CASE 18-2016: State
Sangha Maha Nayaka Committee (SSMNC – Ma Ha Na)
By Master Yan
Maitri-Shi, Prosecutor of Buddhist Tribunal on Human Rights
HONORABLE JURY OF INTERNATIONAL BUDDHIST
ETHICS COMMITTEE (IBEC) & BUDDHIST TRIBUNAL ON HUMAN RIGHTS (BTHR)
After Legitimating and Validating Evidences
and Charges by Buddhist Master Maitreya, President and Spiritual Guide of
IBEC-BTHR, it is addressed the case against the accused party “State Sangha Maha
Nayaka Committee” also known publicly as SSMNC or Ma Ha Na. This investigation was initiated by the Buddhist Tribunal on Human
Rights from the ethic sentence against Myanmar government for Genocide, Ethnic
Cleansing and Crimes against Humanity, which was conducted in 2015.
The Charges by which the Buddhist Tribunal on Human Rights is accusing State Sangha Maha
Nayaka Committee are enumerated below:
·
FALSE BUDDHISM AND VIOLATION OF BUDDHIST LEGAL CODE (VINAYA)
·
OPPRESSION AND ILLEGAL DETENTIONS AGAINST BUDDHIST SANGHA
·
COMPLICITY WITH DISCRIMINATION
·
VIOLATION OF THE RIGHTS OF WOMEN AND CHILD
·
VIOLATION OF FREEDOM OF EXPRESSION
·
VIOLATION OF THE RIGHTS OF INDIGENOUS AND TRIBAL PEOPLES
·
CRIMES AGAINST HUMANITY AND PEACE
·
COMPLICITY IN GENOCIDE AND ETHNIC CLEANSING
Therefore, it is detailed a series of EVIDENCES that support the Charges
referred so that the Jury members decide about the possible
"Responsibility", "Innocence" or "Insanity" of
the accused. Such evidence come from graphic and audiovisual media that have
been gathered, sorted and confirmed in their order and context as Means of
Proof in order to know, establish, dictate and determine the Responsibility of
the Accused for committing the aforementioned Charges.
The procedure established in the Statute of INTERNATIONAL BUDDHIST
ETHICS COMMITTEE & BUDDHIST TRIBUNAL
ON HUMAN RIGHTS provides both bodies the ostentation to enjoy independence and
liberty from state and national regulation and control, besides having the
legality and acting as a Buddhist People in order to assert its customs,
traditions, practices, procedures, judgments and rights as well as acting in
pursuit of the development of Spirituality, of Buddhist Ethics, and of the
defense of International Human Rights. This procedure has the particularity,
singularity and distinction of having: "Special Jurisdiction of the Tribal
Law" and "Universal Jurisdiction of the International Law", thus
having the Character, Juridical validity, Legal Powers, infrastructure,
Training and Capability necessary to be Actor, Administrator and Executor of
Justice in this realm and exercise, by determining the
"Responsibility" of the Accused by means of an Ethical Judgment whose
Purpose is Truth, Reconciliation and Learning.-
EVIDENCES
1.
PRECEDENT I: ETHIC TRIAL AGAINST ASHIN WIRATHU, 969 MOVEMENT & PATRIOTIC ASSOCIATION OF MYANMAR – MA BA THA
In March 2015, the International Buddhist Ethics Committee
found Ashin Wirathu & Movement 969 responsible for the charges of Discrimination, Social Segregation, Apology
of violence and False Buddhism. In June 2016 it was developed an Ethical
Act in which the complicity of the Patriotic Association of Myanmar (Ma Ba Tha)
was detailed with respect to discriminatory actions of Wirathu.
2.
PRECEDENT II: ETHIC TRIAL AGAINST MYANMAR GOVERNMENT
In May 2015 the Buddhist Tribunal on Human Rights
found Myanmar government responsible for the crimes of Genocide, Ethnic Cleansing and
Crimes against Humanity.
3. OPRESSION TO THE SANGHA
Ven. Rewata Dhamma: “In
pre-colonial Burma, there was a balance between the state, the people and the Sangha (the community of monks and nuns). The state protected
and supported the Sangha, which in turn
legitimized the state and by acting as the conscience of society, protected the
people. To the kings, the Sangha pointed out the
moral path which Buddhist teaching holds out to rulers, correcting them when
they departed from the norm, or Dhamma. At village level the monks, dependent for their
livelihood on the people, were always aware of the situation of the villagers,
and had every interest in promoting their well-being. Monks often acted as
spokesmen for the village people in their dealings with the local authorities.
In this way, the Sangha protected the people from the depredations of rulers,
and supported the rule of righteous kings by encouraging the people to obey
them. The basic framework of Buddhist ethics for rulers is set out in the Ten Duties of the King (dasa-raja-dhamma): (…) These principles constitute the basic guidelines
according to which the Buddhist ruler's legitimacy is assessed. It is my
contention that the current regime in Burma, by its flagrant and continued
violation of all these principles, as well as by its infringement of
international and domestic law in refusing to hand over power to the victors in
the 1990 elections, and its continued and gross violation of
universally-accepted standards of human rights, has lost any vestige of
legitimacy in Burma. The colonial period saw the break-up of the relationship
of ruler/Sangha/people, since the British rulers refused to act as
the protectors of the Sangha. (…) The
post-Independence administration of U Nu attempted to restore the balance of
State, Sangha and People, and introduce Buddhist practice into public
affairs. The military coup of 1962,
however, having inherited the psychology, techniques and weaponry of colonial
rule, ushered in a secular regime which, like the colonial administration,
depended more on force than on ecclesiastical legitimation. From 1962 until
1988, the military regime tried unsuccessfully to crush the Sangha, and on three different occasions, in 1962, 1964 and
1967 there were attempts to undermine the Sangha in the name of purification,
with monks accused of immorality, stockpiling of weapons or of being
communists. The object of this exercise was to undermine the standing of the Sangha with the people. From the same time began the
undertaking to dismantle or absorb the other institutions of civil society,
traditional and modern: villages and townships lost a good deal of their
autonomy; the fledgling trade-union movement was suppressed, as were the media
(there is now only a government-controlled press, radio and television); the
judiciary lost its independence; the students on several occasions were subject
to severe repression; and all political parties were banned
apart from the government party, the Burma Socialist Programme Party. In 1988
after the violent crushing of the democracy movement, the schools and
universities were closed, to inhibit the development of the student opposition
to the army. (…) The only major institution in Burma proper which has not been
absorbed by the state, or demolished, is the Sangha. There is approximately the same number of monks as
soldiers in the country (about 300,000) and both institutions recruit from the
same cachement area, the Burmese village. Both are organised, disciplined
bodies with an esprit
de corps, but operate on entirely different
principles; the one on the basis of love, compassion, tolerance and
nonviolence, the other according to the principle of force, even though 90% of
the generals, and a higher proportion of the men, are Buddhist, or claim to be.
The Sangha exhorts them to follow Buddhist principles, but they
persist in using violent means to crush non-violent actions. (…) In August
1990, monks were prominent in protesting the failure of the government to
transfer power to the election victors, and at least two monks were killed in
non-violent demonstrations. Following these events, the monks undertook a
boycott of religious services to the army. The boycott, announced by the
Association of Abbots of all Burmese monasteries and the Young Monks
Association of Burma, took a traditional form, namely, turning over the bowl (Thapaik Hmaunk). This is the Burmese term for a strike, which may
indicate the leading role which Buddhist monks have frequently played in social
protest. On this occasion, they refused to accept offerings from military
personnel or their families, which amounts to a kind of excommunication. This non-violent method of protest has been used
in notable moments in the past (…) In 1990, the army's response to the boycott
was rapid, and within a short time, at least 130 monasteries in Mandalay alone
had been stormed, and a large number of monks arrested. We estimate that there
are currently about 400 monks in prison. Some of them are reported to have been
forcibly disrobed, though only the
individual monk can choose to leave the robe. Not even the Sangha has the power. Some monks are reported to have been
tortured and some killed in prison. We recently heard that Venerable U
Sumangala-Lankara, who is one of only five monks in Burma who can recite the
whole of the Tripikata by heart, has been sentenced to 7 years in prison.
People have been warned not to react to such events or there will be serious consequences. Monks' organisations have been
banned and there have been consistent attempts to divide the Sangha internally by giving honours and privileges to some
individual monks, who appear on television and speak in defence of the
government. These are in a small minority, however. Attempts continue to
discredit the Sangha with the people -- the usual accusations as noted
above. Many monks have fled to the Thai and Chinese borders. The Burmese
democracy movement has been essentially non-violent. But against the
unrestrained use of force, non-violent action requires the help of the world
community, but very few people seem to be listening. (…) In my view it is more
the responsibility of the international community to use whatever means it has
at its disposal, such as economic sanctions (…). The world community should be
strong in non-violent action before more violence occurs. (…) The legitimacy of
Burmese rulers has always been judged by their adherence to Buddhist
principles, which are perfectly clear in the matter of social justice. It is a
pity that the Burmese military who claim to be devout Buddhists appear not to
understand the very basic teachings of the Buddha, which are, in short, to live
righteously, to develop loving kindness, compassion, sympathy, tolerance and
non-violence, in order that people may be able to live in harmony, justice and
international brotherhood. It is very clear that the present regime has lost
any claim to legitimate rule in Burma both in terms of the norms of domestic
and international law, but also in terms of the legitimacy which Burmese rulers
have traditionally derived from the Sangha. The issue is more than the rivalry of two groups,
but rather the question of whether political rule should be mediated by
religious and spiritual principles, or should simply obey the logic of naked
force. (…) May
all beings be happy (Speech
delivered at the Church Center for the UN, New York, November 1989)”[1]
4.
COMPLICITY WITH RELIGIOUS DISCRIMINATION and VIOLATION OF THE RIGHTS OF
WOMEN
Buddhist Tribunal on
Human Rights: The State Sangha Maha Nayaka Committee (SSMNC) is a
government-appointed body of bhikkhus that oversees and regulates the Buddhist
sangha in Myanmar. Although SSMNC has issued a directive banning and
prohibiting use of the 969 movement’s emblem as a symbol for Buddhism, because
it were not accordance with the rules set by the SSMNC, certainly this
directive makes no mentioned of what actions might be taken against those who
violate the prohibition.[2]
Therefore, the 969 movement has continued existing and propagating its violent
teachings to all society. All 47 of the bhikkhus who are member of the SSMNC
have disapproved the use of the 969 emblem as a symbol of Buddhism, stating
that it will not legally recognize 969-based networks. But, after this
directive from SSMNC a new organization leaded by Ashin Wirathu has emerged,
the Patriotic Association of Myanmar,
which has the same anti-islamic message of 969
movement, and it also has the support of SSMNC. The support from SSMNC
towards Patriotic Association of Myanmar
(Committee for the Protection of Nationality and Religion or Ma Ba Tha) is
evident in the fact that during the first anniversary of the creation of this
association, which was held at Aung San Monastery in Insein township, the event
was attended by Bhamo Sayadaw, the head of the State Sangha Maha Nayaka
Committee, who said his committee would continue to work together with Ma Ba
Tha. He confirmed that the two organizations had cooperated in the developing
of the interfaith marriage law in March 2014, which is a law that violates
Human Rights treatises.
Myanmar Times: “One of these laws
would ban Buddhist women from marrying men of other faiths, while another would
force people wishing to change their religion to seek permission from township
officials. Some observers have suggested
that the monks are being used to build support for conservative political
groups at the expense of the more liberal National
League for Democracy (…) The marriage law has been criticised by more than
100 local and international civil society organisations, who have described the
law as disgraceful and warned it
would invite international ridicule. But Sayadaw U Dhammapiya said these groups
were ignoring the threat posed by Islam.”[3]
Nobel Zaw (The
Irrawaddy): “Burma’s Lower House on Thursday passed two bills that are part of a
controversial package of four Race and
Religion Protection bills, bringing the legislation, which is being pushed
by an influential group of nationalist Buddhist monks, closer to becoming law.
Parliamentarians told The Irrawaddy that the house majority approved the
Population Control bill, which aims to establish government control over
women’s reproductive rights, and the Buddhist Women’s Special Marriage bill,
which would require Buddhist women to seek permission from local authorities
before marrying a man of another faith. (…)
May Win Myint, a Lower House lawmaker with the NLD, said she had suggested
amendments to the Population Control bill so that women would have more free
choice in their plans to have children, but the majority of lawmakers declined
to consider her proposal. The Upper House last month voted in favor of the
Population Control bill and the Religious Conversion bill. The former
legislation would mandate a number of administrative hurdles for religious
converts. According to May Win Myint, the Upper House will soon discuss the
Buddhist Women’s Special Marriage, also known as the Interfaith Marriage Law.
(…) The Population Control bill is now scheduled for a joint vote in Union
Parliament, after which it could be signed into law by President Thein Sein.
The bill is in the most advanced stage among a package of four bills dubbed the
Race and Religion Protection legislation, which the government has been
drafting after coming under pressure from an influential group of nationalist
Buddhist monks, the Ma Ba Ta, who have been accused of spreading anti-Muslim
hate speech and whipping up nationalism. The government has accepted the bills
proposed by the group and Thein Sein sent them to parliamentary bill committees
to prepare them for a vote. The government and USDP have been accused of using
the bills to play nationalist politics with the Buddhist-majority public during
an election year. The Population Control bill aims to establish government
control over women’s reproductive rights and grants authorities the power to
identify regions where women will be encouraged to have only one baby every
three years. (…) Opposition lawmakers and women’s and rights activists say it
violates women’s basic rights, while the vaguely-worded legislation would give
local authorities broad powers to apply population control measures in areas of
ethnic or religious minorities, in particular in Muslim-majority parts of
northern Arakan State. (…) In December, a group of 180 civil society groups
voiced their concern over the Race and
Religion Protection bills. A brief legal analysis by the groups said the
Population Control Bill would violate the Convention on the Elimination of All
Forms of Discrimination against Women (CEDAW) and the Convention on the Rights
of a Child. The briefing warned that children born not in line with the rules
of the bill would be at risk of not being registered by local authorities. Khin
San Ye, a NLD Lower House lawmaker, told The Irrawaddy, said the Population
Control bill violates Convention on the
Elimination of All Forms of Discrimination against Women that [Burma] signed it
and it should be not enacted.”[5]
5.
AUTHORITARISM, CORRUPTION AND COMPLICITY WITH MYANMAR GOVERNMENT
U Pyinya Zawta (Pakada): “It’s
time to reexamine the relationship between the State-sanctioned Sangha Council and the military-dominated
government of Burma. (…) Buddhism recognizes all ordained monks as members of a
Sangha as long as they adhere to the moral discipline outlined in the Vinaya
Pitaka of the Buddhist scripture. There is no requirement to register with any
government authority to prove one’s identity of monkhood. Monks have
always lived a simple and meditative life by paying respect to the senior monks
and by fostering harmonious relations among the monastic members. No monk can
be involuntarily expelled from a Sangha, except when the Buddhist monastic code
of conduct, called the four Parajika
Dharma, has been violated. Even if the monk’s robe is forcibly removed, the
person’s monkhood still remains. One can only ordain or disrobe a monk by
following strict rules of the Buddhist Canon. Disrobing cannot take place
without a proper ceremony, but those who are Buddhists in name only incorrectly assume that removing the robe
will reduce a monk to a layperson. In 1980-81 the Maha Nayaka, the government
sanctioned Sangha Council in Burma, was formed with 47 monks under the rule
of the BSPP (Burma Socialist Program Party). Many prominent monks
denounced the government’s use of a registration system to control Burma’s
Sangha. Even at the height of the BSPP dictatorship, monks bitterly resisted
the government’s intrusion into Buddhism. They believed that by requiring the
monks to register with the authority, Ne Win’s government was putting
collaborating monks in charge of the Sangha community to control religious
freedom inside Burma. Some senior monks candidly told Sein Lwin, a government
recruiter, that they would rather not become part of an instrument to tyrannize
the monks. When more and more monks began speaking out against the government’s
attempt to undermine the religion, some were arrested under false charges of
violating the most serious Parajika-Dharma, the monks’ moral code of
conduct. After accusing those monks as fakes, the Central State
Sangha Council was formed amidst criticism by the prominent monks in Burma.
Again, in 1991 and in 2007, activist monks were arrested under false charges of
being fake monks when they refused to
receive alms from the members of the military because of their failure to help
the people in dire poverty. At the founding of the Maha Nayaka or Mahana, the BSPP raised enormous amounts of funds by
partnering with popular entertainers. They brought in large amount of alms
offerings, telephones, cars, land, and above all, power and influence, to the Mahana monks who collaborated with the
authorities. From time to time some monks were even suspected of offering
bribes for lucrative Sangha Council
positions, causing conflicts within the previously harmonious monks’
communities. Profits from bribery and kickbacks have become a big business for
the justices and middlemen at the Ka-bar-aye office of the State Sangha Council, where monastic disputes over lands, buildings
and violations of the monks’ Parajika-Dharma code of conduct are settled.
Regardless, it is still the responsibility of the Nayaka council to protect and promote the humanitarian and
religious efforts of the Burmese monks. Together with local authorities, the Nayaka Council should try to clean up
the unethical behaviors of a few monks —such as gaming, gambling, panhandling
at bus depots, consumption of alcohol, and eating after noon. Though the Mahana was founded to preserve the
growth and integrity of the Buddhist institutions in Burma, monks with true
convictions were powerless against the regime’s handpicked Nayaka Council members. Although a number of new Pariyatti Buddhist
institutes for higher learning were opened in the past, young Burmese monks
were still not able to practice religion freely. Young intellectual monks with true convictions
were prohibited from openly discussing their views and were often threatened
with expulsion and failed grades. Following the downfall of the BSPP, under the
SPDC (The State Peace and Development Council), the Nayaka Council continued to harass these monks over trivial
offenses while it routinely offered the preferred seats at the religious
seminaries to monks who collaborated with the regime. Additionally, the
government’s Na-pa-tha Buddhist universities have not been able to promote
Burmese Buddhism abroad because of the shortage of talent, inadequate supplies,
and the dictatorial tendency of the Nayaka
Council. Burmese Theravada Buddhism was brought to other countries only by
those monks who were supported by private donations. Except for a brief period,
religious freedom and Buddhism study came to a standstill under the present
leadership of the Nayaka Council in
Burma. While there were ecclesiastic Vinichaya courts available to handle charges brought against Burmese monks,
without the help from the Mahana Sangha
Council, Burmese monks were instead tried in military-controlled criminal
courts during the Saffron Revolution. Monks were forcibly disrobed and
sentenced to years in prison. In order to preserve their own privileges, the
government-sponsored Mahana monks
usually comply with the orders from the authority without weighing the moral
consequences of their actions. As witnessed during the 2007 Saffron Revolution,
a weak and ineffectual Maha Nayaka State
Sangha did not try to stop the nighttime raids on monasteries and the brutality
against the monks by the military regime bent on crushing the freedom of the
young monks. Buddhism is a path of enlightenment from future sufferings, as
well as the sufferings of the present life. According to Buddha’s teachings,
Burmese monks are expected to contribute toward the wellbeing of those around
them, in healthcare, education and many other ways all across Burma.
Historically, monasteries have been the bastions of intellectual studies; and
their contributions to the quality of life have earned them religious merits
and recognition as champions of the oppressed. Since ancient time, monks have
acted as pillars of the community, and their efforts and advice were kept in
high esteem throughout Burmese society, where accepted etiquette and codes of
conduct taught by the monks provided guidance to rulers and lay people alike on
how to live in peace and harmony. Burma, where Buddhism has flourished for
centuries, deserves a much better Sangha
Council, one which is unafraid to tell the truth, and which can remain
independent of outside influences. It must be able to resist the temptation of
the four offenses of Buddhism, and be able to provide proper guidance to the
monastic communities across Burma. To create an independent Sangha Council, the monks must be
allowed to make free choices, and while the authorities and lay people can
offer support, religious matters must be left only in the hands of the monks.
As long as the present Sangha Council
remains in place there is no hope for the preservation of Buddhism in Burma.
First, the Council collaborated with the BSPP, and then with the SPDC. And now
under Thein Sein’s government, the Maha
Nayaka Council is still serving the interests of the authorities instead of
the people. While the Burmese military is moving toward political reform, the
State-sponsored Mahana is stuck in the authoritarian past. Indeed it is time now to replace the old and corrupt
authoritarian Maha Nayaka Council permanently, with a new, democratic, just, kind, and truthful Sangha Council,
according to the teachings of the Buddhist Canon.” [6]
Ingrid Jordt: “Foreign media
produced a spate of man-bites-dog stories expressing astonishment that those
who had so recently marched in non-violent demonstrations using expressions of
universal kindness and compassion towards all beings could now be inciting hate
and advocating the withdrawal of human rights from another religious community.
(…) For 60 years Burmese rulers have been trying to disentangle this
spiritual-political dynamic and allow the government to function independent of
the Sangha. After seizing power in a 1962 coup, the country’s military assured
its economic and political supremacy by divide-and-rule politics and the perpetuation
of a continuous war against minorities (…) In the ensuing protests, several
students and a monk were shot to death. This triggered a strike by the Sangha in which thousands refused to accept the alms
of the military and their families. (…) Respected monk elders demanded that the
regime publicly repent its actions. Thereafter, the generals (…) sought to
divide the Sangha by cultivating a separate segment of monks loyal to the
regime who would serve as the merit fields of the armed forces. (…) The tradeoff
was loyalty and subjugation to the patron-client ties that kept the military
government functioning, including support of the military’s monks. (…) When the
2007 monk-led demonstrations erupted, the generals were ready. They imposed
curfews on military compounds so that military families were confined to
limited engagements with the outside, including monks. Battalions were brought
in from the hill tribe areas (where the regime has fought ethnic insurgencies
since 1948) to prevent loyalty conflicts among soldiers, monks, and citizens.
With uncompromising violence, the regime killed some monks (unofficial
estimates put the number between 30 and 40) and rounded up many more, interring
them in a Yangon soccer stadium. Patriarchs
from the State Sangha Maha Nayaka Committee —installed by the military
to adjudicate in the Sangha courts— were instructed to go to the stadium and
disrobe the monks, thereby demonstrating that their monastic status was bogus
and their protests, a political ruse. The
patriarchs refused. This refusal was a sign to the people that the Sangha had
not been captured by the military and was not (entirely) corrupted. Within
days, the junta filled the committee with more compliant patriarchs. But (…) could not recover from this crisis
of legitimacy. On May 2, 2008, Cyclone Nargis, the worst natural disaster in
the recorded history of Burma, struck the Irrawaddy Delta. The storm was
interpreted by Burmese Buddhists as a sign of Than Shwe’s illegitimacy, its
devastation as a karmic consequence of his violence against the monks. In
Burma, the weather is inseparably linked to the ruler, the people, and the
sacred geography of the realm. It is, according to traditional Burmese Buddhist
thinking, an index of the ruler’s legitimacy. (…) Fearing that it would provide
a cover for foreign military intervention, the generals blocked international
humanitarian aid for the victims of Nargis for a month. All donations were to
go through the military, thereby preserving the principle that the ruler is the
chief donor of the land. The generals were also concerned lest incipient
donation networks grow into political action parties that might contest their
authority. After Nargis, Than Shwe pushed through a sham referendum in support
of the military’s draft constitution. The
time has now come to change from military rule to democratic civilian rule,
the state media reported. With hundreds of millions of dollars of state
resources secured in personal accounts in Dubai, Than Shwe had long since
prepared his golden parachute. Now he distributed national assets to his loyal
generals and cronies in the name of opening the country to democracy and free
market capitalism. (…) And the rest of the world poured in, ready to take
advantage of one of the world’s last great economic development opportunities.
