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EFSAS Commentary

Myanmar Army deserters may take the Rohingyas a big step closer to justice


The 7 September arrival in The Hague of two deserters of the Myanmar Army is no ordinary event. Even if the deserters were low ranking soldiers whose route to The Hague was shrouded in mystery and secrecy, the significance of their arrival lies in the promise that it holds for over a million Rohingyas who continue to suffer untold hardships within Myanmar and in refugee camps in Bangladesh after being subjected to what has been variously described as genocide and crimes against humanity at the hands of the Myanmar government. The firsthand accounts of the atrocities against the Rohingyas that these two soldiers have narrated on camera are gory and horrific, and they leave hardly any room to doubt that the cold-blooded murders, mass rapes, and rampant destruction were perpetrated as a conscious policy by the Myanmar Army, with superior officers issuing spine-chilling orders to annihilate. These accounts unravel vital events that hold an important key to the quest for justice for the Rohingyas.

Fortify Rights, a Thailand-based non-profit organization that investigates human rights violations and has covered Myanmar extensively, in a statement earlier this week said that it had obtained and analyzed videos of Private Myo Win Tun of the 565th Light Infantry Battalion (LIB) and Private Zaw Naing Tun of the 353rd LIB of the Myanmar Army. In these videos, the two soldiers spoke in considerable detail about the involvement of their Battalions in the brutality of the 2017 ‘clearance operations’ that the Myanmar Army had unleashed upon the Rohingyas. Fortify Rights has uploaded these videos on its website.

Dressed in military uniform, Myo Win Tun asserted in the video that Colonel Than Htike, the commander of the 15th Military Operations Center of the Myanmar Army, had ordered his unit to “shoot all you see and all you hear” when raiding Rohingya villages near Taung Bazar in Buthidaung Township in September 2017. He revealed that in just one operation the unit had killed and buried 30 people, comprising “eight women, seven children and 15 men and elderly”. Acting on Colonel Htike’s command that his unit “exterminate all Kalar”, which is a derogatory name for the Rohingyas, the soldiers raped the women before killing them and shot the men in their foreheads before kicking their bodies into a hole. They took away mobile phones, laptops, and even the cattle from the Rohingya villages that they attacked. Significantly, Myo Win Tun admitted that he himself had carried out one rape.

Zaw Naing Tun, similarly attired, in a separate video narrated how his unit, in operations sanctioned by his battalion commander Lt. Col Myo Myint Aung, had “wiped out” as many as 20 Rohingya villages near Maungdaw Township in September 2017. He recalled that about 80 people in all had been killed in these operations, and they included children, adults and the elderly of both sexes. In one incident, 10 villagers suspected of belonging to the Arakan Rohingya Salvation Army (ARSA), a Rohingya insurgent group, were captured and tied up and then shot on the orders of a captain. Zaw Naing Tun undemonstratively acknowledged that he was one of the shooters. He added, “I witnessed Sergeant Pyae Phyoe Aung and Corporal Shwe Htwe rape three kalar- ma (Rohingya women) when we implemented the clearance operations in Kyet Yoe Pyin village”. Although he asserted that he had not carried out any rapes himself, Zaw Naing Tun did acknowledge taking part in looting. He said that before launching a raid on a market, his unit officer had made it clear to the troops that “what you take is what you get”. The soldiers, thereafter “entered into the market, destroyed locks and doors, and then took money, gold, clothes, food and mobile phones”.

Fortify Rights, after comparing the information shared by the two soldiers with previously documented events related to the 2017 Myanmar Army-led ‘clearance operations’ against the Rohingyas, came to the conclusion that the information contained in the videos was credible. For instance, Zaw Naing Tun and Myo Win Tun identified six LIBs as being responsible for crimes against the Rohingyas — LIBs 345, 353, 551, 552, 564, and 565. Fortify Rights as well as the Independent International Fact-Finding Mission on Myanmar had previously identified these six LIBs, among others, as having been involved in genocide and crimes against humanity against the Rohingyas in 2017. Similarly, the soldiers identified six villages in which they had committed crimes against Rohingya civilians in 2017 – Kyet Yoe Pyin, Ngan Chaung, U Shin Kya, Doe Tan, and Zin Paing Nyar villages in Maungdaw Township, and Taung Bazar village in Buthidaung Township. The United Nations (UN) and human rights groups had earlier identified these villages as sites of the ‘clearance operations’. Both soldiers also described the locations of mass graves. Myo Win Tun described a mass grave of 30 bodies located on “Tower Tai Street”, which is approximately six miles north of Maung Nu village. That is the site of a well-documented massacre. Matthew Smith, the chief executive of Fortify Rights, therefore said, “When we take a closer look at what we had documented and what the soldiers are sharing about what took place there, it's a match”.

