The Quiet Audience: U.s. Responsibility to Call for an International Investigation Into Crimes Against Muslims in Burma

• Jurisdiction: United States,Federal
• Citation: Vol. 28 No. 1
• Publication year: 2014
• topic: Criminal Law

The Quiet Audience: U.S. Responsibility to Call for an International Investigation Into Crimes Against Muslims in Burma

Rachel Wagley

THE QUIET AUDIENCE: U.S. RESPONSIBILITY TO CALL FOR AN INTERNATIONAL INVESTIGATION INTO CRIMES AGAINST MUSLIMS IN BURMA

Rachel Wagley^*

Introduction

Anti-Muslim violence in Burma has been roundly condemned in statements from the UN, international governments, regional bodies, and human rights groups since June 2012. Undeterred by negative international attention, the Burmese government has not attempted to provide a system of transitional justice for Muslims who have been attacked. on the contrary, government officials have participated in new attacks, tightened restrictions on Muslims, blocked aid from displaced Muslim populations, and segregated the mostly stateless Rohingya and other Muslims from the rest of the population.¹ Government complicity in anti-Muslim discrimination and violence is grounded in an ethno-religious nationalism² that has informed Burma's law and policy for decades.³

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Despite the government's withholding of justice, the international community has failed to take necessary action to protect Muslim victims. Though the United Nations has acknowledged the role of Burmese authorities in "widespread" and "systematic" attacks against Muslims that "may constitute crimes against humanity,"⁴ the United States has built over the same time frame an optimistic engagement policy centered on developing strong strategic and financial ties with Burma's government. The United States has not used concessions or sanctions as leverage to compel the Burmese government to address anti-Muslim violence but has instead downplayed the extent to which the government perpetuates violence.

This Article establishes that the doctrine of the Responsibility to Protect is directly applicable to Burma's Muslim crisis, as institutionalized discrimination and violence against Muslims have created a unique breach of justice in Burma. Part I maintains that the most operational solution to that breach of justice-given the continuation of mass atrocity crimes against Muslims, and the Burmese government's deliberate withholding of justice and accountability for victims and perpetrators of violence-is to implement an international system of justice based on the duty articulated in the doctrine of the Responsibility to Protect.⁵ The first step in implementing this system of justice is to establish a UN-sponsored independent investigation into anti-Muslim violence.

Part II examines the U.S. government's unwillingness to call for an international investigation through the lens of U.S. engagement policy with Burma. In light of this policy, U.S. efforts to address anti-Muslim violence have been of secondary importance and accordingly ineffectual at encouraging the Burmese government to address the Muslim crisis. This undermines the

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U.S.'s own policy goal to support a stable, democratic Burma that can sustain long-term, profitable diplomatic and financial engagement.⁶

The proper course of action is thus to promptly push the UN to establish an investigation into anti-Muslim violence in order to protect victims and establish an expectation of rights-respecting policy and ethno-religious equality in Burma. National reconciliation necessitates the deconstruction of institutionalized ethno-religious nationalism and violence, which destroy national confidence in Burma's reform process and defy attempts to strengthen discourse on justice and transitional issues in Burma. I conclude that it is ultimately in the strategic interests of the U.S. to promote the formation of a reconciled Burmese state that respects all people, regardless of their heritage.

I. Applying Responsibility to Protect to Anti-Muslim Violence

I first set out to examine the applicability of the doctrine of the Responsibility to Protect to Burma's Muslim crisis. The Responsibility to Protect ("R2P") is an international norm enshrined at the UN 2005 World Summit.⁷ R2P provides a normative framework for existing international law regulations pertaining to investigations into mass atrocity crimes, including the Rome Statute of the International Criminal Court ("ICC").

