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Whose side is the government on? Targeting of the Rohingya in Myanmar/Burma Leaves Civil Society Demanding Action

On 3 June 2012, the killing and reported rape of a Buddhist woman followed by the massacre of ten Muslims traveling in Rakhine state marked the beginning of a series of violent attacks against the Rohingya communities, their townships and residents in Myanmar/Burma causing widespread destruction of Muslim neighborhoods, mosques and villages and massive displacement. Human Rights Watch‘s (HRW) report All You Can Do is Pray, documents a number of violent incidences against the Rohingya, a minority Muslim population that has long been discriminated against in Myanmar/Burma and the region, since the attacks; including government backed “crimes against humanity” committed against them during a campaign of “ethnic cleansing”. Despite the government appointed Rakhine Commission’s attempt to provide recommendations for improving the ethnic tensions between the Rohingya and the Buddhist populations in Myanmar/Burma, the report failed to effectively tackle the discrimination against the Rohingya. Instead, authorities continue to reinforce the segregation of this population through discriminatory laws and practices that underpin their lack of citizenship and their mistreatment, while also ignoring the violent attacks on Muslim neighborhoods that have continued.

Civil society and UN actors point to the government’s involvement

Under the Responsibility to Protect (RtoP), it is the primary responsibility of the state to protect all populations from crimes against humanity, ethnic cleansing, genocide and war crimes, but in Myanmar/Burma, the government is not assuming this role. To alleviate this tension between the Rohingya minority and the Buddhist population, the Rahkine Commission, a 27 member body which was appointed in August 2012 to examine the causes of the violence between the groups, called for a doubling of security forces in Rakhine State. This is concerning given the number of reports pointing to the involvement of those tasked to restore order – the government, local security forces (including police, inter-agency border control and the army) – in the victimization of the Rohingya. At the United Nations (UN) level, UN Special Rapporteur for the Human Rights situation in Burma, Mr. Tomás Ojea Quintana has said Muslims were clearly targeted with brutal efficiency during attacks on property and the killing of a several Rohingyas. He went on to confirm he received reports of “state involvement in some acts of violence”, including military and police standing by while atrocities are committed as well as evidence of direct involvement of supporting well organized Buddhist gangs in their attacks. One of Burma Campaign UK‘s, latest reports concluded that the targeting of the Rohingya – which includes attacks based solely on identity and the implementation of a number of discriminatory laws, such as the 1982 Citizenship Law denying the population citizenship – violates at least eight international human rights laws and treaty obligations. The UN and a number of civil society organizations, including Amnesty International (AI) and Burma Campaign UK, have expressed concern over the lack of recommendations of the Commission to address issues related to impunity, and the discriminatory laws, as well as the state’s failure to stop “incitement of hatred and violence against Muslims.” The government has failed to address the root causes of the clashes between the groups and implement effective policies to tackle intolerance and promote religious and societal harmony, which, as the Global Center for the Responsibility to Protect (GCR2P) declares, shows that the government, is “failing their duty of the Responsibility to Protect.”

UN Under-Secretary-General for Humanitarian Affairs, Valerie Amos, visits displacement camps in Myanmar’s Rakhine State UN Photo/David Ohana

Quelling ethnic tension: Beyond the Commission’s recommendations

Civil society organizations have been at the forefront of demanding action and issuing recommendations to quell ethnic tensions, which vary from calling for the implementation of comprehensive reconciliation plans, urging the international community to pressure the government to reverse discriminatory policies, establishing an in-country office UN Office of the High Commissioner for Human Rights, and addressing the humanitarian situation with unrestrictive access for aid delivery. The most debated issues are how to end impunity and resolve the statelessness of the Rohingya population caused by the 1982 Citizenship Law, which does not recognize Rohingyas as one of the 135 legally recognized ethnic groups in Myanmar/Burma.

Calls for ensuring justice and putting an end to impunity

According to ALTSEAN-Burma, and Minority Rights Group International (MRG), the Commission has failed to hold accountable those responsible for the ethnic cleansing of the Rohingyas. Echoing this, Mr. Quintana stresses that holding to account those responsible will also be an integral part of restoring relations of trust and harmony between different ethnic and religious communities.” Group such as AI and GCR2Phave recommended impartial investigations to tackle the culture of impunity while HRW has more controversially called for “an independent international commission to investigate crimes against humanity.” At the government level, the United Kingdom is a little apprehensive to undertake such bold action, stopping short of proposing to set up an independent international investigation, but rather asking for the Myanmar/Burma government to conduct an “independent investigative work” to assess “whether ethnic cleansing and crimes against humanity have been committed” – a step Burma Campaign UK believes is useless unless it is an “international” investigation. Mr. Quintana, concerned about how accountability will be ensured going forward, supports AI‘s suggestions that in addition to ending impunity a “comprehensive reform of the security forces, including the establishment of robust accountability mechanisms, adequate vetting systems and training on relevant international standards, is also essential.”

