UN Security Council Should Urgently Refer Myanmar to the ICC
(New York) – The Myanmar government should prosecute recently removed army officers for their role in atrocities against ethnic Rohingya, Human Rights Watch said today. On June 25, 2018, in a statement posted on a Myanmar military Facebook page, the military announced the dismissal of Maj. Gen. Maung Maung Soe and belatedly announced the resignation of Lt. Gen. Aung Kyaw Zaw.
Each general oversaw military operations in Rakhine State following the deadly attacks by the Arakan Rohingya Salvation Army (ARSA) on security posts on August 25, 2017. Military forces under the command of Maung Maung Soe and Aung Kyaw Zaw carried out a campaign of killings, rape, and mass arson that forced over 700,000 Rohingya refugees to flee to Bangladesh. Human Rights Watch found that these abuses amounted to crimes against humanity. The June 25 announcement made no reference of their link to atrocities, but instead focused on the weakness of their administration and performance prior to the ARSA attacks.
“Releasing from service two generals whose forces committed ethnic cleansing is a grossly inadequate response to wide-ranging atrocities,” said Brad Adams, Asia director. “This slap on the wrist is further proof that the Myanmar military has little intention of providing accountability for grave crimes.”
Both generals have been sanctioned because of their alleged responsibility for military atrocities against the Rohingya in northern Rakhine State. On December 21, 2017, the United States sanctioned Maung Maung Soe, while on February 16, 2018, Canada did the same. On June 25, the European Union and Canada announced new sanctions that included Maung Maung Soe, Aung Kyaw Zaw, and five other members of the Myanmar security forces present in northern Rakhine State or responsible for operations there.
Maj. Gen. Maung Maung Soe is the former commander of the Western Command, which oversees military deployments and operations in Rakhine State. His dismissal on June 25 followed his transfer from his position of command to “reserve” duty in November 2017, taking him out of his active role of command.
The statement points out several shortcomings of Maung Maung Soe, including his weak performance in gaining advanced information about the ARSA attacks and taking necessary actions or preparations prior to the attacks, as well as his inability to secure Rakhine State. The statement makes no reference to the atrocities carried out by the forces operating under the Western Command and within the territory for which his command was responsible.
Lt. Gen. Aung Kyaw Zaw was the former commander of the Bureau of Special Operations No. 3 (BSO-3), which oversees three regional commands, including the Western Command. Maung Maung Soe was his subordinate. The statement said that Aung Kyaw Zaw’s performance relating to the attacks in Rakhine State and implementing policies from “above” were lacking. He was reportedly transferred from his assignment in part as a consequence of a “health condition,” and was later permitted to resign from the military on May 22.
Both generals retained their positions of authority and responsibility over the military and security forces throughout the ethnic cleansing campaign that security forces began in late August in Rakhine State. Under the legal doctrine of command responsibility, commanders and other superiors are criminally responsible for crimes committed by their subordinates if they knew or should have known about such crimes and did not act to prevent them or punish those responsible.
The Myanmar government recently announced plans to establish a three-member commission of inquiry, including one international representative, to look into alleged abuses in Rakhine State. But the government has repeatedly failed to credibly investigate crimes against the Rohingya committed by government forces. A Myanmar army investigation into violence in Rakhine state in 2016, when Myanmar security forces conducted a campaign of mass arson, rape, and murder, forcing nearly 90,000 Rohingya to flee to Bangladesh, found only two minor abuses. A second investigation, led by the same army general, concluded that “there were no deaths of innocent people” during the military operations that began in August 2017.
On June 27, the United Nations special rapporteur on human rights in Myanmar, Yanghee Lee, questioned the purpose of the government’s new commission, especially since the government continues to block the UN-mandated Fact Finding Mission. She added in her update to the Human Rights Council that the situation in Myanmar demands accountability for the crimes committed and “clearly warrants” the attention of the International Criminal Court (ICC). She further said that the Human Rights Council should establish an accountability mechanism to prepare for an eventual prosecution of criminal suspects.
The UN Security Council should refer the situation in Myanmar to the International Criminal Court. Under the ICC’s statute, the court can only act when a state is “unwilling or unable” to investigate or prosecute grave crimes in violation of international law. Because Myanmar is neither a party to the ICC nor has accepted the court’s jurisdiction, the UN Security Council needs to refer the situation to the court.
“Myanmar’s history of atrocity denial leaves little hope that the proposed government commission will deliver credible findings,” Adams said. “Targeted sanctions by governments send a strong message of condemnation and a measure of accountability, but they are no substitute for bringing those responsible for grave crimes to justice. Concerned governments should press the UN Security Council to refer Myanmar to the ICC, and ensure that evidence is collected and preserved for prosecutions.”