Featured image by Bernat Armangue/AP 

Editor’s Note: The following is the text of the author’s keynote address at a Conference on International Accountability in Burma, chaired by Professor Gayatri Spivak

Professor Gayatri Spivak Chakravarti,

I would like to thank you, Mr. Mawng Zarni and his enthusiasm for bringing me here today to discuss one of the most important issues of our lifetime. Every generation loses its way, stops being vigilant, begins to believe in false Gods and then there is terrible violence. Scholars and lawyers are left to debate whether it is genocide or war crimes or crimes against humanity. This happened in the 1940s and the 1990s. One such episode took place in August 2017.

I speak today as a member of the United Nations Fact Finding Mission on Myanmar set up in March 2017 after large scale attacks on the Rohingya civilian population in Rakhine state by the Burmese Security Forces, or the Tatmadaw, but before the terrible violence of August 2017. Our mandate was “to establish the facts and circumstances of the alleged recent human rights violations by military and security forces, and abuses, in Myanmar, in particular in Rakhine state.” We were expected to report to the Human Rights Council. We submitted the short report to the Council in August 2017 and the large report of four hundred pages was made available in September.

The methodology we used, relying on “reasonable grounds” as the human rights standard of proof, was the process followed by fact-finding missions. We had a team of investigators living in the field for up to three weeks at a time and we conducted over 800 interviews with victims and witnesses, interviews with experts and specialists and video footage and satellite imagery that fill the pages of our report. We had the assistance of military experts and gender specialists as well as experts on international criminal law. We made field visits to Cox Bazaar, Bangkok and Malaysia to meet with witnesses.

On a personal note let me say that these visits and studying the Rohingya question has been one of the defining experiences of my life. The other such defining moment was the Rwandan genocide of the 1990s. I could say that after these experiences my very being was broken, not only is there a visceral experience of horror, but all the assumptions you have about human nature and experience are reordered. In both cases, as Special Representative and Special Rapporteur we went to the field within a month of the incidents. This is important because a few months after the immediate experience, stories are more constructed, discourses more settled and patterns of conversation more set in their ways. When we went, just three weeks after the events, people were articulating their stories for the first time with the hesitancy and uncertainty that comes from being a victim close to the terrible incidents you have faced.

What I am going to do is to first describe to you one of the worst emblematic incidents that took place in August 2017, put together by our investigators through interviews and satellite imagery. Once that imagery is described we can explore the words and the analysis that eventually follow.

The events I am going to describe took place in Min Gyi, known in Rohingya as Tula Toli, which is located in Mangdaw province in northern Rakhine state. In March of 2017 the Arakan Rohingya Salvation Army attacked two police sites near Tula Toli. The government also claimed that they burned the homes of some of the Mro ethnic minority. In response to this the Tatmadaw- Burmese security forces -carried out one of their so-called “clearance operations”. They began in the periphery, used launchers to set houses on fire and shot at villagers escaping to the hills. They kept moving sector-to-sector, setting houses on fire and shooting at those escaping. Many villagers were shot and injured while fleeing.

After that, the soldiers moved into the village proper once they knew there was no resistance. The ethnic Rakhine neighbors of the Rohingyas and the police joined them. Those who did not flee and remained were rounded up. Men and boys were separated from the women and children. Then the men and boys were systematically shot. Those who survived gun shot wounds were attacked by long knives and the slitting of their throats. Their dead bodies were put into a pit, covered with tarpaulin and set on fire with gasoline. All valuable items were removed from the dead bodies before they were set afire.

After that the soldiers took women and girls in groups of five and seven to some larger houses in the village. Children were removed from their mothers and also thrown into the pits with the dead men. The women and girls huddled in these houses. Their jewellery was taken from them. They were beaten, brutally raped in every possible way and sometimes stabbed. Then the houses were set alight with the women in them. Women who survived by escaping through side and back doors met us in Cox Bazaar and displayed serious burn marks and scars that are consistent with their accounts. By the end of the clearance operations, all structures in the village were destroyed and all the people had either fled or died. The satellite imagery shows this vividly in our report.

The attack on Tula Toli was reconstructed by our investigators after extensive interviews, video and satellite material, information gathered by other groups working in the areas, and the analysis of experts in respective fields. Tula Toli was one of the worst emblematic incidents but it conveys the pattern of the Tatmadaw clearance operations that are at the core of our report.

