Faculty of Law
Academic Year 2019-2020
MYANMAR’S INTERNAL CONFLICT: A CLOSER LOOK AT
AUNG SAN SUU KYI’S CRIMINAL RESPONSIBILITY
Master’s Thesis for LL.M. International and European Law: Public
International Law
By
Sara López Izquierdo
Student Number: 12805084
Email: saralopezizquierdo97@gmail.com
Word Count: 13.056
Supervisor: dhr. dr. Kevin Jon Heller
2 TABLE OF CONTENT ABSTRACT ...3 ABBREVIATIONS ...4 PART I. INTRODUCTION ...5 I. Methodology ...6
II. Applicable Law and Procedure ...6
III. Individual Criminal Responsibility ...7
IV. The role of Aung San Suu Kyi ...8
PART II. MYANMAR’S INTERNAL CONFLICT IN CONTEXT ... 12
V. Summary of the facts ... 12
VI. International Crimes ... 14
1. Genocide ... 14
1.1 Actus Reus ... 15
1.2 Mens Rea ... 17
2. Crimes against Humanity ... 19
2.1 ‘Widespread’ or ‘Systematic’ ... 19
3. War Crimes ... 20
4. Conclusion ... 21
PART III. MODES OF PARTICIPATION ... 23
VII. Superior Responsibility ... 23
5. Superior-Subordinate Relationship ... 24
6. The requirement of ‘knowledge’ ... 25
7. Failure to prevent and redress ... 26
VIII. Genocide ... 26
8. Instigation and Direct and Public Incitement... 27
9. Aiding or Abetting... 29
10. Conspiracy to commit genocide ... 30
IX. Crimes against humanity and War Crimes ... 30
11. Aiding and abetting... 30
12. Contributing to a group crime ... 32
CONCLUSION ... 34
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‘Can there be genocidal intent on the part of a State that actively investigates, prosecutes and punishes soldiers and officers who are accused of wrongdoing?’ Aung San Suu Kyi at the International Court of Justice in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), 11 December 2019.
ABSTRACT
Begun under the British rule, the systemic discrimination, oppression and violence in Myanmar against the Rohingya minority intensified in 2016, leading to an internal armed conflict between the Tatmadaw and the ARSA. Aung San Suu Kyi plays a fundamental role in exercising her power to take measures as de facto Head of State. However, failure to act and constant denial of the crimes has led to scepticism as to whether Suu Kyi shall be also held accountable for the events occurring in Myanmar, thereby triggering individual criminal responsibility.
Acknowledging the limitations provided for in the 2008 Constitution, Suu Kyi retains some degree of control over the actions of the military forces, a fact that illustrates the causal link between the State Counsellor and the international crimes committed in Myanmar. This paper aims at proving the enormous relevance of individual liability regarding international crimes through the assessment of the due modes of participation ultimately addressing the fight against impunity and the process of justice for the Rohingya community.
Key Words: Individual Criminal Responsibility, Aung San Suu Kyi, genocide, crimes against humanity, war crimes, modes of participation, superior responsibility, conspiracy, aiding or abetting.
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ABBREVIATIONS
GCs Geneva Conventions
HRW Human Rights Watch
ICC International Criminal Court
ICJ International Court of Justice
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the Former Yugoslavia
IHL International Humanitarian Law
IIFFM Independent International Fact-Finding Mission on Myanmar
ILC International Law Commission
NGO Non-Governmental Organization
NIAC Non-International Armed Conflict
OHCHR UN Office of the High Commissioner for Human Rights
PCIJ Permanent Court of International Justice
UN United Nations
UNGA United Nations General Assembly
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PART I. INTRODUCTION
In light of the general inability of the State to accomplish any action by itself, attribution of responsibility for the commission of international crimes is focused on single perpetrators and not the State as a legal entity, placing accountability and burden at the level of the individual. Analysing the international crimes committed in Myanmar naturally leads to the discussion as to who is to be held individually responsible. However, there are some limitations regarding the de jure relation between the Tatmadaw and the civilian government since the 2008 Constitution provides for exclusive military jurisdiction over members of the military,1 thereby independently ruling its own matters.
In the process of adjudication of responsibility, the following questions will illustrate the thesis and its structure. Who is Aung San Suu Kyi and what is her role as a civil authority? Does she exercise any kind of control over the military forces? Which of the committed crimes the de facto Head of State could potentially be accountable for? Which are the modes of participation that can be identified to make the causal relation between her and such crimes? On which legal basis can she be held criminally responsible?
The refusal to sanction or consider prosecuting Suu Kyi for her participation in the international crimes poses an offence and humiliation to Rohingyas waiting for some kind of accountability from the international community. It further endangers other minorities within Myanmar who have also been victims of Tatmadaw violence in recent years. Not only minorities in Myanmar are at risk, but if these crimes remain unpunished, door for many others will be open. There must be no absolution of responsibility for official statements, measures or failure to act, all designed to deprive Rohingya of access to education, health services, due process of livelihood opportunities, access to factual information about their history, legal status and citizenship, fundamental human rights and other basic human needs.
All in all, this theoretical but analytical research is aimed at providing the reader with a deep knowledge of individual criminal responsibility for the participation in the crime of genocide, war crimes and crimes against humanity, its legal framework and the analysis of the major jurisprudence, namely that of the ICTY and ICTR. Additionally putting a seed of critical thinking regarding the challenge it poses for the international community the prosecution of
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single perpetrators through domestic courts, while measuring the effectiveness of international law in terms of how likely it is for a case like the present one to succeed before a tribunal.
I. Methodology
With the objective of assessing Aung San Suu Kyi’s potential responsibility while answering the aforementioned questions, it seems appropriate to first introduce the research by individualizing liability and repression, stating the law that will be resorted throughout the paper and identifying Suu Kyi’s role in the civil government. This introductory section will be followed by an analysis of the international crimes committed to the Rohingya community during Myanmar’s internal conflict2, namely the crime of genocide, war crimes and crimes against humanity. This will naturally lead to the examination of the modes of Suu Kyi’s participation in the commission of said crimes, concluding on the evaluation of whether universal jurisdiction is the most appropriate means for prosecution.
For these reasons, the present research is mainly based on a theoretical and documental method taking a descriptive international legal approach that will eventually lead to an illustration of the legal reasoning and factual elements that form the causal link between Aung San Suu Kyi and the international crimes committed in Myanmar, following the principle of corpus delicti. This challenging paper aims at proving the enormous relevance of liability regarding international crimes and the fight against impunity.
