Evolving violence and potential impact on Myanmar

The plight of the Rohingya people represents one of the most urgent humanitarian crises of our time. Decades of persecution and systemic discrimination have rendered them stateless and vulnerable, with successive governments in Myanmar perpetuating egregious human rights violations.

Analysts have pointed out that in the wake of the 2021 coup, their suffering has only intensified, necessitating immediate and concerted international intervention. Despite broad humanitarian assistance and widespread condemnation of the actions against them, the Rohingya continue to endure unimaginable hardships, exacerbated by regional neglect and a lack of organised representation on the global stage.

In this context one has to refer to a statement released by the European Rohingya Council (ERC) on June 9, 2024 calling on the Arakan Army (AA) and the Myanmar junta to stop persecuting the Rohingyas. It has details of incidents where, according to the ERC the AA used the Rohingyas as human shields and then also abducted many of them. The ERC has condemned such activities as crimes against humanity committed by the AA and the Myanmar military alike.

The ERC has consequently condemned these abhorrent actions and demanded that the Arakan Army militant group must immediately cease using Rohingya villages as its strategic positions and stop the abduction of Rohingya youths. It has also been observed that the use of innocent civilians as human shields is a gross violation of human rights and needs to be stopped. It has also been observed that the Myanmar military should cease all bombings and drone attacks on Rohingya villages because targeting areas with known civilian populations is unacceptable and must be prevented to avoid loss of innocent lives.

Judicial analyst Rebecca Hamilton has recently on June 11 drawn attention to certain aspects, including the demand for justice, atrocity crimes and the dimensions of international criminal law (ICL). She has in this context, underlined the need for serving victims aligned with reality. It has also been reiterated that there are plenty of survivors of atrocities for whom justice means seeing the perpetrators most responsible for the violence prosecuted in a legitimate criminal trial and sentenced to a lengthy term of imprisonment; and that is exactly what the International Criminal Court (ICC) can offer.

One needs to recall that normative work on the rights of victims began gaining traction at the international level over four decades ago with the 1985 U.N. Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. However, this move towards a victim-centred approach was not part of the establishment of the ad hoc international tribunals for Rwanda and the former Yugoslavia. Yet translating the ideal of victim-centred criminal proceedings into reality in international prosecutions has nevertheless been challenging, with constraints of distance, cultural competency, and differential resource allocation, among other factors, hampering success.

One needs to accept that civil society actors have repeatedly insisted that the ICC must work with urgency towards strengthening the connection between victims and the Court. This is done on the basis that the entire sphere of criminal action remains juxtaposed with the assumption that the ICC can, in theory, offer justice to victims. This unfortunately is not proving to be so for all who are seeking justice. This raises the question-- what obligations does the ICC, or any Court dealing with international crimes have?

The question of what international courts owe to those who participate, directly or indirectly, in their proceedings, yet feel no connection to the type of justice the Court offers, was raised in survey results from over 400 Rohingya survivors of the 2017 genocidal violence in Myanmar in the Human Rights Quarterly of which Rebecca Hamilton is a co-author. This referred to the perceptions of international justice among the Rohingya refugees.

It has to be observed that the Muslim minority Rohingya population in Myanmar have faced decades of violent persecution and forced displacement before the 2017 attacks. This unfortunate situation was taken even further with the 1982 Citizenship Law in Myanmar. This excluded the Rohingyas from the list of officially recognised national ethnic groups, rendering them ineligible for full citizenship. Subsequently, Rohingyas have been forced to accept the concept of National Verification Cards designating them as "Bengali". It was disappointing to see how successive Myanmar leaders, including Nobel laureate Aung San Suu Kyi who refused to even utter the term "Rohingya" on the grounds that no such people exist. It was particularly disappointing to see how she also defended the Myanmar military junta in front of the International Court of Justice (ICJ) in the Hague during their hearing on this issue as raised by the OIC.

Although Myanmar is not a Party to the Rome Statute, in 2019 the ICC agreed with the Prosecutor's request to investigate crimes against the Rohingya population that were committed in Myanmar which forced 750,000 Rohingyas to seek shelter in the territory of Bangladesh as refugees. Gambia brought a claim against Myanmar at the ICJ under the Genocide Convention for the 2017 attacks on the Rohingyas.