In situations like this the world increasingly turns to the law and legal analysis that is supposed to cure victims of the need to retaliate and to allow for some vindication. The law unlike other disciplines can be backed by sanctions and punishment and every victim we spoke to was very clear, they wanted justice. They wanted vindication. And yet law as a tool must always be used with caution. Implementation of the law in most societies and in international systems is extremely difficult. It may actually deeply frustrate communities, raising expectations and then dashing their hopes. Their countless telling of stories may result in nothing tangible and the feelings of betrayal become palpable. Social activists must work closely with legal practitioners to ensure that communities fully understand what is taking place.

Strangely Winston Churchill, not a great humanitarian, described what the Germans did in the eastern Soviet Union in the 1940s as a “crime without a name”. Horrific acts were taking place, armed with modern technology, and the world had no name for that crime. It was only in 1944 that Raphael Lemkin introduced the word Genocide into our Lexicon. In 1946, the United Nations General Assembly at its first session by resolution accepted genocide as a crime under international law and in 1948 adopted the Convention on the Prevention and Punishment of the Crime of Genocide.

Is what happened to the Rohingya genocide? What else could it be? Amnesty International, Human Rights Watch have yet to say they have the evidence for a clear case of genocide. In our report we finally stated that there was “sufficient information to warrant the investigation and prosecution of senior officials in the Tatmadaw chain of command so that a competent court can determine their liability for genocide”. We felt six named generals, including Minh Aunt Laing, the Commander in Chief, warranted further investigation to be prosecuted for the crime of genocide. As you know the Human Rights Council has decided to set up a Prosecutorial mechanism to do just that and create prosecutorial files which can be used in a court of law- either an international tribunal set up in the future or national courts using universal jurisdiction. So many groups find it difficult to “name” genocide and allow mass atrocities to be a “crime without a name” because of the high threshold of the law. For lawyers, and perhaps for everyone, genocide is so horrific and so disturbing that even pronouncing it appears to have consequences. Nevertheless, we must not forget that the other crimes that are clearly covered in our report, crimes against humanity and war crimes are also horrific crimes and evoking genocide is not the only way to ensure accountability.

The part of the crime of genocide that is difficult for lawyers and which has kept this body of law away from the Courts is the term “intent to destroy”. The Prosecutor has to prove in Court that the perpetrator had the “intent to destroy, in whole or in part…”. Genocidal intent is the key issue in any prosecution. Traditionally this term was interpreted very literally. You needed direct evidence that showed purposive intent- rather than just mere knowledge- i.e. a written order, a voice cut or something in which the perpetrator states his intention and purpose. This is nearly impossible to discover as very few would make declarations of that intent. Recently, especially after Bosnia and Rwanda, courts and jurists are moving away from this very strict, narrow interpretation of the law to arguing for circumstantial evidence to be allowed before the courts and for knowledge based as well as purpose driven genocide to be recognized.

In our report we have extensively dealt with all aspects of the requirements of genocide. We have shown clearly that the Rohingya are a protected group as required by international criminal law- the ultimate subaltern group as Professor Gayatri Spivak has called them. The Tula Toli incident shows you how the perpetrators committed the physical acts described in international law; killing of members of the group, causing serious bodily and mental harm, deliberately inflicting conditions of life calculated to bring about the physical destruction of Rohingya, and imposed measures intended to prevent births of Rohingya.

With regard to genocidal intent, we show certain communications from the perpetrators that suggest genocide, evidence related to others who may have acted at the behest of the accused, clear contextual evidence in the form of plans, policies and preparation of acts of genocide, contextual evidence in the form of modus operandi and evidence of the breadth, scale and the brutality in the nature of the attack

Let us follow the journey of one lady who spoke with us. The soldiers entered the village and she watched as her house was burned to the ground and her husband killed. She was taken to another large house. She told me of the bite marks and the burn marks that hurt her body. She was wearing a hijab with gold embroidery that the Qatari relief agency had given her to clothe her when she crossed the border. She looked around and realizing there was privacy lifted the hijab and showed me her marks. She said she fled using the back door when they started setting fire to the house. She joined a group that was going through the mountains and after what appears to have been a traumatic game of hide and seek she arrived in Bangladesh. She had not been able to trace her children.

The law is chosen as the first refuge of activists because it has sanctions. It has the potential to punish wrongdoers. Law can also bring clarity, especially in Asia where deals are made that obfuscate core values in the interest of stability. The law can step in and say you cannot kill or negotiate away the dignity of a people. This is right, this is wrong and these are the alternatives before us. This attempt at clarity and an attempt to collect evidence for sanction and punishment are some of the core goals of the report.

With regard to punishment, our report asks for the Security Council to be seized of these issues and to refer Myanmar to the International Criminal Court. The Court had previously responded to Bangladesh and is ready to exercise jurisdiction on the crime of “forced deportation” of the Rohingyas into Bangladesh though in analyzing forced deportation it may have to look at the crimes committed at home in Myanmar. We also asked for visa bans and asset freezes for individual perpetrators. Such action has already been taken by the EU and the United States with regard to some actors.

