By Matthew Smith in The Opinio Juris

August 25 marks the fifth anniversary of the Myanmar military’s most egregious attacks on the Rohingya people, but it’s not the anniversary of the Rohingya genocide per se. The ongoing genocide dates back decades, partly due to the repeated failure of the “international community”—U.N. member states and various institutions—to respond to targeted violence, protracted violations, and discriminatory policies against the Rohingya. In some cases, governments took precisely the wrong approach, paving the way for future genocidal attacks. This was especially the case in 2012.

This month is not only the anniversary of the 2017 military-led attacks; 2022 is also the tenth anniversary of attacks against Rohingya in central Rakhine State that began in June 2012. 

At that time, Myanmar was believed to be emerging from military rule and opening to the world. Former military general Thein Sein, Myanmar’s then president, was wooing governments with promises of windfall profits and democratic reforms in Asia’s “final frontier.” After decades of isolation, western governments were ecstatic about the new political and economic horizons, including untapped markets and tens of millions of previously unreachable consumers. 

The 2012 attacks on Rohingya in Rakhine State ostensibly stemmed from the discovery of the body of a young Arakanese-Buddhist woman, Ma Thida Htwe, in Ramri Township, Rakhine State on May 28. Despite Myanmar’s technological lag and limited access to internet at the time—an effect of the dark days of military rule—news of Ma Thida Htwe’s death spread unusually fast throughout the country, and it spread primarily the old-fashioned way—via pamphlets, the original Facebook post.

For consecutive days, shadowy forces injected news of her rape and murder into the veins of Myanmar public discourse, not to honor the victim but as a tool to spread anti-Rohingya sentiment. The crime commanded such high-level and national attention so quickly—as opposed, for example, to the rape of a Rohingya woman that was reported in Buthidaung Township on the same day, as reported to me at the time by Member of Parliament U Shwe Maung and the elder Rohingya statesman U Kyaw Min. The speed and fury of the news itself elicited questions. With everything happening in the country, why would this singular crime garner so much attention in such a short time? 

The answer can be summed up in a word: Islam. The three alleged perpetrators of the crimes against Ma Thida Htwe were Muslim men; the victim was Buddhist. 

Days after the discovery of Ma Thida Htwe’s body, deadly violence erupted between the predominantly Buddhist Rakhine population and the predominately Muslim Rohingya in Rakhine State. When violence first broke out, I went to Rakhine State to document it and speak with survivors and eyewitnesses. Some of the first murders I recorded involved ethnic-Rakhine victims killed by Rohingya civilians. However, in the end, Rohingya suffered the brunt of the violence as police and military stood by and watched or participated in killings and other attacks on Rohingya. 

Governments worldwide were too intoxicated with the romantic narrative of Myanmar’s perceived “democratic opening” to take meaningful action in response to the attacks. 

In the weeks and months after the violence, my colleagues and I saw more warning signs, including town-hall-style meetings throughout Rakhine State, some involving officials, calling for the Rohingya to be driven out of the country or otherwise destroyed. 

Monks and civilians circulated anti-Muslim and anti-Rohingya pamphlets, urging all citizens to socially and economically isolate the “Bengali”— a pejorative and “othering” euphemism used to deny the Rohingya ethnicity, itself a warning sign of genocide. It was clear that a significant event would occur in Rakhine State. Working with Human Rights Watch at the time, my colleagues and I warned that it would likely involve mass-scale violence against Rohingya. Most governments couldn’t be bothered to act upon these warnings.

After the first wave of violence, the U.S. Government went so far as to lift a longstanding U.S. investment ban on Myanmar and, not long after that, lifted an import ban on Myanmar goods. 

Those sanctions, if left in place at the time, would not have been a silver bullet. No one believed then or now that the sanctions alone could have averted the disaster. Instead, the concern about the premature lifting of the sanctions at the time was the abysmal timing and the message it sent to Myanmar’s generals, all would-be genocidaires. In many respects, lifting the sanctions so soon after a widespread attack on the Rohingya people signaled a reward, which translated to a green light for the next phase of violence against the Rohingya. 

