(BANGKOK, April 2, 2020)—The Government of Bangladesh should immediately take all necessary steps to protect Rohingya refugees and nearby host communities in Cox’s Bazar District from COVID-19 infection, said Fortify Rights and 49 human rights organizations in an open letter today. The authorities should immediately lift all restrictions that prevent Rohingya refugees from freely accessing mobile communications and the internet and also halt the construction of fencing aimed to confine Rohingya refugees in camps.
NEW YORK – Yanghee Lee, United Nations Special Rapporteur on the situation of human rights in Myanmar, released an advance version of her final report today. Lee was appointed by the UN Human Rights Council in 2014.
Grant Shubin, legal director of the Global Justice Center, had the following response:
“Special Rapporteur Lee has been a stalwart advocate for human rights and justice in Myanmar throughout her entire tenure. As expected, her final report conveys the gravity of the situation in Myanmar as well as the urgency of domestic and international action.”
“Backed up by years of investigation and documentation, Lee’s report recognizes that international action, whether at the International Criminal Court or the International Court of Justice, is critical to reversing the scourge of genocide and other grave crimes in the country. We hope the international community heeds her words. They’re more important now than ever.”
Letter to UN Security Council members regarding Myanmar’s Independent Commission of Enquiry and the Provisional Measures ordered by the International Court of Justice
We are writing to you in light of the recently published summary of the final report of Myanmar’s Independent Commission of Enquiry (ICOE), which was issued the same week that the International Court of Justice (ICJ) ordered Myanmar to take immediate action to prevent genocide against the country’s persecuted Rohingya minority. In particular, we would like to raise grave concerns regarding the ICOE’s: (1) independence and impartiality; (2) methodology; and (3) flaws in narrative and findings.
The ICOE’s independence and impartiality have been seriously undermined by its reliance on the Office of the President of Myanmar for financial and technical support, as well as by the composition of the Commission itself, which includes at least one official directly implicated in the bulldozing of Rohingya villages damaged during the 2017 crisis in Rakhine State. The executive summary of the ICOE’s report also provides no information as to what sources and materials were relied upon beyond individual interviews, nor how the ICOE corroborated and verified this information, making it impossible to assess the quality of their methodology. Crucially, the ICOE did not interview a single Rohingya refugee in Cox’s Bazar, Bangladesh, regarding the circumstances that resulted in over 700,000 people fleeing the country. Finally, there are serious flaws and misrepresentations in the ICOE’s narrative of the crisis in Rakhine State, including disturbing inaccuracies and omissions in relation to mass rape and widespread sexual violence directed at Rohingya women and girls during the military’s so-called “clearance operations.”
Excerpt of Just Security op-ed by GJC's Akila Radhakrishnan and Grant Shubin.
In the wake of the ruling from the International Court of Justice (ICJ) ordering Myanmar to prevent genocide against the Rohingya going forward, the initial excitement was tempered by pragmatics—how this important court order can be enforced so that it actually protects the 600,000 Rohingya who remain in Rakhine State.
To be sure, there is no confusion that these measures are binding—as the court noted, they create international legal obligations that require Myanmar’s compliance. But how can the international community guarantee that Myanmar actually does anything? And does Myanmar’s civilian government have the capacity to do what is needed?
The answers to these questions are mixed, generally relying on exertion of geopolitical pressure, including through the United Nations Security Council, to which the order has been transmitted. As a general rule and absent a concrete enforcement mechanism, ICJ orders have a reliable compliance rate. However, looking at the Myanmar case in context, and in particular the measures requiring prevention of the commission of genocide by Myanmar’s military, compliance will require a serious and concerted effort by both the international community and the civilian government.
On January 20, 2020, Myanmar’s Independent Commission of Enquiry (“ICOE”) submitted its final report to Myanmar’s government. The report, which was initially due on July 30, 2019, was instead submitted three days before the International Court of Justice handed down its unanimous decision on provisional measures in The Gambia v. Myanmar. With the mandate to “investigate the allegations of human rights violations and related issues, following the terrorist attacks by ARSA,” Myanmar has relied on the work of the ICOE since its creation to object to international efforts, including those of the UN Security Council, to ensure accountability for the crimes against the Rohingya.
The ICOE is not the first, but the eighth ad-hoc commission and board set up by Myanmar since 2012 with regard to the situation in Rakhine State; however, the UN Independent International Fact-Finding Mission on Myanmar has determined that none of these commissions, including the ICOE, meet the standards of an “impartial, independent, effective and thorough human rights investigation.” This Factsheet seeks to provide context and analysis on the ICOE and its final report and can be used by the international community to understand the report and its analysis.
Excerpt of Just Security article that features GJC President Akila Radhakrishnan.
As Akila Radhakrishnan of the Global Justice Center put it, the ICoE summary is a “masterclass in how to erase the gendered experiences of conflict and genocide.” While the FFM had described “rape and other forms of sexual violence [as] one of the hallmarks of Tatmadaw (Myanmar military) operations,” the ICoE concluded:
“There were no credible statements on allegations of gang rape committed by Myanmar’s security forces. Although some interviewees mentioned rape cases, these were all secondhand information heard from someone else.”
