Violence in Rakhine State and the UK’s response Contents

3Does the violence in Burma amount to atrocity crimes?

9.There appears to be widespread agreement that grave human rights violations have occurred during this crisis, but we heard a variety of views on how this violence should be understood and defined, with some suggesting that the security forces’ abuses against the Rohingya amounted to ethnic cleansing, crimes against humanity, or even genocide. These three terms have important distinctions between them, as set out below.26 They are defined not only by the acts of violence themselves (many of which are shared and may be equally grave in fact) but also by the intentions of the perpetrators and the identities of the victims. Genocide and Crimes Against Humanity are ‘atrocity crimes’, which are considered by the UN to be “the most serious crimes against humankind”.27 While not defined as an independent crime under international law, ‘ethnic cleansing’ includes acts that may themselves amount to one of the recognised atrocity crimes. As such, it has been considered alongside the other atrocity crimes under the principle of states’ “responsibility to protect”.28 We will refer to all three as atrocity crimes in this section.

For crimes to constitute genocide, the victims must be targeted because of their membership of a particular group, and the perpetrators must intend to destroy, in whole or in part, a national, ethnical, racial or religious group.

Crimes against humanity encompass acts that are part of a widespread or systematic attack directed against any civilians. The UN states that “for an act to be considered a crime against humanity, the ultimate target of the attack must be the civilian population.”

Ethnic cleansing is not defined as an independent crime under international law, but is understood to involve “[…] rendering an area ethnically homogeneous by using force or intimidation to remove persons of given groups from the area,” and “[…] a purposeful policy designed by one ethnic or religious group to remove by violent and terror-inspiring means the civilian population of another ethnic or religious group from certain geographic areas”.

10.Not all of our evidence agreed with the use of such terms. In a letter to the Committee, the Myanmar Ambassador to the UK, H.E. Kyaw Zwar Minn, said that accusations of ethnic cleansing and genocide were “totally false” and argued that “Misinformation and disinformation are written and published in order to generate problems between different communities, with the aim to promote the interests of the terrorists.” He added:

I can assure you that the leaders of Myanmar, who have been struggling so long for freedom and human rights, will never adopt a policy of genocide or ethnic cleansing and the government will do everything to prevent it.29

Dr Lee Jones did not agree that no crimes were taking place, stating that “To say that there are no atrocities and no crimes and so on is clearly false”. However, he argued that the Burmese Government was not trying to exterminate an entire population, nor had it cleansed the ethnic group from all parts of Rakhine State. He said this was more “classic incompetent, heavy-handed brutal counter-insurgency operations from the Myanmar military.”30

11.More of our evidence, however, suggested that atrocity crimes had taken place in Rakhine State.31 Many submissions highlighted a long history of persecution of the Rohingya ethnic group as a background to the current events and evidence of a long-term policy of discrimination against the Rohingya.32 Some also contained accounts of the most recent violence, which was described by some as ethnic cleansing,33 and by some as crimes against humanity.34 Human Rights Watch considers that crimes against humanity have taken place and told us that it had documented crimes that were committed against a civilian population that did not include ARSA terrorists:

The perpetrators were the Burmese military, on occasion accompanied by local security forces or ethnic Rakhine villagers. The victims were ethnic Rohingya Muslims [ … ] Specific criminal acts included large-scale and widespread assault, murder and attempted murder, rape and other sexual violence, looting, and arson.35

Three of our submissions considered that genocide has possibly occurred,36 and we note that this allegation has also been made by others in the media and among our colleagues in the House.37 Evidence from the International State Crime Initiative at the Queen Mary University School of Law was particularly striking, alleging “compelling evidence of state-led policies, laws and strategies of genocidal persecution stretching back over 30 years” and that the Rohingya had been subject to “invidious campaigns of race and religious hatred reminiscent of those witnessed in Germany in the 1930s and Rwanda in the early 1990s.”38

12.We note in this context that UN experts have also made strong statements on the matter. Much of the commentary on the definition of the violence in Burma has focused on remarks by the UN’s High Commissioner for Human Rights Zeid bin Ra’ad al-Hussein on 11 September 2017:

