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On Myanmar

This online symposium seeks to contribute to our understanding of the situation in Myanmar, in particular in Rakhine State. CILRAP organised the international expert seminar ‘Colonial Wrongs, Double Standards, and Access to International Law’ in Yangon on 16-17 November 2019. The conference programme, concept note, and links to films and podcasts of the conference presentations are freely available on the project web page. The project has been very well-received, but a few of the reactions to the concept paper made it clear that there may be a need for further, nuanced analysis of the situation in Myanmar.

Against this background, CILRAP is pleased to host an online symposium of publications on various aspects of the situation in Myanmar, by a diversity of authors, in particular from the region. These are all publications of CILRAP’s publisher, the Torkel Opsahl Academic EPublisher (TOAEP). The symposium will continue to grow during the coming months and years. We are particularly interested in perspectives or issues that may be underrepresented or overlooked in the prevailing international justice discourse on Myanmar, as it continues to evolve. The aim is to contribute towards a widening of the discourse, to enhance inclusivity, in the interests of justice, truth and also peace. The publications that have been included in the symposium to date are listed with links at the bottom of this page. The following paragraphs give an overview of the first 16 publications.

Describing the situation in Rakhine State in Myanmar at the time of the launch of the symposium in 2020, Professor NAKANISHI Yoshihiro, a Japanese expert on armed forces in Myanmar, explains that "the fighting in Rakhine since early 2019 has been between a Buddhist organised armed group [the Arakan Army] and the mainly-Buddhist Myanmar Defence Services, and that Muslims in Rakhine have not been a party to this fighting" as opposed to the well-known, catastrophic events in 2016-17. The Bangladeshi scholar Shafqat Munir discusses the potential that Rakhine holds for Bangladesh and for regional co-operation: "The future growth of both countries [Bangladesh and Myanmar] will not be determined by their ability to contest one another but by their ability to complement and co-operate with one another". Antonio Angotti cautions against the risk of foreign "instrumentalisation of the particular Bangladeshi notion and sense of genocide", which is characterised by an "unusually willing embrace of the genocide classification among Bangladeshi actors" born out of the 1971 Liberation War and the subsequent constitutional narrative.

Subir Bhaumik, Devasheesh Bais and SUN Yun provide Indian and Chinese perspectives on the geopolitical significance of Rakhine. It is difficult to understand the armed conflicts and tragic events in Rakhine the past five years without knowing the fundamental facts they discuss. Interestingly, the Chinese Myanmar-expert SUN Yun (Senior Fellow, Stimson Center) observes that "Western actors who have single-mindedly called for externalization of accountability for alleged crimes committed against Rohingyas in northern Rakhine have contributed significantly to the strengthening of ties between China and Myanmar, culminating with the signing of the key agreement on the Kyaukphyu deep-sea port [in Rakhine] in January 2020". She implies that there is much at stake when actors press hard to externalize justice for violations in Rakhine State in 2017, before the International Court of Justice (ICJ) and the International Criminal Court (ICC).

Both The Gambia in its ICJ case and the ICC Prosecutor in public submissions to date rely comprehensively on UN human rights fact-finding reports. In his policy brief, Dr. Dov Jacobs points out that "nearly 500 (out of 775) footnotes" in the ICC Prosecutor's request to open an investigation "refer to various fact-finding or civil society reports. For the [Pre-Trial Chamber] decision [authorising the opening of the ongoing ICC investigation], nearly half of the footnotes refer to such reports". He discusses various methodological concerns as well as "how it leads to the wholesale adoption of a one-sided narrative about the complex events that took place in Myanmar that underpins the rhetoric in fact-finding reports". Former UK Ambassador Derek Tonkin criticizes the UN Independent International Fact-Finding Mission on Myanmar on further grounds.

One predicament for the international justice efforts is that the UN Fact-Finding Mission and Special Rapporteur on Myanmar as well as civil society reports rely so heavily on statements by refugees from Rakhine in camps in Bangladesh. SOMETAYA Ryuta describes some of the problems that prevail in these refugee camps (including how repatriation is systematically prevented by fellow-refugees), based on his frequent visits to both the camps and to northern Rakhine as the Yangon Bureau Chief of The Asahi Shimbun of Japan. In one of the new chapters in the Second Edition of the TOAEP anthology Quality Control in Fact-Finding (650 pages; edited by Morten Bergsmo and Carsten Stahn), Geoffrey Robertson QC reminds us of a key insight from the field of human rights fact-finding, as also cited in the new foreword by Professor Mads Andenæs QC: "Geoffrey Robertson QC observes wisely that refugees should be interviewed "before they come under the sway of local camp leaders who will indoctrinate them with the approved 'line' about political events back home, and will in certain cases coach them as to what to say. It may or may not be the truth, but because it is designed, for instance, to support the political line of the faction, or to support a case for asylum rather than economic migration, such coached stories must be discounted".". Another new chapter in the Second Edition is Dr. Emma Irving's 'Finding Facts on Facebook: Social Media in the Work of Human Rights Fact-Finding Bodies', which uses Myanmar as one of two case studies.