Excerpt of New York Times article that features GJC President Akila Radhakrishnan.
“The court confirmed that no matter where genocide occurs, it’s a matter for the entire international community, and that a state does not have to be connected or affected by the genocide in order for them to take action to prevent, end and punish it,” said Akila Radhakrishnan, president of the New York-based Global Justice Center.
Excerpt of CNN article that features GJC President Akila Radhakrishnan.
Akila Radhakrishnan, President of the Global Justice Center, said the ruling was a legal statement and a powerful recognition of what the Rohingya went through.
"It's like a surface affirmation from the court, that kind of the basics of the case have been met," she said. "There's power in acknowledgment, there's power in another country standing up for your rights, taking someone to court, putting a lot behind exposing in a very serious manner what happened. I think that that can't be lost in this."
Excerpt of Washington Post article that features GJC President Akila Radhakrishnan.
Experts in international justice said the court’s ruling that Gambia did indeed have a case against Myanmar set a strong precedent. The decision at the United Nations’ highest court also acknowledged that Rohingya Muslims constitute a vulnerable group that is in need of protection, they said.
“There was a level of complicity that existed around the Rohingya,” said Akila Radhakrishnan, the president of the New York-based Global Justice Center. “The ruling not only sends a signal to Myanmar that its flimsy excuses won’t be accepted, but also sends a signal to the rest of the international community that there are still some serious risks to the Rohingya that must be acted on.”
Excerpt of Le Monde article that features GJC Deputy Legal Director Grant Shubin.
The decision must now be transmitted to the United Nations Security Council. Grant Shubin, deputy legal director of the Global Justice Center, said: "It is not certain that the Council will take action, particularly because of opposition from China," Burma's ally, "but such a decision constitutes a warning for Burma that the international community is watching.”
Excerpt of ABC Australia article that features GJC President Akila Radhakrishnan.
The full report is not public, but the Global Justice Centre cast doubt on the commission's independence and said it couldn't provide real accountability.
"All signs point to what human rights experts and Rohingya themselves already know, which is that the government has no intention of bringing perpetrators of mass rape and other genocidal crimes to justice," Akila Radhakrishnan, president of the Global Justice Centre, said.
"This Commission is just yet another domestic attempt to deflect responsibility and whitewash the situation of the Rohingya."
She pointed out that the report "also seemingly fails, like the Government of Myanmar, to use the term 'Rohingya', which continues to deny the identity of the group".
Excerpt of Bloomberg article that features GJC Deputy Legal Director Grant Shubin.
Failure to comply may affect Myanmar’s international standing or prompt reactions in bilateral or multilateral forums, Grant Shubin, deputy legal director of the New York-based Global Justice Center said in an email. ”While there are still several stages of the case that must happen before the court finally decides if Myanmar violated the Genocide Convention, the broader international community should do everything in their power to ensure Myanmar complies with an order,” Shubin added.
THE HAGUE — The International Court of Justice today ordered Myanmar to take immediate action to prevent genocide.
The “provisional measures” require Myanmar to prevent genocidal acts, ensure military and police forces do not commit genocidal acts, preserve all evidence of genocidal acts, and report on compliance with these provisional measures. The measures are also automatically sent to the UN Security Council.
“Today’s order is a massive step towards justice for the Rohingya that underlines the importance of the global rule of law,” said Akila Radhakrishnan, president of the Global Justice Center. “Hundreds of thousands of Rohingya are still under the threat of genocide. Over a million languish in refugee camps far from home. These measures recognize the tremendous urgency of the situation for survivors of sexual violence and other genocidal crimes. It’s now time for the international community, including the Security Council, to act to ensure compliance.”
In its request for provisional measures, The Gambia cited the findings of the United Nations Independent International Fact-Finding Mission on Myanmar, which reported in September that the Rohingya remaining inside Myanmar “live under the threat of genocide.” Countries on the UN Security Council are obligated to prevent and punish the crime of genocide under the Genocide Convention.
“This is the first step on a path to justice for the Rohingya. I hope that all members of the UN Security Council will uphold their moral and political obligation to ensure that the provisional measures ordered by the Court are fully implemented,” said Dr. Simon Adams, Executive Director of the Global Centre for the Responsibility to Protect. “Those responsible for genocide are still in power in Myanmar. Justice has been delayed but can no longer be denied.”
Excerpt of The Guardian article that features GJC President Akila Radhakrishnan.
The panel report, said Akila Radhakrishnan, a human rights lawyer and the President of the Global Justice Centre, was fundamentally flawed. “It’s methodology has been criticised since it was announced, the last fact [UN] finding mission report laid out a series of concerns that they had - from the lack of a clear mandate to to its dependency on the Myanmar government and questionable operating procedures.
“The [panel] commissioners themselves said they’re not going to be able to point the finger, that they are not looking to establish accountability.”
