[Analytics] Myanmar’s get out of jail free card

Myanmar’s government made a stunningly rare admission of wrongdoing recently when it admitted that “war crimes” had been perpetrated against Muslims in Rakhine state during the violence of 2017. Unsurprisingly, it concluded the savagery did not constitute genocide as United Nations (UN) and other human rights investigators have suggested. David Scott Mathieson specially for the Asia Times.

The government made the admission following the finalization of the Independent Commission of Enquiry (ICOE) report, the executive summary of which was made public just days before the United Nations’ International Court of Justice (ICJ) announced temporary provisions on Myanmar in its ongoing proceedings on genocide charges.

The ICOE’s conclusions evinced two broad international receptions: one of measured acknowledgement that it admitted to serious crimes previously flatly denied by the administration of State Counsellor Aung San Suu Kyi – and thus provides a foundation for further discussion on accountability – and another of blithe indifference.

While the report should be dismissed as another exercise in cynical codswallop from an unrepentant military and civilian government, the ICOE experience nonetheless signals something more. That is, the report bids to peddle a sense of official partial closure on what happened in Rakhine state and that government business may now return to normal.

While numerous international accountability measures gather pace, inside Myanmar the ICOE acts as elite indemnity against these efforts by providing a simulation of domestic efforts at accountability for the crimes against humanity.

It also provides an opening for numerous international interlocutors, many with vested interests in Myanmar’s failing peace process, that could argue progress had been made. But how much of an admission of guilt is included in the report and its entire probing exercise?

The ICOE was established on July 30, 2018, in the midst of blanket government denials of any culpability in the forced expulsion of 700,000 plus Rohingya Muslims, and the alleged associated killings of several thousands of civilians.

The government convened a four-person team comprised of: Rosaria Manalo, a mercurial Filipino ambassador; the Myanmar constitutional judge Mya Thein; the ex-head of the United Nations Office Coordinating Humanitarian Affairs (OCHA) Japanese diplomat Kenzo Oshima; and Aung Thun Thet a former Myanmar diplomat.

Its official remit was “to investigate the allegations of human rights violations and related issues, following the terrorist attacks by ARSA (the Arakan Rohingya Salvation Army)”, a shadowy insurgent group that launched crude, lethal attacks against Myanmar border police on August 25, 2017.

The line-up was flawed from the start. Aung Thun Thet’s other duties, as coordinator of the Union Enterprise for Humanitarian, Relief and Development (UEHRD), were a glaring conflict of interest for someone appointed to investigate a crime he was concurrently covering up.

Yet the ICOE’s work was encouraged by a wait-and-see attitude among many in the international community who hoped it would deliver something credible for the West to work with and open the way for re-engagement with Suu Kyi’s government.

The ICOE met 15 times and created two Evidence Collection and Verification Teams (ECVTs) that conducted 1,500 interviews in Rakhine state with various communities and security personnel, and held further interviews and consultations in Yangon and the capital Naypyidaw.

Its plans to conduct interviews in Bangladesh were not agreed to until early January, so important perspectives from victims in the refugee camps in Cox’s Bazar were not included in the report, a glaring omission.

The final report was handed over to Suu Kyi and President U Win Myint on January 21. The report’s executive summary and 12 annexes were released on the President’s website, but the full 461-page report including 31 annexes had not been made public as of January 31.

The report’s major conclusion is that “war crimes, serious human rights violations, and violations of domestic law took place” during the military’s “area clearance” operations staged between August 25 and September 5, 2017.

“Although these serious crimes and violations were committed by multiple actors, there are reasonable grounds to believe that members of Myanmar’s security forces were involved…(t)he killing of innocent villagers and destruction of their homes were committed by some members of the Myanmar’s (sic) security forces through disproportionate use of force during the internal armed conflict,” the report reads.

The human toll of the clearance operation, according to data provided to ICOE from the government, was 376 ARSA members, two members of the Myanmar military, or Tatmadaw, 11 police personnel, two government officials, and 133 civilians dead and 181 missing.

These are not new tallies; the government has bandied them around before and they are as questionable now as when they were first released.

While a credible accounting of the casualties has not been established, aid groups have estimated several thousands of people were killed, while the UN’s investigation in 2018 claimed that reports 10,000 dead were “conservative.”

There is no doubt that ARSA was a genuine threat and had mobilized large numbers of civilian supporters to attack security positions with crude weapons, killing more than a dozen policemen and government officials in gruesome ways.

But to claim, as the ICOE does, “that the scale of armed violence was such that there was an internal armed conflict”, stretches credulity, especially in comparison to the major internal armed conflicts that have raged in Myanmar for several decades.

