Holding Myanmar to account for its treatment of the Rohingya
8 Nov 2019|

Last week, the Asia-Pacific Centre for the Responsibility to Protect released its 2019 risk assessment of Myanmar. The assessment uses a structured framework to determine the likelihood of atrocity crimes such as war crimes, crimes against humanity and genocide in order to assist policymakers to develop targeted prevention measures. It found that all eight risk factors for atrocity crimes and the two risk factors specifically pertaining to genocide were present in Myanmar.

The assessment echoes a report issued by the Independent International Fact-Finding Mission on Myanmar in September that warned that ‘the Rohingya people remain at serious risk of genocide’.

Both reports say that impunity for past human rights violations contributes to the risk of genocide and call upon the international community to take steps to ensure that perpetrators—namely, the Myanmar military—are held to account.

The international community has not done nothing in response to the atrocities in Myanmar. The prosecutor of the International Criminal Court recently requested authorisation to open an investigation, following a ruling by the court that despite the fact that Myanmar hasn’t signed up to the ICC statute and despite the situation there not having been referred to the court by the UN Security Council, the court could still exercise jurisdiction over particular crimes on the basis that they occurred partially in Bangladesh, which is a signatory to the ICC statute. Such crimes include deportation and possibly persecution.

This is a significant development and should be supported, but accountability should not be limited to crimes that have a Bangladeshi connection. It’s not likely that the ICC will get jurisdiction over any of the other crimes, though, because the only way that could happen (short of Myanmar submitting itself to the court) would be for the situation to be referred by the Security Council, something that would almost certainly be vetoed by China and probably others.

In another positive move, the Gambia recently announced that it will file proceedings before the International Court of Justice alleging that Myanmar has breached the UN convention on genocide. If the case is successful, the ICJ could order Myanmar to take steps to prevent genocide from occurring, or order it to hold perpetrators to account or to cooperate with international accountability mechanisms.

If Myanmar didn’t do as told by the ICJ, the Gambia could go to the Security Council to have the decision enforced. But given that the council’s paralysis on Myanmar is one of the reasons why the ICJ has been resorted to in the first place, such a move would be unlikely to yield results. And in light of Myanmar’s imperviousness to international pressure over its treatment of the Rohingya, without any enforcement it’s hard to see how an ICJ judgement would lead to meaningful change, let alone to individual perpetrators of violence being held to account.

There are two other institutions that can and should do more in response to warnings of genocide in Myanmar.

The first is the UN General Assembly. It has played an important role in many previous crises when the Security Council has been paralysed by the veto of one of its five permanent members. It could, among other things, recommend sanctions, or recommend that countries like Australia stop supporting the Myanmar military, or—like it did in response to South African apartheid in the 1980s—call upon states to ‘adopt legislative and other comparable measures to ensure the total isolation’ of Myanmar. So far, the General Assembly hasn’t doesn’t anything much other than express concern.

The other institution that could step up is the Association of Southeast Asian Nations. ASEAN has been hamstrung by adherence to its principles of non-interference and consensus, but it has also in the past committed to protecting human rights and responding to crises. If it continues to stand quietly by while multiple institutions warn that genocide is likely to occur in one of its member states, it will quickly lose credibility. At a recent conference, one speaker who knows the organisation well said, ‘I can’t tell you how many times ASEAN leaders have said to me that they want ASEAN to work so that the UN thinks it has one less region of the world to worry about.’ As it happens, the UN doesn’t seem to be worrying much about Myanmar—or at least not in a way that has any effect. But the lack of worry is certainly not due to any perception that ASEAN has the situation in hand.

In her Pulitzer Prize–winning account of America’s failure to respond to genocide, written in 2002, former US ambassador to the UN Samantha Power reflected that countries will always find reasons not to respond to early warnings of genocide, when for political reasons they don’t want to. She quoted the creator of the word ‘genocide’, Raphael Lemkin, who said that if someone didn’t like mustard, they’ll always find a reason not to like mustard. It’s devastating that, nearly two decades and at least two genocides after Power’s book, this quote is still so pertinent.