Radhakrishnan added that by admitting some abuses took place, the report appeared to be attempting to reassure the international community, and that the timing of the report was significant. “This is their way of saying we have this impartial independent process - you need to leave domestic accountability to us,” she said.
Excerpt of Reuters article that features GJC President Akila Radhakrishnan.
Although the Myanmar case in The Hague is only at an early stage, human rights lawyer Akila Radhakrishnan said it has already had an impact.
"Since the case was filed we've seen the government take some action to ensure accountability, like issuing a court martial. Now the military justice system is deeply flawed but its something that wasn't there before," she said.
Excerpt of Pass Blue op-ed by GJC President Akila Radhakrishnan.
Last month, the world was struck by an unusual image — that of a Nobel Peace Prize laureate, Aung San Suu Kyi — standing in court to defend and deny genocide. What was striking was not only what she and Myanmar’s legal team said but also what wasn’t said: the total failure of Myanmar to respond to the allegations of mass sexual violence against the Rohingya, including rape.
As Prof. Philippe Sands, counsel for The Gambia, which brought the case against Myanmar, said, “Madame agent, your silence says far more than your words.”
In fact, the words “sexual violence” passed through the lips of Myanmar’s team just once during the three-day hearings at the International Court of Justice in December, only to say that it is “a phenomenon that regrettably occurs in many parts of the world and that we all condemn unequivocally.”
Excerpt of Al Jazeera article that features GJC President Akila Radhakrishnan.
But refugees carried consistent accounts of widespread murder, rape, torture and arson with them and have so far largely refused to return for fear of their safety.
“All signs point to what human rights experts and Rohingya themselves already know, which is that the government has no intention of bringing perpetrators of mass rape and other genocidal crimes to justice,” Akila Radhakrishnan, president of the Global Justice Center said in a statement.
“This Commission is just yet another domestic attempt to deflect responsibility and whitewash the situation of the Rohingya.”
Report Confirms Human Rights Experts’ Charges that Commission Won’t Provide Real Accountability
NEW YORK – The Independent Commission of Enquiry (ICOE), established by the Government of Myanmar to investigate human rights abuses in Rakhine State, submitted its final report to Myanmar’s government today. The full report is not yet public and its submission comes days before an International Court of Justice ruling that could impose immediately binding obligations on Myanmar.
The report acknowledged some human rights abuses occurred in the context of what it deemed an “internal armed conflict,” but found no evidence of genocidal intent, contradicting independent United Nations investigations and numerous human rights organizations. The Commission also asserts that its full report and annexes can be used as the basis for domestic investigations, including by the military justice system as a venue for accountability, despite the military’s history of protecting soldiers who carried out human rights abuses and the significant flaws of the system. The report also seemingly fails, like the Government of Myanmar, to use the term “Rohingya” which continues to deny the identity of the group.
“All signs point to what human rights experts and Rohingya themselves already know, which is that the government has no intention of bringing perpetrators of mass rape and other genocidal crimes to justice,” said Akila Radhakrishnan, president of the Global Justice Center. “This Commission is just yet another domestic attempt to deflect responsibility and whitewash the situation of the Rohingya.”
The ICOE was established in June 2018 to investigate allegations of human rights abuses in Rakhine state. The Commission said from the outset it would not seek to hold anyone accountable and it was formed to “respond to false allegations made by UN agencies.” This bias, as well as a lack of transparency around the Commission’s methods, led the United Nations Independent International Fact-finding Mission on Myanmar to conclude last year that the commission “does not constitute an effective independent investigations mechanism.”
“The UN Fact-Finding Mission was right when it said accountability must come from the international community,” said Radhakrishnan. “We must continue to support ongoing efforts seeking true accountability for the crimes against the Rohingya, including The Gambia’s case at the International Court of Justice and the International Criminal Court’s current investigation.”
Excerpt of Inter Press Service article that features GJC President Akila Radhakrishnan.
Meanwhile, Roth also echoed thoughts from experts who have previously said that one of the reasons the Security Council had not been able to take steps against Myanmar is because of pressure from China.
In November, on the heels of a lawsuit being filed against Myanmar by the Gambia, Akila Radhakrishnan of the Global Justice Center expressed similar concerns to IPS.
“Security council has consistently failed to act because of China — there’s no possibility of any strong action,” Radhakrishnan had said, reiterating why it’s important for states to directly take action against Myanmar.
In that regard, especially with Roth’s concerns about China “intimidation of other governments” with threats, one issue of concern would be China’s relations with the Gambia, which has grown in the past few years.
Excerpt of The New Daily article that features a GJC tweet.
The Nobel peace prize Laureate, once heralded as a human rights champion, also said the government was working to boost “social cohesion” between the Rohingya people and the rest of the country.
“Mr President, how can there be an ongoing genocide or genocidal intent when these concrete steps are being taken in Rakhine?” she said.
Human rights groups have refuted Ms Suu Kyi’s version of events.
The Global Justice Centre slammed her picture of an internal military conflict with “no genocidal intent” against the Rohingya as “completely false”.