Genocide of Rohingyas: Is another Bosnia in the making?

By Shakhawat Liton

The Daily Star

December 25, 2017

Demand for trial getting louder but no concrete actions by UN

Nine years ago when a former judge and two prosecutors at the international criminal tribunals for Rwanda and former Yugoslavia were examining the documents on human rights abuses in Myanmar, they were astonished by the UN inaction even though the global body knew for years the severe, widespread, and systematic violations of human rights there.

They saw that the UN resolutions and special rapporteurs had spoken out over and over again about the abuses that were reported to them. But the UN Security Council did not move the process forward, as it should have and had done in similar cases like that of the former Yugoslavia and Darfur of Western Sudan.

Internationally acclaimed jurists Justice Patricia M Wald of the US, Justice Richard J Goldstone of South Africa, and Sir Geoffrey Nice QC of the UK were working as commissioners for a report called "Crimes in Burma" which was prepared in 2009 by the law school of Harvard University. 

Justice Wald, who served as the chief judge for the US Court of Appeals for the District of Columbia, was a judge at the international criminal tribunal for former Yugoslavia. Justice Goldstone, who served as a judge of the Constitutional Court of South Africa, was the chief prosecutor at the international criminal tribunals for former Yugoslavia and for Rwanda. Sir Nice was deputy prosecutor of the international criminal tribunal for former Yugoslavia and the principal prosecution trial attorney in the case against Slobodan Milosevic at The Hague.

Milosevic was the world's first president to be indicted for war crimes by an international criminal court.

As judge and prosecutors at the two international crimes tribunals set up by the UN, they worked relentlessly to complete trials of perpetrators of genocides in Rwanda and Bosnia.

Judge Pedro Nikken of Venezuela, a former member of the executive committee of the international commission of jurists, and Ganzorig Gombosuren, a former judge at the Supreme Court of Mongolia, worked with them.

In their examination, they found that UN documents have included a range of human rights and humanitarian law violations in Myanmar since 1992.

The International Human Rights Clinic of the Harvard Law School prepared the report by reviewing four types of crimes perpetrated in Myanmar: forced displacement of the population, sexual violence, murder, and torture that had been documented in various UN reports since 2002.

Based on the report's findings and recommendations, the five jurists called on the UN Security Council to urgently establish a commission of inquiry to probe and report on crimes against humanity and war crimes in Myanmar.

The world cannot wait while the military regime continues its atrocities against the people of Myanmar, they said in the report, adding that the day may come for a referral of the situation to the International Criminal Court or the establishment of a special tribunal to deal with the country and member states of the UN should be prepared to support such action.

The law school of Harvard has moved further and opend another inquiry in 2011 regarding the situation in Myanmar. 

In 2014, the inquiry released its report where it said three military commanders and a combat division of Myanmar army committed war crimes and crimes against humanity in Kachin and northern Shan State of Myanmar in 2005-06.

The report documented how soldiers fired mortars at villages; opened fire on fleeing villagers; destroyed homes, crops, and food stores; planted landmines in civilian areas; forced civilians to work; and captured and executed civilians.

The law school accused the three senior army officials, one of whom later became the home minister, of committing war crimes. It said, “The abuses perpetrated by the military have been too widespread, too persistent, and too grave to be ignored.”

It said it found enough evidence for International Criminal Court at The Hague to press war crimes and crimes against humanity charges against the trio and for issuing arrest warrants.

But nothing happened to the three.

In a legal analytical report the following year, the law school of Yale University documented atrocities perpetrated by Myanmar military against the Rohingyas. It found atrocities committed against the Rohingyas had increased precipitously since 2012.

The report concluded that the available evidence strongly suggested that all the elements of genocide were present in Rakhine State.

It too urged the UN to adopt a resolution to establish a commission of inquiry on the human rights situation in Rakhine State. "Myanmar may be responsible under the Convention on the Prevention and Punishment of the Crime of Genocide for failing to prevent genocide from occurring within its borders," it stated.

Again, nothing happened to the perpetrators and like before, the Myanmar authorities denied all allegations.

The world waited and the inaction resulted in painful consequences. Over the years the situation worsened. The Rohingyas faced much worse than the people in Kachin and Shan states.

Like on previous occasions, UN senior officials kept voicing concern. After Myanmar military's crackdown on the Rohingyas in October 2016, the UN special rapporteur for human rights in Myanmar in March this year said the situation in northern Rakhine state was far worse than anticipated.

"I would say crimes against humanity. Definite crimes against humanity… by the Burmese, Myanmar military, the border guard or the police or security forces," Yanghee Lee told the BBC in March.

At least 87,000 Rohingyas fled Myanmar in the wake of the violence.

Lee has been banned by Myanmar government for her strong voices against human rights abuses.

