New Testimony Builds the Case for War Crimes and Genocide Against the Rohingya
October 8, 2020 by Digital Editor
By: Austin Beaudoin
The alleged atrocities committed by the Myanmarese military, or Tatmadaw, against the Rohinhya Muslim minority residing in the country were for the first time corroborated by perpetrators. Privates Zaw Niang Tun and Myo Win Tun in video testimony asserted that they were ordered by superiors to “exterminate all [Rohingya]” and “shoot all you see and that you hear” as they destroyed at least 20 villages and townships populated by the Rohingya. The testimony’s significance is bolstered by the soldiers’ separate claims to have simultaneously operated in different townships with orders to slaughter Rohingya men, women, and children. This campaign of violent atrocities has already seen over 700,000 Rohingya flee to neighboring Bangladesh and has tarnished the international reputation of President (and Nobel Peace Laureate) Aung San Suu Ki, who has been criticized for failing to forcefully condemn these horrific acts. Through all of this human tragedy and despair, the videos released weeks ago offer potentially crucial evidence for charges of war crimes and genocide against top Myanmarese officials in the ICC and ICJ. These admissions represent the first time members of the Tatmadaw have admitted to mass executions and other violence, contradicting forceful denials by generals and top government officials that no acts of violence and destruction were committed against the Rohingya by the Tatmadaw.
The ICC proceedings allege mass murder, sexual violence, and widespread destruction of Rohingya villages in Rakhine state. As Myanmar is not a party to the Rome Statute, the ICC’s jurisdiction is limited to the atrocities that allegedly took place within Bangladesh, which is a party to the Statute. The ICC’s Pre-Trial Chamber I found it had limited jurisdiction last year, but its jurisdiction is limited to acts committed within Bangladesh. The testimony bolsters widespread accusations by observers and the United Nations Human Rights Council that consider these violent acts to be genocide or evidencing the intent to commit genocide. As shocking and urgent as these accusations are, it is not immediately clear what international sanctions will follow. The ICC typically prosecutes high level military and government officials for formulating genocidal policies, not soldiers being ordered by commanders to commit these heinous crimes. Unless the jurisdiction is expanded to Myanmar, ICC prosecutors currently can only charge such officials with crimes of forced deportation, persecution and other human rights violations which occurred within Bangladesh.
The Myanmarese government also faces charges in the ICJ brought by Gambia last year involving a litany of claims that may meet the defintion of genocide or genocidal intent. The ICJ in January of this year issued a provisional measure ordering Myanmar to (among other things) “take all measures within its power to prevent the commission of all acts within the scope of Article II [of the Genocide Convention]”, sending a poweful message that unfortunately does little to immediately remedy the plight of the virtually stateless Rohingya. If the ICJ decides to pursue these charges further, it would mark the first time the highest court of the U.N. has investigated claims of genocide without first relying on the findings of other tribunals. Gambia has had the support of mostly majority-Muslim states, but in the wake of the testimony and corresponding global outrage, Canada and the Netherlands announced that they would provide legal support. The 46-page application filed by Gambia bases its allegations on Myanmar’s violations of the the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, of which Myanmar is a party. Despite this relatively straightforward basis of jurisdiction, the ICJ is a slow-moving deliberative tribunal that cannot be expected to quickly respond with a comprehensive judgement. The United States has previously stopped short of labeling these acts as genocide, alternatively employing the label “ethnic cleansing”. Taking dramatic action to protect the Rohingya from continued human rights violations in the absence of international consensus seems antithetical to the Trump Administrations general retreat from leadership on the international stage.
Notwithstanding the recent show of solidarity from States like Canada and the Netherlands, international condemnation has been insufficient relative to the horrific nature of the alleged crimes. The United States in particular has shown indifference, notably failing to loudly condemn the actions of the Tatmadaw while announcing sanctions on the ICC’s top prosecutor, Fatou Bensouda. These sanctions are related to the ICC’s investigations of possible war crimes committed by U.S. soldiers in Afghanistan, yet this significant use of U.S. power could hardly have come at a less opportune moment. Although the video testimony is a hugely important development for lawyers within the ICC and ICJ building a case against those responsible for this violence and destruction, it is far from obvious the allegations will translate to a binding ICJ judgement or meaningful sanctions from a robust global coalition. RFK Human Rights has urged the U.N. Security Council to refer further charges to the ICC, but this outcome is rather unlikely based on the current posture of the United States and the hesitancy of Russia and China to heap international pressure on Myanmar. As noted above, Myanmar is not a party to the Rome Statute. Accordingly, the ICC cannot directly assert jurisdiction over crimes committed against the Rohingya in Myanmar absent a referral from the UN Security Council. At this early stage of the international proceedings, international support for the ICC and ICJ is imperative. In the interim, only sustained international pressure is likely to bring relief to the hundreds of thousands of displaced Rohingya struggling daily to survive under abhorrent conditions.
Austin Beaudoin is a 2L at the Georgetown University Law Center and an Assistant Digital Editor for the Georgetown Journal of International Law. He graduated with a B.A. in Political Science and Philosophy from the University of Connecticut. He currently serves as a research assistant for Professor Cliff Sloan for his upcoming book on the Supreme Court during World War II and as a judicial intern for the District of D.C.