New evidence the junta is violating ICJ “provisional measures”

(NEW YORK, December 6, 2021)—The U.N. Security Council should urgently impose a global arms embargo and sanctions against the Myanmar military and refer the situation in the country to the International Criminal Court, said Fortify Rights today. A Myanmar military court today sentenced the country’s democratically elected leader Aung San Suu Kyi to four years in prison on spurious, trumped-up charges of incitement and breaking COVID-19 rules, and new evidence shows the junta is violating legally binding “provisional measures of protection” imposed on Myanmar by the International Court of Justice (ICJ) as part of an ongoing trial on the Rohingya genocide.

On November 25, the Myanmar military junta issued an order reiterating longstanding restrictions on the right to freedom of movement for Rohingya in northern Rakhine State, contravening the ICJ’s provisional measures.

“These fresh restrictions brazenly contravene the ICJ’s measures and illustrate an aspect of the junta’s ongoing and unmitigated genocide in Myanmar,” said Matthew Smith, Chief Executive Officer of Fortify Rights. “The ongoing atrocities against Rohingya and latest conviction of State Counsellor Aung San Suu Kyi demonstrate yet again how this junta poses a threat to the peace. Security Council member states should support an urgent resolution and force a vote.”

Firsthand testimony and two leaked internal junta documents obtained by Fortify Rights reveal revamped efforts to restrict the movement of Rohingya in Rakhine State following the military coup d’état on February 1, 2021.

An administrative order reviewed by Fortify Rights and issued by the junta-run General Administration Department of Buthidaung Township in Rakhine State on November 25, 2021 states that, “Bengali people can only travel after obtaining legal permission (Form-4)” and that breaching the order will result in “strong action being taken as per the existing law.” The order further states that the restrictions are necessary to protect “township security and the rule of law.”

The junta refers to Rohingya as “Bengali” to deny their existence and imply they are from Bangladesh and not Myanmar. Myanmar authorities have long required Rohingya to obtain express permission to travel from one village to another village and from one township to another township. A Form-4 is typically required for travel from one township to another.

Obtaining approval through a Form-4 involves lengthy bureaucratic processes that often expose Rohingya to extortion and other abuses by the military, police, and administrative authorities. Rohingya who travel without a Form-4 can be subject to punishment under the Residents of Burma Registration Act, which carries a maximum punishment of two years’ imprisonment and/or a fine of 500 Myanmar Kyats (US$0.28).

The Buthidaung Township General Administration Department appended the November 25 order to an internal letter sent to multiple Myanmar military, police, and border-guard commanders as well as township administrative and justice officials.

In a separate internal letter, also obtained by Fortify Rights, from the military junta’s Ministry of Immigration and Population in Rakhine State’s Ponnagyun Township in Sittwe District dated November 10, 2021, Chief Officer Win Myint informs the Rakhine State Director of the Ministry of Immigration and Population located in Sittwe Township of the arrest and conviction of 45 “Bengali (Kalar)” for “travelling illegally.” Kalar is a pejorative term in the Burmese language used to describe Muslims, Indians, or those of South Asian descent. According to the letter, the Ponnagyun Township Court convicted and sentenced individuals in the group on October 21 and, on November 2, the authorities released children, who were part of the group. Five adults remain detained.

Since October 2021, the junta’s forces reportedly arrested and convicted dozens of Rohingya for traveling outside of their villages without permission.

Rohingya in northern Rakhine State told Fortify Rights that, since the coup, it is becoming increasingly difficult for them to travel between townships and villages.

“I had to take a Form-4 [from Buthidaung Township] to go to Maungdaw Township,” a Rohingya man, 25, from southern Buthidaung Township told Fortify Rights on December 1, 2021. “I went to Maungdaw north to work on harvesting a rice field . . . [The authorities] checked our Form-4 at three checkpoints while going to Maungdaw.”

Even prior to the junta’s November order a Rohingya man told Fortify Rights in July 2021 that military soldiers extorted money from him on multiple occasions at military checkpoints for not having proper travel authorization. “They took money from me three times,” he told Fortify Rights. “They were multi-department checkpoints, and they took money from me, saying I didn’t have any documents.”

Investigations over the past eight years by Fortify Rights show successive Myanmar governments systematically restricting the freedom of movement of Rohingya, including requirements that Rohingya obtain a Form-4 to travel to certain destinations and only under specific timelines enforced by the state. The military appears to be tightening the restrictions.

