Publications

ဂမ်ဘီယာမှ မြန်မာပြည်ကို အပြည်ပြည်ဆိုင်ရာတရားရုံးတွင် စွပ်စွဲထားသော အမှုနှင့်ပတ်သတ်သည့် နောက်ဆုံး အခြေအနေများ အမေးအဖြေများ ဖေဖော်ဝါရီ ၁၄၊ ၂၀၂၂ မြန်မာနိုင်ငံ၊ ရခိုင်ပြည်နယ်မြောက်ပိုင်းရှိ ရိုဟင်ဂျာတိုင်းရင်းသားများအပေါ် စစ်တပ်၏ရက်စက်ကြမ်းကြုတ်မှုများမှာ ဂျန်နိုဆိုက်ရာဇဝတ်မှု ကာကွယ်တားဆီးရေးနှင့် အပြစ်ပေးရေးကွန်ဗန်းရှင်းကို ချိုးဖောက်သည်ဟု ဂမ်ဘီယာနိုင်ငံမှ မြန်မာနိုင်ငံကို စွပ်စွဲထားသည့်အမှုကို ဖေဖော်ဝါရီလ ၂၁ ရက်မှ ၂၈ ရက်အတွင်း နယ်သာလန်နိုင်ငံ၊ သဟိတ်မြို့ ရှိ အပြည်ပြည်ဆိုင်ရာတရားရုံး (ICJ) တွင် လူသိရှင်ကြား ကြားနာမည်ဖြစ်သည်။ ထိုကြားနာမှုနှင့်ပတ်သတ်သော အဓိကအချက်အလက်များကို အောက်ပါအမေးအဖြေများတွင် ဖော်ပြထားသည်။. Download the Full Q&A

From February 21 to 28, 2022, the International Court of Justice (ICJ) in The Hague, Netherlands, will hold public hearings in the Case of The Gambia v. Myanmar concerning Myanmar’s alleged violations of the Genocide Convention against the ethnic Rohingya population in Myanmar’s northern Rakhine State. The following questions and answers address key issues regarding those hearings. 1. What is the status of the case against Myanmar at the International Court of Justice? In November 2019, Gambia – with the backing of the Organisation of Islamic Cooperation (OIC) – filed a case, The Gambia v. Myanmar, before the International Court of Justice in The Hague. The case alleged that Myanmar’s atrocities against the ethnic Rohingya in Rakhine State violated various provisions of the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention). Gambia, which ratified the Genocide Convention in 1978, brought the case under Article 9 of the convention, which allows for disputes between parties “relating to the responsibility of a State for genocide” and related acts to be submitted to the ICJ. In December 2019, the court held hearings on Gambia’s request for provisional measures to protect the Rohingya remaining in Myanmar from genocide, which the court unanimously adopted in January 2020 (see below). In January 2021, Myanmar, then under the government led by Aung San Suu Kyi’s National League for Democracy, filed preliminary objections challenging the court’s jurisdiction and Gambia’s standing to file the case. On February 1, 2021, Myanmar’s military staged a coup, overthrew the democratically elected government, and replaced it with a military junta, the State Administration Council. The case continues and the ICJ will hold public hearings on Myanmar’s preliminary objections from February 21 to 28, 2022. Download the Full Report

On November 11, 2019 the Republic of The Gambia filed suit against the Republic of the Union of Myanmar in the International Court of Justice (“ICJ”) for violations of the Genocide Convention. This historic lawsuit brings a critical focus to Myanmar’s responsibility as a state for the Rohingya genocide. The Gambia’s case focuses on Myanmar’s security forces’ so-called “clearance operations” in 2016 and 2017 against the Rohingya, a distinct Muslim ethnic minority, in Myanmar’s Rakhine State. These attacks against Rohingya were massive in scale, ghastly in brutality, and meticulous in coordination. Approximately 800,000 Rohingya fled to Bangladesh in a matter of weeks, with survivors reporting indiscriminate killings, gender-based violence, arbitrary detention, torture, beatings, and forced displacement. Rape and sexual violence were widespread, pervasive, and often conducted in public, to the extent that the United Nations Fact-Finding Mission (“FFM”) found that sexual violence was a hallmark of the Security Forces’ operations. On January 20, 2021 Myanmar filed preliminary objections in The Gambia v. Myanmar at the International Court of Justice (“ICJ”). The objections challenge The Gambia’s ability to bring its genocide suit against the state of Myanmar. This fact sheet answers fundamental questions about the Preliminary Objections stage of the ICJ case. (Answers to questions about the early stages of the lawsuit, Myanmar’s responsibility for genocide, and its impact on the Rohingya population are here and here.) Download Fact Sheet

On 11 November 2019, the Republic of The Gambia filed suit against the Republic of the Union of Myanmar in the International Court of Justice (“ICJ”) for violating the Genocide Convention. Two months later at the request of The Gambia, the ICJ ordered the government of Myanmar to take certain actions to protect the Rohingya via “provisional measures” while the case proceeds. This historic lawsuit brings a critical focus to Myanmar’s responsibility as a state for the Rohingya genocide.