Deciding on what it means to be Burmese

While accountability for past crimes is vital, preventing further tensions requires addressing the root causes of the problem as well. At the heart of the issue is the government’s 1982 Citizenship Act, which denies the Rohingya population national citizenship. Under international human rights standards no person can be left stateless and therefore this denied access is a form of discrimination that needs to be urgently addressed. As if statelessness was not enough, there are a number of other restrictive laws and tight regulations, including restrictions on travel, birth, death, immigration, migration, marriage and land ownership, that target the Rohingya and deny them basic rights guaranteed in international law. Civil society organizations, such MRG, were hoping the Commission would call for a review of the 1982 Citizenship Law; however, the government made it clear it has no intention to do so. In fact, the authorities seem adamant to continue the policies reinforcing the Two-Child Policy that controls the growth of the Rohingya population, an action that HRW declares “could amount to crimes against humanity” and as such must be publicly revoked immediately. Burma Campaign UK‘s approach is different, believing that a cultural change is just as important as the reversal of the discriminatory laws. According to the organization, the society needs to decide what it means to be Burmese and “there needs to be an acceptance that Burma is a multi-ethnic and multi-religious country and people from different ethnic groups can live side by side.”

The Responsibility to Assist

RtoP outlines that it is also the responsibility of the international community to assist in building the capacity of states to ensure the protection of populations against any of the four crimes and violations. For the Asia-Pacific Center for the Responsibility to Protect, this should be in the way of building the capacity of Myanmar’s/Burma’s authorities to manage ethnic relations and inter-faith communal dialogue. Others, like the GCR2P, are calling for the international community to pressure the government to prioritize the development of a comprehensive reconciliation plan to engage ethnic minorities. Targeting the European Union, Burma Campaign UK, and MRG have urged the bodynot to lift sanctions against the government and have encouraged that diplomatic relations with Myanmar/Burma must remain limited. Meanwhile, the European Parliament adopted a resolution condemning the persecution and violence of the Rohingyas, and requesting the revocation of the discriminatory polices. Regardless of the action that has been taken or called for, as Burma Campaign UK points out, the international community must remind the government of their international commitment to the responsibility to protect, and to put pressure where needed to demand action to protect populations.

Going forward: Protection free of discrimination

While RtoP outlines the obligations of all governments and the international community to to protect populations from atrocities, in the case of Myanmar/Burma, amounting evidence suggests more needs to be done to ensure such protection. As UN Special Advisor on the Prevention of Genocide, Adama Dieng, said in his March 25 statement on the crisis, there is a considerable risk of further violence if measures are not put in place to prevent this escalation.” As many civil society groups have said, both the international community and the Myanmar/Burma authorities need to come together and implement measures to prevent future crimes and address the underlying issues that foster the continued discrimination against the Rohingya; however, exactly how this is to be done remains unclear and debated. As AI declares, what is certain is that “the Myanmar authorities are responsible for ensuring protection of people, their homes and livelihoods. While doing so, they must ensure protection of all communities without discrimination.”

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The RtoP and the ICC: Complementary in Prevention, Assistance and Response

The International Criminal Court (ICC) has delivered its first ever verdict with a finding of guilty in the case of the Prosecutor vs. Thomas Lubanga Dyilo on 14 March 2012.

In light of this, and with the ICC playing differing but integral roles in responding to mass atrocities in recent situations like Libya and Côte d’Ivoire, we’d like to expand on the relationship between the Responsibility to Protect (RtoP) and the ICC. In this effort, we asked several ICRtoP member organizations, including the Kenyan Section of the International Commission of Jurists, Citizens for Justice and Accountability, the International Refugee Rights Initiative, and the World Federalist Movement-Institute for Global Policy to provide their reflections on the relationship.

The Responsibility to Protect (RtoP) and the International Criminal Court (ICC) are two interconnected initiatives that seek to ensure that the world responds to mass atrocities and hold perpetrators of these egregious crimes accountable. At their core, however, the RtoP and the ICC are complementary in seeking to prevent these crimes from occurring altogether.

Both the RtoP and ICC articulate the primary responsibilities of states. The Rome Statute of the ICC provides that it is the primary responsibility of national authorities to investigate and prosecute individuals responsible for the commission of genocide, war crimes and crimes against humanity.