II. Applicable Law and Procedure
For the already mentioned purpose of this research, the applicable law at issue will be mainly based on the Rome Statute of the ICC3, the judicial precedent of the Ad Hoc International Criminal Tribunals, IHL with regards to NIACs4, international instruments such as the Convention on the Prevention and Punishment of the Crime of Genocide5, resolutions of the UN General Assembly and UN Security Council, Human Rights Committee, UN ILC Reports, Customary International Law, ICJ pronouncements and advisory opinions with due consideration to the request for the indication of provisional measures by The Gambia6, the Advisory Opinion regarding Reservations to the Genocide Convention, The Independent
2 HRW (2005), Culpability of Individuals under International Law, pp. 1-79. 3 UNGA, Rome Statute of the ICC 1998.
4 Common Article 3 to the four Geneva Conventions and Additional Protocol II.
5 UNGA, Genocide Convention 1948.
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International Fact-Finding Mission on Myanmar7 and the criminal complaint of genocide and crimes against humanity under universal jurisdiction presented by the Burmese Rohingya Organization UK before Argentinian courts.8
Generally speaking, a State can only exercise its jurisdiction on criminal matters over acts either committed within its borders or by its nationals.9 However, there are certain international crimes that ‘shock the conscience of mankind’10 and it is for such reason that it is not only an act of good faith but also a requirement for the international community as a whole to prosecute international crimes of such gravity and seriousness, thereby exercising their universal jurisdiction.
III. Individual Criminal Responsibility
The concept of individual criminal responsibility emerged in international criminal law after the end of World War II11, as part of a process of transformation of international law where individuals started being identified as subjects with legal personality.12 Prior to 1939 this idea of individual criminal responsibility for international crimes was not solidly established since this recognition was limited to responsibility for war crimes.13 However, after Nuremberg and Tokyo trials, responsibility expanded to crimes against peace and crimes against humanity14 and, after the drafting of the Genocide Convention, the crime of genocide was finally recognised. This principle consists of rules of international law specifically criminalizing certain individual behaviour and obliging States to criminally repress it.15 In the current scenario, the term will be employed to determine whether Suu Kyi is to be held criminally responsible for her own unlawful actions and not for those of others.
The principal purposes of individual criminal responsibility for core international crimes are certainly related to the elementary objectives underlying international criminal law itself16 and,
7 IIFFM (2018).
8 BROUK (2019), pp.6-46. 9 George (1983), pp.3-41.
10 See Preamble Universal Declaration of Human Rights; See also Affirmation of the Principles of International Law recognized by the Charter of the Nürnberg Tribunal.
11 Greppi (1999), pp.531-553.
12 Kjeldgaard-Pedersen (2018), p.5. See also Malekian (1999), p.153. 13 Greppi (1999), p.535.
14 Ibid., pp.538-542.
15 ICRC, How does law protect in war? 16 Stahn (2018), pp.117-158.
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more specifically, the aspiration of sentencing in international criminal law, as condemnation is the means through which such objectives are disclosed and enforced.17
Additionally, even if nowadays this concept seems uncontroversial and substantiated by the Statutes of the ICTY, ICTR, ICC and the according prosecutions, in international law there is no consensus on its elements. Nevertheless, the concept of individual criminal responsibility for the violation of an international norm holding criminal consequences can be considered a general principle of international law18, since it is customary to criminal justice procedures, whether national or international.19
The International Law Commission (ILC) adopted in 1950 the principles of international law recognised in the Charter of the Nuremberg Tribunal and in its judgments,20 which stand as a potential source of international criminal law emphasizing the weight of individual responsibility. Among these, Principle I states that ‘[a]ny person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment’21 and Principle III ‘[t]he fact that a person who committed an act which constituted a crime under international law acted as [de facto] Head of State or responsible Government official does not relieve [her] from responsibility under international law’.22
All in all, this study encompasses individual criminal responsibility for core international crimes resulting from the exercise of universal jurisdiction over the potential participation of Aung San Suu Kyi. Not only it is relevant to address the punishment of the individual but also to pay attention to the healing process of the victims. In other words, not only prosecution of Aung San Suu Kyi is the main focus, but also acknowledgment of the crimes committed and justice for the Rohingya community is the implicit objective.
IV. The role of Aung San Suu Kyi
Firstly, it is worth noting that Suu Kyi not only holds the title of de facto Head of State, but she is also the State Counsellor and runs the presidency of the Ministries of the President’s office, Education, Electricity and Energy and Foreign Affairs. 23 International human rights organizations have criticised Suu Kyi and her government for diminishing the impact of
17 Ibid., p.246. 18 Militello (2007), pp.941-952. 19 Bassiouni (2013), p.202. 20 ILC (1950), pp.374-377. 21 Ibid., p.174. 22 Ibid., p.375.
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Tatmadaw’s atrocities, undermining the testimonies of victims and history of the Rohingya community and denying the commitment of international crimes of any kind by the armed forces24, ‘thereby legitimizing and encouraging further violence’25 and grave violations of human rights by the military as the UN has repeatedly stated, contributing to the commission of international crimes26 and impeding the enjoyment of civil and human rights in Myanmar.27 The main matter to be discussed and which poses many obstacles for the successful prosecution of Suu Kyi is the actual relationship between her and the military forces. Despite the limitations prescribed in the 2008 Constitution28, Myanmar political history shows that since the 1962 coup, the military has been the most powerful political actor in Myanmar29, directly ruling from 1962 to 2011 and indirectly from 2011 onward.30
As a national response and in order to mitigate international criticism, 31 Suu Kyi appointed a number of commissions to ‘study and investigate’ the situation in the Rakhine State.32 However, observers were, and still are, deeply sceptical that effective implementation of the Rakhine Advisory Commission’s recommendations will ever be achieved33, mainly because it seems that neither the military nor the State have the willingness to materialise such efforts or result in a meaningful response. Furthermore, Suu Kyi’s public defence of the military34 provides a moral protection for criminals that, together with the ban of independent journalists35 from the area and propaganda campaign36, evoke the days of military regime,37 the same regime that charged her under house arrest.
24 Human Rights Watch (2019), ‘Aung San Suu Kyi Denies Burmese Genocide of Rohingya at The Hague’. See
also Amnesty International (2018), ‘Amnesty International withdraws human rights award from Aung San Suu Kyi’.
25 Hasan (2019), ‘It’s Time to Indict Aung San Suu Kyi for Genocide Against the Rohingya in Myanmar’. 26 Ibid.
27 Vernon (2018), ‘A Travesty in Myanmar’.
28 International Center for Transitional Justice (2009), pp.31-35. 29 K. Stokke, R. Vakilchuk, I. Overland (2018), pp.8-35. 30 Prager Nyein (2011), pp.24-44.
31 Human Rights Watch (2018), Myanmar’s Investigative Commissions: A History of Shielding Abusers. 32 Advisory Commission on Rakhine State (2017), pp. 1-66.
33 HRC (2018), Report of the Special Rapporteur on the situation of human rights in Myanmar. See also ‘Myanmar Military Will NOT Implement Kofi Annan Commission’s Recommendations’, in Zarni’s Blog, 24 August 2017. 34 ICJ, The Gambia v. Myanmar, Public Sitting held on Thursday 12 December 2019, CR 2019/21, pp.35-37. 35 OHCHR (2018), The Invisible Boundary – Criminal prosecutions of journalism in Myanmar, pp.2-12. See also OHCHR (2018), Myanmar: UN report details silencing by law of independent journalism.
36 ICJ, Application Instituting Proceedings and Request for Provisional Measures (The Gambia v. Myanmar), 11 November 2019, pp.5-17.