The ICOE’s independence and impartiality have been seriously undermined by its reliance on the Office of the President of Myanmar for financial and technical support, as well as by the composition of the Commission itself, which includes at least one official directly implicated in the bulldozing of Rohingya villages damaged during the 2017 crisis in Rakhine State.

Starting in October 2016 and then again in August 2017, Myanmar’s security forces engaged in so-called “clearance operations” against the Rohingya, a distinct Muslim ethnic minority, in Rakhine State, Myanmar. The operations, in particular those that started in August 2017, were characterized by brutal violence and serious human rights violations on a mass scale. Survivors report indiscriminate killings, rape and sexual violence, arbitrary detention, torture, beatings, and forced displacement. Reports have also shown that security forces were systematically planning for such an operation against the Rohingya even before the purported reason for the violence — retaliation for small scale attacks committed by the Arakan Rohingya Salvation Army (ARSA) — occurred. As a result, an estimated 745,000 people — mostly ethnic Rohingya — were forced to flee to Bangladesh. According to the UN Human Rights Council-mandated Independent International Fact-Finding Mission on Myanmar (FFM), the treatment of the Rohingya population during the “clearance operations” amounts to genocide, crimes against humanity, and war crimes, the commission of which evokes specific obligations and responsibility under international law. On November 11, 2019, The Republic of The Gambia filed suit against Myanmar in the International Court of Justice (“ICJ”) for violating the Genocide Convention. This momentous lawsuit brings a critical focus to Myanmar’s responsibility as a state for genocide and compliments ongoing investigations into individual accountability. This fact sheet answers fundamental questions about the ICJ case, and seeks to clarify available avenues for justice for the crimes committed against the Rohingya population. Download Fact Sheet