While governments excitedly sent delegations to Naypyidaw to negotiate new trade deals and gain a foothold in the untapped markets, soldiers and civilians in Rakhine State geared up for more violence against the Rohingya. 

In October 2012, after months of organizing, armed civilians and state security forces descended on Rohingya and Kaman Muslim villages, often in well-coordinated early morning raids. They massacred men, women, and children and systematically raped women and girls, burning villages to the ground. 

I traveled again to Rakhine State to document the attacks. In one example, state security forces entered Yan Thei village in Mrauk-U Township. They first disarmed Rohingya of sticks and other rudimentary equipment that could have been used in self-defense. This red-flag tactic went largely ignored (but reappeared again in 2017 when the military systematically disarmed Rohingya civilians ahead of attacks). Then, predictably, on October 23, 2012, mobs of armed civilians, supported by Myanmar soldiers, descended on Yan Thei and massacred 70 Rohingya—including 28 children, 13 of whom were under the age of five—burying the bodies in mass graves. 

The targeted attacks on Rohingya took place in 13 of the17 townships in Rakhine State in 2012, displacing more than 100,000 Rohingya and Kaman Muslims—many of whom remain confined to overcrowded and deliberately deprived internment camps in Rakhine State. To this day, no one from the military or police has been held accountable for the crimes.  

The military and civilian political leadership denied allegations of wrongdoing, convincing governments and even some analysts and journalists that they were doing their best to deal with communal clashes. Meanwhile, Myanmar’s leadership doubled down on a longstanding domestic brainwashing campaign claiming that Rohingya didn’t exist and were lying about abuses. 

In August 2013, Myanmar President Thein Sein established a 27-member “investigative commission” to “reveal the truth behind the unrest” in Rakhine State and “find solutions for communities with different religious beliefs to live together in harmony.” Despite the lack of a single Rohingya person on the commission and the inclusion of openly racist commissioners who were responsible for drumming up anti-Rohingya sentiment, many governments remained hopeful by the prospect of a “domestic remedy.” 

Predictably, the commission’s final report served as a classic whitewash. It referred to the Rohingya as “Bengali” and failed to acknowledge human rights violations by state security forces or the need for accountability. But still, the international community took a “wait-and-see” approach.

Amid such problematic “domestic remedies,” desperate Rohingya seeking to flee the internment camps in Rakhine State became easy prey for human traffickers. Fortify Rights exposed how a human trafficking syndicate worked with the Myanmar armed forces and other corrupt regional officials to transport Rohingya out of Myanmar. Between 2012 and 2015, more than 170,000, mostly Rohingya, boarded repurposed fishing boats bound for Malaysia and Thailand. Traffickers, some of whom we interviewed, were responsible for a new wave of mass atrocity crimes at sea and on land, this time in Thailand and Malaysia. Untold numbers of Rohingya died in the Bay of Bengal, were buried in mass graves, or were otherwise left for dead.   

Back in Rakhine State, the situation continued to worsen. The authorities tightened longstanding restrictions on Rohingya freedom of movement and access to citizenship and created conditions of life designed to be destructive—itself an act of genocide. Recognizing the distinct signs, in 2015, Fortify Rights and a team from Yale Law School published a legal analysis and evidence of the State’s responsibility for genocide against Rohingya. 

The issue of state responsibility for genocide, as opposed to individual criminal liability, later gained considerable relevance for the Rohingya with the Gambia’s 2019 application against Myanmar at the International Court of Justice (ICJ), which is now moving into the merits phase of its assessment of Myanmar State responsibility for genocide against Rohingya.

The 2016 and 2017 Attacks Against Rohingya

The Gambia’s case relates to violations dating back to 2012 but focuses primarily on the attacks in 2016 and 2017, which ostensibly began in response to two assaults on the Myanmar police by a newly formed armed group calling itself the Arakan Rohingya Salvation Army. Myanmar Army soldiers and civilian perpetrators responded with two waves—as in 2012—of genocidal violence. The first began on October 9, 2016, and targeted approximately 40 villages, displacing approximately 94,500 Rohingya in northern Rakhine State, and at least 74,500 ultimately escaped to Bangladesh. The second wave, beginning on August 25, 2017, was much more comprehensive and deadly. 

