Last week the UN Human Rights Council passed a resolution to create an Independent Impartial Mechanism (IIM) to collect, preserve and analyse evidence for serious international crimes in Myanmar. Australia voted in favour of the resolution. However, Australia could and should be doing much more to place pressure on the Myanmar military ― known as the Tatmadaw ― and to press for accountability for the crimes against the Rohingya people and against other ethnic minorities in Kachin and Shan states.
The resolution follows the release of the 444 page report of the UN's Fact-Finding Mission (FFM) which investigated the actions of the Myanmar military in Kachin, Rakhine and Shan States. The Mission recommended investigating and prosecuting senior officials of the military chain of command to determine their liability for genocide against the Rohingya. It also found that crimes against humanity and war crimes have been committed in Kachin, Rakhine and Shan states.
The escalation of violence launched in August last year by the Tatmadaw resulted in an estimated 10,000 deaths, and the expulsion and exodus of close to 700,000 Rohingyas into neighbouring Bangladesh. The stories from survivors are harrowing, with accounts of large-scale sexual violence targeting women and children.
Cutting military cooperation and imposing sanctions
Australia should do more to increase pressure on Myanmar. For starters, Australia needs immediately to impose a targeted sanctions regime, including financial sanctions by way of asset freezes and travel restrictions against the top military generals identified by the FFM. The United States, the UK, the EU and Canada all acted swiftly to place the generals under targeted sanctions. On 19 September, new Foreign Minister Marise Payne said in a statement that Australia was still considering whether or not to impose targeted sanctions. Why Australia has not acted as quickly as the rest of the Western world is a mystery and blight on its own, increasingly questionable, self-perception as a leader on human rights.
Just as alarming as Australia's slow response to impose targeted sanctions, is its continued military cooperation with the Tatmadaw. The Australian Rohingya community, and others, have been lobbying the Australian government to halt all ties. The defence contract is suggested to be menial by former Foreign Affairs Minister Julie Bishop. Australia's military cooperation includes a $400,000 deal with the Tatmadaw, providing it with training in humanitarian assistance, disaster relief, peacekeeping and English classes. Hardly menial affairs, for a military force alleged to have engaged in acts of genocide. At the time, the Australian government continued to defend the cooperation because it says it is important to maintain "open lines of communication" with the Myanmar military, even as the UK ended its very similar cooperation arrangement with a strong warning to the Myanmar military. In refusing to cut all ties and impose targeted sanctions, Australia effectively licenced Myanmar's military actions.
Transformative justice for Myanmar
The Mission stated that international accountability is necessary as a first crack in the massive impunity wall, and that justice and accountability can play a transformative role for the future of Myanmar and all of its people. The FFM has recommended a referral to the International Criminal Court (ICC), which Australia should support. Even though a referral to the ICC is unlikely to succeed because of a potential veto from China, Australia should provide in principal support for the recommendation and defend the ICC from attacks of recent weeks from U.S. officials. On 6 September, the Pre-Trial Chamber of the ICC ruled that the Court has jurisdiction for the crime against humanity of forced deportation of the Rohingya into Bangladesh ― a party to the Rome Statute of the ICC ― with the possibility that other crimes may be investigated. However, as the FFM has pointed out, this may be limited in scope and may only lead to partial accountability.
Australia also needs to play a more active and supportive role in the campaign for accountability. Especially if a regional approach, such as an ad hoc tribunal located in Asia, becomes the most viable option. In this respect, Australia can play a leading role to ensure that any mechanism that is created should also include scope for investigating grave crimes against all ethnic minorities in Myanmar. In addition, it could support any scope for accountability against gross human rights violations against ethnic minorities in Bangladesh. There are reports that, as a result of the focus on the refugee camps in Bangladesh, ethnic and indigenous minorities have suffered a clamp down with the support Bangladeshi authorities.
Universal jurisdiction
Former Australian Human Rights Commissioner Chris Sidoti, one of the members of the FFM, says the international community can do more to hold the Myanmar military to account, including the possibility of prosecution in national domestic courts through the principle of universal jurisdiction. Universal jurisdiction is the legal principle governing the ability of a national legal system of a state, to investigate and prosecute grave crimes regardless of where they were committed and the nationality of the perpetrators or victims.
Although Australia has a relatively uneven history and underdeveloped mechanism for employing its domestic prosecutions of international crimes, it can use this opportunity to forge a new path and develop its commitment and practice to ending impunity, by actively responding to the campaign to seek accountability. Resources should be provided to the Australian Federal Police to commence investigations by: accepting briefs and criminal complaints; working with the FFM; the soon to be established Independent Impartial Mechanism; and investigative journalists, with the view to analyse evidence for future prosecutions either in Australia or by any other component court or tribunal.
In addition to humanitarian assistance, Australia should continue to ensure that survivors are provided with adequate psycho-social support and assistance and that investigators adhere to a proper protocol for interviewing survivors of sexual violence.
Australian Rohingya community
Australia also needs to play a more active role because of the small but substantial Rohingya refugee community here. There are some 3,000 Rohingya refugees who are in Australia on either permanent or temporary protection visas. Although they weren't present for the orchestrated violence that began in earnest in August 2017, they are survivors of decades-old campaign of persecution against the Rohingya by the Myanmar authorities. Or indeed, many of them have family members who were killed or survived the latest atrocities and are now in Bangladesh.
I've spoken to former clients, all of them having arrived by boat and many of whom are still waiting for their protection interviews and assessments. Prevented from the right to sponsor family members on visas to Australia, they are eager to conclude the process and go and visit their family members in the refugee camps of Cox's Bazar.
We also cannot ignore the Rohingya refugees Australia has detained on offshore detention centres in Nauru and on Manus Island. The FFM stated that the survivors of Myanmar's atrocities deserve a future free of danger and insecurity. Australia is holding us back from even that simple ambition.
Rawan Arraf is a human rights lawyer. She was a solicitor at the Refugee Advice and Casework Service (RACS) and is currently working on a project to develop Australia's domestic prosecutions of international crimes and gross human rights violations.