George Kegoro, Executive Director of the Kenya Section – International Commission of Jurists, explains this further: “The ICC is a ‘court of last resort’ – that is, its mandate is to prosecute only when domestic avenues have been exhausted, and where a State is unable or unwilling to prosecute those individuals responsible for the gravest of crimes.”

Similarly, RtoP bestows the primary responsibility to protect civilians from genocide, war crimes, crimes against humanity, and ethnic cleansing – the four ‘RtoP crimes’ – to the state. As William Pace, the Executive Director of the World Federalist Movement-Institute for Global Policy (WFM-IGP), a founding Steering Committee Member of the ICRtoP and the Coalition for the ICC, notes, this synergy dates back to the march towards the creation of the ICC, as “RtoP emerged massively from the Rome Statute process – the same crimes, complementarity, national and international responsibility.”

However, as has been witnessed in countless situations, some states fail to uphold their obligations. In instances where states are willing but unable to protect populations, the second pillar of RtoP – international assistance and capacity-building – asserts that the United Nations (UN), its Member States, regional organizations, and civil society have a role to play in ensuring that those states receive the assistance necessary to assume their RtoP.

Similarly, the Assembly of States Parties of the ICC adopted a resolution at the May-June 2010 Kampala Review Conference which premised that the Court and its members, the States Parties to the Rome Statute, should provide the tools needed to assist states who were willing but unable to fulfill their Statute responsibilities. One such example of this was provided by Sulaiman Jabati, Executive Secretary of the Freetown, Sierra Leone-based Citizens for Justice and Accountability  (COJA), who said that the ICC should “expand its outreach activities in countries that have early warning signs for potential conflict.” In this sense, RtoP and the ICC are both complementary in calling for the provision for international assistance to ensure states uphold their primary responsibilities.

RtoP and the ICC are also complementary in instances where states are found both unable and unwilling to meet their responsibilities. The Rome Statute provides that when a state does not meet its primary obligations to prosecute individuals responsible for the commission of Statute crimes, it will ensure situations are investigated, warrants are issued, and those in its custody are prosecuted.

Similarly, when a state is found unable and unwilling to uphold its responsibility to protect civilians, the norm provides that the responsibility to protect those civilians yields to the UN and its Member States in cooperation with regional organizations.

Libya and Côte d’Ivoire: The ICC in the RtoP Toolkit

As the recent cases of Libya and Côte d’Ivoire have demonstrated, the Court is firmly engrained under RtoP’s third pillar – timely and decisive response – as a tool used to respond to situations where mass atrocities are threatened or have occurred, as well as to prevent further atrocities from being committed through deterrence.

In response to the situation in Libya, where the regime of the now-deceased Colonel Muammar Gaddafi committed widespread atrocities against civilian protesters beginning from 17 February onwards, the RtoP framework guided early and unprecedented action to avert further crimes against civilians. An ICC referral was one of the broad range of measures taken to halt the threat of crimes in this context.

On 26 February, the UN Security Council (UNSC) passed Resolution 1970, in which it referred the Libyan case to the ICC and imposed other non-coercive measures to respond to the crackdown. Pace calls the Resolution 1970, “one of the finest ever of the UNSC, and the process leading to the 15-0 decision [result of the vote] among the best examples of how the international community should maintain international peace and security.”

The investigation that ensued resulted in the indictments of Muammar Gaddafi, his son, Saif Gaddafi, and former intelligence chief, Abdullah Senussi, which were announced by the Court while the conflict raged on. But, as Dismas Nkunda, Co-Director of the International Refugee Rights Initiative (IRRI), suggests, the indictments being made while Libya was in the midst of a conflict were problematic. “The arrest warrants before the fall of Gaddafi regime played into the discourse being propagated by the African Union,” states Nkunda, “that the ICC was more interested in trying African leaders,” than finding peace in the country.

Furthermore, Nkunda said the process raised serious concerns on the African continent about the independence of the ICC from the influence of the UNSC, particularly as, “the Libyan case was seen to be biased against one side of the conflict.” Disquiet over the impartiality of the Court has thus led to concerns over the selective application of the RtoP, Nkunda said, which may prove problematic for both the norm and the institution moving forward.

Despite these concerns, the Court remains actively involved in Libya. After Saif’s arrest in November 2011, the ICC has been engaged with Libya’s National Transitional Council (NTC) on the issue of his trial. It had been reported that the Court would allow Libya to try Gaddafi’s son, but as of 25 January 2012, no decision had yet to be made by the ICC.

