It is long overdue for ASEAN to sync its
policies towards Myanmar with international opinion, legal and human rights,
and the global public.
On January 23, 2020, the International Court
of Justice, the UN’s highest judicial authority which handles legal disputes
among the member states, announced its decision to proceed with The Gambia vs
Myanmar and issued the provisional measures aimed at preventing (further)
genocidal acts against Myanmar’s Rohingya people and at protecting the evidence
of the past atrocities which Myanmar troops committed against the ethnic
minority community in 2016 and 2017.
This is the 3rd application of the
international treaty known as the Convention on the Prevention and Punishment
of the Crime of Genocide or Genocide Convention since the Convention was first
adopted in 1948, following the Nazi Genocide.
Damningly, this twofold decision was
unanimous among the 17-judges. It was also extraordinary in that the German
judge, handpicked by Myanmar as its ad hoc judge, and the Chinese judge whose
position was unsure – Beijing’s approach is to treat the Rohingya crisis as
merely a bilateral humanitarian issue between Bangladesh and Myanmar – cast
their votes with the rest of the judges.
Since the two bouts of organised violence in
Myanmar’s Rakhine in 2012, ASEAN on its part has adopted a similarly
humanitarian perspective to what has increasingly come to be viewed legally as
international crimes against Rohingyas by Myanmar. In this, Malaysia has
emerged as a principled and compassionate voice for the persecuted minority,
notwithstanding certain policy shortcomings, (for instance, denial of
educational access), as the single largest ASEAN host of Rohingyas – over
100,000.
The international human rights communities –
and the Rohingyas themselves – view ASEAN’s exclusively “humanitarian” approach
to the crimes of Myanmar as nothing short of a whitewash for the
well-documented and solemn crimes in international law including war crimes,
crimes against humanity and genocide in Rakhine.
The ICJ’s decision last month to proceed with
the case despite Myanmar Agent Aung San Suu Kyi’s official request to dismiss
it was based significantly on the weight of the evidence which prima farci led
the judges to conclude unanimously that there is a real plausibility that the
court will in due course find that Myanmar commissioned the crime of genocide
or certain acts of genocide when the merits of the case are examined.
Non-Interference Stands in Tatters
The above-mentioned genocide plausibility
established by the world’s highest court and the court’s order to institute the
periodic reporting regime solely targeted at Myanmar while the case proceeds,
and the issue of Myanmar’s compliance are issues which frontally challenge
ASEAN’s policy orthodoxy of “Non-interference”.
It calls into question the business-as-usual approach by the group as a
bloc as well as respective policies of the individual member states.
Worse still, ASEAN states such as Singapore
have taken advantage of this founding principle by investing most heavily in
Myanmar – the city-state is now the largest foreign investor in Myanmar – while
in effect serving as Myanmar’s public relations platform for genocide denials
by its senior most leaders including Aung San Suu Kyi. As a matter of fact,
Singapore’s role in propping up and defending the criminal Burmese leadership
predated the genocidal purge of 2016 and 2017. Myanmar’s former chief of
military intelligence and Prime Minister ex-general Khin Nyunt thanked the late
Lee Kwan Yew for the strategic advice the latter offered on how to improve the
Myanmar regime’s negative image, in the 40-minutes Al Jazeera English
documentary Exiled.
“Rohingyas are forced to lead sub-human lives, with no freedom of movement, no prospect for third country resettlement, no Internet, no electricity, no proper schooling or livelihood opportunities.”
Deplorable Living Conditions
Meanwhile, Rohingya survivors in deplorable
subhuman conditions in the camps in Bangladesh – estimated at 1 million
including both the new arrivals from the 2016 and 2017 waves, and the
generation left from the earlier waves between 1992 and 1995 – continue their
attempts to reach third countries, particularly Malaysia. As recently as this
week, a Malaysia-bound boat carrying 125 Rohingya refugees including women and
children capsized in the Bay of Bengal killing at least 16.
