Myanmar: the Independent International Fact-Finding Mission (the Mission) delivers its latest Report

Rohingya refugee crossing a shallow canal Rohingya refugee crossing a shallow canal © AFP

18 September 2018

Established by Human Rights Council Resolution n. 34/22 in 2017, the Mission finds Myanmar top military generals allegedly responsible for genocide, crimes against humanity and war crimes.

Since 1962, Myanmar has seen a succession of military regimes. The army (known as “Tatmadaw”), whose authority was officially defined and established by the 2008 Constitution, retains its dominant role in politics and governance. To justify its power, the Tatmadaw has presented itself as the “guarantor of national unity”, under Bamar-Buddhist domination. It has constructed eight major ethnic groups, further broken down into 135 “national races”, thereby defining who “belongs” in Myanmar. All other non-Buddhist minorities, regardless of how many generations have lived in Myanmar, are considered outsiders or immigrants. Among the latter, are the Rohingya Muslims.

Over time, particularly in Rakhine State, hostilities among Buddhist and Muslims have dramatically escalated. Since 2011, a campaign of hate and dehumanization has been perpetrated against the Rohingya Muslims by the Rakhine Nationalities Development Party (RNDP). Through publications and official statements, the persecution against the Rohingya has stemmed from a plan to instigate violence and amplify tensions. In November 2012, the RNDP, citing Hitler, even stated that “inhuman acts” are sometimes necessary to maintain a race and eliminate the “terrorist threat”.

Allegations of gross human rights violations have progressively increased, with the military regime not only failing to intervene, but actively conducting numerous “clearance operations” reaching the threshold of non-international armed conflict. Violations of fundamental human rights, perpetrated on a massive scale, include torture, sexual violence, ill-treatment, deportation, forced displacement, travel and marriage restrictions, forced labor, arbitrary deprivations of liberty, property destructions, as well as violations of the rights to life, and physical and mental integrity.

In addition to Rakhine State, similar patterns of violence have occurred elsewhere, particularly in Kachin and Shan States. The consequence is an ongoing and widespread situation of severe, systemic and institutionalized oppression and persecution of minorities from birth to death.

In this scenario, the Mission, mandated under Resolution 34/22  to ascertain the facts and circumstances of the alleged gross human rights violations in Myanmar, has identified four key common features in the Tatmadaw’s modus operandi: i) the targeting of civilians; ii) sexual violence and gang rape; iii) discrimination against ethnic and religious minorities; iv) impunity of perpetrators. In light of these findings, the Mission has concluded that serious crimes under international law have been committed, warranting investigation and prosecution.

Of particular relevance, in this regard, is the landmark decision on jurisdiction by the Pre-Trial Chamber of the International Criminal Court (ICC). Following an unprecedented request submitted by the ICC Prosecutor under Article 19(3) of the Rome Statute, the Chamber ruled by majority that the Court may exercise territorial jurisdiction over the alleged deportation of the Rohingya people from Myanmar (a State not party to the Rome Statute), to Bangladesh (a State party to the Statute). On this basis, on 18th September 2018, the ICC Prosecutor officially declared her intention to proceed to the next phase of the procedure and carry out a full-fledged preliminary examination of the situation at hand. A preliminary examination is not an investigation, but a process of examining the information available in order to reach a fully informed determination on whether there is a reasonable basis to proceed with a proper investigation. Specifically, under article 53(1) of the Rome Statute, the Prosecutor, in making this determination, must consider issues of jurisdiction, admissibility and the interests of justice.  

 

For more information, please visit:

https://www.ohchr.org/Documents/HRBodies/HRCouncil/FFM-Myanmar/A_HRC_39_64.pdf

https://www.icc-cpi.int/CourtRecords/CR2018_04203.PDF

https://www.icc-cpi.int/Pages/item.aspx?name=180918-otp-stat-Rohingya

 

By Federica Pira
Editing by Callum McLenachan

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