ODVV’s Exclusive Interview with Federica D'Alessandra

The Rohingya are an ethnic group in Myanmar, a Buddhist-majority country in the Southeast Asia, who are referred to as the world's most persecuted minority. Al-Jazeera writes that nearly all of the Rohingya in Myanmar live in the western coastal state of Rakhine and are not allowed to leave without government permission, in what is technically designed to be a ghetto for them. International human rights groups say there are about 1.1 million Rohingya living under very critical and unfortunate conditions and the majority of discriminations they've suffered have religious roots. Thousands of Rohingya Muslims have in the recent months fled Myanmar to seek refuge in neighbouring countries, mostly Bangladesh, and this involuntary exodus is marking what the observers and experts say is the world's most urgent refugee crisis.

Federica D'Alessandra is a human rights advocate and Carr Centre for Human Rights Policy Fellow at the Harvard Kennedy School, where she is affiliated with the program on Transitional Justice. She believes what is happening in Myanmar should not be condoned and the government has a duty to act, which can be replaced by a more forceful action endorsed by the UN Security Council through referral to the International Criminal Court.

"[I]t is undeniable that despicable crimes are being perpetrated in Myanmar. The Myanmar government is under an obligation to investigate and prosecute these crimes," said D'Alessandra, who serves as the United Nations Representative for the Public International Law & Policy Group. In an interview with Organisation for Defending Victims of Violence, Federica D'Alessandra shared her views on the legal and humanitarian aspects of the ongoing crisis in Myanmar and the exigency of an effective and appropriate international response.

Q: Rohingya Muslims are considered the world's most persecuted minority. UN High Commissioner for Human Rights Zeid bin Ra'ad al-Hussein described it as a "textbook example of ethnic cleansing" and Myanmar's de facto leader Aung San Suu Kyi is accused of ignoring the suffering of this group. Is it the growth of religious extremism and Buddhist nationalism that limits the ability of the government to protect its prosecuted Muslim minority? Don't the United Nations, its affiliated human rights bodies and also the Security Council feel the urge to pressure the Burmese government to change the policies and strategies in favour of this group, grappling with a looming humanitarian catastrophe?

A: Harassment and abuse has afflicted the Rohingya community for centuries, including tensions and discrimination building already in the late 70s, and growing around the mid-nineties to erupt in the early 2000. For years, the Rohingya have lived in conditions that scream of human rights abuse, many of their children as stateless persons, their rights and freedoms restricted, and their nationality not recognised by the Myanmar authorities since the 1982 Citizenship Act.

This is in contravention of the standards set by UN Conventions on Statelessness, on Civil and Political Rights, on the Rights of Children, and on Refugees. Myanmar however is not party to any of these instruments except for the UN Convention on the Rights of the Child, which limits considerably the options available to the international community to sanction this government’s behaviour. In 2012 violence escalated against the community in the Rahkine state, which subsequently spread to the central parts of the country and other provinces, leading to the burning of mosques, arson, widespread sexual violence, extrajudicial executions, and other types of human rights abuse.

In the immediate aftermath of the riots, ceding to UN pressure, the Myanmar government agreed to establish a 27-member Commission to investigate the violence. The commission itself, while not bringing to light all abuses, documented enough to compel the government to begin providing humanitarian access to some communities in the western areas, and grant citizenship to a few hundred Rohingya. Abuses continued however.

Q: Veteran U.S. diplomat Bill Richardson has recently resigned from a 10-member advisory board, which he said was conducting a "whitewash" of the emergency in Rakhine State and accused Aung San Suu Kyi of lacking “moral leadership”. In a recent report by the Reuters, it's noted that some 700,000 Rohingya have fled the country to Bangladesh since last August. Thousands of them have sought refuge in other countries in South and South-eastern Asia such as Indonesia, Pakistan, Malaysia and Thailand. However, there are valid reports of them facing serious difficulties in these countries, as they're uncalled guests and there's no actual planning to accommodate and support them. Is Aung San Suu Kyi unable to deal with this due to political considerations, internal power struggles she's involved in or is it that she genuinely believes the Rohingya should be expelled?

A: The lack of parliamentary oversight of the Myanmar military is deeply problematic. Civilian control of the military is a non-negotiable condition of a democracy and, for a country with the democratic record of Myanmar, implementing this type of reforms is essential if the transition to democracy ought to be considered complete. Without such oversight, military conduct is excessively open to abuse and irresponsible conduct. We can see the results.

In 2009, for example, the Harvard Human Rights Clinical program published "Crimes in Burma," a report that reviewed United Nations reports relating to armed conflict in eastern Myanmar and concluded that there was a prima facie case for violations of international criminal law that took place in the area and that the conduct of Myanmar military personnel during the Offensive resulted in egregious human rights violations. In 2015, based on in-country visits and witness interviews, Harvard investigators also found numerous witnesses and ample evidence that could support a criminal case against Myanmar Army officers for their conduct during the Offensive.