Commercial greed and the possibility of reasserting some Western influence in
the Asian region made it easy to overlook the warning signs. (…) Discrimination
against Rohingyas has been a recurring phenomenon. In 1978 Ne Win launched
Operation Naga Min (Dragon King), expelling 250,000 Rohingyas to
Bangladesh. (…) Rohingyas were variously excluded by citizenship laws (1982),
expulsions (1992, 1994), and restrictions on marriage and reproduction (2005).
On each occasion, the flare-up against this population served national
political purpose even as it reflected religious and economic tensions. (…) For
many Burmese Buddhists, their displacement by immigrating ethnic groups makes
it self-evident that the sasana (religion) is under threat. The threat
has also been evident from the weakening of the Sangha, which relies on lay
support. By controlling the flow of lay donations, the military restricted the
movement of monks, and imposed curfews and the requirement to seek governmental
permission for every sermon made to gatherings of more than five people. Agents
planted in significant monasteries operated openly, jotting down the names of
laity who came to make offerings to monks. Big donors were then solicited to
contribute to state construction projects. (…) The fear is that secularism and
private ownership will work together to destroy the Buddhist public sphere.
(…) Nevertheless, the United Nations and
international NGOs have tied the 969 movement and Buddhist monks to anti-Muslim
violence. The Sangha Maha Nayaka
Committee, which adjudicates monks’ orthodoxy and behavior, has declared it
illegal to form monk networks based on the principles of the 969 Movement and
bars linking its emblem to the religion. However, the Committee has not sought
to defrock U Wirathu for alleged engagement in politics or inciting violence.
Rather, he is portrayed as speaking against
violence. (…) Tying the violent anti-Muslim riots to the religion and the
monkhood surely benefits some persons, it is believed, while simultaneously
discrediting the Sangha, weakening its capacity to confer legitimacy to the
ruler. That U Wirathu enjoys the backing
of the regime is strongly suggested by the fact that he has been given freedom
to travel the country and preach without any governmental constraints, as well
as by evidence of the military’s involvement in the production and distribution
of DVDs of his sermons. By contrast, monks who have protested land-grabbing
—for example, by the Chinese-backed Letpadaung copper mine— have been
immediately and violently put down and jailed by security forces. Longtime
Burma-watchers believe that elements in the military have deliberately
orchestrated the anti-Muslim campaign in an attempt to foil the democracy
movement and Aung San Suu Kyi’s popular support in advance of the 2015
elections. UN observers have pointed to the strategic efficiency and planning
involved in the anti-Muslim riots, noting that government security forces have
stood by and even participated in the violence against Muslims.”[7]
Sylwia Gil (Specialist on South East Asia and Theravada Buddhism): “The Sangha Maha Nayaka State Committee, the highest
administrative body of the Burmese sangha, is regarded by the new
generation of monks rather as a care-taker of the government’s religious
activities and maintenance of its status quo, than as the body of moral
authority for ordinary monks. Most of the members of the Committee are elderly,
traditional monks enjoying high privileges and material welfare. They have no
real power on community matters, because this lies in hands of the Ministry of
Religious Affairs. (…) Regarding the numbers of monks and the easy access to
the monkhood there is no question about the need of the State Sangha
Mahanayaka structure and controlling role. The problem is how to restore
its moral authority, real representation of the community and executive power,
so that it could be perceived as more than a puppet institution, exercising
regulations of the Ministry of Religious Affairs.”[8]
Waiyan Moe Myint, San
Maw Aung and Kyaw Kyaw Aung (RFA’s Myanmar Service): “A prominent monk
group in Myanmar marked the anniversary of the Saffron Revolution in 2007 by
calling for reforms to the country’s official Buddhist monastic committee,
saying the state-appointed body does not reflect the will of the clergy.
Speaking at a rally in Yangon marking the seventh anniversary of the failed
uprising by monks against the previous military junta, the groups said the State Sangha Maha Nayaka (Mahana), which
oversees and regulates the Buddhist clergy in Myanmar, had become a tool for the
government to lessen the influence of monks on society. The Mahana doesn’t stand on the side of the
monks, Zawana of the All Burma Saffron Revolution Monks’ Association, whose
members helped lead the democracy movement in 2007, told RFA’s Myanmar Service.
It even removes and confiscates monasteries, and arrests monks. That’s why we
are urging a reform of the Mahana today, he said. Zawana said that the Mahana
should stand in support of Myanmar’s Buddhist clergy, but instead it has only
done what the authorities tell it to. The 47-member Mahana consists of a
chairman, six vice-chairmen, one secretary general, six joint general
secretaries and 33 ordinary members, all of whom are appointed by Myanmar’s
Ministry of Religious Affairs. A quarter of the committee’s membership is
replaced every three years, rotating among senior monks. Zawana called for a
new and fair selection process for representatives of the Mahana to ensure they
better represent the interests of the Buddhist-majority country’s monks. We want
the Mahana to select new representatives through a step-by-step process,
beginning with the village level and then at the township level, and we want
the selection be fair, he said. If the selections are unfair, we won’t accept
them. He said that while members of his organization have no plan to hold
protests, they are considering launching a petition seeking the signatures of
monks from various regions and states in support of reforms to the Mahana.
Powerful committee: In theory, the
Mahana oversees violations of the Vinaya, the traditional regulatory framework
of monks representing Theravada Buddhism adhered to by nearly all of
Myanmar’s Buddhists. The committee has the power to disrobe monks who have
violated its decrees and edicts as well as Vinaya regulations and laws, and
expel monks from their resident monasteries. During the Saffron Revolution, the
Mahana announced new regulations to prohibit monks from participating in
secular affairs. Despite a host of democratic changes ushered in by President Thein
Sein’s quasi-civilian government after taking power from the former junta in
2011, Zawana claimed that monks have
experienced more hardship at the hand of the Mahana under the new
administration than during the military regime. Twenty-four monasteries in (the capital) Naypyidaw have been destroyed
by the authorities and mango trees were planted in their place, while their
monks were arrested and sentenced, Zawana said. He also referred to a June
10 incident in which about 300 riot
police and the Mahana raided the Mahasantisukha monastery in Yangon over a
longtime land-ownership dispute, while its abbot was visiting Japan. Twenty
monks were arrested, but 15 were freed a day later. The other five, including a
British national, were defrocked, charged with disobeying the Mahana and
defiling a place of worship with the intent to insult Buddhism, and jailed in
the country’s notorious Insein prison, before being released several days later
on bail. Their court hearing has been set for Sept. 26. Their arrests prompted
threats of protest from other monks. The controversial raid also led to the
dismissal of Hsan Sint, the country’s religious affairs minister. In mid-June,
he was charged with corruption for misappropriating state funds, although some
suggest the charge was a pretext to remove him from office. Marking a movement:
Zawana said that the 2007 monk-led Saffron Revolution calling on Myanmar’s
former military regime to adopt democratic reform had led to positive changes
in the country, despite the brutal crackdown by authorities on the movement
which left at least 31 people dead and saw hundreds of monks arrested. We are
on a path towards becoming a democratic country, as our people have wanted, he
said. But others at Thursday’s ceremony —which
included former monk protesters, representatives from Aung San Suu Kyi’s
opposition National League for Democracy Party (NLD) and the pro-democracy 88
Generation Students group, and religious leaders— said the goals of the
movement were never met. Shwe Tontay Sayardaw, another monk at the ceremony,
said that the Buddhist clergy was still awaiting an apology from authorities
for their actions against protesters during the Saffron Revolution. The
authorities who ordered the crackdown haven’t apologized to us yet, he said. I
urge them today to apologize to us as soon as possible. Monks have refused
donations of alms from the military and ceased providing religious services to
them as a form of political protest since the crackdown, and say that they
would not consider lifting the ban until they receive an official apology.
Buddhists have a longstanding practice of donating food and other necessities
to monks, but the clergy boycotted alms from the army in 1990 when the
government refused to hand over power to Aung San Suu Kyi and the NLD, despite
a decisive victory at the polls.”
Buddhist Tribunal on
Human Rights: In 2010 the State Sangha Maha Nayaka Committee (SSMNC), with the
control of the military government of Myanmar, calls upon a meeting in order to
discuss changes in the sangha discipline, revealing a plan to introduce
restricting new rules for the activities of bhikkhus from all the nine gana or
Buddhist groups.
Democracy for Burma: “Observers also said
that it was also clear that the government was behind the push to impose
tighter restrictions on monks. Although
the State Sangha Committee is headed
by senior monks, it is controlled by the Ministry of Religion, said Ashin
Javana, a former abbot of a monastery in Rangoon who is now a leading member of
the Thailand branch of the All Burma Monks’ Alliance. The Sangha Committee cannot do anything without ministry
approval. The worst thing is that the committee allowed the junta to forcibly
disrobe and imprison monks, said the monk, who was disrobed in 1993 and
spent 16 years behind bars for opposing military rule in Burma. After his
release in September 2009, Javana tried to reordain as a monk, but was denied
permission by the State Sangha Committee because he had been imprisoned for
political reasons. It wasn’t until he fled to Thailand late last year that he
was able to return to life as a monk. In
2008, as part of its effort to rein in monks considered a threat to the ruling
regime, new ID cards were issued to monks to make it easier for the authorities
to keep track of their movements, according to monastic sources. Under
the new ID process, monks from different divisions and states were given
different-colored ID cards, said Ashin Kaythira, a longtime friend of Ashin
Gambira, one of the imprisoned leaders of the 2007 uprising. Other monks who
took part in the mass protests of September 2007 said that the government was
not the only source of pressure on monks. Speaking to The Irrawaddy in the Thai
border town of Mae Sot, exiled monks said that those still involved in politics
inside the country also faced opposition from their families and the abbots of
their monasteries.Their parents are now
asking them to give up the monkhood if they want to join the monks’ movement,
said Ashin Naymeinda, a leading monk during the 2007 protests. Abbots are also telling young monks to leave
their monasteries if they are active in the movement, he added.”[9]
Cherry Thein and Aung
Kyaw Min: “A rare gathering of senior
Buddhist monks has brought to the fore tensions over government control of the
Sangha and the inability of the national body that oversees monks to control
extremist teachings. A
total of 2558 monks from the nine recognised Buddhist orders attended the Fifth
All Orders Sangha Conference at Kabar Aye Pagoda from May 11-13 (2014), at
which they called for reform of the State
Sangha Maha Nayaka Committee, the body that oversees all monks in Myanmar. They
proposed 18 changes to the committee’s rules, including one that would give
monks the right to form religious associations freely, without having to seek
the committee’s permission. They also stressed the need for the committee to be
independent of the government. Participants also discussed the need to
strengthen understanding of Buddhism, particularly given recent communal
tensions. They said improved understanding of Buddhism is essential for
avoiding conflict with followers of other religions and to ensure peaceful
coexistence with other faiths. (…) Speaking at the conference, influential monk
Ashin Nyannisara, better known as Sitagu Sayadaw, suggested Myanmar follow the
path of Thailand, Cambodia or Laos, which do not have a ministry for religious
affairs. Monks are instead administered by an independent national Sangha
council and he said this had improved the discipline of the Sangha, he said on
May 12. He said the rules under which
Myanmar’s national Sangha body operates were drafted with a one-party mindset and do not encourage
cooperation between the different orders. If
an organisation does not have respectable rules and regulations it will never
be successful, he said. All Buddhist
orders should work together and each should respect the contributions of
others. He said changes introduced
after the military coup in 1962 had damaged Buddhist teaching and missionary
work. It is time to change some useless sections of the rules … such as
giving more opportunities to younger monks, regardless of how long they have
been in the monkhood, Ashin Nyannisara said. Noting that the number of Buddhist monks has
increased from 300,000 to 500,000 since the conference was last held, Minister
for Religious Affairs U San Sint said at the opening ceremony that the aim of
the event was to discuss ways to reform and strengthen the rules and
regulations of the Sangha committee. Participants
discussed the current structure of the Sangha committee. While it has a broad
reach, with almost 1000 offices around the country, monks said most were barely
functioning. In some areas it
has been difficult to open offices because of bureaucratic delays and opposition
from locals of other religions. Monks
also discussed censorship of Buddhist literature, including books and audio and
video recordings, and strengthening of the vinaya, the disciplinary code for Buddhist monks and nuns. They also focused on the need to reorganise
Buddhist missionary programs to make them more effective, with speakers
expressing frustration at the disorganisation and lack of cooperation in
missionary work. (…) Participants also discussed the need to purify and preserve Theravada Buddhism
from political and communal issues. One
monk, who works as an assistant to a prominent sayadaw who attended the
conference, said it was essential to reform the Sangha committee into a more
credible body that engages with the community in order to combat extremist
religious teachings. He expressed
frustration at those behind the formation of the Committee for the Protection of Nationality and Religion, arguing
that its activities, which include proposing a law that would ban marriage
between Buddhist women and men of other faiths, have heightened social and
communal tension. It is very funny that
this group claims to be protecting our religion, he said. But I think that if the Sangha committee can
work more freely and help people to understand Buddhism better than it can
defuse some of the tension. We need to work with better cooperation and
coordination in the future.” [10]
Aung Kyaw Min: “U Zar Ni Win, deputy
director general of the Department of Religious Affairs, agreed that some of
the current rules are defective. Rules will be changed in accordance with the
current customs, times and circumstance. Some rules and regulations of the
Sangha will be tightened up, while others will be loosened, he said. (…) We will also invite the suggestions from
Sangha who propagate [Buddhism] in other countries. (…) Observers said significant changes were
needed to the State Sangha Maha Nayaka Committee, which oversees all monks in Myanmar, as it has been ineffective at
resolving disputes and taking action against rule-breaking monks. The Sangha rules are quite perfect. What
needs to be amended is the policy for those who are not obedient because [the
state committee] can’t resolve controversial cases and situations that arises
from a failure to follow the rules, said U Nyanissara, a second-year
student from the International Theravada Buddhist Missionary University. In
some cases, the committee has made incorrect judgments ... These cases are
normally related to money. The State
Sangha Maha Nayaka Committee should be changed and reformed ... Decisions
should be made with the consent of all Sangha through voting, he said.”[11]
Aung kyaw Min: “The 2008 constitution
maintains several prohibitions on mixing religion
and politics. Section 364 states, The
abuse of religion for political purposes is forbidden. The constitution
also bars monks from voting or forming political parties. Local religious
authorities appear not to have taken a position on the matter. The State Sangha
Maha Nayaka Committee, known as Ma Ha Na, has issued no directive to the Ministry
of Religion, a ministry spokesperson told The Myanmar Times yesterday. We would welcome guidance from Ma Ha Na,
he said. The issue could become acute in view of the recent triumphal
progress around the country of the hard-line Buddhist nationalist organisation Ma
Ba Tha, which has been celebrating the
adoption of strict laws they say are designed to protect Buddhism and traditional family life. The laws have been strongly criticised
in Myanmar and abroad as anti-Muslim and for weakening women’s
rights. Clerics have also been accused of effectively favouring the ruling
Union Solidarity and Development Party and attacking the
opposition National League for Democracy, accusing the NLD of favouring Muslims. A prominent abbot, Nayaka
Sayadawgyi, has instructed monks not to take part in politics, and on September
29 the Mandalay Region Sangha Nayaka religious authorities issued a written
instruction to the same effect. Yesterday U Gunarlinkarra, deputy head of
Yangon Ma Ha Na, said directives reiterating the constitutional ban on
political activities by monks had already been issued, and there was no need to
revisit the issue. (…) Our Maha Nayaka
committee has issued instruction 83 and 91 ordering monks not to get involved
in politics, he said. Directive 91, in particular, orders monks not to conduct illegal violence.
However, U Gunarlinkarra said that only two days ago he had to admonish a monk
personally to abandon his protest during the electoral campaign. On October 4
Ashin Nyanissara, widely known as Sitagu Sayadaw, told a Ma Ba Tha gathering of
thousands of monks at
Yangon’s Thuwanna Stadium that it was important not to
“trespass” in the political realm. He added, however,
that while respecting the boundary between the political and the religious,
monks should carefully monitor political developments.” [12]
Aung Kyaw
Min: “An outspoken monk has
launched a fierce attack on corruption and abuse of authority in the clergy.
Shwe Nya Wah Sayadaw U Pinnyasiha, who has already defied a ban on preaching
imposed by the State Sangha Maha Nayaka Committee, said monks who defy the
orders of the State Sangha Maha Nayaka Committee, also known as Ma Ha Na, are
being forced into submission by military-era laws, particularly the 1990 Law
Relating to the Sangha Organisation. Religion was moulded under military rule, and laws enacted by the
military regime are still being used to control monks who refuse to do
everything Ma Ha Na wants. Monks are being led by the nose, he said at a
press conference in north Yangon on June 26. U Pinnyasiha cited recent cases
where the law has apparently been used to punish dissident monks, including the
dispute over Maha-santisukha Monastery in Tarmwe township, Yangon, which was
raided by police in June last year. He said monks were also targeted in the
violent crackdown on demonstrators at the Letpadaung copper mine in 2012.
Calling senior clerics privileged persons
above the law, he said lower-ranking monks had no right to file complaints
against them. There are many stories
of dishonesty and partiality inside every Sangha organisation, said U
Pinnyasiha, which he said was disgusting.
Myanmar has been denounced throughout the
world for its corruption. What a shame, he said, adding that some monks
were not content with the four things Buddha had prescribed for them – a
monastery, a robe, food and medicine, but hungered
for more than they need. He called on laypeople to speak out about clerical
corruption. The influence of religion is
too strong. A layperson who points out wrongdoing will be condemned by the
majority. When Buddha was alive, monks would apologise in public if people
pointed out their mistakes. Today, monks
themselves are trying to destroy the religion. They know they are being
exploited by the government for political interest, he said. Ma Ha Na
imposed the preaching ban on U Pinnyasiha last March, allegedly for speaking
out of line with Buddhist doctrine and disobeying his superiors. U Pinnyasiha
says it was because of his preaching about Bogyoke Aung San in advance of the
independence hero’s centenary celebration. I’m
not a politician. But I want people to speak out and not be afraid. Almost
every outspoken person is in jail now, including the students who demanded
education reforms. If we don’t speak out, who will? he said. Despite the
ban, U Pinnyasiha has continued to speak, reportedly to large audiences, both
in Myanmar and overseas, including Japan, Thailand and Singapore. (…) London
Sayadaw U Ottara, who is on trial on charges relating to the raid on
Mahasantisukha Monastery, has also told reporters outside the court, Don’t
we have the right to sue Ma Ha Na for what they have done wrong? U
Pinnyashiha has courted controversy before and is known for his criticism of
the anti-Muslim 969 movement, which is backed by nationalist Buddhist monks. In
2013 he acted to calm communal violence between Buddhists and Muslims that
exploded in the central city of Meiktila, and has also spoken out in defence of
political prisoners.” [13]
Recommendations
from “Human Rights Watch” to “State Sangha Maha Nayaka Committee”:
·
Provide
assistance to members of the monastic orders who face politically motivated
actions from state officials, including threats, violence, arbitrary arrest and
detention, unfair trials, and mistreatment in custody.
·
End
government controlled appointments to the State Sangha Maha Nayaka Committee.
·
Permit
religious orders to choose their own leaders.
·
Encourage
monks and monasteries to participate freely in social work such as education,
health, and local development initiatives outside the control of local and
national authorities.
·
Permit
free discussions in monasteries about the Sangha’s social and political role in
Burmese society.
·
Call
on the SPDC to investigate allegations of raids and arrests of monks and nuns
in monasteries and religious institutions, and end the use of household
registration laws to monitor monks’ movements. [14]
6.
ILLEGAL DETENTION, TORTURE AND POLITICAL PRISONERS
Buddhist Tribunal on
Human Rights: On 26 September 2007 the military government began a massive crackdown
that involved excessive force against
civilians, including unnecessary and disproportionate lethal force.[15] The army troops and police clubbed and
tear-gassed protesters, firing shots on protesting monks, and arrested hundreds
of bhikkhus who were at the heart of the demonstrations.[16]
The soldiers along as the police has chased and beated protesters and carted
others away in trucks.[17]
The government authorities raided more that 53 monasteries throughout Burma
multiple times,[18]
beating, disrobing and arresting monks and residents.[19]
During raids the government has also cut phone lines, computers and other
donations,[20]
detaining thousand of monks.[21]
The government declared no-go zones
around several Buddhist monasteries in Rangoon,[22]
continuing their house by house Searching for people that has participated in
anti-government demonstrations, taken hostage as a form of pressure to the
relatives of suspects who could not be found.[23]
The government hunted down those individuals who provided water or food to the
monks and arrested bystanders who applauded protesters.[24]
Lated, after the government assurances to UN Special Advisor on Burma that
arrests had ceased, the authorities continued to arrest monks and activists,[25]
like the leader of the All Burma Monks Alliance U Gambira.[26]
Moreover, the international community believes that the government has killed
at least 31 people during the crackdown, including nine monks that died in
custody.[27]
However, a large number of bodies were burned in the Ye Way crematorium in
Rangoon, where military personnel burning 71 bodies of demonstrators,[28]
since more than 80 individuals were the victims of enforced disappearance.[29]
Regarding to the Political prisoners, they have detained in cells without
ventilation or toilets, lacking of food and drinking water, being denied
adequate medical attention,[30]
since they have been severely tortured and verbally abused by prison
authorities during interrogation sessions.[31]
In the other hand, the government has also detained five generals and more than
400 soldiers for refusing to fire on monks and protesters in Rangoon,[32]
and an arrest warrant was issued against Cpt Win Htun Aung for giving water to
monks during the protests in Mandalay.[33]
Some estimates said that over 100 policemen from 16 police brigades have
deserted since the crackdown.[34]
One of the monks that
Human Rights Watch interviewed in Mandalay said: "There are
military intelligence agents outside, and they watch everyone who goes in and
out of the gates. A man from the security services comes every morning and
evening to check who of the monks are here, then he leaves." [35]
Buddhist monk U Viccita, talking about his
role in the peaceful 2007 demonstrations, Burma, 2008:
"For us, it was not politics, but a question of religion. We just went out
into the streets to recite metta sutta, loving
kindness. We did not advocate violence to overthrow the government... We wanted
the government to have a better policy for the people. So we decided to boycott
the junta with our bowls turned upside-down. That's called patta
nikkujjana kamma. We did not accept food, medicines or
anything from the authorities. That's the only way we can fight for our rights.
This has nothing to do with politics. The same thing happened during the time of the Buddha
when there was a bad king, an evil king, who hurt the monks and the people. At
that time, the monks also protested. But then the king had to apologize, and it
was all over. But this junta refused to apologize. That was why we continued
our protests. And they are continuing —we are still opposed to the junta, but
we can’t fight against men with guns. We’re biding our time. But we are not
afraid to protest again" [36]
Buddhist monk and
protest leader U Gambira, November 2007: "The regime's
use of mass arrests, murder, torture, and imprisonment has failed to extinguish
our desire for the freedom that was stolen from us. We have taken their best
punch. Now it is the generals who must fear the consequences of their actions.
We adhere to nonviolence, but our spine is made of steel. There is no turning
back. It matters little if my life or the lives of colleagues should be
sacrificed on this journey. Others will fill our sandals, and more will join
and follow." [37]
Buddhist monk U
Manita, Burma, July 2008: "I'm being watched all the time. I am considered an organizer. Between
noon and 2 p.m., I am allowed to go out of the monastery. But then I'm
followed. I had to shake off my tail to come to this meeting today. I'm not
afraid, not for myself. I'm not afraid to tell foreign journalists what
happened. And I'm prepared to march again when the opportunity arises. We don't
want this junta. And that's what everyone at my monastery thinks as well."
[38]
Buddhist monk U
Igara, Burma, July 2008: "[S]omething was achieved [in September 2007]. A whole new
generation of monks has been politicized. We're educating them. We're still
boycotting the military. We are not accepting gifts and offerings from them.