The circumstances in which the two soldiers made their video confessions and how they landed up in The Hague, however, remain unclear amidst conflicting claims and statements. Fortify Rights has said that the videos were filmed by the Arakan Army (AA), an ethnic insurgent group that is engaged in armed conflict with the Myanmar Army in the Rakhine and Chin states. Zaw Naing Tun’s confession was filmed by the AA on 8 July and Myo Win Tun’s on 23 July. AA spokesman Khine Thu Kha described the two men as Myanmar Army deserters and not prisoners of war of the AA as some were suggesting. He underlined that “They voluntarily confessed about the war crimes committed by Myanmar's military”. In response to a question on what had motivated the Buddhist AA to highlight atrocities against the Muslim Rohingyas, Khine Thu Kha said the AA was “committed to justice” for all victims of the Myanmar military.

The Myanmar military, unsurprisingly, has sought to discredit the two deserters and their confessions. Military spokesman Brigadier General Zaw Min Tun admitted to BBC Burmese on 9 September that the two were indeed former Myanmar Army soldiers, but claimed that they had been “taken hostage” by the AA and “threatened and coerced into confessing”. Even though the AA has refuted this contention, the possibility of the two privates being prisoners of the AA at the time they made their confessions cannot be ruled out. As had been brought out in the EFSAS Commentary of 29-05-2020, as many as 36 Myanmar Army troops had been captured by the AA in a single operation in March. Others would have fallen into the AA’s hands in similar other operational setbacks for the Myanmar Army.

Brigadier General Zaw Min Tun’s suggestion that the credibility of the confessions was rendered questionable on the basis of their having been made in captivity does not stand to reason. If the AA were to coerce captive soldiers to make phony confessions, it would logically be expected to weave the sham narrative around the atrocities suffered by the ethnic Buddhist Rakhine people, and not the Muslim Rohingyas, at the hands of the Myanmar Army. After all, the AA claims to represent the Rakhines, who have had their own share of suffering from the Myanmar Army, and whose rights the AA claims to fight for. Moreover, had the AA forced false confessions from the privates, it would hardly be likely to allow them to travel to The Hague and risk having their false narratives exposed under intense scrutiny at the International Criminal Court (ICC).

The long journey of the two deserters to the Netherlands began at Myanmar’s border with Bangladesh. They appeared on the Bangladesh-Myanmar border in mid-August and requested protection from Bangladeshi authorities. According to Payam Akhavan, a Canadian lawyer representing Bangladesh in a filing against Myanmar at the ICC, the two men had appeared at a border post and had confessed to the mass murder and rape of Rohingya civilians in 2017. He added that they had provided credible information about their participation in the 2017 violence “under direct orders from their military commanders”. As a State party to the Rome Statute, Dhaka notified the ICC of the presence of the two former soldiers. On the current location of the two, Payam Akhavan said, “I am not at liberty to divulge either their identity or where they have been taken. All I can say is that those two individuals are no longer in Bangladesh”.

Fortify Rights, meanwhile, has said that it has reason to believe that the two defectors are in the custody of the ICC in The Hague. Fadi el Abdallah, a spokesman for the ICC, denied that the ICC had the men in its custody. He said, “No. These reports are not correct. We don’t have these persons in the ICC custody”. The ICC had on 6 September 2018 granted the Chief Prosecutor of the ICC the jurisdiction to investigate and prosecute the crime against humanity of forced deportation of Rohingyas to Bangladesh, as well as persecution and other inhumane acts. An official investigation by the ICC Prosecutor’s office into allegations of genocide against the Rohingyas by the Myanmar government was started last November. Responding to reports on the arrival of the two deserters in The Hague, the ICC Prosecutor’s Office said in a statement that “The office does not publicly comment on speculation or reports regarding its ongoing investigations, neither does the office discuss specifics of any aspect of its investigative activities”.