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After the Constitution of 2008 and its amendments gave a quarter of the seats in parliament to the military38, this kept the ability to impose its will as soon as its authority over defence was affected by new reforms. Among the new reforms, Article 59(f) makes it impossible for Suu Kyi to assume the presidency as it declares that no one with dual-citizen relations can ever become the president and both her sons are British citizens39, thereby interfering in her willingness to rule the country. However, this was not an inconvenient in her path to power and the role of State Counsellor was created40 for such purpose. During declarations in 2015, Suu Kyi stated that Myanmar’s ‘Constitution says nothing about somebody being above the president’41.
The amended Constitution allows the commander-in-chief, the ultimate military authority, ‘the right to take over and exercise State sovereign power’42 when in state of emergency and bans ‘retrospective’ criminal law43, for which the military cannot be prosecuted for past crimes. The fact that the 2008 Constitution requires over 75 percent of the legislators to approve constitutional amendments and that the military holds the 25 percent44, ensured the generals’ protracted domination of Burmese politics and unchallenged control of the State,45 remaining in power and protecting its dominance and authority46, thereby its nationalism47 will be used ‘to justify military operations against ethnic armed groups and, if considered necessary, the Rohingya’.48 Controversial are also the facts that the Constitution was approved by a questionable referendum in May 2008 without the presence of foreign observers49 and during desolation caused by the largest natural disaster ever to have taken place in Myanmar50 and that the following elections in November 2010 were denounced to be unfair51 and fraudulent.52
38 Myanmar Constitution 2008, Section 436, p.111. 39 Ibid., Section 59(f), p.18.
40 Myanmar Government, Ministry of the Office of the State Counsellor. See also McKirdy, ‘New Government Role Created for Myanmar’s Aung San Suu Kyi’, CNN, 7 April 2020.
41 BBC, Myanmar election: Aung San Suu Kyi ‘will be above president’, 5 November 2015. 42 Myanmar Constitution 2008, Section 40 (c), p.14.
43 Ibid., Section 43, p.14. 44 Ibid., Section 436, p.111. 45 Barany (2018), pp.105-117.
46 Albert (2017), How Myanmar’s Military Wields Power From the Shadows. See Mahadevan (2012), pp.1-4. 47 Foxeus (2019), pp.661-690.
48 COAR (2020), p.10.
49 Human Rights Watch (2008), Vote to Nowhere: The May 2008 Constitutional Referendum in Burma.
50 Human Rights Watch (2008), ‘Burma: Reject Constitutional Referendum, Government’s Poor Cyclone Response Shows Need for Democratic Reform’. See also Martin & Margesson (2008), pp-2-22.
51 OHCHR (2011), Situation of human rights in Myanmar, p.10. See also UN Office of the Spokesperson for the Secretary-General, ‘Statement attributable to the Spokesperson for the Secretary-General on Myanmar’, 10 March 2010.
52 Holliday (2010), pp.23-49. See also U.S. Department of State, ‘Daily Press Briefing’, 10 March 2010; Zaw, ‘Hypocrisy Replaces Hope after the NLD Decision’, 31 March 2010; ‘Philippines: Burma Broke Promise to
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The belief that the de facto Head of State has no control over the armed forces and thereby cannot be held criminally responsible for the abuses committed to the Rohingya only leads to a mischaracterization of her overall role. Both Suu Kyi and the military have shared the same anti-Muslim speech, insisting that the violence in Rakhine State which prompted the mass exodus of thousands of people was instigated by the Rohingyas, providing Burmese generals with cover and support at every phase.
The entire set of international crimes that will be developed in Part I triggers the individual criminal responsibility of Myanmar State Counsellor and it will be analysed whether she indeed exercises control and command over the actions of the military forces, since these act in the name of the State. As expected, it is a challenging task to determine her individual liability and effectively prove her guilt beyond reasonable doubt.
Acknowledging that the systemic discrimination, oppression and violence in Myanmar against Rohingya community dates back to the British rule53, for the purpose of this paper, only events after Suu Kyi’s raise to power in 2016 will be taken into consideration. However, adequate assessment of the previous situation will be conducted in order to accordingly set the factual background, once again having the main aim of not escaping criminal liability for the most serious crimes.
Democratize’, 16 March 2010; Okada: Let Suu Kyi Run in Elections or No Aid’, 28 March 2010; ‘Indonesia Shares Its Experience with Myanmar on Road to Democracy’, 8 April 2010.
53 Statement by the UN High Commissioner for Human Rights before the UN HRC, 5 December 2017. See also
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PART II. MYANMAR’S INTERNAL CONFLICT IN CONTEXT V. Summary of the facts
During the eighteenth century54, people living in the coastal areas of the Bay of Bengal55 converted to Islam under the influence of Arab traders.56 Muslims in Rakhine State strongly identify themselves as Rohingya but this term is not used as an indicator of an ethnic group in government documents and in Myanmar the term is controversial57 since the government forbid such term and considers them to be descendants of Bengal migrants who migrated during British colonial rule in the nineteenth and twentieth century58, calling them ‘Bengali’ and showing the underlying strategy to vanish Rohingya identity. Discussions as to the ethno-history and origins of the Rohingya community have become very delicate.59
In Myanmar, a multi-ethnic country, the tension and the territorial and political disputes between the Bamar majority, professing Buddhism, and the remaining other ethnic minorities, such as the Karen, the Kachin and the Mon have been on the agenda since Myanmar’s independence in 1948.60 The impression that these domestic struggles might endanger the territorial unity of Myanmar61 was one of the reasons leading the Tatmadaw, the Burmese military, to orchestrate a coup in 1962. Additionally, the escalation of the Cold War, together with Myanmar’s strategic geopolitical location, led the military elite to develop an ideology aimed at a national economic development plan that would reduce foreign influence over the country.62 Thereby generating an isolationism that aggravated the nationalistic feeling and supremacist idea of the Bamar ethnic majority, inducing hostility towards other minorities, especially the Rohingya. Although from Myanmar’s independence the Rohingya enjoyed full citizenship rights, the military coup in 1962 took away their civil, political, educational and
54 Tay, Islam, Riley, Welton-Mitchell, Duchesne, Waters, Varner, Silove, Ventevogel (2018), pp.1-72. 55 currently Bangladesh and Myanmar.
56 Amrith (2013), Crossing the Bay of Bengal; See also Kipgen (2013), pp.298-331.
57 Advisory Commission on Rakhine State (2017), pp. 1-66; Kipgen (2013) pp.298-310; Cheesman (2018), pp.1-23.
58 Prasse-Freeman (2017), pp. 1-32; Grundy-Warr & Wong (1997), pp.79-91.
59 Ibrahim (2016), The Rohingyas: Inside Myanmar’s Hidden Genocide; Leider (2014), pp. 204-255; Thawnghmung (2016), pp.527-547.
60 See Clarke, Sein Myint and Siwa (2019), Re-Examining Ethnic Identity in Myanmar, Center for Peace and Conflict Studies.
61 K. Stokke, R. Vakilchuk, I. Overland (2018), Myanmar: A Political Economy Analysis, Norwegian Institute of International Affairs.
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economic rights63 and resorted to massive and systematic violations of human rights to subdue ethnic minorities and repress social movements demanding democracy.