One of the reasons why the regime will fall is globalization. No country can be
isolated like before. Look at Indonesia, that regime fell. Now it's a
democracy. We want the UN's Security Council to take up the Burma issue, that
the UN investigates what really happened.... But China and Russia can use their
veto. Please tell the world what's happening in our country!" [39]
U Kosalla: “I want the outside world to put pressure on China
because the Chinese support the junta in our country (…) I and the monks here don’t like the State Sangha Maha Nayaka Committee.
When monks were killed in 2007, they kept silent. They should have issued a statement
saying that it’s unacceptable to kill or hurt monks. But they did nothing. When
they at last said something on the radio and TV, they said we should not oppose
the junta. Their statement was sent to all senior monks in Mandalay. They [the
members of the State Maha Sangha Nayaka Committee] are just puppets of the
regime. Even if they know something about old scriptures they haven’t got a
clue how people live. They know nothing about the country in which they live.
Here in our monastery we say that we respect them. But we don’t. We respect
only the Buddha. Not a committee made up of puppets of the military.”[40]
U
Sovanna: (about the State Sangha Maha Nayaka
Committee) “I don’t like them at all. They should have said: ‘Stop shooting and beating monks!’ But they didn’t say anything
like that. They obey the regime. Personally, I would like to overthrow that
committee. No monks have any confidence in them anymore.”[41]
Human Rights Watch: “The Burmese military government’s repression of
members of the Buddhist monkhood who dared to take to the streets in 2007. In
September of that year, thousands of crimson-robed monks began marching (…) to
address declining living standards for an already poor population and begin a
genuine dialogue with the country’s political opposition. In the end, weeks of
gradually growing demonstrations were violently dispersed by security forces, a
crackdown transmitted across the world’s televisión screens thanks to internet
and cell phone technology. Hundreds of monks and nuns were arrested, detained,
interrogated, and tortured. Many more were ordered or threatened to disrobe by
the authorities and sent back to their home villages. In one sense, this was
nothing new. Burmese monks have played an important role at many critical
historical junctures and, in response, the authorities have often cracked down
hard. Monks have long been seen as a political and social threat to military
rule in particular and, since 1962, successive military governments have gone
to great lengths to sideline the Sangha from the country’s political life. In another sense,
however, the protests and the government response were unprecedented. The
events of September 2007 were the worst ever assault on the Sangha, worse than anything that happened to the Sangha during the British colonial period (…) The crackdown
on monks in 2007 meant that the government lost whatever shred of legitimacy it
may have had in the eyes of many, if not most, Burmese. These events also
discredited the State Sangha Maha Nayaka Committee, the official leadership body of the Sangha,
which lined up in support of the military government. It is unclear how the monks will react in the future
to continued repression. The crackdown, massive prison sentences for many monks and nuns, the exile of many, and the
constant surveillance of many of those remaining suggest that political
activism by monks could be sharply curtailed. Ahead of the second anniversary
of the 2007 crackdown, surveillance of monasteries and intimidation and
restrictions on movements of monks has increased to deter any repeat of the
2007 demonstrations. Yet, given Burma’s history, it is unlikely that the
challenge from the Sangha
is over. As one monk defiantly told
Human Rights Watch: We don’t have any
organization any more. We have no way
of keeping in touch with each other. Before, both monks and laymen could
communicate with each other. Now everything is crushed. We have no contact.
Many have disappeared, or they have been arrested, or moved to other
monasteries outside Rangoon. We can just wait and see. We are still not
accepting offerings from the military. We’re waiting to go out and protest
again. (…) Successive military
regimes since 1962 have attempted to control and coopt Buddhism and the loyalty
of the monks to their own political and security agendas by bestowing religious
titles and extending financial
support and patronage, so that monks will be compliant and neutral. Attempts by
politicians and other leaders to use
the patronage of the Sangha
for political gain have been a tactic of successive elites (…) Monks
were at the forefront of major anti-government demonstrations in 1974, 1988,
and in 2007. (…) Many monks interviewed by Human Rights Watch stated
unequivocally that their involvement in the demonstrations (of 2007) was
motivated by widespread public frustration over declining living standards and
denial of basic freedoms. Anger had long simmered due to close government
monitoring of neighborhoods, workplaces, and monasteries for signs of dissent.
Standards of education, health care, and basic services had declined
dramatically over the preceding several years and corruption was rampant. The
government’s violent responses to the demonstrations indicate how seriously the
SPDC took the threat to its rule. Monks were publicly beaten, shot, and
violently arrested around iconic sites of worship such as the Shwe Dagon pagoda
in Rangoon. The security forces raided monasteries at night, dragging away
hundreds of monks to abusive interrogations and arbitrary detention. (…) The
government’s crackdown on the monks continues to this day, with oppressive
surveillance, continued arrests of monks suspected of involvement in political
activities, and many monks undergoing secret and unfair trials and receiving
draconian sentences. In late 2008, the authorities sentenced scores of monks
and nuns to long prison terms for their involvement in the 2007 demonstrations.
Many monks who were arrested in the raid on Rangoon’s Artharwaddy Monastic
School in September 2007 received sentences with hard labor. (…) It remains to
be seen what impact the events of 2007-2008 will have on Burma’s future. If
they spell the beginning of the end of military rule in Burma, history will
show that monks were at the forefront of that long awaited change (…). The
establishment of a Ministry of Religious Affairs in 1950 marked the beginning
of a new era of Sangha reform. The government also tried to introduce a system
of registration of Buddhist monks, but it failed as the monks at a meeting in
Rangoon declared that the Lord Buddha had laid down 227 rules of discipline, to
which none more could be added. The monks said that the government had no right
to introduce new rules for the Sangha. (…) the army chief, General Ne Win, who
even more vigorously tried to establish government control over the Sangha. His
Sasana Purification Association supported the move to have the monks registered
and the general was determined to push it through. (…) Ne Win and the military
realized that the Sangha could pose a threat to the new order and, therefore,
had to be brought under state control. (…) In 1980-81, Burmese army general
Sein Lwin —feared for his leading role in the Rangoon University Student Union
massacre in July 1962— served as the Minister of Home and Religious Affairs,
and was responsible for reining in the Sangha. In May 1980, he convened in
Rangoon the First Congregation of All Orders for the Purification, Perpetuation
and Propagation of Sasana. A number of
monks were purged and forced to disrobe from the monkhood. To control the rest,
the 47-member State Sangha Maha Nayaka Committee was formed, a governing body
for all Buddhist monks in the country, and monks were finally forced to
register and get their own ID cards.
(…) Even the well-respected and internationally renowned teacher of Vipassana
meditation, Mahasi Sayadaw, was targeted in the campaign. The regime
distributed leaflets accusing him of talking to nat (spirits). The Tipitaka
Mingun Sayadaw, Burma’s top Buddhist scholar, was accused of having been
involved in some unsavory incident after entering the monkhood. Both sayadaws
had shown reluctance to cooperate with the newly established State Sangha Maha Nayaka Committee, the
official Sangha organization controlled and directed by the military
government, and which is the object of widespread suspicion among many monks
Human Rights Watch interviewed. (…) The committee occasionally issues
decrees and orders that have to be obeyed by all monks in the country. These
decrees and orders are sent to senior monks on state/divisional level as well
as township and ward level, and then announced locally. Monks who fail to abide
by these decrees and orders are expelled from the monasteries and disrobed. (…)
By the late 1980s, the state thought it had brought the Sangha under its
control and quelled all dissent within the ranks of the monks. But the events
of 1988 were to show that dissent was still strong in monastic circles, and
that the government and the State Sangha Maha Nayaka Committee —despite the
new, draconian rules which had been introduced in 1980— were unable to
completely control the country’s hundreds of thousands of monks. On August 8, 1988, massive demonstrations
shook Rangoon and almost every town across the country. Millions of people from
all walks of life —including monks— took to the streets to vent decades of
pent-up frustrations with a regime that had turned what once was one of Asia’s
most prosperous countries into an economic and political wreck. The ruling BSPP
government responded as it had always done: by sending out the military. But
this time the military’s brutality was more intense than ever —an estimated
3,000 protesters were gunned down in Rangoon and elsewhere after the army went
into action. (…) The Mandalay monks played an especially important role in the
1988 uprising (…) The carnage continued for two days, while the State Law and
Order Restoration Council (SLORC), a new junta headed by army chief General Saw
Maung, announced that it had to prevent
the disintegration of the Union —and that no more than 15 demonstrators
were killed. Diplomatic sources in Rangoon thought otherwise: they reported
back to their capitals that at least 1,000 people had been killed. According to eyewitness accounts, even some
of the wounded were carted away in trucks to be disposed of and buried in mass
graves or cremated while they were still alive. (…) But the monks continued
their opposition to the military government, and on November 16, 1989, a group
called the Radical Buddhist Monks United Front (RBMUF) was set up in Mandalay,
led by U Zawana from the town’s Phayagyi monastery. The leadership included
other monks from Mandalay, and from Moulmein and Tavoy in the southeast.
According to a statement issued at the time, the aims of the RBMUF were to
establish a democratic order, to wipe out
political and religious persecution, and build a prosperous Burma. It is
impossible to say how much impact the RBMUF had, but it nevertheless kept
resistance alive in some monasteries in Burma even after the July 1989
crackdown. (…) On August 8, 1990, the second anniversary of the 1988 uprising,
thousands of monks marched through the streets of Mandalay. It was not
officially a demonstration —the monks were out on their morning alms round— but
the choice of the date and the vast number of monks who took part in the
ceremony made their intentions obvious enough. Tens of thousands of people
showed up in the streets to offer food to the monks, while nervous soldiers
looked on. At one point along the route, some students hoisted a peacock flag,
the symbol of Burmese nationalism, and now also of the NLD and the pro-democracy
movement. Some soldiers apparently overreacted. They opened fire with their
automatic G-3 rifles and bullets ripped through the crowd. Shi Ah Sein Na, a
17-year-old novice from Mogaung monastery in Mandalay, was wounded and bullets
punctured one of his lungs and shattered his shoulder. He fell to the ground,
bleeding profusely. Nine more monks and at least two onlookers were also hit.
Alms bowls broken by bullets lay in the street while the soldiers charged the
crowd. Fourteen monks were badly beaten and at least five were arrested.
Several of the wounded went missing after the incident. Some were presumed
dead. (…) The brutality against the monks appalled everyone. The government’s
response was to flatly deny that any shooting had occurred in Mandalay on
August 8. The state-run radio claimed that the students and the monks had
attacked the security forces and that one novice had been slightly injured in
the commotion. The official whitewash of the incident was not accepted by the
monks in Mandalay. On August 27, more than 7,000 monks gathered in the city.
They decided to refuse to accept offerings from soldiers and their families, or
to perform religious rites for them, in effect excommunicating anyone
associated with the military. The boycott soon spread all over Mandalay, the
home of some 80,000 monks, and to other towns in upper Burma, including
Sagaing, Monywa, Pakokku, Myingyan, Meiktila, Shwebo, and Ye-U. In Rangoon,
2,000 monks met at the Buddhist study center of Ngar Htat Gyi to join the
campaign against the military. On September 27, an open letter was sent to
General Saw Maung, to inform that the
Sanghas within Rangoon City Development Area boycott the military government
and support the decision taken by the Sanghas of Mandalay to undertake a pahtani
kozana-kan (excommunication, in proper Pali ´patta nikkujjana kamma´) on the
military government. According to this practice, the monks turn their bowls upside down to show that they are
on strike. The Sangha had only invoked this act once in modern history: against
the Burmese Communist Party in 1950. (…) The SLORC decided to use force to
quell the opposition. More than 65 MPs-elect were arrested. On October 20,
General Saw Maung ordered the dissolution of all Buddhist organizations
involved in anti-government activities. Those
who refuse will not be allowed to remain monks, he stated. Local military commanders were also vested
with martial law powers, enabling
them to disrobe monks and have them imprisoned or executed if they did not comply with the government order. Two days later, leaflets ordering the
monks to give up the boycott were dropped from army helicopters over several Mandalay monasteries. The army moved into
action. Heavily armed troops raided
133 monasteries and arrested scores of monks. General Saw Maung, who had traveled to Mandalay to direct the
action against the monks, returned to Rangoon on October 24 after the end of the operation. Among those arrested were some
of Burma’s mostrespected senior
abbots, including U Thumingala, head of a renowned teaching monastery in Rangoon. In many ways, the last hope for the democratic opposition had been
pinned on the monks. When the army
demonstrated that it would not hesitate to move against even the most respected segment of Burmese society, most
people lost heart. The pro-democracy movement crumbled and all overt opposition
to the SLORC ceased. On October 31, the government enacted a new law relating
to the Sangha, the State Law and Order Restoration Council (SLORC) Declaration
20/90, which stipulated that, there shall
be only one Sangha Organization in the Union of Myanmar… [and] no one shall
organize, agitate, deliver speeches or distribute writings in order to
disintegrate the Sangha Organizations at different levels. Any monk or
novice found violating the new law would be
subject to imprisonment from a minimum of six months to a maximum of three
years. The exact number of monks who were arrested during the sweeps in late
1990 and early 1991 is not known, but it is believed to be in the hundreds. The
Assistance Association for Political Prisoners (Burma) reported that it was as
many as 3,115. (…) A government booklet, published in June 1991, has pictures
and bio-data of 77 monks and novices who had been arrested, ranging in age from
15 to 63. They were accused of causing
disturbances, and anti-government
leaflets had been found on some of them. One, U Zotika, was arrested
because he had written two
anti-government poems in his diary. (…) The ruling junta was clearly
realizing the political potential of Buddhism and did its utmost to control the
Sangha and its followers. (…) A number
of leading clergy were also replaced by monks believed to be more favorable to
the SLORC, leading to the expression SLORC
monks by their critics. International Buddhist figures reacted badly (…).
After crushing the 1990 monks’ movement, the SLORC —which in November 1997
renamed itself the State Peace and Development Council (SPDC)— became even more
firmly entrenched in power than it had been at any time since 1988. (…) The
demonstrations in August and September 2007 were the largest popular protests
against military rule in Burma in nearly 20 years. Human Rights Watch
documented the demonstrations and the brutal crackdown by security forces,
interviewing more than 100 eyewitnesses to the events. Our report, Crackdown:
Repression of the 2007 Popular Protests in Burma, and an investigation by then
United Nations special rapporteur for human Rights in Burma, Paulo Sergio
Pinheiro, demonstrated that SPDC security forces killed, beat, tortured, and
violently dispersed peaceful protesters, including monks. Unsurprisingly, the
SPDC has not conducted its own investigation; disappointingly, neither the United Nations, regional bodies, nor
governments have mounted any further investigation or pressed for perpetrators
of abuses to be brought to justice. The demonstrations in 2007 were fuelled
by widespread social frustration over declining living standards, a fuel price
increase, and denial of basic freedoms. Monks, far from the common view of them
as being almost other-worldly, depend on community support for their lives:
this is a symbiotic relationship whereby the Sangha provide spiritual guidance
and comfort and maintain safe spaces (…) and basic social services, while lay
people provide them with material support. Monks thus were well aware of the
hardships most Burmese were facing and themselves directly felt the impact of
Burma’s economic stagnation. Many young monks in particular were vocally
critical of the government’s role in producing increasingly desperate living
conditions. (…) Since the crackdown, many have wondered, What happened to the monks? Several hundred monks, possibly more
than 1,000, were arrested, and 237 remain in prison as of August 2009. Some
fled overseas, but more went back to life as laypeople. Many monasteries in
Rangoon and elsewhere now have less than half as many monks as they had in
September 2007. Ahead of the second anniversary of the crackdown, many monasteries
inside Burma have been the subject of increased surveillance, visits by
security personnel to check on monks suspected of activism, and curbs on
movements and even public sermons by monks. The government’s fears of resumed
protests led by the monks remains well founded. Beginning in late 2008, Burmese
courts summarily tried and sentenced hundreds of Political activists to lengthy
prison terms. Some were sentenced to as much as 65 years. Many were Buddhist
monks and nuns. Some had been arrested during protests on the streets, while
others were rounded up during brutal nighttime raids on monasteries and
religious schools in Rangoon in September and October. During the late 2008
sentencing wave of more than 250 political activists, 46 monks and four nuns were
sentenced to prison, many with hard labor. Five monks from the Ngwe Kyar Yan
monastery, which suffered a bloody and brutal raid on the night of September
26, were sentenced to six-and-a-half years in prison. The nuns imprisoned
include 84-year-old Daw Ponnami (who was eventually released in February 2009),
70-year-old Daw Htay Yi, and 64- year-old Daw Pyinyar Theingyi, each from
Rangoon’s Thitsa Tharaphu School and each sentenced to four years of hard
labor. Also sentenced at the same trial were senior abbots of the Artharwaddy
Monastic School, such as 65-year old U Yevada. His school was brutally raided
on the night of September 26 as security forces were searching for activist
monks. All seven monks and nuns were charged under sections 295 and 295(a) of
the Penal Code, which prohibit insulting a group’s religion by harming or
defiling a place of worship, or committing deliberate and malicious acts to
outrage religious feelings by insulting a group’s religion or religious
beliefs. In some specific cases, U Kaylartha, a monk from Mandalay, received 35
years’ imprisonment; U Sandar Wara was sentenced to eight-and-a-half years; and
Abbot U San Dimar of Kyar Monastary in Rangoon’s Pazundaung township received
eight years and is facing additional charges that could add to his sentence. A
young monk, U Thaddama from Garna Puli monastery, was sentenced to 19 years of
imprisonment.”[42]
Bhikkhu
U Pannacara: “Traditionally,
we monks are not supposed to be politically active. The military has ruled our
country for more than 40 years, and they don’t care about the welfare of
the people, they care only for themselves and their relatives, and how to
remain in power forever. That was why the people rose up against them. There
are three powerful groups in Burma: the sit-tha (sons of war), that’s the military, the kyaung-tha (sons of the school), the students, and the paya-tha (sons of the Buddha). That’s us, the monks.” [43]
Bhikkhu U Eitthariya, one of the organizers of the September
2007 demonstrations in Burma: “Most of the Sangha have
families, so they see the social problems. All monks have feelings for their
families, and we didn't have an opportunity to express this. Low living
standards of the people affect the monks because we depend on the people to
support us. Especially in Pakokku and Mandalay, there are lots of monks who
cannot be supported. Everyone knows the justice system doesn't work and that
you need money and contacts with the authorities. This makes the economic
hardships even worse. Secondly, there was bloodshed against the monks in
Pakokku. Even under the British we were not treated like this” [44]
Michael
Mendelson: “All politically active monks tended
to be labeled by the colonial authorities as political agitators in the yellow
robes. Interestingly, a similar term is used by Burma’s current leaders to
describe protesting monks.”[45]
Gustaaf
Houtman: “During the arrangement for U
Thant’s funeral in 1974, several monks were bayoneted and 600 were arrested.
(…) In 1976, the regime sought to discredit La Ba, a monk critical of the
regime who it accused of murder and cannibalism. In 1978, more monks and
novices were arrested, disrobed, and imprisoned. Monasteries were closed and
their property seized. Also in that year a senior monk, Sayadaw U Nayaka, died in
jail after being tortured.”[46]
Assistance
Association for Political Prisoners (Burma): “These
monks were forced to disrobe, sent to hard labor camps and used as porters at
the front-lines of the civil war in the ethnic border states.”
Bhikkhu
Ashin Pyinnya Jota:
“The first time I was arrested, soldiers raided my monastery. They took me to a
detention center in downtown Rangoon. (…) The officials tried to get a senior
abbot to formally disrobe the young monk, but the abbot refused: In Buddhism, a
monk cannot simply be disrobed by the authorities. Unless a monk chooses to
leave the monastic order or is found guilty of a serious offense against his
precepts, he should remain in his robes. (…) I did not believe that monks could
be beaten like this in Burma, a Buddhist country. Everyone in Burma respects
monks, I thought. But I was wrong to expect our country’s evil rulers to treat
monks with respect. It saddened me to learn that this was possible in a
Buddhist land. (…) Raiding monasteries
is like raping Buddhism. This is an unspeakable offense against the
religion, and it is also inexcusable from the point of view of social ethics.
Even the British colonialists did not storm monasteries, beating and arresting
monks and forcibly closing these sacred places to the public.”[47]
Bhikkhu
Ashin Pannasiri: “I was also
slapped and punched in the face. My interrogators stepped on my toes with their
army boots. They demanded to know what organizations I was in touch with and
who I had contacted. (…) The worst persons during torture were MAS [Military
Affairs Security] officials Ko Ko Aung and U San Win. They kicked my chest with
their combat boots and stomped on my face with my hands handcuffed behind me.
Every question was accompanied by kicks and punches to my head and body. I was
almost unconscious. I fell on the table in front of me when they kicked me from
the back. At last I could not endure anymore such torture. They twisted my arms
and tried to break them, which affected the nervous System in my hand. They
pressed between my rib bones. They slapped me on my temple and pulled my
earlobes violently. They stepped on my shins which left me with severe pain
until I was sentenced to prison term. I could not walk well. They interrogated
me by all means available to them. My little toes were swollen. (…) When I
could not endure any more torture, I head-butted the table in front of me,
trying to knock myself unconscious. Police officer U Aung Win, sitting beside
me, held me and said: Please don't do
like that, my reverend. We are acting under the command of higher authority.
(…) (After that he was transferred to an isolated labor camp near Burma’s
western border with India) There, I was chained on both legs and, like the
other prisoners, had to break stones and dig ditches. I and about 140 other
prisoners worked seven days a week, from dawn to dusk, without any break. (…) It seems that they had got some
information about me from monks and other activists who had been arrested and
interrogated. I was beaten again; they punched me in my chest and head. I was
interrogated from nine in the morning to six in the evening, and I was not
allowed to eat or drink anything. I realized that I would be killed if they
took me to another place, which I think they intended to do. So I made up my
mind. I had to escape. There was no choice if I wanted to survive.”[48]
U
Gotipala: “I know that many leading monks, who
organized the protests, have fled to other countries. They would be apprehended
if they returned. The State Sangha Maha
Nayaka Committee has no will of its own. They only obey the government. We
don’t care about them anymore. They have no power over the monks in Burma”[49]
U
Kusalasami: “Our abbot
decided that no monks from our monastery should participate in the marches.
Many younger novices were upset, they wanted to march, but they obeyed the
abbot’s orders. He supported the protests but was worried that the monks and
the novices could get hurt or even be killed. So we lent passive support to the
protests. Some argue that monks should concern themselves only with religion
and not get involved in politics. That’s correct, in a way. At the same time,
it’s the duty of the monks to help the people whenever they can. There’s no
contradiction here. To go out in the streets and recite the Metta Sutta, or to boycott the regime,
is not politics. Politics is to overthrow the government, and that was not what
we were trying to do. We can only meditate, pray and make appeals. That’s the
way of religion. We boycott the regime and don’t accept offerings from them.
But we can’t do more than that. We were distraught when the soldiers opened
fire on the monks and beat them. But what could we do? We had no guns. As monks we cannot fight. We
follow the path of the Buddha. But we’ll never forget what the junta did to the
monks and the people. This regime has been in power since 1962. Since that
time, many have demonstrated and protested against the regime, but nothing has
changed. September 2007 was just one of many such protests.”[50]
Bhikkhu
U Manita: “A lot of trucks were parked outside
the monastery. I and other monks were forced onto those trucks. There were no
benches, nothing to sit on. We were so many monks that there was hardly any
place for all of us. We were forced to sit down with our hands on our heads. I
saw several monks being beaten with batons and iron rods. They were beaten both
by soldiers and some kind of militia. A friend of mine was very badly beaten.