The report’s annexes suggest that the Tatmadaw were fighting Hezbollah, not ARSA, as the terrorist group was seemingly omnipresent.

The routine denials in the 12 case files of “serious incidents” that security forces were aggressive or openly targeted civilians do not correspond to the report’s wider admissions that disproportionate force was used. Excesses are admitted but glossed over.

The executive summary outlines six major crimes: mass killings, rape, property destruction, looting, torture, and forced displacement. In mass killings, the summary records that one account estimated 500-600 people killed in Min Gyi village of Rakhine state’s Maungdaw on August 29, 2017. It’s a stunning admission until the narrative then suggests the deaths were the result of “clashes between the Myanmar’s security forces and ARSA-fighters.”

That, in turn, is an astonishing number for collateral damage during a firefight, especially seeing as ARSA was not well-armed with modern weaponry; the initial ARSA attack on government security outposts was done mainly with machetes, according to reports.

Other admissions of killings in several more villages, crudely and unconvincingly drawn in the 12 annex case files, are unconvincing at best. The admission that 100 to 200 persons in Maung Nu village in Buthidaung “were deliberately killed” comes with no indication of who caused the alleged deaths.

Even with these questionable admissions, the full death toll still doesn’t add up to the government’s official casualty tally.

The property destruction section admits that security personnel perpetrated arson in several locations, and that “local vigilantes” burned down others, but repeats the canard that ARSA fighters torched their own homes.

It’s worth remembering here that in the months following the violence, government officials repeatedly and implausibly claimed that the Rohingya burned down their own homes.

Some security personnel were involved in looting, and the summary grudgingly admits that witnesses “recalled seeing Myanmar’s Defense Services personnel beat Muslim villagers for the purpose of intimidating them to make them follow orders.”

The summary strongly argues that there was no intent to forcibly expel the Muslim population, but they fled through fear of being caught in clashes between ARSA and the military.

The section on rape is the least plausible. It claims that “there were no credible statements on allegations of gang rape committed by Myanmar’s security forces.” Other rape cases were dismissed as second hand accounts.

Denying just “gang rape” rape is curious wording, to say the least, and does not address individualized sexual violence which has been exhaustively documented in Rakhine state and in many other conflict areas in the country.

The report effectively validates the despicable denials of officials since August 2017, including the State Counsellors Facebook page which at one point was emblazoned with the words “Fake Rape.”

But it was the ICOE’s clarification of the military’s “clearance operation” methodology, presaged by Suu Kyi’s denial speech at the ICJ, which calls into strong question the independence of the entire investigation.

The summary clarifies that the Myanmar term “nae myay shin lin yeh” means to “clear the area of weapons, mines, and terrorists with a view to restoring peace and stability in the affected areas.”

In her statement at the ICJ, Suu Kyi claimed that “its meaning has been distorted” and it has been a regular performance since the early 1950’s, and it “simply means to clear an area of insurgents or terrorists.”

This is abject revisionism and serves to absolve the Tatmadaw for decades of war crimes in its counter-insurgency operations. The six offenses the ICOE outlines in its report have all been central features in a host of atrocities, often referred to as “Four Cuts” operations, committed against ethnic minority communities.

These operational modalities of targeting civilians with a culture of recreational sadism ensured a generation of military impunity throughout ethnic conflict zones.

The executive summary concludes with 22 recommendations, that on their face are everything the international community wants to hear, and echo the 88 recommendations of the Kofi Annan-led Rakhine Advisory Commission released on August 25, 2017.

The first recommendation is for the Tatmadaw’s Judge Advocate General (JAG) to “conduct the necessary investigations and seek accountability for responsible military personnel throughout the Chain of Command (sic), based on facts, evidence and information found in ICOE’s report.”

But after months of denial of any wrongdoing, in 2018 the military did prosecute four officers and three enlisted men for the massacre of Rohingya civilians at Inn Din village, imprisoned them, and soon after pardoned and released them.

As Suu Kyi said in her statement at the ICJ, “(m)any of us in Myanmar were unhappy with this pardon.” And yet she and her civilian government chose to do nothing about it.

Other recommendations include “institutional reform”, training on human rights and international humanitarian law, combating hate speech, education reform and the empowerment of women and girls in all communities.

It’s an essential list to assuage the feckless and opportunistic international community.

But it’s the final recommendation that rents bare the ICOE’s ruthless chutzpah: The international community should be encouraged to form an informal “Friends of Myanmar on Rakhine State” group to provide financial contributions, a brazen call for the West to look the other way and restore its aid.

David Scott Mathieson is a Yangon-based independent consultant working on peace, conflict and human rights