They found that Myanmar military counterinsurgency policies institutionalised the targeting of civilians and resulted in the commission of crimes. They also concluded that there is sufficient evidence to establish the commission of war crimes and crimes against humanity as defined by the Rome Statute, and particularly War Crimes, crimes against humanity of attacking civilians, forcible transfer of a population, displacing civilians, murder, destroying or seizing the enemy’s property, enslavement, pillage, torture, murder, other inhumane acts, execution without due process, torture, and outrages upon personal dignity. (Source: International Human Rights Clinic at Harvard Law School Legal Memorandum: War Crimes and Crimes against Humanity in Eastern Myanmar (2014): 
http://hrp.law.harvard.edu/wp-content/uploads/2014/11/2014.11.05-IHRC-Legal-Memorandum.pdf 

Clearly, the unchecked behaviour and abuse perpetrated at the hands of the military is more widespread than the abuse perpetrated against the Rohingya. Their situation, however, seems to be so far the worst because of its systematic character. After many failed attempts and calls from the international community, including by the International Bar Association Human Rights Institute, to establish a Commission of Inquiry to investigate violations of international human rights and humanitarian law committed in connection with the conflict in Myanmar, the Human Rights Council, on 24th of March 2017, decided through Resolution A/HRC/RES/34/22 to "dispatch urgently an independent international fact-finding mission, to be appointed by the President of the Human Rights Council, to establish the facts and circumstances of the alleged recent human rights violations by military and security forces, and abuses, in Myanmar, in particular in Rakhine State".

Among other things, the fact-finding mission was tasked with making factual findings surrounding allegations of arbitrary detention, torture and inhuman treatment, rape and other forms of sexual violence, extrajudicial, summary or arbitrary killings, enforced disappearances, forced displacement and unlawful destruction of property. About a month ago, the three-member mission concluded its first mission to Bangladesh, where the envoys spoke with Rohingya refugees who detailed a series of heart-wrenching and damning accounts of atrocious suffering, due to acts that constitute crimes under international law. The Mission has not yet published its findings, and is required to do so by submitting an interim report to the Human Rights Council in March 2018, and a final report in September 2018 to the Council and to the General Assembly. Whereas the mission is to only make determinations of facts, not findings of law, any observer familiar with the legal constitutive elements of international crimes could not hesitate with agreeing that at a minimum, war crimes and crimes against humanity, and perhaps acts of genocide, have been committed in Myanmar.

Indeed, the UN High Commissioner has stated that Myanmar constitutes a "bluebook example” of ethnic cleansing, which although has not been recognised as an independent crime under international law, can constitute a crime against humanity, be assimilated to specific war crimes, and also fall within the meaning of the Genocide Convention. The High Commissioner, though, has not made any remarks concerning the actual characterisation of the crime under one of the three categories.

Sadly, acts raising to the threshold of international crimes have not stopped there. In particular with regards to sexual and gender-based violence, just few weeks ago Ms. Pramila Patten, the Special Representative of the UN Secretary General for Sexual Violence in Conflict highlighted a "pattern of widespread atrocities, including sexual violence against Rohingya women and girls who have been systematically targeted on account of their religion and ethnicity”, adding that she could "see a basis for characterising these violations as war crimes, crimes against humanity and acts of genocide", while saying that it was not her role to make that determination.

Q: What do you think is the most reliable and effective way to resolve the situation in Rohingya? How is it possible to preclude the further complication of what is already being referred to as the world's most urgent refugee crisis?

A: Indeed, none of the abovementioned mechanisms and special envoys have the power to make legal determinations concerning the specific characterisation of these crimes. However, in light of the factual circumstances highlighted, and continued reports of protracted violence, it is undeniable that despicable crimes are being perpetrated in Myanmar. The Myanmar government is under an obligation to investigate and prosecute these crimes. Since it appears the government is unwilling or unable to do so, the international community should create criminal jurisdiction for an international body. The United Nations Security Council should thus, and without hesitation, refer the situation in Myanmar to the International Criminal Court, or at a minimum, it should set up an independent investigative mechanism empowered not only to legally characterise the crimes, but also to collect linkage evidence as to identify potentially culpable suspects. Precedents for this type of mechanism exist. Almost one year ago, the United Nations General Assembly passed Resolution 71/248 establishing an "international, impartial and independent mechanism" to assist with accountability for the perpetrators of mass atrocity crimes in the Syrian civil war beginning March 2011. This occurred notwithstanding the protests by the Syrian government, and despite the stalemate for a similar development before the United Nations Security Council. This does not mean that criminal prosecutions are imminent, as the reality of the Syrian conflict unfortunately precludes this possibility momentarily, even though it should be said that some cases have been initiated in third party states that had jurisdiction over specific crimes. It does mean, however, that the evidence of said crimes is being collected and preserved according to international criminal evidentiary standards, and that criminal dossiers are being assembled against all potentially responsible individuals under international law, including the most powerful.

The establishment of such mechanisms is extremely important. Even when not perfect from a procedural perspective, the Inquiry into the Rahkine state riots had many flaws, after all, and even a subsequent initiative led by former Secretary General Kofi Annan did not have great results, the establishment of these Commissions sends the important signal to perpetrators that the "world is watching”, and that their abuses do not go unnoticed. Crucially, because of the many blind spots of the current system of international justice, these Commissions have the power to shed light on otherwise often forgotten crisis. What is more, in many places where there is no reasonable prospect for timely justice, the deployment of these Commissions helps the international community document and preserve a record of these atrocities, a record that in the future might feed into mechanisms for accountability and redress for the victims. From a political perspective, the establishment of these mechanisms has often also led to enough pressure being put on governments to push them to modify their policies or behaviours. This was, for example, what happened in Myanmar in the aftermath of the 2012 Commission which, even if flawed, did bring about a change in policy with the government.

If history tells us anything about international justice, it is that if the evidence is there, its long arm sooner or later will catch up. It cannot do so, however, if the evidence necessary to conduct trials is not preserved, which is why it is so urgent for the UNSC to act in this regard.

By Kourosh Ziabari