They aimed their pistols and rifles at us, shouting: Don’t move! We didn’t move. But we began to recite the Metta Sutta, about loving kindness. Then
they shouted: You’re not allowed to chant
or talk (…) Instead of driving us back to our monastery, we were taken to
Insein Jail [in Rangoon division]. There, we were forced to take off our robes.
We were forced to strip naked and leave all our belongings outside the prison.
Then we were given prison uniforms. There were many monks in the cells. The
cells were so crowded it was impossible to lie down and sleep. We had to sleep
in a sitting position, which was difficult. We were given food and water only
once a day in the morning. A bit of rice, egg, and cabbage. But we got
toothbrushes and blankets. All the monks who had been arrested were
photographed by the security services. And then we were interrogated again. And
again. After three days we were sent back. There was not enough space for all
the prisoners! One prison guard said to me: Politics
is for the military, religion for the monks. I don’t want to see your face in
the streets again.” [51]
Bhikkhu
U Gawsita: “Soldiers were blocking our way. There was a
confrontation near the Shwedagon Pagoda. Soldiers started beating the monks.
Smoke bombs were fired and we couldn’t see the Shwedagon for all the smoke. I
was beaten on my head and I believe four monks were killed. Both the army and
the Lon Htein [riot police] took part in the beatings. The laypeople couldn’t
stand seeing the monks being beaten, but there was nothing they could do. They
were beaten, too. (…) This continued into the night. Army trucks crashed through
the gates of several monasteries. It happened after midnight, so no laymen
could witness it because of the curfew that the authorities had imposed.
Because I was wounded, I stayed in a room beside the main building at Meggin.
From where I was staying, I first saw civilians from the USDA [mass-based
social movement organized and controlled by the SPDC] come up to the monastery.
They claimed that they had come to check the night attendance at the monastery,
so the monks opened the gates. But as soon as the gates were open, about 50
soldiers stormed in and began arresting the novices. They made them lie down on
the floor with guns at their heads, demanding: Where are the senior monks? The young novices cried and said that
they didn’t know. But the soldiers found them. The first senior monk to be
arrested was in his 80s. Four other senior monks were also arrested. Two of
them were later released, but we don’t know what happened to the other two.” [52]
Bhikkhu
from Ma Soe Yin monastery:
“Outside these temple walls, there is dictatorship. But inside the Ma Soe Yin
monastery, there is democracy. We say whatever we want. We’re not afraid. Here
are 30 senior monks and 600 monk students and novices. It is a Pali university,
and we were also active in the 1988-90 democracy movement. We’re inspired by
Mahatma Gandhi and his struggle against British colonialism. We’re also well
aware of our own traditions, the role of Buddhist monks in Burma’s political
and social history. We had contacts with other sympathetic monasteries and we
communicated in code. We’ve got mobile phones, but we don’t know how to use the
internet. We sent messages mainly by personal couriers, and then verbal
messages. Nothing in writing. It was safer that way. But now we’re keeping a
low profile and we don’t communicate with other monasteries because we are
under surveillance. There are secret organizations made up of monks who are
opposed to the government. But it’s better for us not to know how they work and
who are active in those organizations. That way we can’t say anything if we are
arrested, tortured and interrogated” [53]
U
Sovanna: “Then, some soldiers appeared and
said: We’ve got our orders. If you move
your foot we’ll shoot you in the foot. If you move your head, we’ll shoot you
in the head. So we went back to the monastery. What else could we do? It was too dangerous. And then
it became impossible to demonstrate because
soldiers and police surrounded several monasteries, including ours. We saw helicopters in the sky above us.
Our monastery was raided in 1990 as well, because we supported the democratic
cause”[54]
U
Pannacara: “Our school is being watched, and
major monasteries are also under strict surveillance. Agents come at midnight
to check if the monks who are registered at a particular monastery are there.
They even break up boxes and chests belonging to the monks to look for
anti-government literature, or phone numbers to foreign countries” [55]
Monks
Who Were Wounded on August 8, 1990, in Mandalay
Shin Ah Sein Na
from Mogaung monastery; wounded on left shoulder with punctured lung and
shattered shoulder
U San Di Mar
from Phayagyi monastery; wounded on right knee
Shin Zawana from
Phayagyi monastery; wounded on right shoulder
U Tay Za Ni Ya
from Taung Taman monastery; gunshot wound on head
Bhin Kay Tha Wa
from Taung Taman monastery; gunshot wound below knee
U Thuriya from
Pagan monastery; gunshot wound on shin
No name given
from Nyaung Kan monastery; gunshot wound
Shin Thuriya
from Pagan monastery; gunshot wound on arm
No name given
from Phayagyi monastery, alms bowl broken by bullets
Shin Thondara
from South Htilin monastery, gunshot wound on arm, arrested but later released
Monks
Who Were Beaten
Shin Wizaya from
Nandi Thaynar Rama monastery; beaten on shin and calves
U Kawithara from
Phayagyi monastery; beaten on arms and head
U Pyin Nya Wara
from Phayagyi monastery; beaten and arrested
Shin Sarana from
Phayagyi monastery; serious injuries on arms and head
Shin Theik Kha
from Phayagyi monastery; beaten while on then ground
U Zanaka from
Nyaung Kan monastery; beaten
Shin Egga from
Nyaung Kan monastery; beaten
U Kay Thaya from
New Ma Soe Yein monastery; beaten
U Nan Taw Batha
from New Ma Soe Yein monastery; beaten twice on cheek
Shin Pyin Nya
Thiri monastery unknown; beaten on head
U Kokkhana from
New Ma Soe Yein monastery; beaten on left arm
U Thiri Kinzana
from Padetha monastery; beaten on head
No name given
from Myin Wun monastery; beaten on arms
U Kuthala from
New Ma Soe Yein monastery; kneed on chest and stamped with boots
Monks
Who Were Arrested
Shin Weseiktha
from Old Ma Soe Yein monastery
Shin Yarzeinda
from Old Ma Soe Yein monastery
U Kokkana from
New Ma Soe Yein monastery
U Pyin Nya
Wuntha from West Htilin monastery
Shin Thondara
from South Htilin monastery
(Source: List compiled by Mandalay
monks after the incident, on file with Human Rights Watch.)[56]
Reuters: “Shin Gambira, a
Myanmar monk jailed for his role in protests in 2007 and released in a January
amnesty, faces action by the authorities because he has repeatedly broken Buddhist monks’ code of conduct and the law,
state newspapers said on Sunday. The reports accused him of rejoining the
religious order without requesting authorisation after the Jan. 13 amnesty, of
being in the Magin Monastery, which has been sealed by the government, and
breaking the locks of two other monasteries. Monks from Magin, in the eastern
suburbs of the main city of Yangon, were involved in opposition activity under
the military regime that ruled Myanmar for almost 50 years until a nominally
civilian government took over in March last year. The civilian government,
while full of former generals, has initiated a series of political and economic
reforms at a speed that has taken the outside world by surprise, although some
observers remain sceptical of its motives. Shin Gambira, 33, was a leader of
the Alliance of All Burma Buddhist Monks
that led a peaceful protest known as the Saffron Revolution in 2007, which the
military put down with force. The papers said the State Sangha Maha Nayaka Committee (SSMNC), the highest level of a
state-sponsored Buddhist monks’ organisation, had summoned Shin Gambira three
times but he failed to show up, so the police were asked to bring him in on
Feb. 10. According to the newspapers, Shin Gambira had said in a statement to
the SSMNC that he did not need permission to rejoin the order of monks so he
would not ask for it. The United States, which has made the freeing of
political prisoners one of its conditions for easing sanctions on Myanmar
imposed when the junta was in power, had expressed concern at his brief
detention this month. Shin Gambira was arrested in November 2007 and
sentenced to 68 years in jail. He told Reuters after his release that he had
been badly treated, both physically and mentally, during his interrogation and
in jail. In his statement to the SSMNC, Shin Gambira had also objected to the
body’s ordering another prominent monk, Shwenyawa Sayadaw, to leave his
monastery for political activities including giving a speech at the opening of
an office of the opposition National League for Democracy party of Nobel peace
laureate Aung San Suu Kyi. (…) Buddhist monks have a long tradition of standing
up to authorities in the country, which is also known as Burma. They were often
at the forefront of opposition to British colonial rule, which ended in
1948.” [57]
Khin Su Wai: “Ahead of his slated July 1 release date,
former monk and Saffron Revolution leader U Gambira will face criminal hearings
in two Yangon townships. The extra charges could potentially
leave him behind bars beyond the six months he is already serving on an
immigration conviction internationally decried as politically motivated. The
new charges date back to December 2012, when U Gambira, whose legal name is U
Nyi Nyi Lwin, forcibly opened up monasteries that had been sealed by
authorities since the 2007 monk-led uprising. He faces charges under sections 427
and 448 of the penal code –covering mischief
and trespassing, respectively– at the Thanlyin Township Court today and Bahan
Township Court on July 4, according to family sources. Robert San Aung,
the former monk’s lawyer, said the 2012 incident occurred because at the time U
Gambira had only recently been released from prison under a presidential
amnesty and did not have a place to stay. (…) A court in Mandalay rejected multiple
bail requests during the immigration trial of U Gambira, who suffers from mental
health issues brought on by the trauma of torture while detained for his role in the
Saffron Revolution. (…) Daw Yay, U Gambira’s mother, questioned why U Gambira
was passed over in a series of political prisoner
amnesties granted since the National League for Democracy government took power
in April (2016). Most politic prisoners
went free and had charges dropped, with the exception of U Gambira, she
said.” [58]
The Irrawaddy: “Rights group
Amnesty International on Wednesday called for the immediate and unconditional
release of former Buddhist monk U Gambira who was arrested in Mandalay on
Tuesday evening on immigration charges. Gambira appeared at Maha Aung Myay
Township Court on Wednesday and was charged with entering the country illegally
under Section 13(1) of the 1947 Burma Immigration (Emergency Provisions) Act,
according to the rights group. Amnesty labeled the charges against Gambira, who
was a leading figure of the 2007 Saffron Revolution, contrived, arbitrary and politically motivated and called on
authorities to ensure he is provided with the medicine he requires to manage a
medical condition pending his release. Gambira, also known as Nyi Nyi Lwin, is
one of Burma’s most prominent political prisoners. He was arrested for his role
in the Saffron Revolution and forcibly disrobed while in detention. While
traveling back and forth between Thailand and Burma since his release in 2012,
he has been re-arrested at least four times on various charges largely viewed
as spurious. Gambira had been monitored by Special Branch officers since his
arrival in Burma on Friday, Amnesty said, citing a source close to the former
monk. He is now being detained in Mandalay’s Oh Bo prison with a next court
hearing scheduled for Feb. 3. (…) Marie Siochana, expressed concern over his existing
health condition. He is mentally ill and
needs to take medicine regularly, she said. He needs to look after his health, and I wonder why they still want to
arrest him.”[59]
Aung Hla Tun: “A Myanmar court laid additional charges against a former monk and
leader of the 2007 Saffron Revolution
anti-junta uprising on Tuesday, accusing him of trespass and mischief committed four years ago. Nyi
Nyi Lwin, better known as Gambira, was arrested in January for illegally entering
Myanmar from neighboring Thailand. The new charges relate to the reopening of
monasteries that were sealed off after the monk-led protests. The alleged
violations took place in 2012, after Gambira's release from prison where he had
served time for his involvement in the demonstrations. Gambira force-opened the gates of three monasteries in Yangon, which
were sealed off by the military in the crackdown on the protests, since the
activist monks couldn't find anywhere to live after their release in the amnesty
in 2012, said Gambira's lawyer, Robert San Aung. The charges were laid days
before he was about to be released from prison, where he has been serving time
for allegedly crossing the Thai-Burma border without an official visa. He has
now been moved to Yangon's notorious Insein prison from Mandalay to face the
new charges. The fact that a high-profile political prisoner is moved around
the country and charged for seemingly minor offences committed years ago shows
democratic reforms in Myanmar under Aung San Suu Kyi's leadership are still in
their early stages, as many junta-era institutions, mechanisms and laws remain
unchanged. He was due to be freed on July
1, but the authorities seem afraid of him and don't want to let him out,
said Robert San Aung. The government cracked down harshly on the 2007
demonstrations, opening fire on protesters and sweeping up those who took part.
At least 31 people were killed by security forces and thousands arrested,
according to the United Nations. Gambira was freed from prison during a 2012
general amnesty, a year after the junta handed power to a semi-civilian
government, following 49 years of direct rule of the Southeast Asian nation.
Since his release, he has divided his time between Myanmar and Thailand, but
Myanmar authorities have re-arrested him several times in what rights groups
have described as continued harassment for his criticism of the previous
military-backed government. It just shows
things still remain as bad as they were under the former regime, political
analyst Yan Myo Thein told Reuters. They
always find some pretext whenever they don't want to free a prominent
politician or an activist.”[60]
Buddhist Tribunal on
Human Rights: U Gambhira has denounced the State Sangha Maha Nayaka Committee for ordering Shwenyawa monk
U Pinnya Sila to leave Sadhu Buddha Tekkatho Monastery within one month. He
also denounced State Sangha Maha Nayaka Committee
for doing nothing to release 43 monks included 415 prisoners. [61]
Aung Kyaw Min: “The State Sangha Maha Nayaka Committee and
Ministry of Religious Affairs have come under fierce criticism for a nighttime
raid on a monastery at the centre of a high-profile land dispute. Police and committee officials raided
Mahasantisukha Buddha Sasana Center in Tarmwe township at 11pm on June 10 and
evicted 20 monks and 32 laypeople from the site. Influential monks and commentators have condemned the raid as a misuse of power and said it was
conducted in a fashion more reminiscent of Myanmar’s previous military
dictatorship. The raid late at night to shut down the monastery was dictatorial in
nature, said Magway Monastery Sayadaw U Parmaukkha. If they had nothing to hide,
they should have done it during the daytime. It is a misuse of power… [and]
totally contradicts the democratic way that the president says we are going. He called on the president to form an
investigation team to probe the actions of the State Sangha Maha Nayaka
Committee. This is an ugly incident, he
said. We profoundly object to this
dispute being resolved by force instead of settling it with insight. The raid was headed by the Yangon Region
Sangha Maha Nayaka Committee. About
300 police, 280 monks and officials from the Ministry of Religious Affairs took
part. It took place while the founder and head of the monastery, U Pannavamsa
–widely known as Penang Sayadaw– was visiting Japan for missionary work. U
Pannavamsa founded the monastery in 1999, but it was confiscated by the
military government in 2002 while he was overseas and given to the State Sangha
Maha Nayaka Committee, the body that oversees all monks in Myanmar. In recent years he has lobbied
President U Thein Sein to return ownership of the monastery back to him but the
Ministry of Religious Affairs has argued that it is impossible because
according to Buddhist rules a donation to the Sangha cannot be taken back. Monks in the monastery had been
instructed on May 18 to leave by the end of the month in compliance with the
March 6 decision of the 47-member State Sangha Maha Nayaka Committee. After the raid, monks from the
monastery were taken to the Department of Religious Affairs in Mayangone at
about 1am. The laypeople were taken
to Tarmwe police station and freed the following day after signing a pledge to
stay out of the Mahasantisukha dispute in future. At about 10:30pm, six police vehicles and
express buses with monks entered into the monastery. Then they blocked the
street… to the monastery. Then they surrounded the monastery, said a staff
member from the monastery who asked not to be named. With U Pannavamsa out of the country, Thone Htet Monastary Sayadaw
U Panyeinda and England Sayadaw U Ottara were detained as the acting heads of
the Mahasantisukha. U Panyeinda was
freed on the morning of June 11 after signing a similar pledge but U Ottara and
six other monks remain in custody. The
other monks will be freed after being interrogated, presidential adviser U Ant
Maung said at a press conference on June 11. The head of religious affairs for Yangon Region, U Sein Maw, said the raid was conducted at night with the agreement
of the State Sangha Maha Nayaka Committee to avoid unnecessary problems for both monks and laypeople. State media quoted officials at the
press conference as saying that U Pannavamsa has no right to privately own the property as the government had
already handed it over to the State Sangha Maha Nayaka Committee. But critics said it was little more
than a politically motivated land grab. I have never seen a situation where a
monastery was nationalized like this, political commentator Moe Thu Mandalay
wrote (…). Neither the head of Sangha Committee or the ministry can expel monks if
they are not breaking the rules for monks. Their action is beyond the rules. It
means they don’t care about the Buddha. He particularly took aim at the
role U Ant Maung, a former director general in the Ministry of Religious
Affairs, played in organising the raid. Every monk … knows what kind of person U Ant
Maung is. The fact that U Thein Sein appointed this kind of person as his
consultant tells us a lot about the nature of the president. The 88 Generation Peace and Open
Society issued a statement on June 11 calling on the State Sangha Maha Nayaka
Committee, Yangon Region government and Union Government to resolve the case delicately and fairly. Failure to do so
could result in unrest, the group said. The
shutdown of the monastery comes a month before the planned launch of a
missionary training program at the monastery. The program was suspended in 2000
but was due to resume in early July.” [62]
Myanmar Eleven: “The Yangon Region Religious Affairs Department
will proceed with the case of the sealed- Maha Thandi Thukha monastery in
accordance with the decisions of State Sangha Maha Nayaka Committee, said
Regional Religious Officer Sein Maw yesterday. We are going to carry out the sealed
monastery case according to the decision of the Sangha Maha Nayaka Committee.
Currently, we don’t know how to do it. We have not received any information,
said Sein Maw. The Maha Thandi Thukha monastery in Natchaung Ward, Tamwe
Township was owned by the Penang Sayadaw until last June. While the abbot was
visiting Japan to promote Buddhist Sasana on June 10, 2014, Sayadaws from the
Yangon Sangha Nayaka Committee, as well as officials from the Ministry of
Religious Affairs and the police, raided the monastery and placed it under the
control of the Sangha Maha Nayakha Committee. At a press conference, the Penang
Sayadaw called the move unjust and called on the government to settle the issue
of its ownership. The Sangha Maha Nayaka Committee argued that regional courts
should not interfere with religious affairs and that only the highest team
organised by Sangha Maha Nayaka Committee would be qualified to adjudicate the
case, said Htun Nyunt, Director of the Religious Affairs Department. The Penang
Sayadaw wanted the monastery to be a centre for religious education. However,
Sangha Maha Nayaka Committee sought to rent the monastery to hold wedding
ceremonies, market festivals and dance training courses. Although the public
sent letters to the Union parliament, the Rule of Law, Peace and Tranquillity
Committee, the Government’s Guarantees, Pledges and Undertakings Vetting
Committee, the Yangon Regional Government Committee as well as the Ministry of
Religious Affairs, the Ministry of Home Affairs and Yangon Region’s Sangha Maha
Nayakha Committee to resolve the dispute, no action has yet been taken.”[63]
RFA’s Myanmar
Service: “Predominantly-Buddhist Myanmar’s religious
affairs minister Hsan Sint was detained and charged with corruption Thursday as
the government appointed new leaders to a religious affairs advisory group,
local media reported Thursday. President Thein Sein announced on state media
that Hsan Sint has been sacked over the case, which arose amid tensions
following a controversial raid on a monastery in Yangon which triggered
warnings of protests by monks. Hsan Sint, who was appointed to head
the Religious Affairs Ministry in January last year, was accused of misusing
ministerial funds at a court in the capital Naypyidaw (…). Eleven also
reported that sources close to the minister said he had a falling out with
cabinet members over the plan to raid a monastery involved in an ownership
dispute with the State Sangha Maha Nayaka, or official Buddhist monastic
committee, earlier this month. It said that Hsan Sint was against the June 10
raid, during which officials from the Ministry of Religious Affairs,
accompanied by around 300 riot police, took control of the disputed Mahasantisukha
monastery in Yangon’s Tamwe township, while its popular abbot, Pyinya Wuntha,
was visiting Japan. Fifteen of the monks were released a day after the raid,
but five others —including a British citizen— were charged, stripped of their
clerical status by senior monks and sent to Yangon’s notorious Insein prison on
June 13. The raid has raised tensions, with some monks threatening to hold
large protests if the five are not released. Eleven said that Hsan Sint,
a member of the ruling Union Solidarity and Development Party (USDP), has a clean record in his past positions in
the military as well as speaker of the Irrawaddy region parliament, which he
held before his appointment to the Religious Affairs Ministry last year. The
corruption case came as state media on Thursday announced new leaders to a religious
affairs advisory group. Former Minister of Religious Affairs Myint Maung was
named to lead the group. Myint Maung, a brigadier under the former military
junta, had retired from his post after facing blame for failing to assist monks
injured in a police crackdown on protesters at the Letpadaung copper mine in
2012. Former ambassador Sein Win Aung, the father-in-law of the president’s
daughter, was appointed as the number two in the advisory group. The government
is also facing criticism from human rights groups over draft laws aimed at
protecting the country's majority Buddhist identity by regulating religious
conversions and marriages between people of different faiths. The international
community has also slammed the government’s treatment of minority Muslim
Rohingyas in western Myanmar’s Rakhine state.” [64]
7.
CENSORSHIP AND ASSAULT ON FREEDOM OF EXPRESSION
Aung Kyaw Min (Myanmar Times): “Shwe Nya Wa Sayadaw, an outspoken monk who has challenged the Buddhist
establishment, says he intends to keep on preaching –if called upon by the
people– in defiance of a ban imposed by his government-appointed seniors. The
popular 50-year-old monk called a press conference in Hmawbi township yesterday
to declare that he would defend his right under the constitution to speak
freely without damaging religion. U Pinnyasiha, better known to the people as
Shwe Nya Wa Saya-daw, learned on March 25 that a plenary meeting of the
47-member State Sangha Maha Nayaka Committee in February had decided to impose
a nationwide ban on his preaching with no time limit for allegedly speaking out
of line with Buddhist doctrine and not following the instructions of his
seniors. The ruling followed a report by Yangon Region’s Sangha Committee and
allowed regional authorities to take appropriate legal action against him. The
State Sangha Maha Nayaka Committee, known as Mahana, is a government-appointed
body of high-ranking Buddhist monks that regulates the Buddhist clergy. (…) Shwe Nya Wa Sayadaw said It will not be an effective attempt to stop
my preaching. I will preach according to the rights of a citizen to express
freely without making any damage on the religion, according to section 354(d)
and 348 of the constitution. Shwe Nya Wa Sayadaw has courted controversy
before and has been known for his criticism of the anti-Muslim 969 movement,
which is backed by some nationalist Buddhist monks. In 2013 he acted to calm
communal violence between Buddhists and Muslims that exploded in the central
city of Meiktila, and has also spoken out in defence of political prisoners. In
2011 he met Hillary Clinton, US secretary of state, and in 2012 he was evicted from his monastery by the
State Sangha committee, allegedly over a property ownership dispute. Speaking
yesterday, he challenged the authority of the Mahana appointees, saying they
lacked the qualities of a superior. [These qualities are] patience, alertness, (…)
sound judgment, mercy and vision. But [the Mahana appointees] have none of
them. If you look at members of the Mahana, they have no alertness (…). They
never are patient. They can’t stand any criticism. If they can’t stand someone’s criticism, then don’t take part in an
organisation related with society, the sayadaw said. He added that in the
time when Buddha was alive, he never allowed anyone to rule over monks. And he
told his monks to apologise in public if people pointed out their mistakes.
