Ahead of this month’s deadline to submit arguments and evidence to the International Court of Justice, the military regime has been using questionable methods to collect testimony from Rohingya, at times even allegedly pressuring them to change their story.
By FRONTIER
Ko Win Maung’s* village in Rathedaung Township, once home to a large Rohingya population, was one of the first to be attacked in 2017 during the military’s crackdown in northern Rakhine State. It was shortly after lunchtime on August 25 when soldiers arrived in Zaydipyin and began torching houses, forcing Win Maung and more than 650 other Rohingya to flee.
Over the next few months, soldiers stormed and destroyed more than 350 villages in northern Rakhine, including nearby Chut Pyin where 358 people – a quarter of the village’s Rohingya residents – were allegedly slaughtered and an unknown number of women raped.
“The village where we were sheltering was only one mile away [from Chut Pyin] so we could hear the sound of gunshots and smell the smoke as it rose from the houses,” recalled Win Maung.
The Chut Pyin massacre – one of the deadliest in Myanmar history – was part of a months-long campaign of terror in Rakhine that left thousands of Rohingya civilians dead and forced over 700,000 to flee the country to neighbouring Bangladesh. More than two years after the violent crackdown, in late 2019, The Gambia formally accused Myanmar of breaching the Genocide Convention at the International Court of Justice, a United Nations court that settles disputes between countries.
The Chut Pyin massacre now appears to be the focus of a recent junta-led investigation in Rakhine, with officials questioning potential witnesses and at times even allegedly pressuring individuals to alter their testimony. Many suspect the regime is seeking to bolster its case at the ICJ, as it’s set to submit legal arguments and evidence – known as a counter-memorial – on April 24. But the junta’s use of questionable tactics, if substantiated, could jeopardise Myanmar’s standing in the court.
Collecting testimony
Win Maung was part of a group of Rohingya brought to a military base in Buthidaung Township in northern Rakhine in February, where they were questioned one at a time by three uniformed officers.
He said they were specifically asked whether they had seen Rohingya in Chut Pyin burning down their own houses, echoing a widely debunked disinformation campaign spread by members of the military and the National League for Democracy government in 2017. They were also asked whether they knew of any Chut Pyin residents returning from Bangladesh in the years since the attacks.
“When we were driving to the interview I wasn’t afraid, but as they started asking us questions and we could tell they were trying to find eyewitnesses to what happened in Chut Pyin, I started to feel very scared and worried,” said Win Maung. “I didn’t want to go [in for questioning] but we had no choice. If we didn’t go then they would have arrested us.”
After interviewing half of the men, including Win Maung, the soldiers dismissed the group, claiming that none had witnessed the attacks in Chut Pyin firsthand. Before leaving, they were asked to verify and sign a written copy of their testimonies. While Win Maung assumed the interview was for the junta’s case at the ICJ, at no point was he told why he was being questioned or what his testimony would be used for.
When the case first went to trial in December 2019, State Counsellor Daw Aung San Suu Kyi controversially led Myanmar’s defence, arguing that any human rights violations were committed by rogue soldiers rather than part of a systematic military policy, despite a preponderance of evidence to the contrary. Her testimony stained her international reputation, and a little over a year later she was overthrown by the same generals she defended in court.
The February 2021 coup sparked a tussle for control over the case, with both the junta and the National Unity Government – a parallel cabinet appointed by elected lawmakers – claiming the right to represent Myanmar at the UN court. The ICJ eventually granted representation to the junta, which has since scrambled to collect evidence to refute The Gambia’s claims.
Neither the ICJ Statute nor Rules sets clear parameters for how witness testimony is to be collected. However, Mr Paul Reichler, The Gambia’s lead attorney in the case, said that “as a general rule it is not admissible to obtain testimony by coercion or deception.”
Reichler also told Frontier that it raises “questions of credulity” if “the government” is the one carrying out the investigation given that witnesses could be “telling the government what they want to hear either to gain benefits or avoid punishment”.
Ko Laung Kyat*, a Rohingya university student in the Rakhine capital Sittwe, told Frontier that the junta’s lead representative for the case, international cooperation minister U Ko Ko Hlaing, visited Rakhine with a delegation in February that also included social welfare minister Daw Thet Thet Khine.