The 1982 Citizenship Act64 enforced the exclusion of the Rohingya people form the list of officially recognized minority ethnic groups and denied them many basic rights including citizenship, freedom of movement, access to healthcare and education or voting rights.65 This situation made them the largest stateless group in the world. In spite of some political and economic reforms, violence and discrimination against ethnic minority groups continued and the widespread anti-Muslim sentiment has led to systematic campaigns of violence and discrimination against the Rohingya,66 who face difficulties in meeting the basic needs and an extremely vulnerable situation, being systematically discriminated and still lacking citizenship.67 They are also not entitled to form organizations, vote, access education, build homes with permanent materials or install fencing around their homes, getting their names arbitrarily changed by officials and having their Mosques closed or destroyed. 68
Following government elections in 2015 won by the National League for Democracy, led by Aung San Suu Kyi, the genocidal plan was accomplished, allowing the worst atrocities to be committed under the authority of those who had previously fought for democratic freedoms, human rights and peace.
In October 2016, Harakah al-Yaqin (Faith Movement), a Rohingya insurgents’ armed group, attacked Border Guard Police bases in the northern towns of Rakhine State. The government reacted with military force that was said69 not to have adequately distinguished militants from civilians and restricted humanitarian aid access to Rohingya.70 The OHCHR and Amnesty International documented a wide range of human rights abuses against the Rohingya population including killings, disappearances, torture and other inhuman treatment, rape and other forms of sexual violence and arbitrary detention.71
63 Lee (2014), pp.321-333; Parnini (2013), pp.281-297; Rogers (2012), Burma: A Nation at the Crossroads. 64 Burma Citizenship Law, 15 October 1982.
65 Human Rights Watch (2009), pp.1-16.
66 Wade (2017), Myanmar’s Enemy Within: Buddhist Violence and the Making of a Muslim ‘other’; Holliday (2014), pp.404-421.
67 Hlaing (2015), pp.1-239. Retrieved 16 February 2020, from https://bit.ly/2Ne054s.
68 Ibrahim (2016); Humanitarian Country Team (2017), pp.1-56; Mahmood, et al. (2017), pp.1841-1850; OHCHR (2017), Report of OHCHR mission to Bangladesh: Interviews with Rohingyas fleeing from Myanmar since 9 October 2016, pp.1-43.
69 International Crisis Group (2017), Myanmar’s Rohingya Crisis Enters a Dangerous New Phase, pp.1-29. 70 Ibid.
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In August 2017, the same insurgent group under the name of Arakan Rohingya Salvation Army (ARSA), carried out attacks against police posts in northern Rakhine State. According to the IIFFM, the International Crisis Group, Amnesty International and investigative reporters, these incidents were followed by a massive clearance operation by the Myanmar army, during which Rohingya homes and villages were systematically attacked and burnt down and thousands were violently killed.72 Consequently, brutal and grossly disproportionate response by the security forces prompted an unprecedented population movement within and outside Myanmar, with figures showing around 900.000 flights, reaching more than 500.000 refugees and 120.000 internally displaced people.73 Shelters and refugee camps are overcrowded and under inadequate and poor conditions.74 Unfortunately, independent investigations in Myanmar cannot take place due to the denial of access by the governmental authorities.75 This absolute impunity worsens the atrocities against the few Rohingya who still remain in Myanmar.76
VI. International Crimes
It is first and foremost relevant to examine the legal concept and elements of each international crime to then be able to assess whether those have potentially been committed by the State Counsellor. In 2014, new reports showed the extreme deterioration of the situation leading the UN Human Rights Council to take the decision of creating the IIFFM. Even though Myanmar rejected the request of on-site visits,77 after visiting the camps in Bangladesh in September 2018 the Mission confirmed, through data collection and analysis, the perpetration of crimes against humanity committed and the crime of genocide against the Rohingya. Therefore, this section will study the crime of genocide and crimes against humanity as well as war crimes and their connection with the events in Myanmar.
1. Genocide
In order to avoid the misuse in referring to large scale, grave crimes committed against a particular population, to understand the emotive nature of the term and political sensitivity
72 Darusman (2018), ‘Statement by Chairperson of the Independent International Fact-Finding Mission on Myanmar, at the 37th session of the Human Rights Council’; Amnesty International (2017), ‘Myanmar: Scorched-earth campaign fuels ethnic cleansing of Rohingya from Rakhine State’; International Crisis Group (2017); Guzek, Siddiqui, White, Van Leeuwen and Onus (2017), pp.1-70; Pittman (2017), ‘Rohingya Survivors: Myanmar’s Army Slaughtered Men, Children’.
73 Edroos (2017), ‘ARSA: Who are the Arakan Rohingya Salvation Army?’; Amnesty International (2017) ‘How
we got to the bottom of the Manus Island shooting’.
74 Humanitarian Country Team (2017); International Rescue Committee (2017), pp.1-2. 75 Du (2018), ‘The Rohingya Crisis in Context’.
76 BROUK (2019), pp.6-46.
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surrounding its use and to acknowledge the potential legal implications associated with a determination of genocide, the correct usage of the term ‘genocide’ is based on legal considerations, rather than historical or factual.78 The indiscriminate categorization of the events happened and happening in Myanmar as ‘genocide’ has indeed fuelled ongoing tensions between the military and the Rohingya community in the State. However, that does not imply that the crime was not committed.
Even if this crime did not originate in the 20th century, and could not be considered as such by the Nuremberg Tribunal,79 Raphaël Lemkin coined the term ‘genocide’ in 1944 to identify massacres with the purpose of exterminating national or ethnic minorities.80 In 1946 the UNGA adopted Resolution 96(1) recognizing the crime of genocide as a separate international crime and in 1951 the Genocide Convention was drafted and its prohibitions were repeatedly declared customary international law by the ICJ.81 Genocide ‘is a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings.’82 The seriousness of the crime is underlined by the fact that its prohibition has attained the status of a jus cogens norm83 entailing an erga omnes obligation,84 hence being perceived as the ‘crime of crimes’.
The crime of genocide is unique because of its intent ‘to destroy in whole or in part, a national ethnic, racial or religious group as such’.85 The genocide offence has two separate elements, namely the material (actus reus or dolus)86 and the mental ‘genocidal intent’ (mens rea or dolus specialis).
1.1 Actus Reus
- In part or in whole
The meaning of ‘in part’ involves ‘qualitative’ and ‘quantitative’ considerations, meaning that the perpetrator must have aimed at a ‘substantial’ part of the victim group (quantitative) and
78 UN Office on Genocide Prevention and the Responsibility to Protect, pp.1-3. 79 ICTR Kambanda [1998], para.16.
80 Lemkin (1944), pp.79-95.
81 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)); Order of the Court on Provisional Measures, 13 September 1993, para.161.
82 UNGA, The Crime of Genocide, 11 December 1946, A/RES/96.
83 Case Concerning Armed Activities on the Territory of the Congo (New Application: 2002) (Democratic Republic of the Congo v. Rwanda), 3 February 2006, para.64.