Analyst H.H. Kyaw has observed some different dimensions with regard to the evolving socio-political paradigm in Myanmar. Rohingya genocide has its root in 2012 Rakhine-Rohingya riots and the 969 grassroots movements which in turn have their roots in far-right Islamist Pakistan separationist movement from Burma of 1946 and Arakan massacres by Rohingya in 1942 (during colonial era of divide and rule politics of British colonialism).

It has also been indicated that this narrative of Arakanese Buddhists being the local native indigenous population and 'Rohingya people', and the political movement "Bengali settlers living in Arakan" has not been a new one. The former General of the Myanmar military army and the former President of Myanmar's quasi-military regime, U Thein Sein, also said the similar thing. He said , "There are no Rohingyas among the races in Burma. We only have Bengalis who were brought for farming during British rules".

However, a satellite army which is helped and nurtured by the Arakan Army called "Bamar People's Liberation Army" uses the classical right-wing ethno-nationalist representation of Bamar ethnicity and they are silent about the war crimes committed by the Arakan Army. Their founder "Maung Saung Kha" is an ex-NLD member, and identified himself as a left-wing. He has apparently refused to offer comments on the war crimes and accused genocide of Arakan Army committed against the Rohingya community.

It is against this backdrop that Rebecca Hamilton has also drawn attention to a survey carried out recently among the Rohingya community seeking Rohingya views on justice. This was undertaken apparently to ensure that there was a clarity with regard to the evolving scenario within Myanmar.

However, she has also drawn attention to the fact that "survey data should always be interpreted cautiously, and it is important to emphasise that while my co-authors and I believe the data from this survey accurately captures the sentiments of a cross-section of Rohingya refugees in Cox's Bazaar at the moment in time that they were interviewed, it cannot be used to make any generalisations about the views of Rohingya diaspora more broadly, nor about Rohingya populations still inside Myanmar. And just as the views of many Rohingya refugees are different today than what they were when the international legal proceedings began, so too may their views evolve in the future".

It was revealed through this effort that 86 per cent of respondents volunteered that they needed citizenship (including the right to identify as Rohingya) in Myanmar. In addition, just 16 per cent of respondents volunteered that punishment of perpetrators would give them a feeling of justice. Respondents, apparently also often used justice and citizenship interchangeably and viewed citizenship as the gateway through which all their other goals could be realised. In this regard, one respondent described why justice means citizenship. It was explained that "we need to fix the root cause. If we want compensation, their punishment, and such things, I don't think we get our justice. The best justice for us is to fix the root cause of the problem."

However, jurists feel that citizenship in Myanmar is a kind of justice that no international court can deliver. Despite this, the level of confusion about the mandates of the international courts means that many Rohingyas attach their hopes for this type of justice from these Courts.

There are no simple answers to address the gaping disconnect between the narrow type of justice that institutions like the ICC can provide, and the varied forms of justice that different survivor communities seek.

In the meantime, the Myanmar military appears to have suffered a series of humiliating defeats, losing territory, bases and towns to ethnic armed groups along the country's periphery. It no longer has control over most of Myanmar's borders, and more territorial losses seem inevitable.

Nevertheless, geo-strategic analysts feel that the military is not right now on the brink of collapse. Its main battlefield opponents are focused on consolidating their hold on their ethnic homelands, not taking the fight to central Myanmar, and the post-coup resistance forces that do aim to topple the regime do not have the firepower to defeat the military on its home turf. The current trajectory is one in which various ethnic armies will tighten their grip on autonomous statelets in the periphery, while a weak regime heartlessly clings to power at the centre.

This has led some to also suggest that while creating more concern, the long-existing situation may not trigger a slide into chaotic violence. It will, however, require outside actors associated with Myanmar, to grapple with the challenge of engaging with the country as a collection of separate subnational units rather than a unified state.

Muhammad Zamir, a former Ambassador,

is an analyst specialised in foreign affairs,

right to information and good governance. [email protected]