He heard that military and intelligence officers along with officials from the General Administration Department questioned Rohingya and Hindu residents from Maungdaw, Rathedaung and Buthidaung townships, and the interviews were even more forceful.
“The Rohingya and Hindu people were told to say that the military did not burn down houses in 2017. Instead, they had to say that Rohingya burned down their own houses and then fled to Bangladesh,” claimed Laung Kyat, who spoke to two Rohingya who were questioned. Frontier tried to interview Laung Kyat’s contacts, who were both too frightened to speak to the press.
“While the junta was not bribing or threatening anyone, Rohingya know that if they do not say as they wish, the military will arrest and torture them,” added Laung Kyat.
Reichler said that if it were confirmed that Myanmar’s junta-led legal team were using coercion, this would be a “very serious offence”.
For one, it would violate the provisional measures adopted by the court in January 2020, which order Myanmar to prevent genocidal acts against the Rohingya and “not destroy or render inaccessible any evidence”.
Reichler also noted that, if the allegations were found to be credible, it could also suggest critical weakness in Myanmar’s case.
“If a state has to resort to coercion to get favourable testimony, it indicates that it does not have the ability to obtain favourable evidence except by means of coercion. So if that were the case, it would reflect very badly on that state and undercut the credibility of any evidence or arguments it might make to the court,” he explained.
Frontier contacted multiple lawyers from the junta’s legal team, but all either didn’t respond or declined to comment.
Proving intent
The Gambia’s case at the ICJ hinges on proving that there was an intent to commit genocide, which goes beyond simply demonstrating that acts of mass violence were committed, explained Mr William Schabas, a professor of international law at Middlesex University in the United Kingdom. Schabas served as a lawyer on Myanmar’s legal team under the civilian government but left shortly after it was toppled by the coup.
“There are two ways of proving that there was an intent to destroy a group. One is with direct evidence. Occasional statements by people saying ‘I’m going to wipe out the enemy’ are not strong evidence, but [if you have] direct evidence that there’s some policy or plan of the government of Myanmar to proceed with the physical extermination of the Rohingya, in the form of documents for example, then you’ve got a strong case,” he said.
The Gambia submitted its arguments, known as a memorial, in October 2020. The 608-page document outlines numerous “discriminatory laws and policies against Rohingya” and includes detailed accounts of the violence inflicted on the community in 2017, including the Chut Pyin massacre.
Ro Nay San Lwin, a Rohingya activist and the founder of the Free Rohingya Coalition, said it’s clear the military was trying to “wipe out the entire community of Rohingya from Rakhine”. He pointed to a multitude of discriminatory laws and practices – many of which were included in The Gambia’s memorial – that have been in place since the 1990s as evidence.
Alongside steep barriers to higher education, which were partially eased last year, Nay San Lwin said Rohingya “have very little access to healthcare [and] cannot work in government or run their own businesses. There is even a policy that Rohingya cannot have more than two children”.
He said these restrictions have been “intentional since the early 1990s and only target the Rohingya people, not any other ethnic group living in Rakhine”.
The Gambia’s memorial also draws extensively on the findings of the United Nations Independent International Fact Finding Mission, which investigated the “facts and circumstances” of the military’s human rights violations between 2011 and 2017.
In its 2018 report, the fact-finding mission identified “genocidal intent” behind the violent acts that were “cultivated through an environment of long-standing, extreme and systemic discrimination” and “rooted in Myanmar’s laws, policies and practices”. However, Schabas claimed that the burden of proof in a case at the ICJ is much higher.
Given that direct evidence is often difficult to find, the second method of demonstrating intent is using circumstantial evidence, said Schabas. In this scenario, the applicant would argue that certain actions against a group could only be explained by “an attempt to destroy them”. However, to do this successfully in an international court, “you have to eliminate any other reasonable possibility,” Schabas said.
The ICJ last year rejected Myanmar’s preliminary objections seeking to dismiss the case, submitted under Aung San Suu Kyi’s leadership, ruling that the court had jurisdiction. But the subsequent merits stage of the case is a lengthy, ongoing process. After Myanmar’s junta-led legal team submits its counter-memorial, The Gambia can decide whether it wants a second round of pleadings, which is “almost always the case”, said Reichler.
