We're Live Bangla Tuesday, January 25, 2022

Myanmar govt for changing Rohingya policy, but will the military go along?

Aung San Suu Kyi at ICJ hearing

Myanmar faced a very fraught week internationally, as the International Court of Justice (ICJ) at The Hague dictated precautionary measures to prevent further ‘genocidal’ actions on Myanmar’s part.

The country is now under intense pressure to change course and initiate concrete measures to ensure the protection of Rohingya Muslims in the troubled western region of Rakhine. The military’s conduct in Rakhine over the past few years has been laid bare, and has spurred calls for accountability.

However, the court’s decision has obviated the need for immediate international scrutiny, at least for a few months.

The ICJ ordered Myanmar to follow four provisional measures: prevent further genocidal acts against the Muslim group; ensure that the military and any of its auxiliary organisations do not commit genocidal deeds; take effective measures to prevent the destruction and ensure the preservation of evidence of genocidal crimes; and report back to the Court within four months the progress achieved. Following that, there should be a report every six months.

"The court is of the opinion that the steps which [Myanmar] claimed to have taken to facilitate the return of Rohingya refugees present in Bangladesh, to promote ethnic reconciliation, peace and stability in Rakhine State, and to make its military accountable for violations of international humanitarian and human rights law, do not appear sufficient," the judges had said.

Myanmar must comply with the ICJ’s ruling – or be referred to the UN Security Council. Privately, government officials are not surprised by the Court’s demand for preventative measures or provisional measures, and they believe these will not disrupt the government’s plans for reconciliation in Rakhine.

Though the court felt compelled to act to safeguard the Rohingya community, it did not say whether the horrendous events that took place in Rakhine since October 2016 constituted “genocide”. The court is yet to determine that, and legal hearings are likely to take several years before that is determined.

This is an important aspect of the determination, according to government officials, as both the civilian government and the military insist there was no genocide or even genocidal ‘intent’. The latter is also one of the findings of the government’s own Independent Commission of Enquiry (ICoE) which were released ahead of the ICJ hearing.

The ICoW documented “war crimes and human rights abuses” that took place involving military personnel during the army’s mopping up operations, and recommended further investigation and prosecution of those involved. It did not say that genocide had taken place. It did not consider “these killings or acts of displacement were committed with any intent or plan to destroy the Muslim or any other community in northern Rakhine State.”

The government has been signalling for several weeks now that it’s policy towards Rakhine is undergoing a significant change, based on the recognition and acceptance that the previous official narrative was inaccurate and inappropriate.

The government-commissioned independent report is a central part of that revised evaluation with the acceptance that there were atrocities committed in Rakhine. Based on that, the Myanmar government appears to be acting to achieve a measure of justice and accountability for those who suffered, and intends to introduce a number of reforms aimed at addressing the deep-rooted causes of the conflict.

It is also clear that the civilian government has recently been making efforts to distance itself from the atrocities committed in the wake of the military’s ‘clearing operations’ that led to thousands of Rakhine Muslims fleeing the country for safety.

The Rohingyas have alleged that they suffered harassment, torture, evictions, rape and summary executions at the hands of the Tatmadaw (the Myanmar military) over the past three years. Nearly a million Rohingyas fled to Bangladesh to escape the violence. Successive UN reports have accused the military of conducting a campaign of ethnic cleansing with “genocidal intent”.

The government and the military have continually referred to these as ‘clearance operations’ which are a part of their standard military practise in counter-insurgency campaigns against terrorist attacks. In October 2016 and again in August 2017 the Rohingya Arakan Salvation Army (ARSA) had launched early morning raids against several border guard posts leaving more than a dozen security forces and police dead. According to the Tatmadaw, the army was only conducting mopping up operations and trying to root out the ARSA.

As yet, the full report of ICoE has not been published, but the summary of the conclusions has been released. Much of the international community and human rights groups have dismissed this ‘independent’ group as lacking credibility and dismissed it as a sham. But contrary to expectations, the report was actually hard-hitting. Far from presenting a cover up, the ICoE’s conclusions were damning.