The doctrine stresses that the individual state is the sovereign protectorate of its people from genocide, war crimes, ethnic cleansing, and crimes against humanity.⁸ "Responsibility" to protect requires the "prevention of such crimes, including their incitement, through appropriate and necessary means."⁹ The international community has the responsibility to cooperatively "encourage and help" individual states fulfill their responsibility.¹⁰ Only when the individual state abdicates its responsibility to protect its people from mass atrocity crimes, and peaceful means to pressure the state to accept responsibility prove ineffective, may the international community take

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collective action through the United Nations. R2P is committed to peaceful interventions including assistance, peaceful persuasion, and financial sanctions.¹¹ The nature of collective action must exhaust the possibilities of "appropriate diplomatic, humanitarian, and other peaceful means" before forceful means can be considered.¹²

The means of determining whether a state has abdicated its responsibility to protect is an independent investigation that can be commissioned by the UN Security Council, UN Human Rights Council, UN General Assembly, or the UN Secretary General. An investigation can recommend that the UN Security Council refer the situation to the ICC.¹³ Under Chapter VII of the UN Charter, the Security Council has the authority to determine measures, peaceful or, if necessary, forceful, "to maintain or restore international peace and security."¹⁴ This "international" provision does not imply that conflicts must threaten to spill over borders; certainly, the UN Security Council has acted to address numerous crises without "spillover power" on the basis that these crises necessitated UN intervention to reestablish international order.¹⁵ Even so, the threat in Burma has definitively spilled over international borders, with thousands of refugees from the anti-Muslim conflict pouring into nations including Thailand, Malaysia, Bangladesh, Indonesia.¹⁶

This has caused significant regional conflict¹⁷ and has motivated regional ministers and groups to call for international action. The Organization of Islamic Cooperation ("OIC") called on the European Union in June 2013 to increase pressure on the Burmese government to allow full humanitarian

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access to Rohingya in Arakan State.¹⁸ In response to the escalating influx of Rohingya refugees in August 2013, the Association of Southeast Asian Nations ("ASEAN") Parliamentarians for Human Rights ("APHR") urged the ASEAN Inter-governmental Commission on Human Rights to develop a regional solution to the Rohingya crisis. In APHR's announcement, Eva Kusuma Sundari, APHR president and Indonesian Member of Parliament, stated: "Our heads of state must recognise the significance of ASEAN's action or inaction on this major international issue and the serious implications it has, not only for the Rohingya people, but the future stability of the region as a whole."¹⁹

At an ASEAN conference in January 2014, Indonesian Foreign Minister Marty Natalegawa said that Burma's anti-Muslim violence has regional ramifications, even inspiring retaliatory terrorist plots in Jakarta.²⁰ Neighboring countries Thailand and Malaysia are facing international scrutiny for capacitating human trafficking rings of Rohingya asylees.²¹ Religious violence involving Burmese living in Malaysia and Indonesia is growing, likely provoked by Burma's anti-Muslim violence and refusal to provide accountability.²² Yet Burma has dodged responsibility. When the Burmese government assumed the chairmanship of ASEAN in 2014, it unabashedly announced it would apply ASEAN's "non-interference" policy to the Rohingya situation. It deemed the violence an "internal affair" that would not be discussed at ASEAN meetings, "even if other countries ask for it."²³

UN officials, Nobel Peace laureates, and human rights organizations have thus recognized the applicability of R2P and the need for an independent investigation. UN High Commissioner for Human Rights Navi Pillay has called for a prompt, independent investigation into crimes in Arakan State

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since June 2012.²⁴ Twelve Nobel Peace laureates echoed and expanded Pillay's call in June 2013, after violence spread beyond Arakan State, calling for an "independent investigation of the anti-Muslim violence in Burma" on the grounds that "some within Burma are propagating a politics of division-and using violence as a tool to manipulate feelings of fear and insecurity."²⁵

In August 2013, after conducting an investigation inside Burma, Physicians for Human Rights ("PHR") also called for an independent investigation due to the Burmese government's failure "to properly protect its people and address human rights violations."²⁶ PHR argued that anti-Muslim violence, bolstered by hate speech, systems of impunity, and inaction by Burmese leaders, "could lead to mass atrocities on a scale heretofore unseen in Burma" unless the international community were to implement an investigation.

In order for an independent investigation to be warranted, two points must be established: (1) It must be likely or evident that minority Muslims are suffering from mass atrocity crimes, defined under the Rome Statute and Geneva Conventions as genocide, war crimes, crimes against humanity, or ethnic cleansing, and (2) it must be likely or evident that the state has withheld justice and accountability for victims of these mass atrocity crimes. ²⁷

A. Mass Atrocity Crimes

Muslims in Burma are suffering from two types of mass atrocity crimes: crimes against humanity and ethnic cleansing.²⁸ Crimes against humanity, defined in the ICC's Elements of Crimes, consist of...