U.N. Report Recommends Burmese Military Leaders Be Investigated and Prosecuted for Possible Genocide
Updated September 10, 2018
U.N. Report Recommends Burmese Military Leaders Be
Investigated and Prosecuted for Possible Genocide
The U.N. Independent International Fact-Finding Mission
In its investigation of human rights abuses in Kachin and
on Myanmar (UNFFM) has recommended that the U.N.
Shan States, where the government continues to fight a
Security Council (UNSC) authorize the International
decades-long civil war against EAOs, the UNFFM observed
Criminal Court (ICC) to investigate and prosecute “senior
“similar patterns of conduct by security forces, particularly
officials in the Tatmadaw” (Burma’s military) for genocide,
the Tatmadaw.” These patterns include systematic attacks
crimes against humanity, and war crimes. The UNFFM
on civilians; unlawful killings; torture; rape and other forms
found over the course of a nearly 18-month investigation
of sexual violence; arbitrary arrest and detention; forced
that there are “reasonable grounds” to conclude that:
labor; and the recruitment of child soldiers. The
investigators also cited several EAOs for arbitrary arrest
Tatmadaw leaders planned a genocidal attack on the
and detention, the appropriation of property, and the
Rohingya that was implemented in September and
recruitment of child soldiers.
October 2017 by Tatmadaw soldiers and other Burmese
security forces;
The UNFMM identified six senior Tatmadaw officers (see
“Crimes against humanity have been committed in
text box) that it recommends face investigation and
Kachin, Rakhine, and Shan States, principally by the
prosecution “preferably by the International Criminal Court
Tatmadaw”; and
or alternatively by creating an ad hoc international criminal
tribunal.”
Among its other recommendations are:
The Tatmadaw, other Burmese security forces, some of
the ethnic armed organizations (EAOs), and the Arakan
The UNSC impose an arms embargo on Burma;
Rohingya Salvation Army (ARSA) committed war
The U.N. General Assembly (UNGA) or the UNHRC
crimes.
create an “independent, impartial mechanism to collect,
Findings of the UNFFM Report
consolidate, preserve, and analyze evidence of
violations of international humanitarian law and human
The UNFFM was established by U.N. Human Rights
rights violations and abuses”; and
Council (UNHRC) in March 2017 “to establish the facts
and circumstances of the alleged recent human rights
“All Member States should ensure that engagement with
violations by military and security forces, and abuses, in
Myanmar and support for aid, development and reform
Myanmar, in particular in Rakhine State.” In an advance
projects, take into account and address human rights
unedited version of its full report (the final report is due on
concerns.”
September 18, 2018), the UNFFM determined that the
Tatmadaw’s “clearance operations,” which were conducted
Possible ICC Prosecutions
after ARSA’s attacks of August 25, 2017, “constituted a
In April 2018, the ICC Prosecutor asked the ICC Pre-Trial
human rights catastrophe,” and that the ARSA attacks and
Chamber to determine whether the Court may exercise
the “clearance operations” were “foreseeable and planned.”
jurisdiction over the forced deportation of Rohingya from
Burma into Bangladesh, which the Prosecutor argues
The UNFFM also found that there was a history of
constitutes a crime against humanity. The Prosecutor
“systemic oppression and persecution” of the Rohingya,
argued that because forced deportation of Rohingya
and the Burmese government’s portrayal of the 2012
occurred partially on the territory of Bangladesh (a state
violence as “intercommunal” between the Rakhine and
party to the Rome Statute, the convention that created the
Rohingya is inaccurate, and that the Tatmadaw and various
ICC), the Court may exercise jurisdiction over the crimes.
Rakhine organizations fomented a plan to “instigate
On September 6, 2018, the Pre-Trial Chamber agreed,
violence and amplify tensions.”
deciding that the ICC Prosecutor can begin an investigation
into the situation in Bangladesh, opening the possibility of
The UNFFM identified certain Burmese security forces as
prosecuting Burmese officials.
being responsible for human rights violations in Rakhine
State, including the Myanmar Police Force, the Border
Athough the ICC Prosecutor may now proceed with her
Guard Police, the 33rd Light Infantry Division, the 99th
investigation based on events in Bangladesh, the UNSC
Light Infantry Division, and “units of the Western
could still refer the Rohingya situation in Burma to the ICC,
Command.” In addition, ARSA was cited for committing
thus granting it jurisdiction over Burma (a non-party to the
“serious human rights abuses” in Rakhine State.
Rome Statute) that would otherwise not exist. An ad hoc
tribunal in Burma could also be established, but would
likely require the specific request of the Burmese
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U.N. Report Recommends Burmese Military Leaders Be Investigated and Prosecuted for Possible Genocide
government—an unlikely development at this time.