Myanmar’s persecution of Rohingya people is
not a product of the country’s democratic transition nor is it a “communal
violence or conflict” between the Buddhists in Rakhine and primarily Muslim
Rohingya community. These early spins to help cover up the systematic and
intentional destruction of the Rohingyas have been proven to be untrue by the
turn of events over the last 8 years.
Myanmar’s disenfranchisement, denial of their
right to a nationality, displacement and large-scale deportation of the
Rohingya minority are now a well-documented institutionalised policy of ethnic
group persecution. The policy has resulted in a devastating impact on the
Rohingya community, which the ICJ explicitly stated in its 28-page decision
last month as a protected group under the Genocide Convention.
Danger Remains
In its final report to the United Nations in
2019, the UN-mandated International Independent Fact-Finding Mission officially
warned against the possibility of recurring genocide against the group. There
are an estimated half-million Rohingyas trapped inside Myanmar’s Rakhine state
where 100,000 have remained locked up in the so-called Internally Displaced
Persons camps since 2012, ostensibly for their own protection. It bears
pointing out that the Nazis rounded up their Jewish victims and put them in
camps and ghettos under the banner of “protective custody”.
The rest of the Rohingyas – about 400,000 to
500,000 – are languishing in the apartheid conditions in what Rohingya
residents themselves describe as “vast open prisons”, not unlike the conditions
of the Palestinians trapped in Gaza and West Bank.
As ordered by the ICJ, Myanmar will be
submitting the initial report in the last week of May – 4 months from the date
of the ICJ order on 23 January. It is widely expected that Myanmar will not
comply with the court’s order in good faith: it will manipulate the absence of
specificities in the ICJ order in terms of protecting Rohingyas and preventing
genocidal acts, for instance, incitement to further attacks.
Concurrently, the International Criminal
Court has officially embarked on the full investigation of Myanmar’s crimes
against Rohingyas. And the Myanmar government of Aung San Suu Kyi has remained
defiant against the ICC’s calls for cooperation over the criminal court’s
official investigation.
States Must Step-Up
In light of these ground-breaking
developments within the international accountability mechanisms at both the ICJ
and ICC, concerned states within the ASEAN region – particularly Malaysia need
to provide the much-needed push for the bloc to discuss the implications of the
ICJ ruling. Even Myanmar leadership evidently knows that the blanket denial of
the international crimes has zero credibility when it made a rare admission of
its crimes a week before the ICJ ruling. Suu Kyi Government’s official Independent
Commission of Enquiry revealed its new legal and media narrative: yes, war
crimes may have been committed by Myanmar against Rohingyas but no evidence of
genocide was found.
The January 23, ICJ order was anchored in the
court’s unanimous opinion about the genocide plausibility in Myanmar. It is, in
effect. a blow to ASEAN’s sacrosanct principle of “non-interference” and the
disingenuous framing of the persecution and destruction of Rohingya.
In addition, ASEAN ought to be concerned
about a parallel development within the global accountability space. The
International Criminal Court has embarked on its full investigation of crimes
against humanity and other associated crimes plausibly committed by Myanmar.
Although Myanmar is not a signatory to the Rome Statute which midwifed the ICC
and has repeatedly dismissed any claim of ICC’s juridical authority over its
conduct, the ICC has established the extended jurisdiction over Myanmar’s
violent treatment of Rohingyas, 730,000 that were deported in 2017 alone onto
the soil of a state that is a party to the Rome Statute.
Malaysia has also felt the direct impact of
Myanmar’s crimes as it is forced to host over 100,000 Rohingya refugees with no
prospect for third country resettlement or repatriation back to their homeland
of Western Myanmar.
Act Now ASEAN!
It is long overdue for ASEAN to sync its
policies towards Myanmar with the international opinion, legal, human rights
and global public.
ASEAN needs to prove that it is a part of the
solution, rather than being a Bystander in genocide in its backyard after Khmer
Rouge genocide four decades ago.
The author Maung Zarni is the co-founder of
FORSEA, a grass-roots organization of Southeast Asian human rights defenders,
and the co-author of “Essays on Myanmar’s Genocide of Rohingyas.”