Monks did not need to ask for permits to preach. He pointed out that the former
military government had enacted the law creating the Sangha organisation,
calling it a law to control monks. The monk said he would preach in Thailand
during the Thingyan holidays because Myanmar migrant workers had invited him. I have no plan to confront the Mahana. If
they ask me to negotiate I will accept, but I can’t follow their ban because I
think that they don’t have the quality of a superior, he said. An activist
of the 88 Generation known as Jimmy said the ban showed that the country needed
to do a lot to reach national reconciliation. The preaching made by the sayadaw never opposed the doctrines spoken by
the Buddha. His preaching may also be about nationalism, such as about General
Aung San (…). Monks have the
responsibility to point out the weakness of a government if it is necessary to
do so for the interest of the country. I think the government worries that the
power of the monks will grow so it controls monks with new rules (…). Because
of this, different groups appeared between monks, and disagreement among them
rose. The future of Buddhism is in an anxious situation because of the lack of
national reconciliation in Myanmar.” [65]
Myanmar Eleven: “Despite
being banned from preaching by the State Sangha Maha Nayaka Committee,
controversial Buddhist monk Shwenyawah Sayadaw insisted Wednesday he will
continue to deliver sermons. The State Sangha Maha Nayaka Committee, a
government-appointed body of high-ranking monks that oversees Buddhist clergy
in Myanmar, banned him on March 25 in a written statement. The committee
explained that the monk, also known as U Pinnyasiha, had been giving sermons
that were unrelated to Buddhism. If there is anyone who wants to hear my
sermon, I will continue preaching,’ Shwenyawah Sayadaw said. In my
sermons, there were no abusive words. Why didn’t the committee take action
against those who use abusive words? I'm just preaching without fear to show
the weaknesses of the government. Now the situation is to do whatever the
ruling government favours. He has frequently been prohibited from giving
sermons.” [66]
Irrawaddy - News agency denounces nationalist monks for obstructing
reporter
(Mon 30 May 2016): “In what it has called an assault on press freedom, Burmese news agency Myanmar Cable News has publicly condemned the Myanmar Patriotic Monks Union, one of several hardline Buddhist nationalist groups in Burma, for allegedly obstructing and intimidating one of its junior reporters. The reporter was covering a meeting between the monk’s union and the management of the luxury Sedona Hotel in Rangoon. According to the news agency’s statement issued on Monday, members of the monk’s union stopped the reporter from filming the meeting, and attempted to delete the footage taken, even though the news agency had obtained permission from the hotel to film the meeting. The meeting was held in response to a recent controversy, after photographs were circulated on social media last week of a porter at the hotel receiving guests, and carrying their baggage, while dressed in a supposed royal costume from the Bagan era. The Bagan Kingdom was founded by King Anawratha in Burma’s central dry zone and flourished between the 11th and 13th centuries. The photographs prompted outrage from some Burmese Buddhist conservatives, which has been channeled by the Myanmar Patriotic Monk’s Union, who complained directly to the hotel. Burma’s most prominent Buddhist nationalist group, the Association for the Protection of Race and Religion (known popularly by the Burmese-language acronym Ma Ba Tha), which is led by monks, issued a statement on Friday. The statement denounced it as an insult to the dignity of the country that a hotel porter, who occupies one of the most menial positions within the hierarchy of a luxury hotel, should be dressed in the costume of Burma’s ancient heroes. The news agency’s statement was also addressed to the office of State Counselor Aung San Suu Kyi, the President’s Office, the Ministry of Culture and Religious Affairs, the State Sangha Maha Nayaka Committee (which regulates Burma’s monkhood), and the Press Council. The statement condemned the behavior of the Patriotic Monks Union as an assault on press freedom, and demanded that action be taken against them. (…) Much of the Buddhist nationalist rhetoric since 2012 has focused on stigmatizing Muslims as an existential threat to Buddhism in Burma. However, this is the first time that Buddhist nationalist outrage has been directed at a seemingly secular subject: the attire of medieval Burmese royalty. In 2014, New Zealand national Philip Blackwood was arrested and later imprisoned for his alleged role in posting an image of the Buddha wearing headphones on a Facebook page promoting a cheap drinks night at the Rangoon bar he was managing. He was released as part of an amnesty for 102 prisoners announced by outgoing President Thein Sein in January, after a year spent in Rangoon’s Insein prison. In June 2015, National League for Democracy (NLD) information officer Htin Lin Oo was handed a prison sentence for outraging and wounding religious feelings (in accordance with provisions of Burma’s colonial-era Penal Code) after delivering a public speech criticizing Buddhist ultra-nationalist groups in October 2014.”[67]
(Mon 30 May 2016): “In what it has called an assault on press freedom, Burmese news agency Myanmar Cable News has publicly condemned the Myanmar Patriotic Monks Union, one of several hardline Buddhist nationalist groups in Burma, for allegedly obstructing and intimidating one of its junior reporters. The reporter was covering a meeting between the monk’s union and the management of the luxury Sedona Hotel in Rangoon. According to the news agency’s statement issued on Monday, members of the monk’s union stopped the reporter from filming the meeting, and attempted to delete the footage taken, even though the news agency had obtained permission from the hotel to film the meeting. The meeting was held in response to a recent controversy, after photographs were circulated on social media last week of a porter at the hotel receiving guests, and carrying their baggage, while dressed in a supposed royal costume from the Bagan era. The Bagan Kingdom was founded by King Anawratha in Burma’s central dry zone and flourished between the 11th and 13th centuries. The photographs prompted outrage from some Burmese Buddhist conservatives, which has been channeled by the Myanmar Patriotic Monk’s Union, who complained directly to the hotel. Burma’s most prominent Buddhist nationalist group, the Association for the Protection of Race and Religion (known popularly by the Burmese-language acronym Ma Ba Tha), which is led by monks, issued a statement on Friday. The statement denounced it as an insult to the dignity of the country that a hotel porter, who occupies one of the most menial positions within the hierarchy of a luxury hotel, should be dressed in the costume of Burma’s ancient heroes. The news agency’s statement was also addressed to the office of State Counselor Aung San Suu Kyi, the President’s Office, the Ministry of Culture and Religious Affairs, the State Sangha Maha Nayaka Committee (which regulates Burma’s monkhood), and the Press Council. The statement condemned the behavior of the Patriotic Monks Union as an assault on press freedom, and demanded that action be taken against them. (…) Much of the Buddhist nationalist rhetoric since 2012 has focused on stigmatizing Muslims as an existential threat to Buddhism in Burma. However, this is the first time that Buddhist nationalist outrage has been directed at a seemingly secular subject: the attire of medieval Burmese royalty. In 2014, New Zealand national Philip Blackwood was arrested and later imprisoned for his alleged role in posting an image of the Buddha wearing headphones on a Facebook page promoting a cheap drinks night at the Rangoon bar he was managing. He was released as part of an amnesty for 102 prisoners announced by outgoing President Thein Sein in January, after a year spent in Rangoon’s Insein prison. In June 2015, National League for Democracy (NLD) information officer Htin Lin Oo was handed a prison sentence for outraging and wounding religious feelings (in accordance with provisions of Burma’s colonial-era Penal Code) after delivering a public speech criticizing Buddhist ultra-nationalist groups in October 2014.”[67]
8. CRIMES AGAINST HUMANITY AND PEACE
International Burmese Monks Organization (IBMO), May
2008: “Following the September 2007
street protests in Burma, many Buddhist monks were arrested, disappeared,
beaten and even killed. During the crackdown, monks and nuns inside Burma asked
monks living outside of the country to continue to their struggle. They asked
the IBMO to raise international awareness about Burma’s political struggles.
Inside Burma, there is no freedom of speech. To speak out against human rights
abuses, to speak out against dictatorship, or to speak out for common human
decency, as the Buddhist faith demands, is to invite attack at the hands of the
military junta. The IBMO travels the globe in order to provide a voice for our
monks and nuns inside Burma who are denied this right. (…) Monks are not
politicians but is their duty to help relieve the suffering of all the people
of Burma. The Buddha gave ten rules for kings to ensure that kings did not harm
their subjects. Burma’s generals violate all of these rules every day. The
Burmese military dictatorship has total disregard for the welfare of its
people. The junta provides no proper education, health care or other public
services. People are forced to turn to the monasteries for help. Monks witness
the desperate needs of the people every day and in September, they rose up
together to answer these needs. Today, monks inside Burma are working
desperately to feed and clothe Cyclone Nargis victims taking shelter in
monasteries throughout Southern Burma.”[68]
Human Rights Watch: “On May 2, 2008, Burma was struck by its worst natural
disaster in modern history. On that day, Cyclone Nargis tore into Burma’s
Irrawaddy delta, the country’s rice bowl and the home of millions of people,
mostly small-scale farmers. Nearly 150,000 people died or remain missing.
According to a joint assessment by the Association of Southeast Asian Nations
(ASEAN), the UN, and the Burmese government, some 2.4 million people were
severely affected by the cyclone, out of an estimated 7.35 million living in the
affected townships. More than 40 percent of those affected were children —in a
region where young people already suffered from malnutrition. Drinking water
was in short supply as most sources had been contaminated by decomposing corpses.
Entire villages were wiped out with hardly a building standing —except for the
Buddhist temples and monasteries, usually built from stronger material than
ordinary, wooden houses. Crops were destroyed by salt water seeping into the
fields, which many at the time feared could have a devastating long-term impact
on the country’s food supply. While deaths mounted, Burma’s ruling generals
were slow to react and flatly refused to accept foreign aid. In the beginning,
almost all aid efforts came from Buddhist groups and organizations; Buddhist
monks were the first to clear roads that had been blocked by fallen trees, to
take care of the victims and offer the homeless shelter in monasteries” [69]
FIDH (Federación Internacional de Derechos
Humanos) & ITUC
(International Trade
Union Confederation): “At least 1,000 people were documented by
the Assistance Association for Political Prisoners of Burma (AAPPB) as still in
detention at the time of the mission, on top of political prisoners already
held before the events. On December 1st, AAPPB still documented the names of
706 detainees, in addition to 1158 political prisoners held prior to August 5,
2007 (…) Witnesses interviewed by the mission reported that many thousands of
monks were taken from the streets and in raids on their monasteries in Rangoon,
Mandalay and elsewhere, 6,000 on one day. Eye witnesses informed mission
participants of monks and civilians who were beaten, rounded up and taken away
in trucks. Unknown numbers remain in detention, held under harsh conditions,
with no food for the first days, in cramped rooms, with no space to lie down.
Others were sent to labour camps. The families of monks and others have been
denied access to their imprisoned family members. (…) Those who died in
detention are reported to have been cremated without families or witnesses
identifying their remains, or knowing the cause of death. (…) The repression
was brutal and systematic. Most of the participants witnessed people that were
or had been shot, people lying on the street seriously injured, as well as
being beaten to death. (…) All those interviewed said they could not live in
safety any longer in Burma as they were followed, their homes were raided, and
their photographs distributed. In order to escape arrest, they avoided their
homes and did not try to seek refuge in monasteries, choosing instead to leave
Rangoon by public transport to the Thai-Burma border. They said public buses
were stopped, in search for anyone with Rangoon identification cards, Being
checked frequently at checkpoints and the police having photo files to identify
specific people. People with shaven heads or in robes were particularly
targeted. Others escaped to the border by walking, arranging to hire motorbikes
and hiding in the jungle as even monasteries or houses could not provide safe
refuge. Most were not seeking to resettle in a third country but were
considering their refuge in Thailand as temporary. (…) The underlying causes of
the protests, named the Saffron
Revolution, have not been addressed, on the contrary. The fuel price rise,
the economic conditions, the systematic violation of fundamental human rights
and basic civil liberties, the lack of rule of law and the impunity of the
authorities in their violent actions against the monks and others have fueled
the desire for change more than ever. (…) All
Burma Monks’Alliance statement on November 26th calling on the State Sangha Maha Nayaka (State Council of Senior Monks) to try for the release of monks in prison
and search for the monks missing during the Saffron Revolution. It also called
for the State Sangha Council to work for the release of all political
prisoners, including Daw Aung San Suu Kyi, and commencement of a meaningful
political dialogue between the military junta, NLD and ethnic nationalities. All
organizations and individuals interviewed emphasized the need and desire for continuing non-violent protests, as a
means to demand basic rights, that justice be done, for economic reform and for a peaceful transition to democracy.
(…) The regime arrested activists including Ma Su Su Nway, a well known labour
activist on 13th November, during Professor Pinheiro’s visit. Aung Zaw Oo, a
member of the Human Rights Defenders and Promoters (HRDP) was arrested on
November. Ethnic leaders and members of the Committee Representing the People’s
Parliament (CRPP), Naing Ngwe Thein, U Aye Tha Aung, U Ohn Tin, Khun Htoo and U
Soe Win were arrested on 20th Nov. (…) The broader context is that of crimes against humanity committed by
SPDC, which include widespread use of forced labor, continuous offensives in
ethnic areas that generate hundreds of thousands of internally displaced
persons, the use rape as a weapon of war, the unlawful detention of more than
1100 political prisoners even before the recent events, as well as the
humanitarian situation of malnutrition and possible large-scale starvation. (…)
If the international community chooses the wait-and-see approach, the people of
Burma may yet be relegated to continue living under brutal repression for years
to come. (…) The UN Secretary General Ban Ki-Moon opened a year-long campaign
to celebrate the 60th Anniversary of the Universal Declaration of Human Rights
on Monday, 10th of December 2007. Nobody can continue to ignore the universal
scope of human rights. Neither can the international community ignore to need
for the rights of the people of Burma to be respected, nor can the SPDC ignore
that its country is part of the international community and as such, has an
obligation to respect human rights and comply with the international treaties
it has signed. Two international legal avenues are today being considered by a
number of organizations: prosecuting the Burmese military before the
International Criminal Court (ICC), and a referral to the International Court
of Justice by the ILO based on the lack of implementation of Convention 29 on
forced labour. (…) Criminal accountability for those responsible of the crimes
committed in Burma is an issue far less discussed than the need for national
reconciliation or the call for economic sanctions. However, this issue begins
to feature higher on the list of the priorities put forward by representatives
of Burma’s democracy movement. Under Article 7(1) of the ICC statute, the
definition of Crimes Against Humanity means
any of the following acts when committed
as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
(a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible
transfer of population; (e) Imprisonment or other severe deprivation of
physical liberty in violation of fundamental rules of international law; (f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual violence of comparable gravity; (h)
Persecution against any identifiable group or collectivity on political,
racial, national, ethnic, cultural, religious, gender as defined in paragraph
3, or Other grounds that are universally recognized as impermissible under
international law, in connection with any act referred to in this paragraph or
any crime within the jurisdiction of the Court; (i) Enforced disappearance of
persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar
character intentionally causing great suffering, or serious injury to body or
to mental or physical health. (…) An open letter to the United Nations
Secretary-General and Member States on this issue has been signed by most
organizations representing the people of Burma, located on the Thaï-burma
border. The NCUB and the Burma Lawyers Council (BLC) encourage human Rights
organizations to gather evidence about the existence of crimes against humanity
in the whole country. (…) some organizations believe that the international
community would be forced to act very differently than it does today should an
oficial investigation into the criminal activity of the SPDC demonstrate the
existence of genocide, war crimes or crimes against humanity. Based on a case
of crimes against humanity, various options for international Justice
initiatives can be developed. Both NCUB and BLC strongly encourage initiatives
both at the international level (International Criminal Court) and by specific
countries where universal jurisdiction is recognized. A case on responsibility to protect is another way
of engaging the international community and especially neighbouring countries.
(…) The perpetrators of crimes committed in Burma, such as those responsible
for the killings in 1988, have not yet been brought to Court. Yet international
criminal law has improved a lot since 1988, and especially since 2002, with the
Statute of the International Criminal Court (ICC) coming into effect. The ICC
may investigate acts of genocide, war crimes and crimes against humanity which
have occurred after 1 July 2002. As the Burmese junta refused to ratify the
Statute of the ICC, the people of Burma have no recourse of their own to have
the crimes committed in their country investigated. However, a Security Council
resolution could ensure that generalized and systematic human rights violations
in Burma are brought before ICC. The Security Council can declare itself ready
to invoke the jurisdiction of the International Criminal Court regarding the
situation in Burma, as it is authorized to do under Article 13(b) of the Rome
Statute. A previous example of having a non ICC signatory state investigated by
way of a Security Council resolution was Sudan, in the case of Darfur. In
Resolution 1593 (2005), the UNSC referred the situation in Darfur to the
Prosecutor of the ICC. In that case, NGO's contributed to the collection and
documentation of the alleged criminal acts and then advocated for action. There
is little doubt that if all UN human rights bodies and non-governmental human
rights organizations put together the evidence they have collected during the
years, this would go a long way towards helping to prove the existence of
crimes against humanity in Burma under the ICC statute. The crimes committed
during the crackdown of the Saffron
revolution could be added to this evidence. (…) In the absence of rapid
progress inside Burma, it is not impossible that refugees from Burma in various
countries try to hold officials accountable before criminal courts. Indeed,
several countries have passed universal jurisdiction laws that allow them to
investigate and judge the worst crimes such as genocide, war crimes and crimes
against humanity. Such laws exist in the USA (Alien Tort Claim Act, Torture
Victim Protection Act), Spain and Italy, for example. In Belgium, a civil
action concerning Burma was lodged in 2002. The civil action concerns Crimes
against Humanity and complicity in Crimes against Humanity committed in Burma.
(…) Of all the international human rights-related institutions, the
International Labour Organisation (ILO) has conducted the most exhaustive
examination of a systematic violation of human rights by the regime, namely
forced labour, prohibited by the ILO Convention of Forced Labour, 1930 (n°29),
ratified by Burma in 1955. (…) the practice remains systematic and widespread,
both by the military and local authorities. It is consistently accompanied by
violations of other fundamental rights, including forced relocation, arbitrary
detention and execution, rape, torture and the forced recruitment of child
soldiers. (…) In June 2000, the International Labour Conference (ILC) adopted a
Resolution highlighting the persistence of systematic forced labour in Burma.
The Resolution, adopted under art. 33 of the ILO Constitution (which had never
been invoked before), called on ILO Constituents and other international
organizations to review their relations with Burma and cease any relations that
might have the direct or indirect effect of aiding and abetting forced labour.
(…) In November 2006, the ILO Governing Body for the first time formally
examined how to use international legal mechanisms going beyond its internal
procedures. In particular, it examined in detail options available before the
International Court of Justice (ICJ) and the International Criminal Court
(ICC). One option would be to refer the matter to the ICJ, asking it to
determine, through an Advisory Opinion, what consequences could be drawn under
international law from Burma’s consistent failure to implement the
recommendations of the Commission of Inquiry. The other option would be to make
available to the ICC Prosecutor, through the UN Security Council, all available
ILO information concerning forced labour falling under the ICC’s mandate. This
would be in line with the Conclusions and Recommendations of the 1998 Commission
of Inquiry, which had ruled that forced labour, as practiced in Burma, could
constitute a crime against humanity and that those responsible for imposing it
could be guilty of a crime under international law. Both of these options are
described in detail in a report examined by the ILO Governing Body at its 297th
Session (Geneva, November 2006) (…) FIDH and ITUC make the
following recommendations:
the UN Security Council should hold a new meeting on Burma and urgently pass
a first binding resolution based on the key huma n rights’ principle of
responsibility to protect and on the fact that Burma’s military regime
constitute a threat to peace and stability, as was demonstrated in the
Havel/Tutu report ‘A Threat to Peace: A
call for the UN Security Council to act in Burma’. (…) the UN Human Rights
Council should take concrete steps to follow upon its special session on
Myanmar/Burma. It should urgently adopt a resolution: (…) calling for the
release of all political prisoners, and ensuring an investigation of all human
rights abuses.”[70]
Civilian leader who negotiated with the
military commander during the protests near the City Hall, Rangoon, September
26th, 2007: “We were
surrounded by the soldiers. When the military said the monks could leave, they
refused to go without all the people being allowed to leave. The monks said, No,
we are in the same boat! The army threatened to shoot if the monks did not
leave. Eventually a group of some thousands were allowed to leave, two by two –monks
and civilians. Then the military closed the barriers again, stopped anyone
further from leaving, and then they opened fire. I was grabbed by supporters
and pushed through a gap to safety.” [71]
Aung Htoo, General Secretary of Burma
Lawyer’s Council “Many people
think an ICC (International Criminal Court) referral would stop or hurt
a political dialogue. But criminal accountability needs to be highlighted. The
crackdown was part of crimes against humanity. (…) People should not put too
much hope on Political dialogue. Past and existing crimes cannot be left like
that. Victims cannot be ignored. (..) It’s about victims.”
United
Nations Special Rapporteur on the situation of human rights in Myanmar,
Rajsoomer Lallah, 1998:
“These violations have been so numerous and consistent over the past years as to suggest that they are not
simply isolated or the acts of individual misbehavior by middleand lower-rank
officers but are rather the result of policy at the highest level, entailing
political and legal responsibility.”[72]
United
Nations Special Rapporteur on the situation of human rights in Myanmar, Paulo
Sérgio Pinheiro, 2006
“As noted by the Special Rapporteur in his previous reports, the above-mentioned
serious human Rights violations have been widespread and systematic, suggesting
that they are not simply isolated acts of individual misconduct by Middle -or
low-ranking officers, but rather the result of a system under which individuals
and groups have been allowed to break the law and violate human rights without
being called to account.”[73]
United Nations General Assembly: “Discrimination and violations suffered by persons
belonging to ethnic nationalities of Myanmar, including extrajudicial killings,
rape and other forms of sexual violence persistently carried out by members of
the armed forces; the continuing use of torture... and the prevailing culture
of impunity; (b) The attacks by military forces on villages in Karen State and
Other ethnic States in Myanmar, leading to extensive forced displacements and
serious violations of the human Rights of the affected populations.”[74]
UN
Commission on Human Rights:
“Extrajudicial killings, rape and other forms of sexual violence persistently
carried out by members of the armed forces, continuing use of torture... forced
relocation... disrespect for the rule of law and lack of independence of the
judiciary”[75]
Human
Rights Council: “strongly
deplores the ongoing systematic violations of human rights and fundamental
freedoms of the people of Myanmar”[76]
U.N.
Comm. on the Elimination of Discrimination against Women [CEDAW]: “[The CEDAW Committee] expresses its deep concern at
the high prevalence of sexual and other forms of violence, including rape,
perpetrated by members of the armed forces against rural ethnic women,
including, inter alia, the Shan, Mon, Karen, Palaung, and Chin. The
Committee is also concerned at the apparent impunity of the perpetrators of
such violence (…), and at reports of threats, intimidation and punishment of
the victims. The Committee regrets the lack of information on mechanisms and
remedies available to victims of sexual violence as well as measures to bring
perpetrators to justice. (…) The Committee is also concerned that such violence
appears to be socially legitimized and accompanied by a culture of silence and
impunity, that cases of violence are thus underreported and that those that are
reported are settled out of court. It is also concerned at information that
victims of sexual violence are forced, under the law, to report to the police
immediately, prior to seeking health care, and as a consequence such victims
choose to not seek health, psychological and legal support.”
