Pathways to Justice for ‘Atrocity Crimes’ in Myanmar: Is There Political Will?

 Pathways to Justice for ‘Atrocity Crimes’ in Myanmar: Is There Political Will?

By Dr Mohammad Zahidul Islam Khan at University of Reading, United Kingdom.

What instruments and mechanisms are available to harness the ‘political will’ to pur­sue justice for the allegations of ‘atrocity crime’ in Rakhine, Myanmar? Analysing country’s ratification trend, declarations upon ratification on relevant global instru­ments, and interactions with the un on human rights issues, this paper reveals the ‘mind’ of Myanmar and its obligations. Exploring the mechanism of four International Crime Tribunals (icts), it outlines the pathways to pursue justice. Revealing the in­adequacies of current actions by key state actors resulting in invidious outcomes that privilege impunity for atrocity crimes, the paper suggests ways to harness the political will to pursue justice. This paper contends that the establishment of an ict for the trial of atrocity crimes in Rakhine (ictm-R) would be best facilitated by: a consensus mandate to prosecute individuals and not the state; precisely defined jurisdiction; and provisions to integrate the host nation’s apparatus, buttressed by the advocacy of the right groups and media.

As the dust begins to settle, the bone-chilling accounts of the Rohingyas facing ‘excessive violence’, ‘serious violations of human rights’ and ‘ethnic cleansing’ demand that the allegations are investigated, and the perpetrators are held ac­countable to end the culture of impunity in Myanmar. Despite the contested la­belling, investigating the allegations of atrocity crimes is essential for national reconciliation and to restore ‘international legality and the faith of the world community in the triumph of justice and reason’—as stressed by the Russian envoy during a similar crisis in former Yugoslavia. But how can we pursue                        jus­tice for atrocity crimes in the absence of the willingness of either the state or the United Nations Security Council (UNSC)? What mechanisms and instru­ments are available and how are those applicable in the Myanmar context? The paper seeks to answer these questions exploring the existing scholarship and experiences.

First, the paper outlines the definitions of genocide, war crimes, the crime against humanity and ethnic cleansing (that is, atrocity crimes) to re­veal the boundaries set by the global instruments for establishing political and individual criminal responsibility. Exploring the mandates of the International Crime Tribunals (icts) in former Yugoslavia, Rwanda, Sierra Leone, and Cam­bodia, the paper reveals that individual criminal responsibility has been the primary focus for atrocity crimes. Second, to reveal the ‘mind’ of Myanmar and its potential obligations, the paper examines the ratifications, declarations upon ratifications of relevant instruments and interaction of Myanmar with the un on human rights issues. Third, exploring the process of establishing the four icts, the paper reveals the centrality of political will and outlines three pathways for establishing an ict for the atrocity crimes in Rakhine, Myanmar (ictm-R). It shows that international political will has often triumphed and shaped the host nation’s willingness to pursue justice. Fourth, analysing the current ideational and material incentives/ disincentives to Myanmar the pa­per outlines their inadequacies and suggests ways to harness the willingness of the key actors. Consequently, the paper suggests that a precisely defined ju­risdiction, strong advocacy, a consensus mandate to prosecute individuals and not the state, and provisions to integrate host nation’s institutional apparatus and judicial wisdom is the way forward to establish the ictm-R.

The research is based on content analysis of relevant un documents; it in­cludes examining: the relevant resolutions, statements, reports, and letters by state actors, un agencies, expert commissions, Civil Society Organisations’ (csos) reports on the human rights issues in Myanmar and the declarations upon ratifications of relevant instruments by states. The data, text and com­mentary are from official websites, credible media outlets, peer-reviewed journals and scholars including sources from Myanmar. The paper is not a historical account of Myanmar’s politics and conflict. However, based on the overwhelming evidence, the paper is inclined to the view that a prima facia case of atrocity crimes being committed exists in the context of Rakhine6 and aims to explore the processes and mechanisms needed to pursue justice.