We must accept the fact that the Security Council at present is not going to be a radical actor when it comes to taking forward the case of Myanmar. At the same time we have been surprised at the international political will on Myanmar. The coalition of the Organization of Islamic Co-operation, the European Union and Latin American countries has taken action against Myanmar further than action against other parties. We cannot even begin to thank Burmese human rights and civil society actors who have energised all public institutions and kept the international community aware of the expectations. Without that social agitation, legal action would have been minimal. And yet the law has its limitations. Gathering the data in an era of instant communication and satellite imagery can be done but without political will to follow the law through, to refer to tribunals, to set up prosecuting authorities, to effect sanctions, legal strategies can fail.

Though we have a very comfortable majority of the international community who want to condemn in the strongest terms the actions of the Myanmar government, only a much smaller group wants to go toward sanction and accountability. The fear of accountability is linked in the minds of many developing countries with a fear of losing sovereignty. Accountability is resisted by countries like India on the face of it because of their theoretical stance on sovereignty. Is Sovereignty the bulwark against imperialism or just the emperor’s clothes is a discussion we have to have at some other date. Columbia University with its long emphasis on post colonial studies, its alertness to the ever-changing pathways of international power and the demasking of power relations behind self righteous moral authority will remind of us any slippage. But with regard to the Rohingyas, the world and academic communities are mostly united- those unusual moments in history when everyone seems to stop and say “For Gods sake, do something!”

Having dealt with some of the legal issues I would like to focus on three aspects of our report- communications and hate speech, apartheid and the nature of the systematic discrimination against the Rohingya and the power of the Tatmadaw.

Communications was a key factor in the mass atrocities committed in Myanmar. It was not the village whisper that was paramount but modern technology, especially social media. The Tatmadaw and its leaders communicated with the larger community and through social media that clearly sowed a derogatory and dehumanising image of the Rohingyas. This same tactic was used by religious organizations led by extremist members of the clergy. The constant “othering” of the Rohingyas, calling them Bengalis and portraying them as a threat to the nation fueled fear and resentment thus making genocidal violence against them acceptable.

We have in the report specific utterances by government officials, military officials and perpetrators that will give you a sense of the reality in which all this violence occurred. “We will kill you all” and “We will kill you this way, by raping” appear to be words repeated often to the victims while the violence was occurring.

In addition most of the mobilisation and hype could be found on Facebook. Facebook posts by Tatmadaw soldiers speak of their excitement at killing “Kalars”, a derogative word for the Rohingyas. “Exterminate them, look for them everywhere, kill them, and get it over with” they posted to each other. What would have in the past taken a week to reach the recipient reached them and hundreds of others in an instant.

The FFM paid special attention to this social media mobilisation since it was relatively new and unresearched. We chronicle all the derogatory language used against the Rohingyas in Myanmar as a whole and along with the cartoons and memes, the full impact of which is quite terrifying. It mobilises the Myanmar people by focusing on a core theme; we are faced with an “existential Muslim threat and a need to protect racial purity”. Between military use and civilian use, Facebook became the major platform promoting hate.

Two new PBS movies on Facebook have come out this year, one called “The Cleaners” and the other called “The Facebook Dilemma.” They are about Facebook and how they moderate content. The motto of the company until Myanmar and other disasters was “apologise later”. Go with it and apologise later. The person who used Facebook to push forward the democracy movement in Egypt wails in the movie, “These tools are just enablers for whomever. They don’t separate between what’s good and bad. They just look at engagement metrics”. This moral vacuum may make sense in a particular approach to freedom of speech but it has real life consequences when it comes to hate speech. We have a long and detailed section on Facebook, its role and its hate speech policies, including the setting up of early warning systems, while interacting with the Office of the High Commissioner for Human Rights and other Human rights procedures.

We must acknowledge that they have taken action. They have removed the Facebook pages and accounts of extremist Buddhist organisations and three Buddhist monks and on the day we published our report they took down the accounts of 18 military leaders including that of the Commander in Chief. There is still a great deal to be done with regard to content moderation and hate speech. These conversations have to be had with transparency and good faith at national and international levels. We found Facebook forthcoming in some ways but also very opaque on others, based on a business model where public interest has no role to play and where market entry has no understanding of the social, cultural and political context.