The
UN Torture Rapporteur:
“Women and girls are subjected to violence by soldiers, especially sexual
violence, as punishment for allegedly
supporting ethnic armed groups. The authorities sanction violence against women
and girls committed by military officers, including torture, inter alia, as a means of terrorizing and subjugating the
population, particularly those in the Shan state”
The
UN General Assembly Resolution 60/232 of
2007: “Discrimination and violations
suffered by persons belonging to ethnic nationalities of Myanmar, including
extrajudicial killings, rape and other forms of sexual violence persistently
carried out by members of the armed forces... the confiscation of arable land,
crops, livestock and other possessions; and the prevailing culture of impunity”
International Human Rights Clinic at
Harvard Law School (IHRC): “A lesser known story —one just as appalling in terms
of human Rights— has been occurring in Burma over the past decade and a half:
epidemic levels of forced labor in the 1990s, the recruitment of tens of
thousands of child soldiers, widespread sexual violence, extrajudicial killings
and torture, and more than a million displaced persons. One statistic may stand
out above all others, however: the destruction, displacement, or damage of over
3,000 ethnic nationality villages over the past twelve years, many burned to
the ground. (…) Yet, for too many years, the world has done little to address
these human rights abuses. Meanwhile, the ruling military junta, including its
leader General Than Shwe, has avoided justice and accountability. (…) We have
seen how severe human rights abuses are not simply condemnable acts, but
require concerted efforts to achieve some semblance of accountability and
justice. The report’s findings are both disturbing and compelling, especially
in light of the Clinic’s exclusive reliance on official UN documents for its
research. We have been struck by the finding that for years the United Nations
(UN) has been on notice of severe, indeed widespread and systematic abuses that
appear to rise to the level of state policy. Over and over again, UN
resolutions and Special Rapporteurs have spoken out about the abuses that have
been reported to them. The UN Security Council, however, has not moved the
process forward as it should and has in similar situations such as those in the
former Yugoslavia and Darfur. In those cases, once aware of the severity of the
problem, the UN Security Council established a Commission of Inquiry to
investigate the gravity of the violations further. With Burma, there has been
no such action despite being similarly aware (as demonstrated in UN documents)
of the widespread and systematic nature of the violations. Based on this
report’s findings and recommendations, we call on the UN Security Council
urgently to establish a Commission of Inquiry to investigate and report on
crimes against humanity and war crimes in Burma. The world cannot wait while
the military regime continues its atrocities against the people of Burma. The
day may come for a referral of the situation in Burma to the International
Criminal Court or the establishment of a special tribunal to deal with Burma.
Member States of the United Nations should be prepared to support such action.
The people of Burma deserve no less. (…) Specifically, the report sought to
evaluate the extent to which UN institutions have knowledge of reported abuses
occurring in the country that may constitute war crimes and crimes against
humanity in the country. The report finds that UN bodies have indeed
consistently acknowledged abuses and used legal terms associated with these
international crimes, including for example that violations have been
widespread, systematic, or part of a state policy. This finding necessitates
more concerted UN action. In particular, despite the recognition of the existence
of these violations by many UN organs, to date, the (UN) Security Council has
failed to act to ensure accountability and justice. In light of more than
fifteen years of condemnation from UN bodies for human rights abuses in Burma,
the Security Council should institute a Commission of Inquiry to investigate
grave crimes that have been committed in the country. This report evaluates
Burma’s breaches in light of the Rome Statute, which provides one of the
available sets of international criminal standards. (…) In this geographic
sampling, the report details forced displacement, sexual violence,
extrajudicial killings, and torture, especially against ethnic nationalities
though the UN documents chronicle many other severe violations as well. (…) The
UN has emphasized the culture of impunity and inoperability of the Burmese
judiciary that benefits the perpetrators of the widespread and systematic
violations, thus legitimatizing the intervention of the international community
to seek redress. There is precedent for the creation of a Commission of
Inquiry. The response of the UN Security Council to the humanitarian situations
in the former Yugoslavia, Rwanda, and Darfur followed the same pattern. The UN
Security Council determined that the situation constituted a threat to
international peace and security and then created such a Commission, whose
mandate included investigating and documenting ongoing violations and making
recommendations for future action. The international community has failed to
place sufficient pressure on the Security Council to create a Commission of
Inquiry. The Council is the only body that can take the action necessary to
respond adequately to the crisis in Burma. (…) Further, the Security Council
should be prepared to act upon findings and recommendations made by such a
Commission, including a potential referral to the International Criminal Court,
the permanent body established to investigate, try, and sentence those who
commit war crimes and crimes against humanity. (…) Terms used by UN actors,
such as widespread, systematic, policy,
and impunity, are relevant to the
establishment of international crimes. (…) During the 1990s, the numerous
military campaigns against ethnic nationality groups led to a litany of human
rights violations, which included increased displacement —both inside the
country and into neighboring countries. In early 1992, for example, a mass
exodus took place, during which at least 250,000 Muslims from Burma (the
Rohingya) fled to Bangladesh. (…) By the late 1990s, more than 100,000 refugees
were in camps in Thailand, in addition to the many internally displaced persons
within Burma itself. Forced labor was also occurring in epidemic proportions
during the 1990s. The International Labour Organization (ILO), a UN agency, formed
a Commission on Inquiry in 1997 that found in its 1998 report that there was a
prolific use of forced labor in the country the use of forced labor has
continued to be widespread,
especially by the army, and the ILO has noted that the systematic nature of the
use of forced labor may constitute a crime against humanity (…). The
continuation of political suppression is also evidenced by the fact that between
June 2007 and late November 2008, the military nearly doubled the number of
political prisoners in the country to over 2,100. (…) Burma has lived under
autocratic and repressive military rule for more than four decades. The
situation in Burma constitutes one of the world’s worst human rights
situations. (…) The long-term nature and severity of the violations reported,
as well as their perpetration by military forces in order to control the ethnic
nationality population, strongly suggests that the violations may constitute
international crimes. (…) Based on reliable
and independent sources, the Myanmar Rapporteur documented reports of an
estimated 3,077 separate incidents of destruction, relocation, or abandonment
of villages in eastern Burma between 1996 and 2006. During this time, it was understood that over a million people
were displaced (…). UN documentation consistently provides reports of the
Burmese army’s destruction of ethnic nationality villages and the subsequent
flow of displaced persons. (…) In October 2007, sources estimated that the
total number of internally displaced persons in eastern Burma was 503,000.
These included 295,000 people in ceasefire zones, 99,000 in hiding in the
jungle and 109,000 elsewhere in Burma, including in relocation sites. (…) The
Myanmar Rapporteur has further described the reported conditions of those
forcibly displaced, which included them being placed in empty tracts of land without any assistance to build shelters.
Similarly, displaced persons face severe food shortages and inadequate access
to safe drinking water, health and education services. Infant and maternal
mortality rates are reportedly higher among the displaced. (…) The evidence
available strongly suggests that the military forces perpetration of prohibited
acts of forced displacement in Burma constitute either crimes against humanity
prohibited by Articles 7(1)(d) or war crimes prohibited by Article
8(2)(e)(viii) of the Rome Statute. Furthermore, the UN documents do not provide
reports of accountability efforts for such actions as mandated by international
law. Specifically, international law requires an independent and thorough
investigation of particular incidents of abuse. The requirement that there be an attack directed against a civilian
population has been met on its face: the UN actors have consistently
described the victims of the forced displacement as civilians and villagers
from ethnic nationality areas, and there have also been reports of multiple
acts referred to as being targeted
against them. Further, for the forced displacement to constitute a crime
against humanity there must be a widespread or systematic attack directed
against a civilian population. The Myanmar Rapporteur has described forced
displacement as occurring in a widespread
manner and as part of a deliberate
strategy. (…) In addition, the descriptions of the incidents of forced
displacement suggest that such violations are both widespread and systematic,
while a crime against humanity need only be widespread or systematic.
The UN actors’ reports chronicled in the section indicate that more than
500,000 people may be experiencing ongoing forced displacement in eastern Burma
alone, which amounts to widespread
levels of the prohibited act. Regarding the common elements of war crimes the
UN documents strongly suggest that there is a situation of armed conflict in
eastern Burma, and that the reported acts have the required nexus to an armed
conflict. (…) Force and coercion are essential legal elements in establishing
that a transfer of a population is unlawful and a crime against humanity. A
similar requirement of force and coercion is required for the displacement to
amount to a war crime. (…) the types of force reportedly used, such as the
military issuing direct orders to civilians to flee their homes, the burning or
destroying of their homes, indirectly as the result of the severity of military
clashes, or as a result of a deliberate
strategy (…) Finally, there is the issue of impunity. None of the UN actors
suggest that there is accountability for the reported violations of forced
displacement. The reports of the practice of forced displacement are instead
linked to reports of other violations, such as the shoot on sight policy, which occur within what is described as the
overall culture of impunity in Burma.
In sum, the UN documents create a strong prima facie case that the reported violations do constitute
international crimes, which should require additional investigations. The UN reports of sexual violence occurring
in eastern Burma also establish a prima facie case
of potential crimes against humanity and war crimes that would justify further
UN investigation into this form of abuse. Various UN actors have highlighted
the long-term nature and severity of such violations, which the military forces
commit as a means of controlling the civilian population in ethnic nationality
areas. Additionally, these reported violations are perpetrated within a culture
of impunity. Thus, the analysis of the UN documentation strongly suggests that
the reported violations of sexual violence constitute international crimes. (…)
UN actors have consistently documented reports of high levels of sexual
violence since 2002. The Myanmar Rapporteur noted that allegedly civilians in
ethnic nationality areas such as Shan, Karen, Karenni, and Mon states had been
particularly vulnerable to such violations (…). The cases highlight the culture
of impunity attached to sexual violence committed by the military. (…) For the
period between 2003 and 2004, the Executions Rapporteur transmitted specific
cases to the Burmese authorities relating to rapes by security forces that had
resulted in multiple deaths and other attacks (…). UN Human Rights experts also
jointly issued a 2006 statement about the widespread
violence that had continued to spiral
in townships of Karen State and Pegu Division. The statement included concerns
about the military’s alleged excessive use of force and fire arms and reports
from various sources about very serious allegations of unlawful killings,
torture, rape, and forced labor. (…) UN actors, particularly the Myanmar
Rapporteur, have highlighted the culture of impunity around sexual violence
perpetrated by the military as an area of serious concern. In one report, the
Myanmar Rapporteur observed that a noteworthy
illustration of the consistent and continuing pattern of impunity is the high
number of allegations of sexual violence against women and girls committed by
members of the military. He was also unaware of any initiatives by the Burmese government to look into
such abuses in order to identify the perpetrators and bring them to Justice. In
relation to the 625 cases of alleged rapes committed prior to 2002, (…) in only
one of these cases was the perpetrator punished by his commanding officer (…)
The Myanmar Rapporteur has routinely and strongly condemned the trend of
impunity, stating for example in 2006 that the
failure to investigate, prosecute and punish those responsible for rape and
sexual violence has contributed to an environment conducive to the perpetuation
of violence against women and girls in Myanmar. (…) The Myanmar Rapporteur
stated that it was wholly unacceptable
that victims lodging complaints to the authorities find no avenue for address,
but are instead at risk of reprisals. (…) Military officers threatened to cut
the tongues and slit the throats of anyone who dared speak to the ICRC
delegations about human rights abuses committed by the military troops. The
population was similarly threatened when a delegation from Amnesty International
visited Burma in January 2003. (…) The government claimed that thorough investigations had been carried out
by the authorities (the) outcome of the investigation in all cases was that
the person did not exist, the village did not exist, and/or the incident never
happened. (…) The Special Rapporteur accepts that
many of the victims and villages no longer exist. However, the Special
Rapporteur deeply regrets that the Government of Myanmar finds this to be a
reason to deny that the alleged incidents occurred, given that the allegations
are precisely that the deaths of the victims and the destruction of their
villages were perpetrated by Government forces. (…) Many women do not report
incidents of trauma, and the Myanmar Rapporteur also had limited access to
areas where violence was reported to be occurring. However, even in spite of
this concern over low levels of reporting, the UN actors have described the
levels of sexual violence as widespread and prevalent. (…) The UN has available
evidence from its own actors that strongly suggests that the military forces
perpetration of prohibited acts of sexual violence and rape in Burma constitute
either crimes against humanity prohibited by Article 7(1)(g) or war crimes
prohibited by Article 8(2)(e)(vi) of the Rome Statute. Indeed, UN actors
describe violations that include the essential legal elements of both crimes
against humanity and war crimes. Finally, the UN documents have particularly
emphasized the lack of accountability in this context, further justifying UN
action and investigation. (…) Firstly, crimes against humanity require that
there is an attack which is directed against a civilian population.
There is no suggestion that any of the reported victims were anything other
than civilians. The second requirement is that the prohibited acts are either
widespread or systematic and involve an attack on a civilian population. The
CEDAW Committee has described the levels of sexual violence as widespread, and the Myanmar Rapporteur
has identified a widespread and
systematic pattern. The widespread
nature of the abuse is reflected in the scale of the violations documented by
the various UN actors. Furthermore,
the reported figures are anticipated to be far
lower than the Reality. (…) In addition, the description of the purpose of
such reported violence as a punishment
and as a means of terrorizing and
subjugating the population, particularly those in the Shan state suggests
the systematic use of sexual violence
in eastern Burma. (…) These references and the consistent identification in the
reports of Burmese military members as the violators clearly implies that some
such acts may have taken place within the nexus of an armed conflict. As noted,
under the Rome Statute the jurisdictional requirement of war crimes is that
they must arise in situations where prohibited acts (such as rape) are
committed as part of a plan or policy or there is a large-scale commission of the crime. As
with the crimes against humanity analysis, the high levels of reported
violations and the use of such acts as a means to suppress the ethnic minority
population meets this jurisdictional threshold. (…) The Executions Rapporteur
also intervened in 2003 with regard to summary execution cases committed by the
military that involved ordinary peasants, including women and children, who
were accused of supporting Shan soldiers. The reports described scenes in which
government soldiers summarily executed or tortured civilians, and gang raped
women before shooting and killing them. (…) The UN actors that reported
extrajudicial killings and torture by the military forces in eastern Burma
commonly understood the abuses to occur with impunity. In 2003, for example,
the Executions Rapporteur specifically included Burma in a list of countries
where the military and special forces, in
particular, are reported to use excessive force with impunity. In 2008, the
Myanmar Rapporteur noted that violations, including extrajudicial killings and
torture, have not been investigated and those responsible have not been
prosecuted. The result of this culture of impunity was that victims have not been in a position to
assert their rights and receive a fair and effective remedy. (…) the
violations were the result of a system in which individuals and groups may
break the law without being called to account (…). (The) interaction between
the government and the UN supports the conclusion of a continuing pattern of
immunity for grave International Humanitarian Law violations, including
extrajudicial killings and torture. (…) The Executions Rapporteur also noted in
the letter that the Burmese government had failed
to cooperate with his UN mandate. This refusal to cooperate again
reinforces that impunity has been an ongoing and persistent problem with
regards to extrajudicial killings and torture in Burma. (…) The evidence
available to the UN from its own actors strongly suggests that the perpetration
of prohibited acts of extrajudicial killings and torture in eastern Burma may
constitute either crimes against humanity prohibited by Article 7(1)(f) or war
crimes prohibited by Article 8(2)(c)(i) of the Rome Statute. Along with a lack
of accountability for such violations in Burma, the legal elements of crimes
against humanity and was crimes as set out in international criminal law are
present to justify the creation of a Commission of Inquiry to thoroughly
investigate the scope and scale of violations.
The UN documentation strongly suggests that the reported extrajudicial
killings and use of torture in eastern Burma are part of an attack directed against a civilian population, a critical
element of establishing a crime against humanity. (…) The Myanmar Rapporteur
has described killings and torture as both widespread
and systematic (…) The special jurisdiction requirement for war crimes
under the Rome Statute that extrajudicial killings and torture are part of a plan or policy or are committed on a large-scale
is also present on its face. The above analysis in relation to crimes against
humanity again informs the case here. The scale of reported violations and the
use of such acts as a means to suppress the ethnic minority population may meet
the criteria of a plan or the acts
being large-scale. (…) The analysis
of each of the individual violations focused on in this report, forced
displacement, sexual violence, extrajudicial killings and torture result in the
conclusion that each separately creates a prima facie case for the existence of violations amounting to
possible crimes against humanity and war crimes. (…) the Myanmar
Rapporteur has made numerous declarations about impunity surrounding sexual
violence as well as extrajudicial killings and torture. Moreover, none of the
UN actors suggest that there has been accountability for the reported
violations of forced displacement. The violations are also interrelated (…).
The Myanmar Rapporteur has also stated that the
continued misuse of the legal system... denies the rule of law and represents a
major obstacle to securing the effective and meaningful exercise of fundamental
freedoms. Further, he noted with regret that the lack of independence of the judiciary has provided a ‘legal’ basis for abuses of power, arbitrary
decision-making and the examination of those responsible for serious human
rights violations. The UN General Assembly and the Human Rights Council
have also issued recommendations to the military regime to initiate
investigations and carry out fair trials in order to end the prevailing
impunity. These recommendations and calls for the end of impunity have been
consistent and repeated, the latest example being made in the General
Assembly’s 2009 resolution. This cumulative evidence on impunity is substantial
and unambiguous, and plainly justifies international action in this arena. In
conclusion, all of the necessary elements exist for the UN to act. Its own
actors are aware of the reported violations and their documentation and
description of them strongly suggests that they constitute international
crimes. Its own actors have also found impunity. Thus, the analysis highlights
the need for a UN Security Council mandated Commission of Inquiry into the
situation in Burma, which would investigate both the reported violations as
well as the documented failure of the military regime to provide accountability
and justice. (…) The situation in eastern Burma, as documented by the UN,
represents a grave human rights crisis taking place in a culture of impunity.
The UN Security Council, however, has not taken concerted action to deal with
the crisis. The Security Council has in the past responded to other crises
after determining that they constitute a threat
to the peace. Specific examples of a response by the Security Council
following such a determination have been the creation of ad hoc international
criminal tribunals to prosecute grave violations of international humanitarian
and human rights law regarding atrocities in the former Yugoslavia and Rwanda.
Another example is the referral of Darfur to the ICC. The violations that have
been reported in Burma are also sufficiently long-lasting and severe to merit
similar Security Council action. (…) The UN Security Council has the power
under Chapter VII of the UN Charter to take measures to maintain or restore international peace and security when it
determines the existence of any threat to
the peace, breach of the peace, or act of aggression. Article 41 of the Charter allows the Security Council to
take action that does not involvethe use of force. (…) As with the former
Yugoslavia and Rwanda, the Council first recognized that grave violations were
occurring, passed resolutions condemning the violations and determined that
they constituted a threat to international peace and security. It then created
a Commission of Inquiry to investigate, and finally, it decided to pursue an
international justice approach by referring the situation of Darfur to the ICC
prosecutor. As noted in this report, the
UN has repeatedly taken note of violations in Burma, especially in eastern
Burma, since 1993. (…) In 1997, the ILO took further action after much
criticism by the organization of Burma’s violations of the Forced Labour
Convention. It established a Commission of Inquiry to look into violations of
forced labor. The 1998 report of the Commission, which was made up of three
distinguished international jurists, concluded that the obligation under Article 1, paragraph 1, of the Convention to suppress the use of forced or compulsory
labour is violated in Myanmar in national law, in particular by the Village Act
and the Towns Act, as well as in
actual practice in a widespread and systematic manner, with total disregard for the human dignity, safety and
health and basic needs of the people
of Myanmar. (…) the UN Security Council should set up a Commission of
Inquiry as it did in previous situations. The scale of the forced displacement —which
includes the destruction or displacement of 3,077 villages according to the
Myanmar Rapporteur as of 2006— justifies such an approach for example.
Comparably numbers are estimated to have been destroyed or damaged in Darfur.
Despite its knowledge of such long-term systematic and widespread occurrence of
violations such as these in Burma, the UN has failed to act through the
Security Council in a similar manner to the situations discussed above. (…) In
January 2007, China and Russia vetoed a resolution requiring the restoration of
democracy to Burma (…) Yet, while Burma remains on the permanent UN Security
Council agenda, it has not recognized that the situation in Burma constitutes a
threat to the peace. (…) Further,
this reports establishment of the prima facie case
of grave International Humanitarian Law and human rights violations should
support a Security Council determination that the situation in Burma is a threat to the peace. Additionally, the
establishment of the prima
facie case of grave International
Humanitarian Law and human rights violations in this report should form the
basis for the Security Council creating a of creating a Commission of Inquiry.
The Myanmar Rapporteur has described the violations that have taken place in
Burma as widespread and systematic.
The crimes noted by multiple UN organs to have taken place for more than a
decade —killings, rape and other sexual violence, torture, and forced
displacement— are all potential violations under the Rome Statute and justify
further investigation. In conclusion, the comparison of the response of the
Security Council to the previous three situations discussed above displays the
need for it to move beyond mere discussion of the situation in Burma. The
language used to describe the situation in Burma, such as widespread and systematic
human rights and international humanitarian law violations echoes the language
used to describe the situations in Yugoslavia, Rwanda, and Darfur. The Security
Council adopted the same course of action in response to the grave violations
occurring in each of these three situations. The Council first took note of
serious violations and determined that they constituted a threat to
international peace and security, then it created a Commission of Inquiry to
investigate abuses further, and finally it took action in the form of creating
an international tribunal or an ICC referral. The Security Council should
initiate this process with respect to Burma. (…) In short, UN actors
documenting of reported violations have been strongly suggesting these
violations may constitute crimes against humanity and war crimes under
international criminal law. This creates a strong prima facie case that such crimes have been occurring, and
justifies intensified UN Security Council action to investigate the scope and
scale of these potential crimes. However, unlike the situations in the former
Yugoslavia, Rwanda, and Darfur, the UN Security Council has not acted to
thoroughly investigate the situation in Burma. This deficit cannot be filled by
other organs within the UN system, and requires a Commission of Inquiry given
the scale of the reported violations and their longstanding nature. If the
international community and the UN Security Council fail to take action the
evidence presented in this report suggests that the grave humanitarian situation
in eastern Burma and elsewhere in the country will continue unchecked. The
perpetrators of serious human rights and humanitarian violations will remain
unaccountable. A culture of impunity will persist that is highly conducive to
the continuance and escalation of violations. To help prevent future
violations, the UN Security Council should create a Commission of Inquiry
mandated and sufficiently resourced to investigate adequately the situation and
make appropriate recommendations based on its findings. This Commission should
apply all relevant international criminal and humanitarian law standards, in
order to analyze whether or not the ongoing widespread and systematic
violations may amount to crimes against humanity or war crimes. The
international community, particularly the member countries of the United
Nations, should make it clear to the Security Council that such action is
needed. Finally, the Security Council should be prepared to act upon findings
and recommendations made by such a Commission, including a potential referral
to the International Criminal Court, the permanent body established to
investigate, try, and sentence those who commit war crimes and crimes against
humanity.”[77]
Venerable
U Uttara: “If a country has peace, all the
neighbors will have peace. This is not just Burma’s problem; you must look at
it as a human problem.”[78]
9.
COMPLICITY WITH GENOCIDE AND ETHNIC CLEANSING
ALLARD K.
LOWENSTEIN INTERNATIONAL HUMAN RIGHTS CLINIC (Yale Law School): “This legal analysis considers whether the ongoing attacks on and
persecution of the Rohingya Muslim population in Myanmar constitute genocide,
as defined by the 1948 Convention on the Prevention and Punishment of the Crime
of Genocide (the Genocide Convention) (…) the paper finds strong evidence that
genocide is being committed against Rohingya. The Genocide Convention, which was adopted by the General Assembly of the
United Nations in 1948 and entered into force in 1951, declares that genocide
is a crime under international law. It imposes affirmative legal obligations on
states to prevent genocide from occurring and to punish perpetrators of
genocide. (…)Article II of the Genocide Convention defines genocide as: [A]ny
of the following acts committed with intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, as such: Killing members of the group; Causing serious bodily
or mental harm to members of the group; Deliberately inflicting on the group
conditions of life calculated to bring about its physical destruction in whole
or in part; Imposing measures intended to prevent births within the group;
Forcibly transferring children of the group to another group. (…) Thus, to analyze whether genocide has been, or is being, committed, one
must consider: 1. Whether the victims constitute a group under the Convention;
2. Whether the acts perpetrated are among those enumerated in the Convention’s
definition; and 3. Whether these acts were carried out with intent to destroy
the group, in whole or in part. As the
Genocide Convention recognizes, genocide
is a crime... contrary to the spirit and aims of the United Nations and
condemned by the civilized world. (…) Genocide is the ultimate
denial of the right to existence of an entire group of human beings. As such,
it is the quintessential human rights crime because it denies its victims’
very humanity. The Genocide Convention imposes affirmative, binding obligations
upon all state parties to the Genocide Convention to prevent and punish the
crime. As a result, some states are reluctant to employ the term. Yet the
gravity of the crime and the irrevocability of its result require states and
other actors to consider and investigate seriously allegations of its
existence. (…) Since the government passed the 1982 Citizenship Act, Rohingya
have been denied equal access to citizenship. Rohingya have also been subjected
to grave human rights abuses at the hands of the Myanmar authorities, security
forces, police, and local Rakhines (the Buddhist majority population in
Rakhine State). These actors have perpetrated violence against Rohingya,
claiming thousands of lives. Hundreds more Rohingya have been the victims of
torture, arbitrary detention, rape, and other forms of serious physical and
mental harm. Whether confined to the three townships in northern Rakhine State
or to one of dozens of internally displaced persons camps throughout the state,
Rohingya have been deprived of freedom of movement and access to food, clean
drinking water, sanitation, medical care, work opportunities, and education.