U.S. Ambassador to the U.N. Nikki Haley, in a statement to
Establishing an “independent, impartial mechanism” for
the UNSC on August 28, 2018, provided details of an
Burma (possibly to include events spilling into
undisclosed State Department report that are consistent with
Bangladesh), like the one recently created to document
the UNFFM report. She also said, “Here in the Security
atrocity crimes in Syria, may preserve vital evidence that
Council, we must hold those responsible for violence to
may be used in any future prosecutions.
account.… The whole world is watching what we will do
next, and if we will act.”
On June 25, 2018, the European Union placed sanctions on
Sanctioned Burmese Security Officers
seven Burmese security officers (see text box). Canada
Canada, the European Union (EU), and/or the United States
placed an arms embargo on Burma in 2007 and on June 25,
(US) have sanctioned the following Burmese security officers
2018, sanctioned the same seven security officers as the
and units, or they have been identified by the UNFFM as
European Union.
being responsible for genocide, crimes against humanity, and
or war crimes in Burma.
Burma’s Actions to Date
Commander-in-Chief Senior General Min Aung Hlaing—
Burma’s leaders have consistently denied accusations of
UNFFM
systematic human rights abuses in Rakhine State. In
November 2017, an internal investigation conducted by the
Deputy Commander-in-Chief Vice Senior General Soe
Tatmadaw determined its soldiers did not fire on “innocent
Win—UNFFM
villagers,” or commit sexual violence during the clearance
Commander of Special Operations 3 Lieutenant General
operations. On July 30, 2018, Burma’s President Win
Aung Kyaw Zaw—Canada, EU, UNFFM, US
Myint established a four-person, joint domestic and
Commander of Military Operations Command 15 Major
international Independent Commission of Enquiry to
General Khin Maung Soe—Canada, EU, US
investigate “the allegations of human rights violations and
related issues, following the terrorist attacks by Arakan
Commander of Western Command Major General
Maung Maung Soe—Canada, EU, UNFFM, US
Rohingya Salvation Army (ARSA).”
Commander of the 33rd Light Infantry Division Brigadier
Next Steps
General Aung Aung—Canada, EU, UNFFM
After the UNFFM delivers its full report on September 18,
Commander of the 99th Light Infantry Division Brigadier
2018, the UNHRC is likely to discuss the report’s findings
General Khin Hlaing—US
and submit its recommendations to the UNSC and the
Commander of the 99th Light Infantry Division Brigadier
UNGA. Because the United States withdrew from the
General Than Oo—Canada, EU, UNFFM
UNHRC on June 19, 2018, the United States is to have no
direct role in the deliberations on the UNFFM report, but
Commander of the 8th Security Police Battalion Thant
may raise the issue at the UNSC and with the UNGA.
Zin Oo—Canada, EU
Commander of the Border Guard Police Thura San
Many of the previous U.S. sanctions on Burma remain in
Lwin—Canada, EU, US
effect, but enforcement was suspended by President Obama
33rd Light Infantry Division—US
in October 2016 (via presidential Executive Order 13742)
99th Light Infantry Division—US
in part to show U.S support for Aung San Suu Kyi and her
new government. As a result, some or all of those sanctions
could be reinstated by the President without the
U.S. and International Response
involvement of Congress.
The State Department has maintained an arms embargo on
Burma since 1993. The Treasury Department placed Maung
The State Department has financed its own investigation
Maung Soe on its Specially Designated Nationals and
into alleged human rights abuses in Burma, and its findings
Blocked Persons (SDN) list on December 21, 2017, under
have reportedly been given to Secretary Pompeo. That
the authority of Global Magnitsky Human Rights
report’s possible release may have been postponed due to
Accountability (Global Magnitsky) Act of 2016 for his role
disagreement within the State Department about appropriate
overseeing the “widespread human rights abuses against
U.S. policy in light of the investigation’s findings.
Rohingya civilians.” On August 17, 2018, the Treasury
Department added four military officers and two military
Two bills are pending in the 115th Congress, H.R. 5819 and
units to its SDN list, also under the authority of the Global
S. 2060, that would add new restrictions on relations in
Magnitsky Act (see text box).
light of the human rights abuses in Burma. Both bills are
awaiting floor consideration in their respective chambers.
On the anniversary of ARSA’s attacks (August 28, 2018),
Secretary of State Michael Pompeo posted a tweet, stating:
Michael F. Martin, Specialist in Asian Affairs
A year ago, following deadly militant attacks,
Matthew C. Weed, Specialist in Foreign Policy Legislation
security forces responded by launching abhorrent
Colin Willett, Section Research Manager
ethnic cleansing of ethnic #Rohingya in Burma. The
IF10970
U.S. will continue to hold those responsible
accountable. The military must respect human
rights for #Burma democracy to succeed.
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U.N. Report Recommends Burmese Military Leaders Be Investigated and Prosecuted for Possible Genocide
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