Atrocities and war crimes in Myanmar: here’s what we know

By Hector Sharp
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The events that have occurred over the past several months in Myanmar’s western Rakhine State are undoubtedly tragic and deserve international condemnation and action. But do they constitute war crimes or crimes against humanity?

Are there war crimes occurring in Myanmar?

International humanitarian law (IHL) is the body of international law that regulates armed conflict. This law applies to state armies as well as organised non-state armed groups. War crimes are serious breaches of IHL. They include willful killing, torture, and unlawfully and wantonly carrying out destruction of property.

For a war crime to occur, there must be a situation of armed conflict to which IHL applies. There are two types of conflict where IHL can be applied: International armed conflict, which involves two or more states, and non-International Armed Conflict (NIAC), which involves non-state armed groups in conflict either with other non-state groups, or government forces. If an armed conflict exists in Myanmar it is to be characterised as a NIAC because it involves the Myanmar Security Forces (the Army) and the Arkhine Rohingya Salvation Army (ARSA), a Rohingya insurgent group active in the northern Rahkine State.

Australian Lawyers for Human Rights (ALHR) believes a NIAC exists or has recently existed in Myanmar because the conflict is sufficiently intense and the parties are sufficiently organised (the two threshold criteria for the designation of a NIAC under IHL). This view is based on an analysis of the characterisation of the military confrontations and the opposing sides – their actions, casualties, weapon use, property damage and duration. The corollary of this is that the war crimes regime comes into play – serious violations of IHL, entailing individual criminal responsibility for those involved.

One of the cardinal rules of international humanitarian law is the rule of distinction – civilians and soldiers must be distinguished and civilians must not be targeted.

One of the cardinal rules of IHL is the rule of distinction – civilians and soldiers must be distinguished and civilians must not be targeted. Reports coming out of neighbouring Bangladesh, where many Rohingya have sought safety, detail a high number of civilian casualties – an exact number is not known. On 4 September 2017, the Army said they had killed 400 “terrorists” but as foreign humanitarian and media access to Rakhine state is prohibited it is hard to verify this information. ALHR is concerned about reports that the Army is using land mines to target civilians attempting to cross the border between Rakhine State and Bangladesh.

The second aspect of the rule of distinction is the prohibition on attacks targeting civilian objects and civilian population as a whole. Only military objectives may be attacked. Yet, satellite imagery shows evidence of burned villages left in the wake of the Army’s scorched earth response to the insurgency and the ABC has published video footage showing charred bodies lying in smoldering houses. This evidence strongly suggests that the civilian population has been the target of attacks. This would remain the case even if there were ARSA insurgents among the villages attacked, as the presence within the civilian population of fighters does not deny it the character of civilian population.

If, by way of military objective, the attacks are lawfully directed, they will still be unlawful if it is expected to cause incidental harm to civilians or damage to civilian objects that is disproportionate to the military advantage – this is a rule of Customary IHL applicable in all NIACs. There is no precise formula for this proportionality test. The military advantage anticipated must be direct and concrete – and the analysis must take place on an attack-by-attack basis.

The sheer number of Rohinyga displaced (according to the United Nations, over 600,000 people have crossed into Bangladesh since 25 August 2017) and the stories they have shared with international media indicates gross breaches of the principle of distinction. In particular, ALHR notes the destruction of over 2,600 civilian structures, and the use of landmines, rape, murder and intimidation by the Myanmar security forces against the Rohinyga population.

Is Myanmar guilty of Crimes Against Humanity?

Crimes against humanity are part of international criminal law applicable to the situation in Myanmar. Crimes against humanity are defined in Article 7 of the Rome Statute of the International Criminal Court (ICC) as various underlying criminal acts knowingly “committed as part of a widespread or systematic attack directed against any civilian population” as part of a State or organizational policy. In other words – they are deliberately and systematically undertaken against the people of a state either inside or outside a conflict, rather than one-off attacks during a conflict.

One of the compounding factors to the crisis is the lack of humanitarian access to the affected areas. This lack of access works in favour of the Myanmar Government, as it not only prevents aid from reaching a community the Government has made clear is not welcome in Myanmar, but also prevents stories of atrocities by the Army from being substantiated by evidence.

ALHR acknowledges there is a lack of verifiable information flowing out of Rakhine state that can be used to determine whether crimes against humanity have been and or are still being committed. But there is some evidence to suggest the underlying acts necessary for a finding of crimes against humanity are being committed:

  • Murder: The deadly ongoing violence reportedly committed by the Army against Rohingya civilians certainly satisfies this legal criterion.
  • Extermination/Mass killing: Extermination is distinguished from murder by the fact that it is generally directed against a large group with a substantial degree of organisation. The Army’s documented policy of destroying villages and food stocks, and denying humanitarian assistance, almost certainly fulfill these criteria.
  • Forced Displacement: Forcible displacement may occur where persons are compelled to leave for various involuntary reasons, including by threat of violence, duress or detention. The extent of civilian population movements from Myanmar into neighbouring Bangladesh is both massive and continuing. The International Committee of the Red Cross has put this number at over half a million people.
  • Rape and Sexual Violence: Reports suggest that Rohingya women, men and children have all been subject to widespread rape and other sexual violence at the hands of the Burmese military. Furthermore, rape and any other form of sexual violence may constitute genocide, if committed with the specific intent to destroy a particular targeted group.
  • Persecution: Persecution involves severely depriving a person(s) from an identifiable group or collectivity of fundamental rights, done on political, racial, ethnic, cultural, religious or other impermissible grounds. There is evidence of longstanding inaction or outright hostility by the Myanmar government towards the Rohingya minority – most notably including exclusion of citizenship – combined with the recent violence allegedly committed by security forces.

The underlying crimes above must be committed in either a “widespread” in its scale or number of victims or “systematic” in terms of being pursuant to a preconceived plan or policy. A number of factors point to the crimes against Rohingya being both widespread and systematic, including ongoing persecution of Rohingya; anti-Rohingya sentiment at local and government level; prohibition of the term “Rohingya” by government officials; preventing humanitarian access to Rakhine state; and over 600,000 people fleeing the violence across the border to Bangladesh.

Australia, as a regional leader, has a moral responsibility to speak out against these crimes.

Australia’s response to the conflict

International media and NGOs are on the ground reporting these atrocities and, in doing so, forcing the United Nations and its agencies to mobilise their efforts. But we have not seen a concretive effort from states.

Australia, as a regional leader, has a moral responsibility to speak out against these crimes – yet Australia’s representatives to the UN Human Rights Council have instead attempted to taper the international response to the Rohingya crisis.

Australia must articulate a clear and firm position on the events in Myanmar. While Minister for Foreign Affairs, Ms Julia Bishop has expressed “serious concern” – this position is undermined by harsh policy toward Rohingya refugees seeking in asylum in Australia, including offering money to any Rohingya willing to return to Myanmar.

ALHR believe legal recognition of the situation in Myanmar may chide the international community to remember its promise of “never again”.

We can and must do better.

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