(…)the situation of the Rohingya in Myanmar, provides a strong foundation from
which to infer genocidal intent by security forces, government officials, local
Rakhine, and others. Thus, this paper finds persuasive evidence that the crime
of genocide has been committed against Rohingya Muslims. The legal analysis
highlights the urgent need for a full and independent investigation and
heightened protection for Rohingya Muslims in Myanmar’s Rakhine State. (…)
After the military coup in 1962, the government began giving documentation to
fewer and fewer Rohingya children, refusing to recognize fully new generations
of the Rohingya population.[79] In 1974, Myanmar began requiring
all citizens to obtain National Registration Cards but allowed Rohingya to
obtain only Foreign Registration Cards. Because many schools and employers did
not recognize these cards, Rohingya faced limited educational and job
opportunities.[80] (…) Naturalization under the law also requires fluency in one of Myanmar’s
national languages. Rohingya speak the
“Rohingya” dialect and, with limited access to education, they have had little
opportunity to learn a nationally recognized language.[81] General Ne Win justified the
Citizenship Law on national security grounds, stating (…) we will have to leave them out in matters involving the affairs of the
country and the destiny of the State. The consequences of the 1982
Citizenship Law have affected Rohingya since its enactment. Because many
Rohingya are stateless, most do not have standing in Myanmar courts and have limited access to economic opportunities, education, and
property ownership.
Myanmar officials have routinely
denied the existence of the Rohingya ethnicity. (…) the
government claimed Rohingya were foreigners rather than an ethnic minority of
Myanmar. (…) The military abused, raped, and murdered many Rohingya. As a result, more than 200,000 Rohingya fled across
the border into Bangladesh. To deter Rohingya
refugees from entering Bangladesh, the Bangladeshi government withheld food and
humanitarian aid from the refugee camps. More than 12,000 refugees died of
starvation.[82] Following international condemnation, Myanmar’s General Ne Win
repatriated many of these refugees, but they continued to face persecution
within Myanmar. Rohingya refugees
continued to flood into Bangladesh over the next twenty years, with periodic
attempts by the Bangladeshi government to expel them forcibly, including as
recently as 2010. The
non-governmental organization Physicians for Human Rights reported that
Bangladeshi security forces beat and forcibly expelled Rohingya refugees in
2010. The government also blocked humanitarian aid to the 30,000 refugees in
the Kutupalong refugee camp in Bangladesh and arrested any refugees who left
the camp to seek food, effectively trapping them in the camps to die of
starvation or illness.[83] (…) In 2010, Thailand
towed the boats of Rohingya refugees back to sea, reportedly leaving hundreds
of people, including entire families, to die, The Myanmar government has confiscated
Rohingya lands, causing more Rohingya to become internally displaced or to flee
the country. (…) From 1995 to 2010, the government of Myanmar reportedly forced
Rohingya to relocate within the country. A 1995 U.N. report stated that the
government notified Rohingya from various regions that they had to leave their
villages in a week and that they could not take their property with them.[84] (…) The Nay-Sat Kut-kwey ye (NaSaKa), a security force consisting of
police, military, intelligence, customs officers, and riot police, operated in
Rakhine State until 2013 under the control of the Ministry for Border Affairs. The NaSaKa forced Rohingya either to pay a weekly
fee to avoid work – a fee that many Rohingya cannot afford – or to perform
manual labor such as construction work, agricultural work, portering, or
serving as guards. The Myanmar Army
and local police also forced Rohingya into labor. In
2008, the U.N. Special Rapporteur reported allegations that Rohingya had been
killed for refusal to perform forced labor. Rohingya
reported that the Myanmar Army and NaSaKa beat forced laborers. The Myanmar
Army and NaSaKa have forced males as young as ten years old into manual labor.
(…) Poor families faced difficulty supporting
themselves financially, as authorities force household members to spend their
time working for them without compensation. Throughout the 1990s,
the government denied that it used any form of forced labor. In 2004, a Myanmar
court sentenced three people to death on a charge of high treason, because, in
part, they had contacted the International Labor Organization (ILO) to report
forced labor.[85] (…) The Myanmar government has participated in racial and religious
persecution of Rohingya. In 2002, Human Rights Watch reported that the government
issued military orders demanding that unauthorized mosques be destroyed.[86] The government has closed mosques and Islamic schools and used them as
government administrative offices.[87] The government has also prohibited Muslims from repairing or renovating
mosques. In 2001, mobs attacked at
least 28 mosques and religious schools. State security not only did nothing to
stop the attacks, but also participated in the destruction.[88] (…) In the 1990s, Myanmar passed a law that required all people in
Rakhine State to gain permission before obtaining marriage licenses. This law
was enforced only against the Muslim populations of the area. (…) Women in
legal marriages who have more than two children and women who have children out
of wedlock are subject to possible prison sentences of up to ten years.
State-level authorities in Rakhine State issued a policy document in 2008
titled Population Control Activities,
specifying how law enforcement officials in Rakhine State should force people
to use pills, injections and condoms for
birth control at every [NaSaKa] regional clinic, township hospitals, and their
own regional hospitals. This policy order shows the government’s efforts to restrict Rohingyas from having families and to prevent
Rohingya births, regardless of whether the couple is legally married. (…) Under
the previous military junta and the new Thein Sein administration, Rohingya
suffered discrimination and severe human rights abuses, including killings,
forced labor, sexual violence, denial of citizenship, displacement, and
restrictions on movement, marriage, and religion. Although initially developed
under military governance, these policies and acts of violence have continued
into the Thein Sein administration. Under Thein Sein’s administration, state security
forces, including the NaSaKa, have arbitrarily arrested and detained Rohingya.[89] For example, Human Rights Watch documented that the NaSaKa detained
between 2,000 and 2,500 Rohingya in 2011 for actions such as repairing homes
without permission.[90] (…) Forced labor has continued to be practiced widely and
systematically in Rakhine State.[91] (…)From January to June 2014, more than 6,000 Rohingya adults and more
than 2,000 Rohingya children were forced to work for the Myanmar authorities
in northern Rakhine State. (…) Ninety-eight percent of these incidents of
forced labor were perpetrated by the Myanmar Army. (…) The Myanmar Army,
NaSaKa, Myanmar Police Force, and Rakhine villagers have raped and sexually
assaulted Rohingya women and girls. They have often
attacked women when the women were taken for forced labor or when their male
relatives were taken for labor and could not protect them. (…) Since the 1990s,
the Myanmar Army has held Muslim women in Rakhine State as sex slaves.[92] (…) Rohingya have described instances when soldiers detained Rohingya
women for weeks on military bases, where they were raped and abused. Some women have died as a result of gang rapes.
Rohingya women have fled Myanmar for fear of being raped by state security
forces. The military has beaten and
tortured victims of sexual violence and others who have reported sexual
assaults.[93] The perpetrators have not been punished for these abuses.[94] The government of Myanmar imposes strict restrictions on the freedom of
movement of Rohingya.
For the purposes of authorizing travel within Myanmar, the
government still considers Rohingya to be foreigners. (…) Throughout
2011 and 2012, thegovernment continued to restrict Rohingyas’ travel by
requiring them to obtain permission to travel outside of their home villages.
(…) The Thein Sein government has continued to enforce policies
to control the Rohingya population, including restrictions on the freedom of
movement, marriage, childbirth, and other aspects of daily life in Rakhine. (…)
(In 2012) Buddhist nationalists protested against Rohingya throughout the
province and the country during this time. On June 10, six hundred protesters
gathered at the Shwedagon Pagoda in Yangon and demanded the removal of Bengalis from Myanmar.[95] (…) The riots displaced more than 100,000 Rohingya and Rakhine, forcing
them to live in makeshift camps. (…) Human Rights Watch reported that riot
police and paramilitary forces joined Rakhine groups in attacking Rohingya
communities. (…) Government forces also arbitrarily arrested hundreds of
Rohingya men and boys, held them incommunicado, and mistreated them.[96] The United Nations also documented more than one hundred credible
allegations of security forces raping women in Muslim communities in Rakhine
State.[97] In some instances, Rakhine civilians raped Rohingya women. Members of
the community who tried to report rape risked arrest. (…) By August, the United
Nations High Commissioner for Refugees estimated that the violence in the
Sittwe and Maungdaw Districts had displaced 80,000 people.[98] (…) The government refused to register those who did not relocate,
thereby denying them food assistance. The Rakhine Nationalities Development
Party (RNDP), founded in 2010 by Rakhine
nationalists, was one of the
most influential groups in the spread of anti-Rohingya violence, particularly
during and after 2012. (…) Although the party claims to be secular, it has
formed close ties with the local order of Buddhist clergy in Rakhine State.[99] (…) Buddhist monks played an active role in perpetuating vehement
anti-Rohingya and anti-Muslim rhetoric. The 969 Movement, an anti-Muslim nationalist movement represented most
prominently by the monk Ashin Wirathu, has expressed the view that Muslims are
attempting to take over Myanmar and that Buddhists must band together to get
rid of the Muslim threat. Wirathu—currently representing Ma Ba Tha (Committee
for the Protection of Nationality and Religion), a more politically powerful
iteration of the 969 Movement—has called Muslims snakes and mad dogs (…)
Local Rakhine Buddhist monks have also distributed pamphlets urging Rakhine
citizens to isolate Rohingya economically and socially.[100] On July 5, 2012, Buddhist monks representing local religious groups
throughout Rathedaung Township, known as the Rakhine Sangha, gathered
to formulate a consistent response to the ongoing conflict. The
monks distributed a 12 Point Statement
pamphlet declaring that Rohingya were engaging in a Rakhine Ethnic Cleansing Program. To ensure that Rakhine people
would stay away from bad Bengali (Kalar),
the monks recommended prohibitions against employing Rohingya, engaging in
sales with Rohingya, and carrying Rohingya on boats, ferries, and motorbikes.
They also called for the withdrawal of NGOs that were supporting Rohingya. The
Arakanese Youth Monks’ Association released a similar statement prohibiting
local Rakhine from trading and communicating with Kalars.[101] The Mrauk Oo Monks’ Association also emailed their membership, calling
for the Rakhine not to sell any goods to
Bengali, hire Bengali as workers, provide any food to Bengalis and have any
dealings with them as they are cruel by nature.[102] On July 12, 2012, President Thein
Sein asked the UNHCR to place all Rohingya in UNHCR refugee camps or send them
abroad. President Thein Sein said, The
solution to this problem is that they can be settled in refugee camps managed
by UNHCR, and UNHCR provides for them. If there are countries that would accept
them, they could be sent there. He also declared, We will take care of our own ethnic nationalities,
but Rohingyas who came to Burma [Myanmar] illegally are not of our ethnic
nationalities and we cannot accept them here.[103] (…) Buddhist monks throughout the country rallied in support of President
Thein Sein’s proposal. One monk declared that the protests were to let the world know that the Rohingya are not
among Myanmar’s ethnic groups at all.[104] (…) Government and Rakhine sentiment also turned against aid workers in
the area for allegedly showing favoritism towards the Rohingya. Several Rakhine
groups also expressed distrust of aid workers for showing sympathy for
internally displaced Rohingya. The All Rakhine
Refugee Committee declared that it would refuse any U.N. or NGO aid. The Rakhine population also threatened and
intimidated humanitarian aid workers. A pamphlet
distributed throughout the province described the various U.N. and aid agencies
as conspiring against the Rakhine people. The pamphlet threatened violence
against all Rakhines who cooperated with the U.N. and international NGOs,
declaring, We recognize all of those, who
are directly or indirectly working for the development of Kalars, as traitors
and thereby our enemy. (…) In July 2012, government forces arrested ten aid
workers, including employees of the United Nations and the Nobel Peace Prize
Laureate organization Médecins Sans Frontières (Doctors Without Borders), for
inciting riots.[105] (…) The Myanmar government endorsed a policy of segregation between
Muslims and Buddhists, claiming such measures were necessary to maintain peace
between the two groups.[106] (…) Fortify Rights has claimed Buddhist villagers played a role in
enforcing the segregation by beating and abusing any Rohingya who attempted to
leave their camps and living quarters.[107] (…) The policy of segregation cut
Rohingya off from medical clinics and schools.[108] Rohingya were unable to buy rice and other
supplies from outside their residential confines. (…) the police coming to
Sittwe Hospital and telling the medical personnel to kill the Rohingya. Rohingya have reported
that the military gathered the dead bodies to take them away in trucks or set the dead
bodies on fire. (…) Activists reported that the Myanmar
government was complicit in the violence and involved in forcibly removing
Rohingya people from Rakhine State. Police reportedly gave Rohingya deadlines
to leave their homes. However, Rohingya
had nowhere to go. Boats full of hundreds of Rohingya and other ethnic Muslim
groups attempted to flee their besieged villages. Neighboring countries refused
to allow them entry. (…) UNHCR has reported that more than 130,000 Rohingya
departed from northern Rakhine State and the Bangladesh border between January
2012 and 2014.[109] This number does not include the many more Rohingya fleeing from the IDP
camps and from areas directly affected by the violence in 2012. (…) After touring
the camps, the U.N. Under Secretary General for Humanitarian Affairs declared, I have seen many camps during my time as the
(U.N. emergency relief coordinator), but the conditions in this camp rank
among the worst.[110] The IDP camps are overcrowded and Rohingya inhabiting them face severe
restrictions on freedom of movement and lack access to basic resources,
including sources of income, food, education, and life-saving medicine and
care.[111] Further exacerbating the problem,
several IDP camps are located in low-lying areas that are vulnerable to
flooding during the rainy season. Many camps lack adequate latrines, drinking
water, waste facilities, and sanitation and are surrounded by streams of sewage
water. Rohingya living in IDP camps face chronic
food shortages. The state government has routinely rejected requests of
displaced Rohingya for food rations. (…) The Organization Save the Children has reported that some Rohingya resorted to
eating glue.[112] The Myanmar Army and Rakhine citizens prevent humanitarian aid from
reaching the camps. Moreover, because humanitarian workers’ access to these
camps is severely restricted, Rohingyas’ ability to secure life-saving medical
resources is limited.[113] (…) In late February 2014, the Myanmar government forced Médecins Sans
Frontières (MSF), or Doctors Without Borders, to cease all operations in
Rakhine State after the organization spoke publicly about treating Rohingya
survivors of a violent attack in Maungdaw Township in January 2014.[114] The organization was by far the
biggest health provider in the northern part of Rakhine, where it provided
vital medical treatment for 500,000 people—mostly Rohingya—in addition to the
200,000 Rohingya in the IDP camps and surrounding areas.[115] MSF’s long standing medical programs in Rakhine state, such as its
malaria treatment program which treated 1.2 million people since 2004, were
halted. Without the assistance of this
organization, the Rohingya population suffered an increasing number of deaths. (…) The UNHCR has estimated that to escape these
conditions, 150,000 Rohingya have fled northern Rakhine State since 2012 to
neighboring Thailand, Malaysia, and Bangladesh, where many have become victims
of human trafficking.[116] (…) Meanwhile, despite the accumulation of evidence indicating policies
and practices that have resulted in the killing of hundreds of Rohingya and the
flight of tens of thousands more, Mr. Win Myaing, the official spokesperson of
the Rakhine State government, denied allegations of ethnic cleansing in
Myanmar, stating in 2013, How can it be
ethnic cleansing? They [the Rohingya] are not an ethnic group.[117] (…) Senior national government officials have used discriminatory
language regarding the Rohingya threat
that echoes the incendiary language of Buddhist monks and local Rakhine. (…)
local officials testified that Rohingya had sneaked
over the border from Bangladesh into Rakhine State, were armed, were connected
to international terrorist organizations, and were planning to occupy Rakhine
State. The submission also declared
that Bengalis whose population are
increasing due to the marriage and having the children unsystematic ways which
are not suitable with the cultural norms of human
beings.[118] (…) Human Rights Watch called the plan a
blueprint for permanent segregation and statelessness that appears designed to…
force them [the Rohingya] to flee the country.[119] (…) As violence against the Rohingya continues, with continued military
involvement, government investigations have resulted in denial, not protection
of Rohingya. (…) the local police did not intervene when Buddhists used swords,
knives, and sticks to attack Rohingya, killing many people.[120] (…) MSF believed all patients were victims of the Buddhist violence.[121] A U.N. Office of the High Commissioner of Human Rights report found that
at least 40 people were killed. According to
Fortify Rights, riot police started rounding up all male Rohingya, including
children, in the surrounding areas after the killings. Hundreds of people fled
Du Char Yar Tan for Bangladesh, Thailand, and Malaysia. Meanwhile, the Myanmar
government’s Human Rights Commission continued to insist that there was no solid evidence of any attacks in Du
Char Yar Tan.[122] (…) On December 9, 1948, the United Nations adopted the International
Convention on the Prevention and Punishment of the Crime of Genocide. (…) The Convention proscribes the commission
of genocide, conspiracy to commit genocide, direct and public incitement to
commit genocide, attempt to commit genocide, and complicity in genocide. (…)
From the holistic perspective intended by the Genocide Convention’s drafters,
Rohingya fit squarely within the ambit of protection established by the “corner
posts” of the four enumerated groups. Rohingya characteristics and history
indicate they constitute a national, ethnical, racial, or religious group
under the Genocide Convention. (…) The history of the Rohingya, going back as
early as the ninth century and up to as recently as the mid-twentieth century,
indicates that the group shares distinctive historical links and thus likely
falls within the national group category of the Genocide Convention. Moreover,
Rohingya share a distinctive language, further supporting their classification
as an ethnical group. (…) Rohingyas’ distinctive language supports the
conclusion that they form an ethnical group protected by the Genocide
Convention. Rohingya may also form a protected group on the basis of their
religion. Rohingya are largely Muslim. The Myanmar government and local Rakhine
have consistently espoused anti-Muslim sentiment. This sentiment is visible in
the rhetoric of government officials and prominent members of society, in
leaked government documents, and in testimonies from survivors of the
atrocities occurring in Rakhine State. (…)
Monks in Rakhine State and throughout the country have also played a key
role in creating a climate that has fueled discrimination and violence by
Buddhist citizens against Muslims. The prominent monk Wirathau has said that
Muslims in Myanmar are orchestrating a master
plan to turn Myanmar into a Muslim country. He has characterized Muslims as
like jackal[s], intent on destroying
Buddhists.[123] Some monks have alleged that the Myanmar government has propped up
Wirathau and actively encouraged him to espouse anti-Muslim sentiment among
monks and his followers.[124] Anti-Muslim rhetoric appears to be rampant in Myanmar at all levels of
society. The religion of the Rohingya plays a role in their persecution.
However, because there are other Muslim groups in Myanmar that are also the
subject of discrimination, although not the same level of abuse and atrocities,
religion alone does not form the basis of Rohingyas’ persecution. Nevertheless,
in this context, religion is a relevant part of Rohingyas’ identity as a
distinct group. (…) Local Rakhine officials and monks also deny that Rohingya
are an ethnicity, yet they have established policies that have specifically
targeted Rohingya. For example, the Rakhine National Development Party plan and
the Rathedaung Monks’ 12 Point Statement both espoused the belief that Rohingya
are “illegal immigrants” and “kalar.” These plans to physically, economically,
and socially isolate the kalar were
specifically targeted toward the Rohingya in Rakhine State. Thus, even though
the government and Rakhine actors do not acknowledge the term Rohingya, their use of the term Bengali to refer to all and only
Rohingya lends support to the conclusion that they view Rohingya as a
distinctive group. Examined holistically, Rohingya constitute a group under the
Genocide Convention. They share a common history, culture, and language.
Additionally, the persecutors view them as a distinctive group and target them
on the basis of this group identity. (…) The Genocide Convention identifies the
killing of members of the group as a prohibited genocidal act. (…) State
security forces’ involvement in massacres of Rohingya satisfies the requirements
for finding the commission of the prohibited act of killing members of a
protected group. Many Rohingya refugees, as well as U.N. agencies, independent
experts, and human rights organizations, have reported that the Myanmar Army,
NaSaKa, and the Myanmar Police Force were involved in the use of lethal
violence against Rohingya in Rakhine State. Witnesses have reported state
forces joining in local killings and massacres of Rohingya; this has included
such forces shooting and killing Rohingya rather than intervening to protect
them. State security forces’ failures to stop, investigate, or punish local
violence against Rohingya also violate the Genocide Convention. (…) Local
Rakhine have undeniably killed Rohingya on many occasions since 2012. However, failure to prevent extrajudicial violence
is an act of omission, and such acts, can, like acts of commission, violate
the Genocide Convention. The ICTY and the ICTR have found both acts and
omissions to be grounds for responsibility for killing in violation of the
Genocide Convention.[125] Many witnesses have reported the Myanmar Army, Police, and NaSaKa
standing by while local Rakhine attack and kill Rohingya. Human Rights Watch
has described several massacres of Rohingya in different regions of Rakhine
State as highly organized, with state
awareness of the impending violence and failure to hold
perpetrators accountable. Attacks in
different villages occurred nearly simultaneously; the attackers were well
armed; and state security forces both watched and participated in the killings
of Rohingya. After the killings, state security forces disposed of Rohingya
bodies in ways that hindered investigations. Although the 2012 violence in Rakhine State killed Rohingya
primarily, state authorities have prosecuted almost exclusively Rohingya, not
Rakhine, for the violence. The government’s violent actions, as
well as its inaction in quelling locally perpetrated violence, fit within the
act category of killing members of the
group. The Genocide Convention’s second prohibited act is causing serious
bodily or mental harm to members of the group. The ICTR defined serious bodily or mental harm as acts of torture, be they bodily or mental,
inhumane or degrading treatment, [or] persecution. (…) Although the
Genocide Convention does not enumerate specific prohibited acts causing harm,
the ICTR and ICTY have found a number of non-fatal acts, including torture,
rape, deportation, and cruel treatment, to fit within this category.[126] Instances of torture of Rohingya constitute acts of serious bodily and
mental harm within the meaning of these definitions. The Myanmar Army has
beaten and tortured Rohingya men and Women.[127] Rohingya experienced waves of large-scale violence in the late 1970s,
the early 1990s, 2001, and 2012, and each wave has involved torture by the
NaSaKa, the Myanmar Army, and Myanmar Police Force.[128] Government authorities have also used torture as a means to erase
Rohingya identity. The Sentinel Project for Genocide Prevention (an
international non-governmental organization) reported that the NaSaKa beat and
tortured Rohingya until they agreed to register as Bengali.[129] The Sentinel Project also reported that the NaSaKa and the Myanmar Army
have a long history of war crimes, including rape and torture. The torture of
the Rohingya meets the legal standard for the prohibited act of causing serious bodily or mental harm. Acts
of sexual assault and rape by the NaSaKa, Myanmar Army, and Myanmar Police
Force against Rohingya women also constitute acts of serious bodily or mental harm. Sexual assault and rape cause both
physical trauma and mental harm. The ICTR has compared rape to torture, saying,
like torture, rape is used for such
purposes as intimidation, degradation, humiliation, discrimination,
punishment, control or destruction of a person. Like torture, rape is a
violation of personal dignity. (…) The attacks against Rohingya women
conform to the ICTY and ICTR’s definitions of rape as an act causing serious bodily or mental harm.