As of November 2011, the Court remained involved in Libya as it continues to build its case against Saif Gaddafi and Senussi and investigates allegations that all parties to the conflict, including anti-Gaddafi forces, committed war crimes and/or crimes against humanity. The 2 March 2012 report of the UN Human Rights Council’s Commission of Inquiry into Libya, and its handing over of a list to the UN High Commissioner for Human Rights (UNHCHR), Navil Pillay, of suspected perpetrators, could mean continued involvement for the Court moving forward as well.

The Court also played an important role in the response to the post-election violence in Côte d’Ivoire between 28 November 2010 and 11 April 2011, during which widespread human rights violations and crimes against humanity were alleged to have been committed.

As the situation in the country intensified in March and April 2011, the Office of the Prosecutor of the ICC warned on 6 April that an investigation could be triggered as a result of reports of widespread and systematic killings. On 4 October 2011, in the aftermath of hostilities, the ICC exercised its jurisdiction in the country and authorized an investigation into allegations of such violations committed by all parties to the conflict.

Months after his arrest on 11 April 2011, on 30 November 2011 former President Laurent Gbagbo was transferred to the Court – the first head of state to be in the custody of the ICC – and will stand trial for his in alleged involvement in crimes against humanity over the course of the civil conflict. It was also announced on 22 February 2012 that the Court would expand the scope of its investigation into the country to the 2002-2010 period.

According to Kegoro, while the initial involvement of the Court in Côte d’Ivoire (and Libya as well) was both appropriate and justifiable – in that it had an immediate effect of publicly championing an end to impunity and the promotion of the rule of law – the true impact of the ICC is at a, “fledgling state”.

Assessing how the ICC intervention has affected the prevention of further atrocities and regional stability and the peace will require on-going monitoring and evaluation, both during ICC trial processes and after the decisions,” Kegoro said. While he noted that prosecution of perpetrators of the most serious crimes can have a deterrent impact, “the societal implications of ICC interventions and decisions is something that will only be shaped and understood over time.”

Kegoro concluded by adding that, “The long-term impact of the ICC, especially on African nations, is something that needs to be carefully assessed,” particularly in the wake of the Court’s involvement and the implementation of RtoP in Libya and Côte d’Ivoire.

Peace vs. Justice?

As the ICC was involved in Libya during the conflict, but formally announced its investigation into the situation in Côte d’Ivoire only after hostilities had ceased, debate has arisen over the timeliness of the employment of the ICC as a tool to respond to mass atrocities under the RtoP framework. The debate also touches on a more general discussion of whether justice for victims of atrocity crimes can be pursued while attempting to secure a peaceful resolution to a conflict or vice versa. This is more commonly known as the peace vs. justice debate.

Both Jabati and Pace were unequivocal in stating that there can be no peace in any situation without justice for crimes committed. This idea spurred Jabati’s COJA, along with a number of other civil society organization’s present at the Kampala Review Conference, to push for the ability of the ICC’s Chief Prosecutor to prioritize conflict prevention in Africa through extensive outreach programs, highlighting the importance placed on justice in the pursuit of peace in cost-conflict settings, and in the prevention of violence altogether.

Pace argues against the premise that pursuing peace and accountability for international crimes at the same time doesn’t work, and says that there has been, “no peace strategy that has worked worse” than giving major combatant leaders amnesty and transferring them to a third country with personal and financial security. Instead, the WFM-IGP Executive Director stated that while each individual situation must be evaluated independently, the recent-year examples of Bosnia, Sierra Leone, Uganda, the DRC, and Colombia, “make the case that in many conflict situations introducing international criminal justice actually helps achieve and fortify peace.”

But, drawing on the specific example of Kenya, where the ICC opened an investigation on 31 March 2010 and is currently in the process of trying four individuals it has found responsible for the 2007-2008 post-election violence, Kegoro says that the country’s experience points to the fact that the “most practicable time for ICC intervention is in post-conflict situations.

However, according to Kegoro, this was a result of the fact that Kenya had only exhibited its unwillingness to prosecute perpetrators of violence well after it had subsided; thus the ICC had little role to play during the crisis. Therefore, he states that, “there may be a set of circumstances in the future where direct ICC intervention during an armed conflict is appropriate, or even required.”

Also drawing on recent examples, Nkunda sees both positives and negatives of the Court’s involvement during armed hostilities. With the Lubanga case, Nkunda notes that the Court’s engagement during the conflict in the DRC did have a positive impact on limiting crimes, specifically in raising awareness that the practice of conscripting child soldiers was contrary to international law and that such behaviour to could lead to the docket in the Hague.