84 Advisory Opinion Concerning Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 28 May 1951, p.23.
85 ICTR Kambanda [1998], para.16. 86 Ambos (2009), pp.833-858.
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whether the perpetrator aimed at a ‘significant part’ of the group (qualitative). Rohingyas were exposed to a deliberate infliction of conditions of life that will eventually lead to the physical destruction of the group if maintained over a period of time.87 Despite the legal definition of genocide does not require mass killings or the total annihilation of a group,88 the crime of genocide includes the causing of serious bodily or mental harm to victims constituting ‘a grave and long-term disadvantage to a person’s ability to lead a normal and constructive life’,89 also regarding acts of sexual violence and rape.90
- Protected group
Considering that the Genocide Convention endorses national, ethnic, racial or religious groups, Rohingya are a protected group under this definition,91 since they are recognized as a Muslim ethnic minority in Myanmar.92 However, high-level officials maintain exclusion policies aiming at a racially pure State93 arguing that the Rohingya constitute a separate race,94 directly violating their ‘protected group’ status.
- Prohibited Acts
Only those acts specified in Article II of the Genocide Convention may constitute the actus reus of genocide, since not every act committed with the intention to destroy a protected group can qualify under the definition of this crime. Genocidal acts, and acts leading to a slow death95, have been committed against the Rohingya since the immediate crisis first unfolded and in previous periods of violence.96 The Tatmadaw also killed Rohingya during the journey and at border crossings.97 At least 40 per cent of all settlements in northern Rakhine were partially or totally destroyed, and approximately 80 per cent were burned in the initial three weeks of the operations,98 a significant portion of which after the Government’s official end date of the ‘clearance operations’.
87 ICTY Rutaganda [1999], para.52; ICTR Kayishema & Ruzindana [1999], para.548. 88 Prosecutor v. Radislav Krstic (Appeal Judgement), IT-98-33-A, 19 April 2004, para.31. 89 ICTY Krstic [2004], para.513.
90 The Prosecutor v. Jean-Paul Akayesu (Trial Judgement), ICTR-96-4-T, 2 September 1998, para.731.
91 Human Rights Council (2018), Report of the detailed findings of the Independent International Fact-Finding Mission on Myanmar, pp.1-441.
92 The Prosecutor v. Georges Anderson Nderubumwe Rutaganda (Judgement and Sentence), ICTR-96-3-T, 6 December 1999, para.70; See also Kress (2007), pp. 619-629.
93 Ibrahim (2016), p.3. 94See Fortify Rights (2018).
95 ICTR Kayishema & Ruzindana [1999], para.116. 96Kress (2006), pp.461-502.
97 HRC (2018), para.41. 98 Ibid., para.42.
17 1.2 Mens Rea
The legal definition of genocide is precise99 and ‘special or specific intent’ as an ‘extreme form of wilful and deliberate acts designed to destroy a group or part of a group’100 and ‘result of a deliberate and conscious aim’101 is ‘required as a constitutive element of the crime, which demands that the perpetrator clearly seeks to produce the act charged’102, a clear intent to destroy the protected group.103 Evidence that these operations were pre-planned and premeditated is compelling,104 although the acts question must be intentional but not necessarily premeditated.105
Following 2012 events, State authorities did not intervene to cease such threats of violence or the wholescale exodus of 2017, in fact, the government has consistently denied wrongdoing for the abuses,106 thus engaging in what amounts to a cover-up of mass atrocities.107 Even the official Rakhine Investigation Commission, convened after the 2012 violence,108 denied many of the crimes documented by external human rights groups.109 Myanmar authorities have persistently blamed ‘extremist terrorists’,110 attributed any damage to spontaneous sectarian hostilities beyond their control or even alleged that the harm was self-inflicted111 by the Rohingya themselves.112Admittedly, government-led operations resulted in massive internal displacements, forcible population transfers and blockage of humanitarian and media access to affected areas, thereby maximizing the harm to the group.
99 Article II of the Genocide Convention defines genocide as “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.” For guidance on this definition and overall the content of the crime of genocide, please consult Guidance note 2 “What is genocide”.
100 ICJ Bosnia v. Yugoslavia [1993], para.188.
101 Prosecutor v. Milos Stupar et al. (First Instance Verdict), Case No. X-KR-05/24, Court of Bosnia and Herzegovina, 29 July 2008, para.56.
102 ICTR Akayesu [1998], para.498. 103 Ibid., para.518.
104 Zarni and Cowley (2014), p.713.
105 Prosecutor v. Milomir Stakic (Trial Judgement), IT-97-24-T, 31 July 2003, para. 515.
106 Holmes (2017), ‘Myanmar Tells UN: ‘There is No Ethnic Cleansing and No Genocide’ of Rohingya’. 107 Human Rights Watch (2017), ‘Burma: Army Report Whitewashes Ethnic Cleansing’.
108 Human Rights Council (2018), Report of the Independent International Fact-Finding Mission on Myanmar, UN Doc. A/HRC/39/64, pp.1-21.
109 Republic of the Union of Myanmar (2013), Final Report of Inquiry Commission on Sectarian Violence in Rakhine State, pp.1-128.
110 Fortify Rights and US Holocaust Memorial Museum (2017), p.21. 111 Ibrahim (2016), pp.82-85.
112 OHCHR (2017), ‘End of Mission Statement by Special Rapporteur on the Situation of Human Rights in Myanmar’.
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Fortify Rights has identified elements of a political doctrine originating from the central authorities, and reiterated by the State government, aimed at definitive exclusion of Rohingya from society.113 As the IIFFM recently noted, ‘[t]he crimes in Rakhine State, and the manner in which they were perpetrated, are similar in nature, gravity and scope to those that have allowed genocidal intent to be established in other contexts.’114
The forceful suppression of Rohingya tradition intended to lead to the extinction of its historical memory115 and overall culture116 together with the sexual violence, reflects the genocidal intent, since it does not explicitly require physical destruction.117 Additionally, the fact that babies and children were specifically targeted,118 the oppressive context and hate rhetoric, the exclusionary policies and the level of organization119 provide further support to confirm the objective to destroy the Rohingya ethnic group.120 Although aiming at the ultimate exclusion of the Rohingya from Myanmar and cultural genocide are not prohibited by international law and they do not constitute genocide per se, these acts need to be regarded when determining the elements of genocidal intent.
Acknowledging the fact that this term should be precisely and carefully used, reducing the capacity to evoke a unique form of devastation, in the light of the above considerations on the due elements of the crime of genocide, the historic and systemic oppression and discrimination against the Rohingya, the series of abuses and isolations measures imposed from 2012 and the extreme violence exerted in 2016 and 2017 during ARSA attacks121, confirm the commission of the crime of genocide. Regardless of the impunity for the 2012 raids and subsequent brutal events,122 there is sufficient information to warrant that, as will be further explain in the
113 Fortify Rights (2018), ‘They Gave Them Longswords’, p.93. 114 HRC Report IIFFM (2018), para.85.
115 Prosecutor v. Blagojevic and Jokic (Trial Judgment), IT-02-60-T, 17 January 2005, para.659. See Hon (2013), pp.359-407.