Step Vaessen, Al Jazeera's correspondent in The Netherlands, confirmed that the two had arrived in The Hague on 7 September. She added that it was most likely the ICC that had arranged for the visas of the two deserters and had facilitated their travel to The Netherlands. She pointed out that the Prosecutor’s office is independent of the ICC, and that the ICC has significant protection programs for witnesses. She expressed the view that the two deserters had most likely been placed under such a protection program, and that explained the secrecy around their whereabouts. The ICC has witness protection programs for various types of witnesses, including ‘insider witnesses’. Under Article 68 (1) of the Rome Statute, the ICC is obligated to “take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy” of witnesses, and under Article 43 (6), a victims and witnesses section at the ICC is responsible for “protective measures and security arrangements” for at-risk witnesses.

The observations of Payam Akhavan also left little doubt that the two deserters were indeed in The Hague. He averred that if the accounts of the two were proven to be true in an investigation at the ICC, they would confirm that “these crimes were not by any means random or isolated, the misdeeds of a few bad soldiers, but that they were executed pursuant to orders from the highest levels of the military chain of command”. He added, “Impunity is not an option. We must do what we can despite constraints. Some justice is better than no justice at all”.

Matthew Smith also held a similar opinion. He said, “These confessions demonstrate what we’ve long known, which is that the Myanmar Army is a well-functioning national army operating with a specific and centralized command structure. Commanders control, direct, and order their subordinates in all they do. In this case, commanders ordered foot soldiers to commit genocidal acts and exterminate Rohingya, and that’s exactly what they did”. Under Article 28 of the Rome Statute, commanders of state security forces exercising control over those responsible for crimes against humanity and/or genocide - whether as physical perpetrators or some other form of liability - are liable for international crimes if they knew or should have known about the crimes and failed to take all necessary and reasonable measures to prevent or repress them. Under the legal doctrine of command responsibility, higher-ranking officers are held responsible for heinous acts carried out by those serving under them.

Antonia Mulvey, executive director of Legal Action Worldwide, felt that if the evidence provided by the two deserters turns out to be credible, it would be a huge push for the investigation. A big factor that indicates that the evidence is indeed credible is the fact that the two deserters have implicated themselves in their confessions of having carried out killings, rapes and loot. They have named at least another 17 Myanmar Army officers and soldiers as being directly involved in the brutal 2017 campaign.

Fortify Rights has, meanwhile, argued that “It is reasonable to assume Myo Win Tun and Zaw Naing Tun could plead guilty to the crimes to which they confessed in exchange for becoming ‘insider witnesses’ for future trials. Such a development would significantly advance efforts to hold perpetrators accountable for atrocity crimes against Rohingya”. Matthew Smith added, “We hope the willingness of these men to come forward carries like a wave of justice across the Myanmar military and officialdom. More soldiers and government insiders in the country should come forward with information. There are systems in place to protect their rights… This is a monumental moment for Rohingya and the people of Myanmar in their ongoing struggle for justice. These men could be the first perpetrators from Myanmar tried at the ICC, and the first insider witnesses in the custody of the court. We expect prompt action”.

The case of the two deserters is comforting as it displays an uncharacteristic willingness by the international judicial architecture to step outside the box and demonstrate its resolve to bring the perpetrators of serious human rights violations to justice. Myanmar is not a signatory to the Rome Statute and is therefore not a member of the ICC. The ICC overcame this jurisdictional challenge by ruling that the Rohingya issue also impacted Bangladesh, where about three quarters of a million Rohingyas have fled and taken refuge from the Myanmar Army. Bangladesh is a signatory to the Statute. Similarly, the decision to get the deserters over to the ICC, potentially as ‘insider witnesses’, is a bold and proactive strategy that displays a genuine keenness to dispense justice.

Importantly, the message from this that will go out to chronic human rights violators such as China, which are not signatories to the Rome Statute, is that the obstacle of their lack of membership of the ICC can be overcome through innovative interpretations on jurisdiction, and that officials of the regime who are today participating in the suppression of ethno-religious groups such as the Uyghurs could tomorrow become disgruntled dissenters, ripe for being whisked away to the ICC to tell the world their grisly firsthand tales of oppression and inhuman viciousness.