COMMENT | On Nov 11, Gambia filed a 1948 Genocide Convention violation complaint against Myanmar with the International Court of Justice (ICJ), a decisive step toward justice for the Rohingya.

But Gambia’s ground-breaking move also underscored the failure of Association of Southeast Asian Nation (Asean) member states, and particularly Malaysia, in taking the lead in confronting Myanmar’s crimes against the Rohingya.

After all, over the past two years, senior Malaysian government officials have decisively broken ranks with their Asean counterparts in their outspoken demands for accountability for the atrocities that Myanmar’s security forces inflicted on its Muslim Rohingya minority in late 2017 in northern Rakhine state.

The scale and barbarity of those abuses are unquestionable. In September 2018, the United Nations Fact-Finding Mission (FFM) published a 444-page report about human rights abuses against the Rohingya.

The mission’s report concluded that there was evidence of atrocities – including mass killings, gang rapes, and mutilations – warranting criminal prosecution for crimes against humanity, war crimes, and genocide. The report names top military officials as targets for investigation and prosecution and blame civilian authorities for “spreading false narratives, denying the wrongdoing of the (security forces), blocking independent investigations … and overseeing the destruction of evidence.”

Investigations by Physicians for Human Rights (PHR) over the past two years have put a tragic human face to the UN assessment and provided scientific objectivity in refuting the government’s repeated denials. In 2018, PHR surveyed 604 leaders from Rohingya hamlets in Rakhine state encompassing more than 916,000 people. The findings, coupled with in-depth interviews and forensic medical examinations of Rohingya survivors, point to a widespread and systematic pattern of targeted violence – including rapes and killings of women, men, and children.

Despite that evidence, the Myanmar government has consistently stonewalled international efforts at accountability for those atrocities. The government rejected the UN FFM report’s findings as “false allegations.” It has also blocked UN Special Rapporteur on Myanmar Yanghee Lee, who is tasked with assessing the human rights situation in that country.

International accountability

But there are promising signs that international accountability efforts for the Rohingya are moving forward despite Myanmar’s intransigence.

On Nov 13, Rohingya and Latin American human rights organisations filed a case with an Argentine court against Myanmar government and military officials under the concept of universal jurisdiction, which allows that people implicated in the most serious international crimes may be arrested, prosecuted and convicted in countries other than their own. The Argentine court filing seeks “the criminal sanction of the perpetrators, accomplices and cover-ups of the genocide” perpetrated by Myanmar security forces against the Rohingya.

The very next day, the International Criminal Court (ICC) announced that it had authorised a formal investigation into Myanmar government abuses against the Rohingya in late 2017 based on an acceptance that “widespread and/or systematic acts of violence may have been committed that could qualify as the crimes against humanity of deportation across the Myanmar-Bangladesh border and persecution on grounds of ethnicity and/or religion against the Rohingya population.”

Prior efforts to initiate an ICC investigation of the bloodshed have been complicated by the fact that Myanmar is not a signatory to the Rome Statute that established the court. International efforts to trigger an ICC probe via a resolution of the UN Security Council have been stymied by the opposition of Russia and China. Meanwhile, the UN-created Independent Investigative Mechanism for Myanmar (IIMM) officially began operations in September 2019 to probe whether Myanmar has committed crimes against humanity against its ethnic minorities over the past eight years.

Rhetorical support

The Malaysian government has expressed strong rhetorical support for accountability for the outrages inflicted on the Rohingya and has criticised perceived inaction by other states and international organisations in doing likewise. Foreign Minister Saifuddin Abdullah took the lead in that regard in June 2019 when he issued an unambiguous call for the perpetrators of the 2017 campaign of widespread and systematic violence by Myanmar security forces against Rohingya civilians “to be brought to justice.”

Not to be outdone, a month later Prime Minister Dr Mahathir Mohamad declared that the Rohingya were the victims of a “genocide” and that, in the absence of safety and citizenship in Myanmar, they should be granted their own sovereign “self-governing territory” insulated from predation by Myanmar security forces. In September, Mahathir went one step further by stating that the Rohingya had been targets of Myanmar government “institutionalised terrorism,” that included “mass killings, systematic rape and other gross violations of human rights [that] resulted in Rohingya fleeing the country on masse.”

But despite that fiery rhetoric, there is no evidence that either Mahathir or Saifuddin sought to follow through on it in any meaningful way. Although the Malaysian government has had no shortage of time or evidence to file a Genocide Convention complaint against Myanmar with the ICJ, it passed on an opportunity that Gambia, located thousands of miles from Myanmar on another continent, delivered on earlier this week.

Despite that missed opportunity, there’s still much the Malaysian government can do to support justice and accountability efforts for the Rohingya. It can start by using its position of moral clarity on the Rohingya’s plight to push, pull, and prod its fellow Asean members into rejecting the grouping’s “non-interference principle,” behind which Asean states have long hidden to avoid engaging on member states’ human rights abuses.

Asean can then leverage its hefty diplomatic and economic leverage to spur Myanmar to stop victimising the Rohingya and take substantive moves toward accountability. Malaysia can also, in collaboration with Asean members or independently, impose individual sanctions, including travel bans and asset freezes, against Myanmar government and military officials – and their family members – implicated in the 2017 targeted violence against the Rohingya.

In September, Mahathir declared that “It is left up to us – the international community, to do something about the [Rohingya] situation.” He now needs to demonstrate that he and his government have the political will to act on that rhetoric. Until that happens, the Rohingya have good reason to question Malaysia’s commitment to accountability and justice.

PHELIM KINE is the director of research and investigations at New York-based Physicians for Human Rights.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.