116 ICTY Krstic [2004], para.580 (‘an enterprise attacking only the cultural or sociological characteristics of a human group in order to annihilate those elements which give to that group its own identity distinct from the rest of the community would not fall under the definition of genocide’). See Bilsky and Klagsbrun (2018), p.373. (noting that acts of cultural genocide, while central to Raphael’s Lemkin’s original conceptualization of genocide, are not prohibited per se by the Genocide Convention).
117 Rape and other forms of sexual violence in ethnic regions including rape with knives and sticks, genital mutilation and sexualized torture, were perpetrated on a massive scale. United Nations Secretary-General (2012), Report of the Secretary-General on Conflict-related sexual violence, pp.39-41.
118Goodwin-Gill and Pobjoy (2018), pp.1-35. 119 HRC Report IIFFM (2018), para.85.
120 In this regard, it recalls the statement made by the Tatmadaw Commander-in-Chief that the ‘clearance operations’ were not a response to a concrete threat from ARSA, but to the “unfinished job” of solving the ‘long-standing’ ‘Bengali problem’. HRC Report IIFFM (2018), para.86.
121 HRC Report IIFFM (2018), paras.31-42.
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following section, government’s actions and omissions causing the disintegration of the Rohingya community will illustrate Suu Kyi’s liability for genocide in relation to the situation in Rakhine State.
2. Crimes against Humanity
Crimes against humanity were first codified in the charter of the Nuremberg Tribunal of 1945 aiming at the prohibition of crimes ‘which either by their magnitude and savagery or by their large number or by the fact that a similar pattern was applied endangered the international community or shocked the conscience of mankind.’123 Since then, the concept has been incorporated into a number of international treaties and the statutes of international criminal tribunals, including the Rome Statute of the ICC.124
2.1 ‘Widespread’ or ‘Systematic’
The ICC Statute defines crimes against humanity as unlawful acts ‘committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.’125 Murder, extermination, enslavement, deportation, arbitrary detention, torture, rape, persecution on political, racial and religious grounds, and other inhumane acts all fall within the range of acts that can qualify as crimes against humanity.126
Crimes against humanity include those abuses that take place as part of an attack against a civilian population. So long as the targeted population is of a predominantly civilian nature, the presence of some combatants does not alter its classification as a ‘civilian population’.127 Rather, it is necessary only that the civilian population be the primary object of the attack.128 Satellite imagery and first-hand accounts corroborate widespread, systematic, deliberate and targeted destruction, mainly by fire, of Rohingya-populated areas across the three townships.
123 History of the United Nations War Crimes Commission and the Development of the Laws of War (1943), p. 179, quoted in Rodney Dixon (1999), ‘Crimes against humanity’, in Commentary on the Rome Statute of the International Criminal Court (O. Triffterer, ed.), p.123.
124 UNGA (1998), Rome Statute of the International Criminal Court. 125 Ibid., Article 7.
126 Ibid., para.1.
127 Prosecutor v. Mladen Naletilic aka ‘Tuta’, Vinko Martinovic aka ‘Stela’ (Trial Judgement), IT-98-34-T, 31 March 2003, par. 235, ‘The population against whom the attack is directed is considered civilian if it is predominantly civilian’; ICTR Akayesu [1998], para.582: ‘Where there are certain individuals within the civilian population who do not come within the definition of civilians, this does not deprive the population of its civilian character’; Prosecutor v. Goran Jelisic (Trial Judgement), IT-95-10-T, 14 December 1999, para.54, ‘The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.’
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The attack against a civilian population underlying the commission of crimes against humanity must be widespread or systematic and, even if both elements are not required to be fulfilled,129 Rohingya community is being targeted in a ‘widespread’ manner, as to the large scale of attacks and the high number of victims130 and ‘systematically’, indicating ‘a pattern or methodical plan’,131 although international courts have considered that a systemic attack does not require a formal policy of the State.132 In fact, violence has been ‘perpetrated as part of an attack in line with a State policy that was either in place at the time of the attacks or crystalized during the attacks.’ 133 State or organizational policy to commit genocide includes government involvement in the violence, the use of public resources, and legislation discriminating against the group.134
Additionally, liability for crimes against humanity further requires the perpetrator to have the relevant knowledge of the underlying attack.135 That is, perpetrators must be aware that their actions formed part of the widespread or systematic attack against the civilian population,136 they must at least have knowingly taken the risk of participating in the policy or plan.137 The widespread and systematic abuses by the military and supported by the government against the Rohingya community amount to an attack on a civil population within the definition of crimes against humanity.
3. War Crimes
Given the fact that NIACs have been ongoing in Kachin and Shan States and in Rakhine State since at least August 2017, the information gathered reveal that much of the conduct amounting to crimes against humanity also satisfies the war crime elements of murder, torture, cruel treatment, outrages upon personal dignity, attacking civilians, displacing civilians, pillaging, attacking protected objects, taking hostages, sentencing or execution without due process, as
129 Prosecutor v. Dusko Tadic (Appeal Judgement), IT-94-1-A, 15 July 1999, para.646.
130 ICTR defined widespread as ‘massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims’, ICTR Akayesu [1998], para.579; see also Prosecutor v. Dario Kordic, Mario Cerkez (Trial Judgement), IT-95-14/2-T, 26 February 2001, para.179; The Prosecutor v. Clément Kayishema and Obed Ruzindana (Trial Judgement), ICTR-95-1-T, 21 May 1999, para.123.
131 ICTY Tadic [1999], para. 648. Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic (Appeal Judgment), IT-96-23 & IT-96-23/1-A, 12 June 2002, para.94.
132 ICTR Akayesu [1998], para.580. 133 FR & SS Report (2017), para.21. 134 Ibid., p.14.
135 Prosecutor v. Kupreskic et al. (Trial Judgement), IT-95-16-T, 14 January 2000, para. 556.
136 Ibid.; See also Prosecutor v. Goran Jelisic (Appeal Judgement), IT-95-10-A, 5 July 2001, para.271; ICTR Kayishema & Ruzindana [1999], paras.133-34.
137 Prosecutor v. Tihomir Blaskic (Trial Judgement), IT-95-14-T, 3 March 2000, at para.257-259 listed factors from which could be inferred knowledge of the context.
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well as rape, sexual slavery and sexual violence.138 War crimes presuppose the existence of an armed conflict, an element which differs from the previous international crimes.
All forces during an armed conflict must prevent unnecessary suffering, ensure humane treatment of persons in their control and uphold the principle of distinction between civilians and combatants recognized as a fundamental principle of international humanitarian law in all armed conflicts.139 Attacks that are primarily targeting religious or cultural property, or designed to spread terror among the civilian population140 constitute a war crime under customary international law. Legitimate military objectives include the enemy’s forces, weapons, convoys, installations, and supplies.141 According to common article 3 to the GCs, ‘[w]ith regard to civilians and captured combatants, both government and rebel forces are prohibited from using violence to life and person, in particular murder, mutilation, cruel treatment and torture. The taking of hostages is forbidden, as is humiliating and degrading treatment. No party to the conflict may pass sentences or carry out executions without previous judgment by a regularly constituted court that has afforded the defendant all judicial guarantees.’142 Additionally, customary international humanitarian law provides additional protections for civilians in NIACs criminalizing rape and other forms of sexual violence,143 enforced disappearance144 as prohibited acts where no systemic criminality is required. In addition, parties must allow and facilitate rapid and unimpeded access of humanitarian aid for civiliansand the freedom of movement of humanitarian relief workers must be granted.145 Ultimately, attacks are supposed to be launched taking all feasible measures to minimize incidental civilian harm by verifying targets and selecting tactics.