No one could have predicted the scale of the attacks that would unfold. Myanmar military soldiers razed hundreds of Rohingya villages, displacing more than 700,000. Soldiers slit throats, fatally shot Rohingya at close range and from distances, burned many alive, and laid landmines that killed and maimed civilians as they fled. Soldiers stomped infants and threw some into rivers and flames, raped and gang-raped women and girls in horrific numbers, and sometimes mutilated bodies. They destroyed homes, civilian and religious structures, and means of subsistence. 

The dominant narrative in 2012 was that the Myanmar authorities were responding to “intercommunal violence.” In 2017, it was that they were responding to armed insurrection. We now know the Myanmar military insidiously produced the violence in both instances.  

A July 2018 report by Fortify Rights, They Gave Them Long Swords, documented how Myanmar authorities prepared for the 2017 attacks months in advance and are responsible for the crime of genocide and crimes against humanity. As in 2012, well before the attacks, Myanmar state security forces systematically confiscated sharp or blunt objects from Rohingya homes, effectively “disarming” them in advance of the attacks. At the same time, the authorities systematically armed nearby Buddhist citizens, preparing them for violence against Rohingya. Well-publicized early warnings about this were ignored and the program only grew. Myanmar authorities also suspended food aid to Rohingya civilians well in advance of attacks, systematically weakening the civilian population. Security forces removed fencing surrounding Rohingya houses, allowing military invaders to have a better “line of sight” on civilians. The army also increased its security presence in northern Rakhine State, deploying large numbers of troops ahead of August 25. 

All of that occurred weeks and months before the attacks, and all were warning signs that fit into the U.N.’s atrocity crime prevention frameworkAll were ignored.

Since the August 25 attacks, in September 2018, a U.N. Fact Finding Mission published extensive evidence establishing the elements of genocide against Rohingya; the International Criminal Court (ICC) has opened an investigation into atrocities committed by Myanmar’s military; and the ICJ has accepted the aforementioned case brought by The Gambia alleging violations of the Genocide Convention by Myanmar. Argentina is also investigating allegations of atrocities based on a petition filed by the Burmese Rohingya Organization U.K.. Most recently, the U.S. government announced in March 2022 that it had determined that the Myanmar military was responsible for the crime of genocide against Rohingya.

What Can Governments Do Now? 

For starters, U.N. member states should urgently and formally recognize the National Unity Government (NUG) of Myanmar as the legitimate government representing the people of Myanmar and end engagement with the Myanmar military junta. 

Governments should also provide material support to the NUG. The U.S., in particular, should release hundreds of millions in frozen Myanmar assets, which would aid in the NUG’s efforts to seek justice and accountability and represent the people of Myanmar, including the Rohingya.

In addition, the U.S., U.K., and France should propose a U.N. Security Council resolution referring the situation in Myanmar to the ICC and imposing a global arms embargo on the military. If Russia or China veto it, they will be required to defend their position in front of the U.N. General Assembly, giving unprecedented transparency into their sordid, shameless political support for atrocity crimes in Myanmar. 

Governments should also support The Gambia’s case on the Rohingya genocide at the ICJ with financial, diplomatic, and substantive assistance. 

Moreover, U.N. member states could also establish a criminal tribunal to investigate and try international crimes in Myanmar, which would be consistent with recommendations by the U.N. Fact-Finding Mission and the wishes of Rohingya advocates and allies.

For his part, the Chief Prosecutor at the ICC should proceed with the 12.3 declaration issued by the Government of Myanmar to provide the court with jurisdiction over alleged crimes that occurred in Myanmar dating back to 2012 and into the future.

Governments should also waste no time sanctioning military-owned enterprises, especially the Myanmar Oil and Gas Enterprise, which is effectively bankrolling the Myanmar junta’s attacks on the country. 

Going one step further, governments should coordinate to ensure gas payments to Myanmar are not necessarily stopped but instead directed to the control of the NUG.

This article was originally published in The Opinio Juris here.

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