“A Pathway to a Sustainable Solution to the Rohingya Crisis” Permanent Mission of Bangladesh to the United Nations Text of Prepared Remarks Thank you Simon. And thank you Minister Momen, Minister Tambadou for your leadership. It’s an honor to participate in this event with you both. As Simon mentioned, I am the President of the Global Justice Center, an international human rights organization dedicated to advancing gender equality through the rule of law. We combine legal analysis with strategic advocacy to ensure equal protection of the law for women and girls. My organization has worked in Burma since 2005, largely on issues of justice and accountability, including for military-perpetrated sexual violence against ethnic women. As a result, we are all too familiar with the place we find ourselves in today: seeking to find ways to end to conflict and restore peace, break the cycle of impunity for horrific crimes perpetrated by the military against an ethnic minority, and a find path forward to true democratic transition in Burma. And it’s this cyclical pattern of human rights abuses that informs my remarks today. Because if we are to truly find sustainable solutions to this crisis, our efforts, including around justice and accountability, must seek not only to address the immediate issues at hand, but also the structures and policies that allow the Burmese government and military to engage in systematic persecution and rampant human rights violations without consequences. And because my time is brief, I am going to focus on three key issues related to justice and accountability. First, there must be a robust gender perspective at the heart of these efforts. Gender has consistently played a central role in the design and commission of the atrocities committed by the Tatmadaw against ethnic groups in Burma. The military has long used rape as a weapon of war and oppression in its conflicts with ethnic groups, and in the clearance operations in Rakhine state, Rohingya women and girls were targeted for particularly brutal manners of killing, rape and sexual violence, and torture. Rape and sexual violence were widespread, pervasive, and often conducted in public. Many women reported being gang-raped, some by as many as eight perpetrators. 80% of the rapes documented by the FFM were gang rapes. These rapes were accompanied by other acts of violence, humiliation, and cruelty. However, gendered crimes and consequences were not limited to acts of sexual violence and rape. For example, Rohingya women and girls were often murdered by being burned alive or butchered with knives used for slaughtering animals—methods of killing that mirror the destruction of objects and property, demonstrating the Security Forces’ misogyny and deeply gendered conceptions of power. It is precisely these acts that led the Myanmar FFM to conclude that sexual and gender-based violence was a hallmark of the Tatmadaw’s operations against the Rohingya, and demonstrates the military’s genocidal intent. There can be no true justice for the genocide of the Rohingya if acts of sexual and gender-based violence are not at the center of all accountability proceedings. Second, justice and accountability are essential preconditions for resolution of the Rohingya crisis. Changing the Burmese government’s behavior to ensure the safe return of the Rohingya, dismantle the discriminatory laws and policies that justify and permit their persecution, and break the culture of impunity that pervades the country will require a multifaceted and concerted approach, engaging multiple forms of accountability, both of individuals and the state. Looking first at individual criminal accountability, as those of us working on Burma have known for years, and as the FFM has emphasized, without significant structural reform, including to the Constitution, domestic accountability is not possible. This means that the international community must step up to enable processes that will hold criminally accountable those who–whether civilian or military–planned, participated in, or sanctioned crimes against the Rohingya. The efforts of ICC Prosecutor Fatou Bensouda to open an investigation into the cross-border crimes that occurred between Burma and Bangladesh, and the establishment of the IIM are important steps in ensuring individual criminal accountability. However, both efforts are quite limited. Under its limited (and untested) jurisdictional theory, a range of crimes that occurred to the Rohingya, including killings and acts of sexual violence that occurred fully on the territory of Burma, would be excluded from the ICC efforts. Furthermore, while the Prosecutor has not closed off the possibility of pursuing genocide charges, it is likely that the prosecutions will be limited to the crimes against humanity of deportation, other inhumane acts, and persecution. The IIM on the other hand, charged with building case files, faces a more fundamental limitation – it needs courts to be available in order to actually render justice. At present, the ICC, which has its own processes and structures for case building, is the only available court. This means that the international community must do more to open up criminal accountability pathways. This could include a full referral to the ICC by the Security Council, the creation of an ad-hoc tribunal for Myanmar, and the opening of cases under the theory of universal jurisdiction by third states. And while individual criminal accountability is important, it is not enough. The lack of true consequences from the international community to the state of Burma has allowed it to continue unabated in its discriminatory treatment of the Rohingya. Emboldened by the knowledge that political and financial interests continue to insulate them from meaningful consequences, Burmese authorities have variously denied any wrongdoing, ignored the problem, and failed to conduct genuine investigations, issue sanctions or hold perpetrators of these crimes to account. As the minister said, “business as usual.” This is why it is essential to also engage Burma’s responsibility as a state under international law. However, to date, little to no action has been taken by the international community on this avenue. And here I would really like to commend The Gambia’s commitment to taking Burma to the International Court of Justice for violations of the Genocide Convention as the first truly meaningful step towards state accountability. The filing of a case with the ICJ will send a strong and powerful signal to the Burmese government that the international community will no longer tolerate its actions and seeks to hold it to account. In addition, a case at the ICJ through the issuance of provisional measures would have an immediate impact, including on the destruction of evidence by Myanmar and repatriation efforts. Furthermore, its merits could provide various forms of remedy and imperatives to punish, including much-needed legislative reform. Needless to say, gender must inform such proceedings. Other states must follow The Gambia’s lead in pursuing state accountability. Finally, I want to conclude by urging us all to take a step back and reexamine what we mean by justice and for whom. The persecution of the Rohingya also comes against the backdrop of the long history of violence, systematic discrimination, and policies of exclusion and marginalization by Burma’s military against all of Burma’s ethnic minorities. Violence in Rakhine State has occurred alongside continued conflict between Burma’s military and various armed ethnic groups and escalating violence in Shan and Kachin States, and most recently, Karen state. Despite the “transition” to a civilian government and democracy, no one in Burma, whether Rohingya or belonging to another ethnic minority, former political prisoners or others who were subject to human rights abuses by the military junta have seen any form of justice. As a result, a Burma where the Rohingya are able to safely return and live freely, is also a Burma where conflicts with all ethnic groups are ended, where all those who have suffered at the hands of the military have seen justice, and where the structures that prop up military domination and control, including the Constitution and discriminatory laws have been dismantled. This means that a sustainable solution to the Rohingya requires addressing the broader context in which this crisis is situated. While there is no doubt that finding solutions to the dire humanitarian crisis faced by the Rohingya, including repatriation, must be a priority, it cannot be the singular focus of the international community. Accountability at the individual and particularly the state level must be a priority. Otherwise, we risk falling right back into the same trap we fell into over the last 10 years in believing that restoring democracy and Aung San Suu Kyi to power would solve all of the problems that faced Burma.

Global Justice Center writes Letter to Secretary Hillary Clinton on the US Security Council Presidency and Next Steps on Myanmar/Burma Download PDF

Letter from the Global Justice Center to Norway’s Foreign Minister Eide asking for Support for a General Assembly Request to the International Court of Justice for an Advisory Opinion on Burma’s Constitution. Download PDF