The second aspect I would like to focus on is the systematic discrimination against the Rohingya people. The International Court of Justice initially saw Apartheid as a social structure unique to South Africa with a strange mix of race and religion. Since the 1970s, apartheid is now a crime against humanity, a crime seen by the Convention on the Suppression and Punishment of the Crime of Apartheid to include similar policies and practices as what took place in South Africa. Additional Protocols of the Geneva Convention and the Rome statute clearly state this position.

We argue that the Rohingyas are in a situation of severe, systematic, and institutionalized oppression. A situation similar to South Africa. When General Aung San in the 1940s had his Constitutional meetings, the Rohingya sat as equals a the table. Since then there has been a steady erosion and marginalization of their status.

The first factor to be recognised in this oppression is that the Rohingyas lack legal status. They are not stateless, they have a state but the state refuses to give them the legal identity of citizenship. Procedures and policies with regard to birth registration and valid national ID cards are just prohibitive and heartbreaking.

An old woman I met at Cox Bazaar had a crumpled plastic bag which she carries with her at all times. In it was a green card, a citizenship card given to her grandparents at independence. Then she pulled out a white card that was given to her in 1982 when her citizenship was taken away, She had access to government services with this white card. Then she pulled out a paper receipt that she was given in 2015 when the white cards had been cancelled. It was called a national verification card though it was only a piece of paper. To get it she had to self identify as a Bengali. She left her possessions behind crossing the border to Cox Bazaar but she clutched these documents hoping one day she will return.

The Rohingyas have been denied political participation. Since March 2014 only citizens can vote. They are also denied freedom of movement- they have to apply for travel permits; they have restrictions on their travel within the northern Rakhine and specific restrictions in central Rakhine. The displacement camps set up after 2012 are places for the deprivation of liberty. The movements of the Rohingyas within Rakhine are strictly controlled and they are often harassed at checkpoints.

The Rohingyas are denied meaningful access to food and livelihood. Rakhine state, in 2015, before the current developments, had the global highest rate of acute malnutrition. The movement restrictions prevent the Rohingyas from having proper access to livelihood, whether cultivating land or going fishing. Movement restrictions and discrimination at health facilities affect their right to health. Many Rohingyas are prevented from entering the formal education system, and have even less access to middle school and high school. Since 2012 they have no access to tertiary education at Sittwe University.

Perhaps the most hateful of the practices against the Rohingyas relate to their private life. The Association for the Protection of Race and Religion- Ma Ba Tha were responsible for the enactment of the Population Control Law of 2015, primarily aimed at the Rohingyas, and the number and spacing of their children, The Buddhist Women’s Special Marriage Law which requires a special registration process for Buddhist women marrying non-Buddhists, The Religious Conversion Law that requires a special process for conversion from Buddhism and the Monogamy Law which is aimed at Muslim marriage practices are other laws introduced at the behest of Ma Ba Tha. The control of women’s reproductive rights is often the final step of the battle once the violence has subsided. When the state steps in to say whom you can marry, how many children you can have, and what religion you can believe in we have firmly entered the realm of totalitarianism.

This is why we concluded that a system of apartheid akin to South Africa did and does exist in Myanmar with regard to the Rohingyas and unless this is changed, sending refugees back from Cox Bazaar to Myanmar will be hard on the conscience of the international community. In other words security is not and should not be the only concern when we deal with the return of refugees.

The third aspect that I would like to comment on is the Tatmadaw. They were central to the main finding of our report. No peace will come to Myanmar, no proper stability established, unless the Tatmadaw is seriously reformed and perpetrators brought to book. From the day President U Nu in 1958 called in the Tatmadaw to help him restore stability, the Tatmadaw has seen it as their calling to keep Myanmar united. After the introduction of democracy, they have 25% of Parliamentary seats and complete control of the security apparatus. The Tatmadaw, with its roots in Japanese resistance to the allies has a very different trajectory to other armies in Asia though there are similar structures. According to the EITI report published recently, the Tatmadaw appears to have its own separate sources of financing not under the supervision of the civilian government, giving it flexibility to carry out its own agenda in parallel or in contradiction to the programmes of the civilian government. The Tatmadaw is an overwhelming institution and fully controls the security and as well as many national activities of the Burmese population. The recent attacks on journalists are only the tip of an iceberg. With its independent political and economic base along with its monopoly on the use of force, the Tatmadaw is truly one of the most formidable as well as the most brutal armed forces in the world today.

The Tatmadaw also has a legitimacy because Aung San the founder of the nation and Aung San Suukyi’s father created the Tatmadaw and therefore there is attachment to the institution by some political leaders and some members of the Burman public. The army too cultivates its image as protector and keeper of the Burman Buddhist nation. Its role in World War II in allying with the Japanese has also raised some concerns. Many argue that Aung San Suukyi’s inability to deal with the Tatmadaw effectively is because of this political history. Though the report does not accuse the civilian authorities of planning and executing the atrocities, their role in the cover up has made many feel that they should be investigated for aiding and abetting.

