100 men, women, and children across several villages, as well as committing rape. Likewise, Private Zaw Naing Tun admitted to killing at least 80 children, adults, and elderly persons; participating in operations that “wiped out” approximately 20 villages; and standing guard while more senior officers raped Rohingya women. Both men described the location of mass graves of Rohingya civilians. So far, it is unclear whether the soldiers will themselves be charged or whether they will serve as witnesses in cases brought against more senior commanders.

Soldiers’ Testimony Can Provide Critical Evidence to ICC

While the ICC currently has limited jurisdiction in this case, the testimony provided by the soldiers can nevertheless be important to proving those crimes that can be charged. In November 2019, the ICC Pre-Trial Chamber authorized the opening of an investigation into crimes committed against the Rohingya. However, as Myanmar is not a State Party to the Rome Statute, the Court could only assert territorial jurisdiction over crimes that were committed at least in part in countries like Bangladesh that are a State Party.

Given this jurisdictional restriction, the Prosecutor may seek to bring charges for the crimes against humanity of forced deportation, persecution, and other inhumane acts, which occurred in part on the territory of Bangladesh. The Prosecutor may not be able to charge perpetrators with genocide, war crimes, or other crimes against humanity, such as murder and rape, that occurred exclusively in Myanmar. To ensure the ICC can fully prosecute those who perpetrated genocide, war crimes, and crimes against humanity against the Rohingya and bring more complete justice to the victims, the United Nations Security Council should refer the situation to the ICC.

Until such a referral, the soldiers’ testimonies of crimes committed in Myanmar can be relevant to proving critical elements of the currently chargeable offenses. For example, for the crime of deportation, the Prosecutor must prove the deportation occurred “by expulsion or other coercive acts.” Such coercive acts can include the targeted destruction of homes, killings, and rape. In this way, the soldiers’ testimony could provide important evidence to securing convictions for crimes against humanity at the ICC.

Moreover, the testimonies may also confirm new sources of evidence, such as the location of mass graves, and other perpetrators who can be held liable for crimes against humanity. Of particular interest, the soldiers named at least six senior commanders who were involved in ordering and directing the 2016 and 2017 “clearance operations” against Rohingya civilians. Under the Rome Statute, these commanders could be held liable for their roles in ordering or intentionally contributing to the commission of the crimes, or if they knew or should have known about the crimes perpetrated by forces under their control and failed to take all necessary and reasonable measures to prevent and repress their commission. The soldiers reported they participated in operations in different townships under orders from different commanders, which Fortify Rights notes “may indicate operational consistency between battalions, coordination, and intent to commit genocide.”

Growing International Support for Justice

In a sign of growing international support for accountability, Canada and the Netherlands also recently announced they intend to formally join the case brought by The Gambia against Myanmar at the International Court of Justice (ICJ). The ICJ case alleges that Myanmar violated the Convention on the Prevention and Punishment of the Crime of Genocide by carrying out the 2017 attacks against the Rohingya. As States Parties to the Convention, Canada and The Netherlands indicated that their decision to join the case was made based on their “obligation” to end impunity for genocide, and called on other States Parties to support their efforts.

Canada and the Netherlands committed to assist with complex legal issues, and in particular focus on crimes related to sexual and gender-based violence and rape. This effort is critically important to combat long-standing challenges to prosecuting sexual violence and to bring justice to survivors who continue to suffer. It is estimated that the Myanmar military raped and committed other forms of sexual violence against hundreds of people. Rohingya activists assert the trauma and impact of this type of violence have continued, particularly for women and girls who are still vulnerable to cycles of abuse in refugee camps. During Robert F. Kennedy Human Rights 2018 delegation visit to the Rohingya refugee camps in Cox’s Bazar, Bangladesh, countless women recounted their personal experiences of sexual violence by the Myanmar military. One woman’s injuries were so extensive that she still endured pain and bleeding a year after the attacks.

Calling on the United States to Stand for Justice for the Rohingya

The United States Government’s record on supporting justice for the Rohingya has been inadequate, and tarnished by recent targeted actions against ICC staff. The United States Government has condemned the attacks against the Rohingya and issued limited sanctions against nine commanders and two units of the Myanmar military for serious human rights abuses, including the attacks against the Rohingya. Despite calls from human rights organizations, the State Department has yet to publicly determine that Myanmar’s attacks against the Rohingya were genocide.

Two weeks ago, Secretary Pompeo announced unprecedented new sanctions – this time not against perpetrators of atrocities, but against ICC’s Prosecutor, Fatou Bensouda, and another key staff member, who seek to hold those perpetrators accountable. The sanctioning of ICC officials dealt a blow to the Rohingya and all other victims of the world’s most heinous crimes who look to the ICC when all other avenues for justice have failed.

Instead of undermining efforts to ensure accountability for these crimes, the United States should reassert its support for justice for the Rohingya by revoking the sanctions against the ICC staff and the Executive Order authorizing them. It should publicly designate the Myanmar military’s attacks against the Rohingya as genocide. Finally, it should push the United Nations Security Council to refer the crimes committed by Myanmar to the ICC, to ensure full accountability.