Almost two and a half years since the government of Myanmar launched so-called “clearance operations” in Rakhine State, populations remain at risk of mass atrocity crimes perpetrated by the security forces and as a result of discriminatory laws and policies. Since August 2017 an estimated 745,000 people – the majority of the Rohingya population – have been forced to flee Myanmar, bringing the total number of Rohingya refugees in Bangladesh to over 900,000 people.
In its 2018 report, the Human Rights Council (HRC)-mandated Independent International Fact-Finding Mission (FFM) on Myanmar concluded that the military have committed crimes against humanity and war crimes in Rakhine, Shan and Kachin states, as well as acts of genocide against the Rohingya in Rakhine State. In its final report, published in September 2019, the FFM concluded that Myanmar “continues to harbor genocidal intent” towards the Rohingya. The FFM has named alleged perpetrators, including military Commander-in-Chief, General Min Aung Hlaing, and called for them to be prosecuted at an international court. The FFM also asserted that Myanmar had breached its obligations under the Genocide Convention.
The Rohingya, a distinct Muslim ethnic minority group in Myanmar, have been systematically persecuted for generations. Myanmar’s 1982 Citizenship Law rendered most of the population stateless. The rights of the Rohingya are further limited by the so-called “Protection of Race and Religion” laws that place harsh restrictions on fundamental religious freedoms, as well as reproductive and marital rights. An estimated 600,000 Rohingya that remain in Rakhine State are subject to severe restrictions on their freedom of movement and more than 120,000 Rohingya have been confined to camps since 2012.
Other populations in Myanmar also continue to be at risk as a result of conflict between the military and various ethnic armed groups. Since November 2018 conflict has been ongoing in Rakhine State between the military and the Arakan Army (AA), an armed group seeking greater autonomy for the ethnic Rakhine Buddhist population. Myanmar’s security forces have shelled villages, blocked food supplies and arbitrarily detained civilians. AA members have also been accused of violations and abuses, including abducting civilians. According to the UN Office for the Coordination of Humanitarian Affairs, as of December 2019 an estimated 45,000 people have fled to 131 sites in Rakhine and Chin states.
In northern Shan State an estimated 8,800 people are also displaced as a result of ongoing armed conflict between the military and ethnic armed groups. Access to conflict-affected areas across Myanmar continues to be denied or severely restricted for UN agencies and humanitarian organizations.
The Myanmar government has failed to take serious steps towards ensuring the safety of the Rohingya and upholding their basic human rights. Military units that perpetrated crimes against the Rohingya also continue to operate across Myanmar, putting civilians at ongoing risk. The failure of the UN Security Council (UNSC) to hold accountable those responsible for atrocities enables further attacks on other vulnerable populations.
Despite Myanmar’s partial transition to democracy, until discriminatory laws and policies are repealed or amended, and the perpetrators of past crimes are held accountable, the threat of further atrocities endures.
The government of Myanmar has manifestly failed to uphold its responsibility to protect the Rohingya and other minority populations, and bears responsibility for the commission of war crimes, crimes against humanity and genocide.
The only formal response of the UNSC to the genocide against the Rohingya was the adoption of a Presidential Statement on 6 November 2017. That statement stressed the “primary responsibility of the Myanmar government to protect its population.”
Since August 2017 individual states and regional organizations have responded to atrocities in Rakhine State with a number of measures. The European Union has reinforced its arms embargo on Myanmar and imposed restrictive measures on 14 individuals, while Canada, Australia and the United States have imposed targeted sanctions on senior military officers. A number of countries have also recognized the crimes against the Rohingya as constituting genocide, including the parliaments of the Netherlands and Canada.
During September 2018 the HRC adopted a resolution creating an Independent Investigative Mechanism (IIM) to “collect, consolidate, preserve and analyze evidence of the most serious international crimes and violations of international law” committed in Myanmar. The mechanism has been operational since August 2019.
On 11 November The Gambia, on behalf of the Organization of Islamic Cooperation, filed a lawsuit with the International Court of Justice (ICJ), accusing Myanmar of violating its obligations under the Genocide Convention. The first hearings took place on 10-12 December and focused on potential “provisional measures.” On 9 December Canada and the Netherlands issued a joint statement welcoming the ICJ case and expressing their “intention to jointly explore all options to support and assist The Gambia in these efforts.”
On 13 November the Burmese Rohingya Organisation UK, supported by Grandmothers of the Plaza de Mayo and the Fundación Servicio Paz y Justicia, filed a case in an Argentinian court under the principle of universal jurisdiction, urging the prosecution of senior officials in Myanmar who are responsible for the Rohingya genocide.
On 14 November Pre-Trial Chamber III of the International Criminal Court (ICC) authorized the Chief Prosecutor to proceed with an investigation into crimes against humanity that may have been committed against the Rohingya population, including “persecution on grounds of ethnicity and/or religion” resulting in forced deportation across the Myanmar-Bangladesh border.
On 27 December the UN General Assembly adopted a resolution on the “Situation of human rights of Rohingya Muslims and other minorities in Myanmar,” expressing support for the work of the IIM and requesting the Secretary-General “to call the continued attention of the Security Council to the situation in Myanmar.”
The international community should adopt the FFM’s recommendations and ensure that those responsible for genocide, crimes against humanity and war crimes do not evade justice. States who are parties to the Genocide Convention should meaningfully support the case brought by The Gambia through public statements and legal interventions at the ICJ.
All investment in Myanmar should be conducted in strict adherence with the UN’s Guiding Principles for Business and Human Rights. The UNSC should immediately refer the situation in Myanmar to the ICC and impose an arms embargo.
Myanmar’s government must create conditions for the voluntary, safe and dignified repatriation of refugees from Bangladesh, including by repealing or amending all laws that systematically discriminate against the Rohingya. Access for UN agencies and humanitarian organizations should be granted to all conflict-affected areas, including Rakhine and Shan states.
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