Last year I warned that the pattern of gross violations of the human rights of the Rohingya suggested a widespread or systematic attack against the community, possibly amounting to crimes against humanity, if so established by a court of law. Because Myanmar has refused access to human rights investigators the current situation cannot yet be fully assessed, but the situation seems a textbook example of ethnic cleansing.39

Since then, Adama Dieng, United Nations Special Adviser on the Prevention of Genocide and Ivan Simonovic, United Nations Special Adviser on the Responsibility to Protect, made a joint statement saying that they had previously identified very deeply rooted and long-standing discriminatory practices and policies against the Rohingya Muslims population, and a failure to stop acts of violence against that group but “Despite warnings issued by us and by many other officials, the Government of Myanmar has failed to meet its obligations under international law and primary responsibility to protect the Rohingya population from atrocity crimes [ … ]”.40 We note also that several other states have called the situation ethnic cleansing, most recently the US, with Secretary of State Rex Tillerson saying on 22 November: “After a careful and thorough analysis of available facts, it is clear that the situation in northern Rakhine state constitutes ethnic cleansing against the Rohingya”.41

13.We asked the Minister in October how the UK Government defined the current situation in Burma. Mr Field was clearly sincere and personally affected by the matter, but he was reluctant to use any of the suggested definitions, telling us that that the term ethnic cleansing “has in mind the idea of finality”, whereas there had been “slow movement” in the Burmese government toward returning the refugees to Burma.42 He also later said:

the voluntary and safe return of refugees is a central part of those ongoing discussions. If that is achieved, then the issues of discussion about ethnic cleansing, genocide and other crimes will disappear more into the background, but I accept that it will be an ongoing live debate.43

However, he said that “unless we see action on that in very quick order, then I think the phrase ‘ethnic cleansing’ should and does apply.”44 Asked to clarify, he said: “The UK Government’s position is that this is now a situation of ethnic cleansing, yes.”45 However, the following week, the Foreign Secretary again seemed to suggest that the UK’s understanding of the violence as ethnic cleansing was conditional, and would depend upon the potential repatriation of refugees in future, stating: “Of course it is ethnic cleansing if those people are not allowed to return to their homes. That is clear.”46 On 28 November, the Minister made a clearer statement that “the inexcusable violence perpetrated on the Rohingya by Burmese military and ethnic Rakhine militia appears to be ethnic cleansing.”47

14.Whether actions are defined as ethnic cleansing, crimes against humanity and genocide has important consequences: such a definition invokes the Responsibility to Protect on the state involved and on the international community. The Government’s hesitation would therefore be understandable if the FCO was waiting for the results of its own analysis, but when we asked the Minister what legal assessment had been conducted by the FCO, the Minister said that none had taken place.48 He explained that the FCO was focused on the political and humanitarian situation and that the UN and International Criminal Court was the correct decision-making body to consider allegations of crimes against humanity and genocide.49

15.The FCO’s apparent lack of application or urgency in conducting its own analysis of what is happening appears to extend to a failure to mobilise people to collect evidence. When questioned in October on why the Government had not sent its team of police and forensic experts on sexual violence in conflict,50 the FCO replied that it was still assessing the need for a team.51 The Government has since said that the head of the Preventing Sexual Violence Initiative team recently visited Bangladesh, and that the FCO was deploying two civilian experts to conduct a needs assessment.52

16.We were surprised that the UK Government’s response to questions about this violence were not clear and the FCO was reluctant to commit to a definition. The evidence we have received suggests that the violence in Burma does amount to ethnic cleansing, and may well constitute crimes against humanity and even genocide. The Government’s hesitation and equivocation over defining the violence has made its statements frustratingly confusing. We do not agree that these issues will disappear into the background if the refugees are able to return. If atrocity crimes have taken place, these certainly cannot be redressed through repatriation and must be addressed in court to ensure perpetrators are held to account.