In terms of negative implications, the IRRI Co-Director points to Sudan as a glaring example, where, “the unintended but expected consequences of the Court’s decision was the expulsion of humanitarian organizations [16 aid agencies operating in Darfur were expelled in early March 2009], which heavily impacted the lives of the very people – the victims – whom the Court was trying to protect.” Furthermore, in singling out individuals as direct perpetrators of the violence, as the ICC did with the indictment of Sudanese President Omar al-Bashir and others in the context of the crisis in Darfur, Nkunda notes that the actions of the Court may have served to insulate one group to become, “more deadly, since they have nothing to lose.”

Our members’ insight, drawn from their experience working in the fields of international law and conflict prevention in unique national and regional contexts, shows that much depends on the complexities of the situation at hand, but that justice should certainly not come at the expense of peace.

Deterrence and the Need for Prevention

Jabati, Kegoro, Nkunda and Pace all touted the deterrent effect of the ICC on would-be violators of Rome Statute provisions, both in conflict and post-conflict settings. At times, however, the ICC itself may not be enough to halt ongoing mass atrocities in specific cases. In both Libya and Côte d’Ivoire, a wider array of measures became necessary to protect populations, including the use of force.

The present Syrian crisis, which has claimed as many as 8,000 lives since March 2011, continues unabated as the civilians remain victim to gross human rights violations at the hands of the regime of President Bashar al-Assad.  Regional and international actors must uphold their Responsibility to Protect the population of Syria by employing additional measures to effectively end the continued “collective punishment”.

In addition to a range of measures to respond to the crisis, the ICC has emerged as a potential tool to respond to the crisis through the RtoP framework. Calls have been made on a number of occasions by UNHCHR Pillay, as well as by French Foreign Minister Alain Juppé, and civil society organizations, including Human Rights Watch and Amnesty International, for the Security Council to refer Syria to the ICC. To date, however, there have been no such moves to ensure justice for the victims of the crackdown through the ICC, and the killing has largely continued unabated.

Only when tangible steps are taken to prevent genocide, crimes against humanity, war crimes, and ethnic cleansing from occurring altogether will this cycle of atrocity and reaction be broken.

UN Secretary-General Ban Ki-moon put forth two such preventive measures in his January 2009 report, Implementing the Responsibility to Protect, by urging Member States to ratify the Rome Statute of the International Criminal Court and to implement national legislation against atrocity crimes.

As the report reads, “The Rome Statute seeks to develop mechanisms and processes for identifying, investigating and prosecuting those most directly responsible for crimes and violations relating to the responsibility to protectI would encourage additional States to become parties to the Statute and thus to strengthen one of the key instruments relating to the responsibility to protect.”

But the Secretary-General noted that becoming a Party to the Rome Statute, along with other relevant instruments of international law, is just the first step in the full of the responsibility to protect. Consistent with the emphasis on the primary responsibilities of states by both the RtoP and the ICC, the Secretary-General’s report states that, “these core international standards need to be faithfully embodied in international legislation,” so that impunity for any of the four RtoP crimes is not accepted nationally or globally.

Taking these steps may ensure that states meet their primary responsibilities of protecting civilians by criminalizing the four RtoP crimes under both their domestic laws and their international obligations, and may work to realize their prevention altogether.

Please see the links below for the full statements by our members:

Statement by Sulaiman Jabati, Executive Secretary of Citizens for Justice and Accountability (Freetown, Sierra Leone)

Statement made by George Kegoro, Executive Director of the Kenyan Section of the International Commission of Jurists (Nairobi, Kenya)

Response by William Pace, Executive Director of the World Federalist Movement-Institute for Global Policy, Convenor of the Coalition for the International Criminal Court (CICC), and Co-Founder and Steering Committee Member of the International Coalition for the Responsibility to Protect (New York, USA)

Statement by Dismas Nkunda, Co-Director of the International Refugee Rights Initiative (Kampala, Uganda and New York, USA)

Special thanks to George Kegoro, Sulaiman Jabati, Dismas Nkunda, and William Pace. A shorter version of this post was expanded upon for this blog, and will be appearing in the upcoming print edition of World Federalist Movement News.

Editor’s Note: The views expressed in these individual responses prepared by our civil society member organizations do not necessarily reflect the views of the International Coalition for the Responsibility to Protect.

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Filed under African Union, CivSoc, Cote d'Ivoire, Human Rights, International Criminal Court, Kenya, Libya, Post-Conflict, Prevention, Regional Orgs, RtoP, Sudan, Syria, UN