According to Reichler, this second round would likely take another four to six months for each party, with both sides presenting another set of arguments, after which the court proceeds to oral hearings, still part of the merits stage.
Reichler said documentary evidence and witnesses may be presented and examined during these hearings, after which “the court goes into deliberations and drafting which normally take anywhere from six to 12 months before it issues its final judgement, which is binding on the parties”.
Reichler said the final judgement therefore likely wouldn’t come until mid-2025 – more than five years after The Gambia first filed the case. However, he noted that, unlike in many other courts, ICJ judgements cannot be appealed.
Nay San Lwin said that although the slowness of the case is frustrating, it remains very important for the Rohingya community.
“What can we do? We are from the vulnerable community. We are powerless. If we were the government, we could have our own justice system to punish the perpetrators but this is how the international justice system works,” said Nay Saw Lwin.
A repatriation ruse?
In recent weeks, the junta has also been pushing ahead with a controversial pilot project to repatriate a small number of Rohingya refugees from Bangladesh. In mid-March, a 17-member delegation from the regime’s Ministry of Immigration travelled to Bangladesh’s Cox’s Bazar district to interview and verify several hundred of the refugees. The trip sparked controversy when leaked documents revealed that junta officials used unmarked United Nations boats to travel from Rakhine to Cox’s Bazar.
Mr Mohammad Mizanur Rahman, Bangladesh Commissioner for Refugee Relief and Repatriation, told Frontier that approximately 1,190 refugees will be included in “phase one” of the repatriation plan. Approximately 710 refugees had been confirmed in 2021, and another 480 were verified on the junta’s latest trip, according to Rahman, a tiny proportion of the hundreds of thousands displaced.
The junta’s spokesperson Brigadier-General Zaw Min Tun told AFP that the pilot programme could begin as early as mid-April but Rahman told Frontier on March 27 that Bangladesh had not yet been informed of when or how the refugees would be brought back to Myanmar. Previous efforts to repatriate Rohingya have failed, largely due to Myanmar’s refusal to meet demands for a safe and dignified return, like guaranteeing citizenship rights.
Given the timing of the pilot programme, there has been speculation that it might be a ploy by the junta to improve its international reputation ahead of the April deadline at the ICJ. Schabas said that it’s possible that repatriation could persuade The Gambia to drop the case, but this would be a long shot.
“What The Gambia wants is a good outcome for the refugees in Bangladesh, which would involve repatriation. It wouldn’t change the events of 2017, but if [refugees] go back it means they are no longer scared of extermination. The Gambia could always decide to drop the case, which has happened before, but is unlikely,” said Schabas.
While Nay San Lwin agreed that the junta may be using repatriation for its defence at the ICJ, he believes Chinese pressure is likely the bigger impetus. In September last year, China’s ambassador to Bangladesh Li Jiming met with Bangladesh’s acting foreign secretary Kurshed Alam to discuss Rohingya repatriation. Alam told reporters after the meeting that “China will discuss the issue with the Myanmar government” and “use the leverage they have”.
One day after the junta’s delegation returned to Myanmar from Cox’s Bazar, China’s ambassador to Myanmar Chen Hai met with the regime’s Minister of Foreign Affairs U Than Swe to discuss “the success of repatriation and resettlement of displaced persons from Rakhine”.
“China has been pressuring the junta to take back refugees and Bangladesh is working very closely with China. China has a lot of investments in Myanmar and Bangladesh so they really want stability in the region so they can develop projects. But China does not have a humanitarian interest, only a business interest,” said Nay San Lwin.
Neither the junta’s spokesperson in Rakhine nor representatives from its Ministry of Immigration responded to Frontier’s numerous requests for comment.
Rohingya student Laung Kyat said that the circumstances have not changed since the previous failed repatriations, and there is still no adequate plan in place to guarantee a safe and dignified return for the Rohingya. He believes that the military is only looking out for its own interests.
“They are only doing all of this to reduce pressure from the international community and get their military council recognised. But the world already knows what the military is like. The military has no desire to actually solve the problem; they are only interested in showing off to the international community,” said Laung Kyat.
* denotes the use of pseudonym for safety reasons