The ICJ’s “Provisional Measures”
In November 2019, The Gambia brought a case against Myanmar at the ICJ in The Hague alleging violations of the Genocide Convention through “acts adopted, taken and condoned by the Government of Myanmar against members of the Rohingya group.” As part of the legal proceedings, on January 23, 2020, the ICJ unanimously indicated legally binding provisional measures of protection for the Rohingya people, requiring Myanmar to prevent and preserve evidence of genocide and “cease forthwith any such ongoing internationally wrongful act and fully respect its obligations under the Genocide Convention.”

As part of the ICJ order, Myanmar must submit an “implementation report” to the court every six months on all measures taken to prevent genocide “until a final decision on the case is rendered by the Court.”

On February 1, 2021, the Myanmar military junta took power by force in an illegal and deadly coup d’état, killing more than 1,300 protesters and imprisoning more than 10,000. Included among the several thousand remaining political prisoners are State Counsellor Aung San Suu Kyi and President Win Myint.

The junta does not represent the people or the State of Myanmar; nevertheless, the junta is likely to represent Myanmar at the ICJ, said Fortify Rights.

The junta’s latest report to the ICJ was due on November 23, and in turn, The Gambia is expected to respond in writing to the Court. Neither submission will be publicly available at this stage in the legal proceedings.

Fortify Rights, the U.N. Independent International Fact-Finding Mission on Myanmar, and others have documented systematic restrictions against Rohingya, including on freedom of movement, as indicative of the Myanmar government’s intent to destroy the group in whole or in part. The draconian denials of freedom of movement prevent Rohingya from accessing livelihoods, lifesaving health care, and other aspects of basic survival.

Deliberately inflicting conditions of life calculated to bring about the physical destruction of a group is a prohibited act of genocide under Article II of the Genocide Convention. The “conditions of life” provision refers to methods of destruction that do not immediately kill members of the group but ultimately seek the group’s obliteration.

These latest restrictions on Rohingya freedom of movement are occurring in a wider context of ongoing genocidal acts committed by the Myanmar military against Rohingya, including killings, rape and sexual violence, burning and razing homes and villages, and denying Rohingya access to food and shelter. Impunity for these and other mass atrocity crimes is endemic in Myanmar.

On August 25, 2021—the four-year anniversary of Myanmar military-led attacks on Rohingya civilians—the military junta published an amendment to the Myanmar Criminal Code signed by Senior General Min Aung Hlaing ostensibly to outlaw the crime of genocide. Taking language almost verbatim from Article II of the Genocide Convention, the amendment was viewed as an attempt by Min Aung Hlaing to communicate compliance with the ICJ’s provisional measures. However, Article 311, section A(d) of the junta’s amendment included language outlawing measures intended to prevent births unless such measures are “in accordance with any existing laws.” This caveat provides for the prevention of births, which may be an act of genocide. Moreover, the military is typically not subject to the country’s criminal code; crimes perpetrated by soldiers are typically adjudicated in secret military courts.

“In a feigned attempt to appease the ICJ, the junta provided itself with a law to justify the genocidal prevention of births,” said Matthew Smith. “This is not what the ICJ had in mind.”

On June 3, 2021, the National Unity Government (NUG) of Myanmar—the civilian-led government comprising officials deposed by the military junta—acknowledged past atrocities against Rohingya people and committed to ensuring justice and citizenship rights based “on birth in Myanmar or birth anywhere as a child of Myanmar citizens,” which would effectively restore or grant full citizenship rights of all Rohingya people and others.

On November 11, 2021, the U.N. Security Council issued a consensus statement calling on the Myanmar military to cease violence and ensure humanitarian access to those in need. Like the provisional measures issued by the ICJ, the junta has flouted the Security Council’s statement, providing a context for heightened action by the body.

The Security Council should consider the junta’s failure to uphold the ICJ’s provisional measures as well as its failure to respect the council’s own statement, and in turn it should pass a resolution mandating a global arms embargo against the Myanmar military, targeted sanctions to deny the junta financial capital, and it should refer the situation in Myanmar to the International Criminal Court, said Fortify Rights.

“The junta is committing atrocity crimes throughout the country, against all ethnicities and religious communities, including the Rohingya,” said Matthew Smith. “The world has a duty to act, end the genocide being perpetrated against the Rohingya, and ensure accountability for past and current atrocity crimes.”

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