A few months later, Myanmar refused entry to members of a UN investigation focusing on allegations of killings, rapes, and tortures by security forces against the Rohingyas.

Keeping the eyes of the world away, Myanmar military continued its brutalities.

The intensified atrocities perpetrated by the Myanmar military against the Rohingyas since August has already been labelled by UN and right bodies as "text book example of ethnic cleansing" and genocide and crimes against humanity. Over 6.5 lakh Rohingyas have fled to Bangladesh since then.

According to Doctors Without Borders at least 6,700 Rohingya were killed in attacks during the first month of the military crackdown.

Rights bodies presented evidence in piles, about the burning of Rohingya villages, raping of women, and indiscriminate murder of the Rohingyas. 

DEMAND FOR JUSTICE LOUDER

In September, an international people's tribunal in Malaysia held Myanmar guilty of “genocide” against the Rohingyas and said the “systematic targeting of civilians” and other acts committed by the Myanmar army qualified as war crimes.

The seven-member bench of Permanent People's Tribunal, holding proceedings on alleged atrocities and state crimes against the Rohingya, Kachin and other ethnic minority groups in Myanmar, said the Myanmar army was committing the crime in the “context of official duties”.

“On the strength of the evidence presented, the tribunal reached the consensus ruling that the State of Myanmar has the intent to commit genocide against the Kachin people and the other Muslim groups," read the judgement delivered in a court-like setting at the University of Malaya's Faculty of Law.

New York-based Human Rights Watch on November 3 urged the UN Security Council to refer Myanmar to the International Criminal Court because of its failure to investigate massive atrocities perpetrated against the Rohingyas.

The European Parliament recently urged its member states to adopt disciplinary sanctions against the perpetrators of violence and “human rights abuses” in Myanmar.

The UN High Commissioner for Human Rights Zeid Ra'ad al-Hussein said he would not be surprised if a court one day ruled that acts of genocide had been committed against the Rohingyas in Myanmar.

In a recent interview with the BBC, he said that attacks on the Rohingyas had been "well thought out and planned" and he had asked Myanmar's leader Aung San Suu Kyi to do more to stop the military action.

Zeid called the campaign "a textbook example of ethnic cleansing".

During her visit last month, Pramila Patten, UN special representative of the secretary general, promised to put the guilty soldiers in the dock of the International Criminal Court at The Hague.

If the UN could do what it had done in the cases of genocides in Rwanda, Bosnia and Darfur, there could be hope.

UN'S TRACK RECORD

After its shocking failure to act on time to prevent the Rwanda genocide in 1994 in which more than 800,000 Tutsi were massacred by the Hutu majority, at least two former UN chiefs and some world leaders had apologised to the Rwandans. 

The UN got the opportunity in 1998 to boast about its stance against genocide when trials were being held for the genocide perpetrators, including the then Rwanda prime minister. The first verdict was delivered in early September 1998 against a Rwanda politician. 

In a discussion on the trial of Rwanda genocide perpetrators, the UN in October 1998 hoped the legacy of the International Criminal Tribunal for Rwanda laid the foundation for a new era in international criminal justice.

The UN's failure to act comprehensively was again seen in Bosnia. More than 8,000 Bosnian Muslims were massacred in Srebrenica in July 1995. The then UN secretary general Kofi Annan in a report in the General Assembly in 1999 concluded “the tragedy of Srebrenica will haunt our history forever”.

Yet, sentencing of Ratko Maldic, the former Bosnian Serb military commander known as the Butcher of Bosnia, to life in prison on November 22 by a UN criminal tribunal for genocide and his role at Srebrenica demonstrated the UN's stance against the heinous crimes.

Less than 10 years after Rwanda, genocide unfolded in Darfur of Western Sudan, exposing once again the failure of UN and international community to protect civilians.

In 2005, the UN Security Council passed a resolution and referred Darfur to the International Criminal Court to investigate and prosecute serious crimes committed in Darfur.

In 2010, the international criminal court charged Sudan's president Omar al-Bashir with three counts of genocide in Darfur.

THE HURDLES

Myanmar is not a state party to the Rome Statute establishing the International Criminal Court. Therefore, the situation in Myanmar needs to be referred to the international criminal court by the UN Security Council through a resolution, which will empower the court to investigate human rights abuses and prosecute the abusers.

But passage of such a resolution by the Security Council looks almost impossible due to China, a close supporter of Myanmar for decades for its strong economic and business interest there. 

Since 2007, China backed by Russia has killed several efforts taken by the Security Council on Myanmar with their veto power.

China's support helped Myanmar military generals to remain above the law for decades. This impunity gave them the licence to carry out the genocide.

Time has come for China to reassess its strategy so that in future it is not branded as a partner of genocide in Myanmar.

If China supports a UN move to refer the Myanmar situation to the International Criminal Court, there will be no dearth of evidence to prosecute the alleged perpetrators.