For ethnic minorities, the hallmark of the Tatmadaw is what is called “clearance operations” taking place all over the country. Based on their “four cuts” strategy, the Tatmadaw has targeted civilians in scorched earth style of military campaigns, including mind-boggling stories of sexual violence that has resulted in complete impunity for the military actors. We were so horrified by what we saw, heard and read that we decided to focus on command responsibility and name the senior generals whom we felt were responsible including Senior General Min Aung Hlaing, Commander in Chief. The Facebook postings and communications of the Commander in Chief are absolutely chilling. His words and the action on the ground created the conditions for unimaginable atrocities. This was true not only for the Rakhine but also for Kachin and Shan province where crimes against humanity and war crimes also took place. We hope our successor prosecutorial authority will create the necessary prosecutorial files that someday may be used in a court of law, either in an international tribunal or in countries using universal jurisdiction. Universal Jurisdiction is when national courts in countries that are signatories to international criminal law conventions, open themselves to suits against any party visiting who may be accused of those crimes.

We must acknowledge that Myanmar is faced with low- level security threats by militant groups such as ARSA. But the completely disproportionate response by the military forces to containable violence points to another agenda. In addition the refusal to negotiate in good faith with many of the armed groups waging war against the state has made violence endemic and the Tatmadaw’s response both routine and extraordinary at the same time. The centralising, uncompromising and opaque way in which the Tatmadaw deal with minority ethnic groups has created a permanent distrust that makes political resolution difficult. Then when political resolution fails the Tatmadaw goes back to violence. In the case of the Rohingyas there were never moments of talk and reconciliation. Never a dialogue. In their case it was always violence.

Now let me say a word about history and belonging. As Professor Gayathri Spivak has stated over the last few years, the Rohingya have emerged as the ultimate subaltern. Subaltern, a term reimagined by Antonio Gramsci and brought into universal recognition by Professor Spivak has a great deal of relevance here. The Rohingyas are not only politically, economically and socially marginalised, their whole way of knowing and being are being completely overwhelmed. A history has been constructed and thrust upon them, without their consultation or participation. A history that predates to colonial times when Myanmar had porous borders with India and China; where populations migrated back and forth while some remained deeply rooted. The drawing of borders in a ruthless and so-called scientific manner by the British as they left Asia in a hurry, has had severe consequences. The Myanmar government then accepting these borders as sacrosanct without an understanding of history, process or compassion has created the nightmare we face. Borders and the end of colonialism are grounds for a separate lecture but they are a major contribution toward twentieth century conflict and animosity.

In Myanmar and in Asia generally, history is greatly entwined with religion and ethnicity. While Myanmar officially recognises 135 ethnic groups and eight major ethnic groups – not the Rohingya-the state ideology under which it functions has been very clear from the eleventh century. King Anawratha’s rule brought the confluence of Theravada Buddhism, the Burman ethnic group and the Burmese language as the cornerstones of state ideology strengthened by a pastoral consciousness. Myanmar has a plural ethnic and religious social reality but a centralised Burman Buddhist majoritarian ideology that is rammed down the throats of others with an iron fist and the force of the military. All the ethnic groups except the Burman have been in conflict with the State at various times. This iron fist insists that history is read and understood as they depict it with no room for discussion and that belonging to Myanmar is conditioned and accepted on their terms. The Tatmadaw are the iron fist and unless they change or implode much of what is happening in Myanmar will remain the same.

Finally let me leave you with my strongest and most haunting memory of Cox Bazaar. As you know I was a Special Rapporteur on Violence Against Women and the Special Representative of the Secretary General on Children and armed conflict. Both aspects are vividly covered in our report since we had extremely good investigators. But the face that left its impression on me was the face of a young man in his twenties who I was asked to interview. He was struggling with nothing to do in Cox Bazaar. Young men are the hidden victims of this conflict. He was the low hanging fruit that could be exploited by anyone seeking to do mischief. He was in that pre-reason phase that Gayatri so beautifully described in her works and it is an honour to have her here. He was incoherent, passionate, pleading, aggressive, proud, defensive, quiet, assertive, full of rage, and then suddenly moments of hope- but no smile and made no sense. You knew you were in the presence of someone who was in deep pain and terrible despair. Subaltern. He had no words, he could not represent himself. And there was nothing in all honesty that you could do to give him relief except perhaps to listen.

Also read “War Crimes in Sri Lanka: Stain or Slander?” and “Flip-flopping on Accountability: A Timeline