4. Conclusion
The brutal events of 2017 mark the culmination of decades of State-sponsored discrimination and a general context of well-organised, coordinated and systematic violence.146 The scale of the atrocities; the number of victims and gravity of the harm caused; unnecessary, disproportionate and indiscriminate use of violence; the discrimination and persecutory acts against members of the same protected group; the detrimental effect and long-term impact of
138 Ibid, para.89.
139 Protocol II [1977], Article 13(2). 140 Ibid.
141 M. Bothe et al. (1982), New Rules for Victims of Armed Conflicts, Hague: Martinus Hijhoff, pp. 306-07. 142 Common article 3 to the Geneva Conventions.
143 Ibid.; Protocol II [1977], Article 4(2).
144 ICC Rome Statute, Article 7(1)(i); 2006 Convention on Enforced Disappearance, Articles 1, 2, 4, 5, 7. 145 Protocol II [1977], Article 18(2).
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the violence in terms of the future survival of the group; the methodical and systemic nature of the attacks147; the degree of planning and preparation behind the attacks; attempts to cover up the crime and grant impunity to perpetrators as well as to bar humanitarian assistance; the undermining speech and propaganda; the existence of a political doctrine consistent with genocidal intent; and attacks on cultural or religious property or symbols associated with the group.148 This protracted persecution, taking the form of legalized discrimination, physical segregation, infringements on births and marriages and physical violence, has heavily increased in recent years. 149
147 Amnesty International (2017), pp. 1-45.
148 International Commission of Jurists, paras.17,18,22. 149 Van Shaack (2019), pp.285-323.
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PART III. MODES OF PARTICIPATION
In light of the Rakhine crisis, authorities in Myanmar established an ad hoc inquiry commissions and boards, which since 2012 have proven neither to meet ‘the standard of an impartial, independent, effective and thorough human rights investigation’150, nor ‘led to any prosecution for gross human rights violations and redress for victims.’151 This is due to the entrenched impunity in its political and legal system, placing the Tatmadaw above the law.152 The 2008 Constitution affords the military effective veto power over any Constitutional amendments by reserving for military personnel large number of seats in legislative bodies153 and provides for exclusive military jurisdiction over members of the military,154 thereby independently adjudicating its own matters, with the Commander-in-Chief having the ultimate decision. It seems inadequate that military courts or domestic justice system deal with large-scale human rights violations perpetrated by the military, lacking independence, the capacity to respect fair trial standards or to deal with violations perpetrated by high-level officials, for international crimes. Regardless of the fact that the Government of Myanmar has the primary responsibility for investigating and prosecuting crimes under international law, it has proven to be unable and unwilling, 155 thus, ‘accountability at the domestic level is currently unattainable’156 and it must therefore ‘come from the international community.’157
VII. Superior Responsibility
Under this doctrine, Suu Kyi may be responsible for failing to prevent or punish the international crimes committed by her subordinates. It is a principle established in customary international law158 and incorporated into the statutes of international criminal courts including the Rome Statute.159 This doctrine differentiates the following elements for determining criminal liability for the acts of subordinates: a superior-subordinate relationship; the superior must have known, or had reason to know, that the subordinate was about to commit or had
150 HRC Report IIFFM (2018), para.95. 151 Ibid.
152 Ibid., para.96
153 Constitution of the Republic of the Union of Myanmar, 29 May 2008, pp. 1-130, Sections 109 and 141. 154 Ibidem, Section 20(b).
155 HRC Report IIFFM (2018), para.98. 156 Ibid, para.97.
157 Ibid.
158 Prosecutor v. Delalic et al. (Celebici Case), Case No. IT-96-21-A, ICTY AC, February 20, 2001, para. 195. 159 Rome Statute of the International Criminal Court, article 28 (Responsibility of Commanders and Other Superiors).
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already committed a crime; and the failure to take the necessary measures to prevent the commission of the crime or to punish the perpetrator(s).160
5. Superior-Subordinate Relationship
The first element is unclear when in the absence formal rules specifying such existence, however, a superior can have actual effective control.161
Thus, civilian and political superiors
may be held liable under this doctrine.162Additionally, there is no requirement that this
relationship be direct or immediate.163 For the conduct by the Tatmadaw to give rise to legal criminal responsibility of Aung San Suu Kyi, it would have to be proven that there was ‘effective control of the military operations in the course of which the alleged violations were committed’.164 Among the factors indicating the existence of effective control, the ICC identified the superior’s official position, the power to issue orders, to ensure compliance with orders, to promote, replace, remove or discipline any member of the forces, and the authority to send forces to certain areas and withdraw them at any given moment.’165 In the light of the evidence, operations launched by the Tatmadaw do not reflect strategy and tactics fully devised by the government. However, even if the military operations were not decided and/or planned by Suu Kyi, they were made in close collaboration with her.In addition to the 2008 Constitution, approved by the military government in the midst of the mass destruction caused by Cyclone Nargis, was conceived for the Myanmar military to continue to exercise disproportionate power within a quasi-democratic system and, as established by the IIFFM, the ‘entire organic system is established so that the military preserve a share of public power, its performance is inscribed within the framework of the Myanmar
160 Prosecutor v. Delalic et al. (Celebici Case), Case No. IT-96-21-T, ICTY TC, November 16, 1998, affirmed on appeal IT-96-21-A, ICTY AC, February 20, 2001. See ICTY, Prosecutor v. Hadzihasanovic, IT-01-47-T, Judgment, 15 March 2006, para.191.
161 Prosecutor v. Delalic et al. (Celebici Case), Case No. IT-96-21-A, ICTY AC, February 20, 2001, para. 248-268. 162 Prosecutor v. Delalic et al. (Celebici Case), Case No. IT-96-21-T, ICTY TC, November 16, 1998, affirmed on appeal IT-96-21-A, ICTY AC, February 20, 2001. See also Article 28 of the Rome Statute of the International Criminal Court: “(b) With respect to superior and subordinate relationships not described in paragraph (a) [military chain of command], a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where: (i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes; (ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and (iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.” 163 Prosecutor v. Halilovic, Case No. IT-01-48-T, ICTY TC, November 16, 2005, citing Celebici, IT-96-21-A, ICTY AC, February 20, 2001, paras. 193 & 195.
164 ICJ Nicaragua Case, para.115.
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Constitution and of the operation of the State as a whole, and not in isolation, so that the entire genocidal plan, could not have been deployed without the complementation, the coordination, the support or the acquiescence of the different civilian authorities.’166
In fact, the Commander-in-Chief, during a UN Security Council visit to Myanmar, declared that the Tatmadaw take actions under the guidance and leadership of the President’, turning the role of State Counsellor with the ultimate decision making justifying the actions of the armed forces against the Rohingya in the Rakhine State’.167
Nonetheless, there is no indication that the Tatmadaw operated under orders from outside its own chain of command. The information and evidence available does not allow such conclusion on reasonable grounds.