The ICoE concluded, that “war crimes, serious human rights violations, and violations of domestic law took place during the security operations between 25 August and 5 September 2017” in Rakhine and elsewhere. More importantly, it says: “The killing of innocent villagers and the destruction of their homes were committed by some members of the Myanmar’s security forces through a disproportionate use of force.”

When the group’s report and recommendations were circulated within the top echelons of the government, the latter spurned serious discussions. But now, a number of ideas – along with the report’s recommendations -- are being scrutinized, though there seems to be a tussle within government over the approach to take.

The government is expected to lay out a plan of action, including the priorities of the civilian government, in the near future. According to diplomats, Aung San Suu Kyi has committed her government to tackling these issues head on, with a mix of the ICoE’s recommendations, the Kofi Annan commission report, which came after a year-long investigation.

“These recommendations are as relevant as ever,” Laetitia van den Assum, a former senior Dutch diplomat and member of the Kofi Annan Commission told the South Asian Monitor.

The government is seriously considering a number of options presented by the ICoE, some of which dovetail neatly with those of the earlier Kofi Annan Commission. Some may be immediate and others are longer term, while some will need further thought and discussion, especially with the military.

These are likely to cover a number of critical areas. The ICoE had recommended prosecution of those accused of committing crimes, whether civilians, militias or the military. The military had commenced a Court Martial several months ago to try soldiers who had ignored the military’s ‘terms of engagement’ causing unnecessary civilian casualties. Military sources have indicted to SAM that there are more to come.

The country’s leader, the State Counsellor Aung San Suu Kyi, has suggested more Courts Martial, when she addressed the ICJ in December last year. Diplomatic sources believe that broader cases may also be brought to the military courts, based on allegations, observations and evidence included in the independent report.

But many informed international observers are critical of the Myanmar’s military justice system, because of its lack of transparency and accountability. The State Counsellor herself said as much during her presentation to the ICJ. She lamented that because of the country’s constitution, the civilian government has no alternative but to accept the military’s authority. However, she indicated that this arrangement has to change in the future if Myanmar is to become a genuine democracy. But that is certainly some way off.

What Aung San Suu Kyi’s presentation in The Hague clearly indicates, is that the civilian government recognises the responsibility of the civilian government, and that it intends to do something about it. “It represents a significant redefinition of the civilian government’s responsibility for Rakhine,” said a diplomat who has been closely following developments on Rakhine. “But it is time to put substance to rhetoric,” he added.

The most complicated and contentious issue is the notion of transitional justice, along the lines of other reconciliation attempts internationally, including South Africa’s Truth and Reconciliation Commission, Cambodia’s Khmer Rouge trials and the ad hoc Tribunals in Indonesia, Guatemala and Sierra Leone. All these mechanisms involve a measure of joint participation: civilian, military, civil society, and international judges and advocates.

While this is the bedrock of Myanmar’s new commitment to find accountability and justice for the victims of the Rakhine violence, it will take time to evolve, and may involve the UN, as many previous efforts to embrace transitional justice have.

Actions which could be part the ‘Rakhine reconciliation roadmap’, an which could be implemented quickly include: granting the Geneva-based International Committees of the Red Cross (ICRC) immediate access to the region, camps and jails; the complete closing of all the remaining camps in Rakhine; resettlement of the displaced in areas of their choice; and giving the UN and its humanitarian organisations greater access to the region, especially the worst affected areas.

Other more general plans include a concrete strategy for the economic development of Rakhine, that is inclusive and involves all communities; boosting the provision of education throughout the region that allows universal access and guarantees freedom of movement to those students who want to study outside Rakhine.

The more contentious recommendations involve revision of the ID card or National Verification Card (NVC) and freedom of movement for the Rohingya. What the government has so far not contemplated is the troubled issue of citizenship – an issue that the Kofi Annan Commission also fudged. But it is one that will have to be confronted head-on, if the government is serious about repatriation of refugees from Bangladesh.