17.We are seriously concerned to find that the FCO has not undertaken its own analysis of the situation, nor committed its own expert team to gather evidence. The Minister said that its effort was focused on addressing the humanitarian situation, but it is unclear why humanitarian support and legal analysis cannot go hand-in-hand. The FCO’s political and diplomatic response should be informed by a legal opinion on what is happening. The FCO should immediately undertake to:

a)send an expert team to gather evidence on sexual violence in conflict and other possible atrocity crimes;

b)conduct a review of the situation based on NGO and International Organisations’ reports and its own findings, and provide the Committee with a summary of its findings, including a clear statement on whether it judges that, based on the evidence available, the actions of the Burmese security forces constitute ethnic cleansing, crimes against humanity, and/or genocide;

c)respond to the Committee as to how it will use this designation to guide its policy on the Rakhine crisis, including in assessing whether to pursue a referral to the International Criminal Court.

26 See also Annex for a fuller explanation of terms.

28 United Nations Framework of Analysis for Atrocity Crimes p 1 states: “In the 2005 World Summit Outcome Document (paragraphs 138 and 139), United Nations Member States made a commitment to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity, a principle referred to as the “Responsibility to Protect”. In this context, the term “atrocity crimes” has been extended to include ethnic cleansing which, while not defined as an independent crime under international law, includes acts that are serious violations of international human rights and humanitarian law that may themselves amount to one of the recognized atrocity crimes, in particular crimes against humanity[..]”.

29 Correspondence from the Ambassador of the Republic of the Union of Myanmar, dated 6 October 2017, p 3. See also: Myanmar Institute of Strategic and International Studies (BUR0006); Organizations Representing the Myanmar Community in the United Kingdom (BUR0018)

30 Q34 [Dr Lee Jones]

31 United Nations Association UK (BUR0013) para 2; and below footnotes 32,33 & 35

32 See, for example: International State Crime Initiative School of Queen Mary University of London (BUR0010) paras 2–7; Dr Eglantine Staunton (BUR0015) para 2.1; Mr Justin Wintle (BUR0011) para 2; Overseas Development Institute (BUR0019) paras 3–5; Protection Approaches (BUR0023) para 6; Middlesex University (BUR0021) paras 9-15; Christian Solidarity Worldwide, (BUR0014) paras 5-6

33 Dr Eglantine Staunton (BUR0015) para 2.2; Middlesex University (BUR0021) para 38; Burma Campaign UK (BUR0022) para 31; Human Rights Watch (BUR0024) para 1

34 Middlesex University (BUR0021) para 40; Protection Approaches (BUR0023) para 6; Human Rights Watch (BUR0024) para 2; Fortify Rights (BUR0026) para 6

35 Human Rights Watch (BUR0024) para 3

36 Q12 (Tun Khin); International State Crime Initiative School of Law Queen Mary University of London (BUR0010); Fortify Rights (BUR0026) para 6

37 For example: HC Deb 21 November 2017, col 839; HC Deb 28 November 2017, col 69WH and col 72WH and col 76WH

38 International State Crime Initiative School of Law Queen Mary University of London (BUR0010) summary, para 32

39 See: United Nations Human Rights: Office of the High Commissioner, Opening Statement by Zeid Ra’ad Al Hussein, 11 September 2017. In October 2017, the House of Commons debated and resolved a motion agreeing with this statement. See: HC Deb 17 October 2017, cols 764–812

40Statement by Adama Dieng, United Nations, 19 October 2017

41 US Department of State, ‘Efforts to Address Burma’s Rakhine State Crisis’, 22 November 2017

42 Q69

43 Q73

44 Q69

45 Q70

46 Oral evidence taken on 1 November 2017, HC (2017–19) 538, Q37

47 See: Department for International Development and Foreign and Commonwealth Office, ‘The Rohingya people of Rakhine State: UK government actions update, 28 November 2017’, 29 November 2017. See also: HC Deb 28 November 2017 col 78WH, HC Deb, 21 November 2017, col 839; and Department for International Development, ‘Penny Mordaunt: Extra UK aid gives a future to persecuted Rohingya’, 27 November 2017

48 Q74

49 Qq 74–76

50 HL Deb, 26 October 2017, col 1030

52 PQ HL2848 [on Burma: Rohingya], 16 November 2017

8 December 2017