6. The requirement of ‘knowledge’
The second question whether Suu Kyi was, or must have been, aware at the relevant time that allegations of breaches of humanitarian law were being made against the Tatmadaw is relevant to an assessment of the lawfulness of the action of the State Counsellor. ‘Ignorance on the part of the Myanmar civilian authorities is indeed impossible’168 since ‘allegations of human rights violations were widely covered in the media’.169
As pointed out by the IIFFM in Myanmar, ‘through their acts and omissions, the civilian authorities have tacitly accepted and approved the Tatmadaw’s brutal, criminal and grossly disproportionate actions.’ Additionally publicly defending the systemic and institutionalized oppression of the Rohingya, fostering hate speech, incitement to discrimination and violence through their denials of credible allegations of human rights violations and abuses.’170
In other words, civilian authorities knew about the genocidal criminal actions and, in addition to being known and contributed to, the civilian authorities assisted in the public policies aimed at the annihilation of the Rohingya.171
166 ‘Including practices as heinous as mass murder, gang rape, the slaughter of children, the destruction of vast areas in which the Rohingya lived, combined with the denial of access to services in health, education and adequate housing, being prevented from trading and with the elimination of the Rohingya identity from public registers and censuses, all this within a framework of a null and void rule of law.’ BROUK (2019), p.36.
167 BROUK (2018), p.37. 168 Ibid.
169 HRC Report IIFFM (2018), para.1548. 170 Ibid, para.1549.
171 Ibid., ‘at impeding their access to minimum conditions of health, education and adequate housing; at preventing the community form employment opportunities; at the complete destruction of their towns and villages; at the destruction of all mosques in the Rakhine State; at the restrictions of births and marriages against the community’s
26 7. Failure to prevent and redress
The Human Rights Council mandated the mission aiming at ensuring full accountability for perpetrators and justice for victims.172
This mission has confirmed that the State Counsellor,
‘has not used her de facto position as Head of the Government, nor her moral authority, to stem or prevent the unfolding events, or seek alternative avenues to meet a responsibility to protect the civilian population. On the contrary, the civilian authorities have spread false narratives, denied the wrongdoing of the Tatmadaw, blocked independent investigations (including that of the fact-finding mission), and overseen the destruction of evidence.’173All in all, it cannot be established the effective control of the defence forces by the civilian government and, although the requirement of knowledge would be satisfied, if no such link is determined, the doctrine of superior responsibility cannot be applied to the present case. It is for this reason that, in the absence of effective control, this mdoe of liability will not be analysed for war crimes of crimes against humanity.
VIII. Genocide
There must be a differentiation between the several modes of participation and individual liability other than direct or immediate perpetration concerning the crime of genocide. Consequently, all other forms of perpetration, namely superior responsibility, instigation, aiding or abetting, conspiracy will be argued.
An accomplice to genocide in the sense of Article 2(3)(e) of the ICTR Statute174 does not necessarily need to possess the dolus specialis himself175 but must only know or ‘have reason to know’ that the principal acted with the specific intent,176 because accomplice liability is accessorial to principal liability. The accomplice borrows the criminality of the principal perpetrator (criminalité d’emprunt), meaning that complicity takes the criminality of the act committed by the principal perpetrator. Thus, the conduct of the accomplice emerges as a crime
family rights; at the elimination of the Rohingya identity from public registers and from the census; at the rejection of their inclusiveness in nationality laws; at the blocking of the humanitarian aid crucial for their survival; at the public spreading by the authorities of hate speech and violence against the Rohingya; the null implementation of the recommendations of the UN and of the Advisory Commission to avoid ethnic cleansing; and at the absolute absence of the rule of law and the climate of fear and terror in which the Rohingya have lived for decades in the Rakhine State.’
172 Human Rights Council (HRC), Resolution 34/22 on 24 March 2017, A/HRC/RES/34/22--
173 Ibid., para.93.
174 ICTR Musema [2000], 142, para.181. 175 ICTR Akayesu [1998], para.540, 545, 548. 176 Ibid, para.541.
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when the crime has been consummated by the principal perpetrator. The accomplice has not committed an autonomous crime, but has merely facilitated the criminal enterprise committed by another.’177 Complicity in genocide requires only knowledge of the genocidal intent.178 Regardless of Suu Kyi sharing the dolus specialis of the cirme of genocide, knowledge of the criminal actions and of the genocidal intent from the military existed and are proven by the enormous accumulation of information and of evidence collected.
Regarding conviction for the crime of genocide, the international criminal tribunals have not yield to arguments defending a lower threshold for the requirement of intent based upon knowledge that the commission of enumerated acts will result in the destruction of a group.179 At the same time, it is well established that persons can be presumed to intend the natural, probable and foreseeable consequences of their conduct.180 In addition, individuals may be convicted of various forms of complicity in genocide with a showing that they knew that the principal perpetrators were acting with genocidal intent and knowingly contributed to that course of conduct.181
8. Instigation and Direct and Public Incitement
The first step of the crime of genocide is the preparation and mobilization of the masses by means of propaganda, thereby the first step in the fight against genocide is to prevent incitement to the crime.182 In Akayesu, the Trial Chamber required a specific intent in the crime of incitement within the meaning of Article 2(3)(c) of the ICTR Statute: ‘The mens rea required for the crime of direct and public incitement to commit genocide lies in the intent to directly prompt or provoke another to commit genocide. It implies a desire on the part of the perpetrator to create by his actions a particular state of mind necessary to commit such a crime in the minds of the person(s) he is so engaging. That is to say that the person who is inciting to commit genocide must have himself the specific intent to commit genocide’ (emphasis addedd).183 This
177 Ibid, para.528.
178 ICTR Musema [2000] para.181
179 Greenawalt (1999), pp. 2259-2294; Clark (2015), p.516. 180 Lowe (2002), p.5.
181 ILC (2001), Draft Articles on Responsibility of States for Internationally Wrongful Acts, Supplement No. 10 (A/56/10), Chapter IV.E.1.
182 Ad Hoc Committee, meeting held on 30 April 1948, portions of report adopted in first reading, UN Doc. E/AC.25/W.4, 3 May 1948, p. 12; See also Ad Hoc Committee, Summary Records of the 26th Meeting (30 April 1948), UN Doc. E/AC.25/SR.26, 12 May 1948, p. 13 (original wording deleted and replaced by UN Doc. E/AC.25/SR.26/Corr.1 (1 June 1948)) (Mr Maktos); Ad Hoc Committee, Summary Records of the 28th Meeting (10 May 1948), UN Doc. E/AC.25/SR.28, 9 June 1948, p. 7 (Mr Maktos). See also Eighty-fourth Meeting, UN Doc. A/C.6/SR.84, 26 October 1948, p. 216 (Mr Maktos).
183 ICTR Akayesu [1998], para.560; Jones (2013), p.287; Kalimanzira v. The Prosecutor (Appeal Judgment), Case No. ICTR-05-88-A, International Criminal Tribunal for Rwanda (ICTR), 20 October 2010, para.156.