The online symposium also includes a paper by Morten Bergsmo on how a deeper understanding of grievances linked to wrongs committed in Colonial Burma prior to independence in 1948 may positively affect engagement with actors in Myanmar, and a response-paper by Ambassador Derek Tonkin that considers aspects of British practice in Rakhine between 1826 and 1948. In policy brief No. 101, Dr. Jacques P. Leider (perhaps Europe's leading expert on the history of Rakhine) discusses territorial dispossession and persecution in 1942-43 in exactly the same areas of northern Rakhine that saw the tragic violence of 2016-17. In a second policy brief (No. 111), he analyses and compares the mass-departures of Muslims from northern Rakhine into Bangladesh in 1942, 1948-49, 1959, 1976-78 and 1991-92. He writes that "the flight of the weak shames the might of the powerful"; and that, "[d]espite their cyclic and ferocious nature, mass departures and the negotiation of conditional returns have worked as a marginal model of self-protection" (referring to "the habitual mode of migrant flows"). Facing evidentiary challenges, international justice actors may feel tempted to demonize scholars on Rakhine, in effect stifling the discourse. Cognizant of this danger, dispassionate review of the symposium’s publications is encouraged, including Dr. Leider's policy briefs (as well as his lecture at CILRAP's conference 'Colonial Wrongs, Double Standards, and Access to International Law' in Yangon, 16-17 November 2019).

The risks of demonization and one-sidedness may not only harm international justice efforts, but can feed disregard for domestic justice, as pointed out in the policy brief of Hong Kong-lawyer CHAN H.S. Icarus: The Myanmar-established Independent Commission of Enquiry's ('ICOE') "executive summary and 12 annexes (which tally more than 230 of the report's overall 450 pages) were swiftly ridiculed the day after their release, notwithstanding its considerable attribution of responsibility to the Myanmar military. Are such patellar reflexes indicative of objectivity, lack of bias, and concern to nourish domestic justice efforts"? SONG Tianying (European University Institute Researcher) describes the many steps taken by the military and civilian justice systems as well as the government of Myanmar during the past 15 months, and observes that "silence and inaction of the OTP [the ICC Office of the Prosecutor] in the face of Myanmar's numerous positive steps within the span of a few months may be interpreted negatively" and create the perception that the OTP "discourages and competes with national proceedings, or has no trust in domestic criminal justice professionals, either of which would be harmful". She writes that it is "time for complementarity actors and donors to take some positive steps. They share responsibility for making domestic accountability work". The relative scale of developments in Myanmar's domestic justice efforts suggests that there has been much more activity and co-operation on the ground in Myanmar than the ICC may be privy to. This 'dark side of the moon' poses additional challenges for international justice actors, especially if the number of officers and soldiers sentenced in Myanmar for Rakhine 2017-crimes increases from the current 13 (CHAN op. cit.) to more than 20 within the next year (for relevant conduct during the 12-13 most serious incidents, on which the ICOE and international reports seem to agree).

In his policy brief, Professor Carsten Stahn argues that, even if the ICC "has an interest in retaining cases in which it has invested significant time and investigative efforts", the broader goals of complementarity "seek to stimulate domestic jurisdiction". He calls for the creation of a "political structure for States Parties to consult or co-ordinate collectively on the systemic dimensions of complementarity, galvanize support for capacity building strategies or facilitate communications between the Court and non-States Parties". Looking beyond the ICC, CHAN asks: "should not the sensitivity to domestic efforts, which complementarity actually implies, permeate discussions on alleged international wrongdoing that may amount to core international crimes, regardless of the international justice forum in question? Should not the inter-relationship between international justice [...] and relevant domestic developments inform stakeholders in a manner that instils incontrovertible trust in international justice?".

The following are the publications included in the online symposium ‘On Myanmar’ (in the reverse order of the publication series in which they appear):

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