(…) The Genocide Convention’s third prohibited act is deliberately inflicting conditions of life calculated to destroy the
group in whole or in part. (…) These methods can also involve subjecting a group of people to a
subsistence diet, systematic expulsion from homes and the reduction of
essential medical services below minimum requirement. Thus, acts inflicting conditions
of life calculated to destroy the group in whole or in part can include acts of
forcing people’s labor,[130] the deliberate
deprivation of resources indispensable for survival, such as food or medical
services, or systematic expulsion from homes.[131] The expulsion of Rohingya from their homes into internally displaced
persons (IDP) camps or out of the country and the subsequent denial of medical
care, sanitation, food, and paid labor opportunities constitute inflicting
conditions of life calculated to bring about Rohingyas’ destruction as a
group. (…) The government also refused to register displaced Rohingya as
eligible for food supplies from U.N. and humanitarian agencies until the
Rohingya relocated to the camps. Journalists and human rights organizations
have described the IDP camps where at least 140,000 Rohingya reside as
unlivable ghettos.[132] Daily IDP camp reports from the Danish Refugee Council and Save the Children have recorded regular
government failure to deliver adequate food rations to the camps, lack
of water, and lack of sanitation and medical care. Myanmar security forces have
prevented Rohingya from leaving the IDP camps to seek jobs, food, or medical
assistance. (…) Rohingya within these
camps do not have access to the lands on which they traditionally lived and
worked. (…) Without access to their traditional land and employment
opportunities or outside paid work, Rohingya have been unable to buy the
necessary food or water to supplement their rations. (…) Whether
in IDP camps or in northern Rakhine State, Rohingya face conditions of life,
inflicted by Myanmar security forces and by local Rakhine officials and
citizens, that are calculated to destroy them. (…) Imposing measures intended
to prevent births within the protected group constitutes another proscribed act
of genocide under the Genocide Convention. (…) The Myanmar government has
imposed two types of measures designed to prevent Rohingya births: restrictions
on Rohingya marriages and restrictions, applied only to Rohingya, on the number
of children a family may have. (…) Rohingya who cohabit without a marriage
license may be arrested, with a possible punishment of ten years’ imprisonment.
(…) Since 2005, to be allowed to marry, Rohingya must agree to have no more
than two children. Violations of the two-child policy can also result in
ten-year prison sentences. Local authorities have adopted policies to force
Rohingya women in hospitals to use pills and injections for birth control. (…)
Article II of the Genocide Convention explicitly sets forth several categories
of conduct that comprise the act
element of the crime of genocide. Each of the enumerated acts can be committed
by commission or omission. Based on the evidence examined by the Lowenstein
Clinic, the Myanmar government, military, police, and security forces have
engaged in conduct that falls within the categories that the Convention
specifies as constituting the act element
of genocide. These actors have killed Rohingya, caused serious bodily and
mental harm to Rohingya, deliberately inflicted conditions of life calculated
to bring about the physical destruction of Rohingya, and imposed measures
intended to prevent births of Rohingya. Substantial and consistent evidence
suggests that the abuses against Rohingya fulfill the act element of the crime of genocide. (…) To be found guilty of the
crime of genocide, perpetrators must not only have committed the proscribed
acts; they must have had an intent to destroy, in whole or in part, a protected
Group. (…) The Genocide Convention and the case law established by the ad hoc
international criminal tribunals require a fact-driven inquiry to determine
whether the element of specific intent to commit genocide has been met. The
ICTY has held: As to proof of specific
intent, it may, in the absence of direct explicit evidence, be inferred from a
number of facts and circumstances, such as the general context, the
perpetration of other culpable acts systematically directed against the same
group, the scale of atrocities committed, the systematic targeting of victims
on account of their membership of a particular group, or the repetition of
destructive and discriminatory acts.[133] (…) A finding of genocide does not require all
identified factors for showing intent to be present, and, depending on the
assessment of facts, a finding of any of these factors, alone or in a variety
of combinations, can be sufficient to prove intent. Viewed in light of the
current law of genocide, including not only the Genocide Convention itself, but
also its authoritative interpretation by the ad hoc international criminal
tribunals, the evidence available supports a conclusion that the Myanmar
government and local actors have acted with the intent to commit genocide
against Rohingya Muslims in Rakhine State. This finding (…) is based on
evidence of pervasive, derogatory rhetoric against Muslims and specifically
Rohingya Muslims; evidence that Rohingya are specifically targeted because of
their group identity; government policies of birth and marriage restrictions
directed toward Rohingya; government policies depriving Rohingya of necessary
aid and resources; and evidence of the mass scale of atrocities perpetrated
against Rohingya. Taken together, this evidence strongly suggests that the
Myanmar government has acted with the requisite intent to have committed
genocide. High-ranking government officials, military officers, Buddhist monks,
and local Rakhine have fostered and perpetuated anti-Rohingya sentiment. Their rhetoric has dehumanized Rohingya, created a
climate of ethnic hatred, and fueled violence targeted against the group. This
anti-Rohingya climate, and the government’s role in fostering it, constitutes a
relevant factor for determining that the government of Myanmar and other actors
perpetrated prohibited acts against Rohingya with genocidal intent. Discriminatory and incendiary comments about
Muslims and Rohingya are widespread in Myanmar. These comments spread the
belief that Rohingya are an existential threat to Myanmar and should be
removed from Rakhine State. Analyzing the scale and number of genocidal acts
in the context of the larger public discourse about Rohingya strongly suggests
that the acts of the Myanmar government and local Rakhine actors have likely
been perpetrated with the intent to destroy the Rohingya group. (…) Local monks
encouraged policies that, if fully enacted, would result in the destruction of
the Rohingya group. For example, the Rathedaung Monks’ 12 Point Statement
prevented Rohingya from supporting themselves and their families, using common
forms of transportation to obtain much-needed medical and food supplies, and
enlisting the help of aid organizations. As a result of
this plan, Rohingya were left with few means of survival. (…) In September
2012, a group of monks met in Rathedaung to formulate a set of resolutions
regarding dealings with Rohingya. The group agreed to impose rules control[ing] the birth rate of the Muslim
Bengali community living in Arakan [Rakhine], remove some Bengali villages, and
monitor UN and INGOs activities in
Rakhine State.[134] Buddhist monks formulated these plans in response to
their alleged fear that Rohingya were taking over Myanmar (…) The
monks’ call for the imposition of harsh conditions of life, combined with
rhetoric inciting fear of Rohingya, provides strong evidence of an intent to
destroy the Rohingya group. Local Buddhist leaders also discouraged
humanitarian aid from reaching Rohingya. In October 2012, the All-Arakanese
Monks Solidarity Conference declared its opposition to all NGOs that are not under the U.N. and not in the
interest of local population.[135] (…) The deliberate blocking of humanitarian assistance to Rohingya,
particularly considered alongside persistent anti-Rohingya propaganda, evinces
an intent to destroy the group. To purposefully prevent humanitarian aid from
reaching Rohingya living in dire circumstances in IDP camps and isolated
villages is to seek their destruction. The government’s actions and inactions
toward displaced Rohingya demonstrate a practice of creating conditions
intended to bring about the Rohingyas’ destruction. (…) Also, the government
restricts the provision of food and humanitarian aid to these camps. The
situation in the IDP camps has been worsening and increasing numbers of
Rohingya have been dying from malnutrition, disease, and further violence. (…)
By placing Rohingya in IDP camps, preventing them access to food, medical
supplies and healthcare, and opportunities to gain a livelihood, the government
has pursued a policy that would likely result in the destruction of the
Rohingyas’ group. (…) The state’s willingness to push
Rohingya out to sea, where they face a severe risk of death, indicates the
state’s intent to inflict conditions of life likely to result in the Rohingyas’
destruction. (…) The predictable outcome of forced segregation,
prevention of mobility, starvation, and the cutting off of health care,
medical supplies, and humanitarian assistance, is death. (…) By placing
Rohingya in IDP camps and pursuing policies that have economically, socially,
and politically isolated Rohingya, the Myanmar government and local actors have
the requisite knowledge that their actions would likely lead to the Rohingyas’
destruction in whole or in part. The
mass scale of the atrocities perpetrated specifically against Rohingya also
provides strong evidence that the Myanmar government has acted with genocidal
intent toward the group. (…) During the 2012 violence, the
Myanmar Army, Myanmar Police Force, NaSaKa, and Rakhine citizens killed several
hundred Rohingya men, women, and children in targeted attacks, according to
U.N. data and
information provided by human rights organizations, (…) In some villages,
assailants hacked dozens of children to death and threw their bodies into
fires.[136] (…) Since the 2012
violence, more than 160,000 Rohingya men, women, and children are estimated to
have fled Myanmar. An
unknown number of these asylum seekers have died on the journey, both at sea
and at the hands of transnational criminal syndicates engaged in human
trafficking. Amnesty International estimates that thousands of Rohingya may
have died at sea in 2015 alone.[137] Hundreds, if not more
than one thousand, Rohingya may have been buried in mass graves in Thailand and
Malaysia.[138] Moreover, there are,
according to the government of Bangladesh, between 300,000 and 500,000
stateless Rohingya in Bangladesh most of whom fled from Myanmar or were born
stateless in Bangladesh.[139] The Myanmar government has certainly been
aware of Bangladesh’s denial of adequate aid to Rohingya. The massive scale of
the persecution, attacks, killing, and intentional displacement of Rohingya
demonstrates intent to destroy the group, in whole or in part. (…) The inevitability of this result was obvious, and the Myanmar government
has not taken measures to prevent or stop these destructive acts. This pattern
of actions and inactions—of acts and omissions—in the context of widespread
anti-Rohingya rhetoric, including from official government sources, along with
policies that have clearly created conditions of life calculated to bring about
Rohingyas’ destruction, tend to show the intent required for finding genocide.
(…) The available evidence demonstrating official and other widespread
anti-Rohingya rhetoric, acts that have inflicted conditions of life on Rohingya
that have contributed to their physical destruction, and a large scale of
discriminatory and violent acts targeting Rohingya, taken together, support a
conclusion that the Myanmar government has acted with the intent required for a
finding of genocide against the Rohingya.[140] (…) Under the Genocide Convention, a state itself may
be responsible for committing any of the punishable acts enumerated in Article
III: Genocide; Conspiracy to commit
genocide; Direct and public incitement to commit genocide; Attempt to commit
genocide; Complicity in genocide. A state may also be responsible for any of these punishable acts
committed by its state organs or by non-state actors who are under the
direction and control of the state. The state of Myanmar may be responsible for
acts committed against the Rohingya by the security forces, including the
Myanmar Army, Myanmar Police Force, and NaSaKa. Furthermore, the state of
Myanmar may be responsible under the Convention for failing to prevent genocide
from occurring within its borders. Article I of the Convention obligates states
to prevent genocide and, if states fail to do so, to punish individual perpetrators.
The International Court of Justice (ICJ) has held that a state has a duty to
take all measures within its capacity to prevent genocidal acts.[141] Therefore, even if the state is not directly
responsible for committing genocide, it may nevertheless be responsible for
failing to prevent genocide. If genocide has been committed against the
Rohingya, the state of Myanmar may be responsible for failing to prevent it. The state of Myanmar may be held responsible
for acts of genocide committed against Rohingya by security forces. States are
responsible for acts of genocide committed by its state organs. According to
the International Law Commission (ILC), state organs include any person or entity which has that status
in accordance with the internal law of the State. Customary
international law on state responsibility, codified in the ILC’s Draft Articles
on State Responsibility for Internationally Wrongful Acts, specifies that the
conduct of a state organ is attributable to the state. Thus, a state is
responsible if the actions of a state organ constitute prohibited conduct, such
as genocide.[142] (…) Since the Myanmar Army, the Myanmar Police force, and the NaSaKa are
state organs, their acts are attributable to the state of Myanmar. (…) U.N.
Special Rapporteur on the situation of human rights in Myanmar, Tomás Ojea Quintana,
urged the Myanmar national government to investigate and hold accountable the
NaSaKa for committing human rights abuses against Rohingya.[143] He stated that he had received
allegations of the most serious of human rights violations involving NaSaKa,
particularly against the local Rohingya population, including extrajudicial
killings, arbitrary arrest and detention, and torture
in detention.
(…) The state is responsible, under Article I of the
Genocide Convention, for punishing perpetrators of genocide. Thus, Myanmar is
directly responsible for the conduct of the NaSaKa and for failing to punish
members of the NaSaKa who have committed acts of genocide. (…) In Bosnia v.
Serbia, the International Court of Justice held that non-state actors must lack autonomy and be completely dependent on the state in
order for the state to be responsible. The standard is
high for proving that non-state actors such as local Rakhine and local monks
are under sufficient direction or control of the state. Nevertheless, the state
of Myanmar has a duty to prevent genocide and punish all perpetrators and can
be found responsible for failing to prevent genocide even if non-state actors’
relevant conduct cannot be attributed directly to the state. The state of Myanmar has a duty to prevent
genocide from occurring within its borders. Customary international law and
Article I of the Genocide Convention obligate states to prevent genocide.
Article I provides: The Contracting
Parties confirm that genocide, whether committed in time
of peace or in time of war, is a crime under international law which they
undertake to prevent and to punish. Thus, states
have an obligation to implement suitable measures to prevent genocide. The International Court of
Justice has held that state responsibility to prevent genocide comes into play
when the state at issue fails to take all measures within its power to prevent
genocidal acts. The Court
also declared that a state’s obligation to prevent genocide arises when the
State learns of, or should normally have
learned of, the existence of a serious risk that genocide will be committed.[144] The International Court of Justice distinguished the concept of state
responsibility to prevent genocide from the crime of complicity in genocide
established by Article III of the Genocide Convention. Complicity
entails aiding or assisting perpetrators with the specific knowledge that the
perpetrators are committing genocide or are likely to commit genocide. To be complicit in genocide, a state must know
that it is assisting actors who have the requisite intent. In contrast, a
breach of the duty to prevent genocide results from a state failing to act and
requires only the serious danger that the
acts of genocide would be committed. The state of
Myanmar may be responsible for failing to prevent genocide, and government
actors may be complicit in genocide if they knowingly assisted individuals
committing acts of genocide. (…) This paper, therefore, finds strong evidence
that the abuses against the Rohingya satisfy the three elements of genocide:
that Rohingya are a group as contemplated by the Genocide Convention; that
genocidal acts have been committed against Rohingya; and that such acts have
been committed with the intent to destroy the Rohingya, in whole or in part.
(…) In light of this conclusion, the United Nations should adopt a resolution
to establish a commission of inquiry on the human rights situation in Rakhine
State, Myanmar. Previous commissions of inquiry have been established by
various U.N. bodies and actors (…). The Human Rights Council should adopt a
resolution that mandates the commission of inquiry to conduct an urgent,
comprehensive, and independent investigation of the widespread and systematic
abuses committed against Rohingya. The commission should be tasked with
establishing the facts and circumstances that, taken as a whole, may indicate
that genocide has occurred or is occurring. The mandate should further task the
commission, where possible, with identifying the perpetrators responsible for
such crimes. (…) It would also have the authority to respond to and recommend
institutional action to prevent further acts of genocide. (…) The commission
should then report its findings to the Human Rights Council within a specified
and urgent timeframe. An independent commission of inquiry, with the legitimacy
conferred by a U.N. mandate and adequate power to investigate, can determine
authoritatively whether human rights violations against Rohingya in Rakhine
State constitute genocide.”[145]
[2] May
Sitt Paing (The Irrawaddy), Buddhist
Committee’s 969 Prohibitions Prompts Meeting of Movement Backers. http://www.irrawaddy.com/burma/buddhist-committees-969-prohibitions-prompts-meeting-of-movement-backers.html
[5] Nobel Zaw,
Lower House Approves Two ‘Race and Religion’ Bills http://www.irrawaddy.com/burma/lower-house-approves-two-race-and-religion-bills.html
[6] U
Pyinya Zawta (Pakada), State Buddhist
council lives in authoritarian past http://allburmamonksalliance.org/feature-articles-statements/
[7]
Ingrid Jordt, Breaking Bad in Burma http://religioninthenews.org/2014/12/19/breaking-bad-in-burma/
[10]
Cherry Thein and Aung Kyaw Min, Sangha
reforms planned to improve discipline. http://www.mmtimes.com/index.php/national-news/10372-sangha-reforms-planned-to-improve-discipline-cooperation.html
[11] Aung
Kyaw Min, Monks plan changes to Sangha
rules. http://www.mmtimes.com/index.php/national-news/9792-monks-plan-changes-to-sangha-rules.html
[12] Aung
kyaw Min, State sangha silent on
political monks. http://www.mmtimes.com/index.php/national-news/16919-state-sangha-silent-on-political-monks.html
[13] Aung Kyaw Min, Monk
decries corruption and abuse of power in Sangha http://www.mmtimes.com/index.php/national-news/15324-monk-decries-corruption-and-abuse-of-power-in-sangha.html
[14]
Human Rights Watch, The Resistance of the
Monks: Buddhism and Activism in Burma.
[15] Human Rights Council, 6th session,
Report of the Special Rapporteur on the situation of human rights in Myanmar,
Paulo Sérgio Pinheiro, 7 December 2007, UN Doc A/HRC/6/14
[16] New York Times (26 Sep 07) Police clash
with monks in Myanmar; DPA (26 Sep 07) Burma army starts killing; Irrawaddy (26
Sep 07) Burmese troops fire on Rangoon protestors; unconfirmed reports say five
monks, one woman dead; Reuters (26 Sep 07) Myanmar troops pen monks in
monasteries.
[18] AAPPB (06 Oct
07) Monasteries Raided Since September 26; DVB (03 Oct 07) Monks fear
government raids on monasteries
[19] AAPPB (06 Oct 07) Monasteries Raided Since
September 26; IMNA (05 Oct 07) Monasteries in Rangoon ordered not to
accommodate guests
[20] DVB (05 Oct 07) Monasteries again targeted
in raids; MNA (10 Oct 07) Hundreds of monks flee Rangoon, arrive in Mon state
[22] AP (28 Sep 07) Myanmar junta declares
no-go zones at Buddhist monasteries seen as flashpoints of protests
[23] AP (04 Oct 07) Myanmar media lashes out at foreigners; Human Rights
Council, 6th
session, Report of the Special Rapporteur on the situation of
human rights in Myanmar, Paulo Sérgio Pinheiro, 7 December 2007, UN Doc
A/HRC/6/14; DVB (21 Oct 07) Family of exiled 88 generation student arrested
[24] Reuters (04 Oct 07) Myanmar junta sets Suu Kyi talks conditions; Reuters
(05 Oct 07) Myanmar junta talks offer unreal – opposition; BBC (08 Oct 07)
Burmese junta appoints go-between; DVB (09 Oct 07) Detainees categorised
according to protest involvement
[26] Mizzima News (13 Nov 07) Junta arrests prominent Abbot U Gambira; DVB
(13 Nov 07) Monk leader U Gambira arrested
[27] Human Rights Council, 6th session, Report of the Special Rapporteur
on the situation of human rights in Myanmar, Paulo Sérgio Pinheiro, 7 December
2007, UN Doc A/HRC/6/14
[28] DPA (06 Oct 07) Burma releases detained monks but diplomats not hopeful;
Sunday Times (07 Oct 07) Secret cremations hide Burma killings; BBC (08 Oct 07)
Burmese junta appoints go-between
[30] CNN (13 Oct 07) Myanmar captives ‘kept in squalor’; Irrawaddy (11 Oct
07) Monks in hell; AP (12 Oct 07) Burma’s junta of beating, killing detainees,
Norway-based radio says; AP (12 Oct 07) Dissident group: Myanmar guards
brutalized pro-democracy detainees; Irrawaddy (11 Oct 07) Monks in hell
[31] AP (12 Oct 07) Burma’s junta of beating, killing detainees, Norway-based
radio says; AP (12 Oct 07) Dissident group: Myanmar guards brutalized
pro-democracy detainees; Irrawaddy (11 Oct 07) Monks in hell; Irrawaddy (11 Oct
07) 88 Generation Students, Other Detainees Tortured in Interrogation Centers
[32] AP (10 Oct 07) Generals, soldiers detained for refusing to shoot monks
in Myanmar; AGI (10 Oct 07) Burma: 5 generals arrested for not shooting at
monks
[33] DVB (08 Nov 07) Army officer flees under threat of arrest; Mizzima News
(08 Nov 07) Top military leader shelves two disobedient commanders
[35]
Human Rights Watch, The Resistance of the
Monks: Buddhism and Activism in Burma.
[36]
Human Rights Watch, The Resistance of the
Monks: Buddhism and Activism in Burma.
[38]
Human Rights Watch, The Resistance of the
Monks: Buddhism and Activism in Burma.
[39]
Human Rights Watch, The Resistance of the
Monks: Buddhism and Activism in Burma.
[40]
Human Rights Watch, The Resistance of the
Monks: Buddhism and Activism in Burma.
[41]
Human Rights Watch, The Resistance of the
Monks: Buddhism and Activism in Burma.
[42]
Human Rights Watch, The Resistance of the
Monks: Buddhism and Activism in Burma.
[43]
Human Rights Watch, The Resistance of the
Monks: Buddhism and Activism in Burma.
[44]
Human Rights Watch, The Resistance of the
Monks: Buddhism and Activism in Burma.
[46] Gustaaf Houtman, Mental
Culture in Burmese Crisis Politics: Aung San Suu Kyi and the National League
for Democracy
[48]
Human Rights Watch, The Resistance of the
Monks: Buddhism and Activism in Burma.
[49]
Human Rights Watch, The Resistance of the
Monks: Buddhism and Activism in Burma.
[50]
Human Rights Watch, The Resistance of the
Monks: Buddhism and Activism in Burma.
[51]
Human Rights Watch, The Resistance of the
Monks: Buddhism and Activism in Burma.
[52]
Human Rights Watch, The Resistance of the
Monks: Buddhism and Activism in Burma.
[53]
Human Rights Watch, The Resistance of the
Monks: Buddhism and Activism in Burma.
[54]
Human Rights Watch, The Resistance of the
Monks: Buddhism and Activism in Burma.
[55]
Human Rights Watch, The Resistance of the
Monks: Buddhism and Activism in Burma.
[56]
Human Rights Watch, The Resistance of the
Monks: Buddhism and Activism in Burma.
[57] Reuters, Activist
Buddhist monk faces legal action in Burma http://www.france24.com/en/20120219-burma-activist-buddhist-monk-gambira-faces-legal-action
[58] Khin
Su Wai, U Gambira hit with extra charges
over 2012 incident. http://www.mmtimes.com/index.php/national-news/yangon/21126-u-gambira-hit-with-extra-charges-over-2012-incident.html
[60] Aung
Hla Tun, Myanmar court
lays new charges against Saffron Revolution leader http://www.reuters.com/article/us-myanmar-human-rights-idUSKCN0ZE1ES
[62] Aung
Kyaw Min, Govt-Sangha committee under
fire for night raid. http://www.mmtimes.com/index.php/national-news/10666-govt-sangha-committee-under-fire-for-night-raid.html
[63] State
Sangha Maha Nayaka Committee to decide sealed-monastery case http://www.elevenmyanmar.com/local/state-sangha-maha-nayaka-committee-decide-sealed-monastery-case
[64] RFA’s Myanmar Service, Myanmar
Charges Religious Affairs Minister with Misuse of Funds http://www.rfa.org/english/news/myanmar/minister-06192014183955.html
[68]
Human Rights Watch, The Resistance of the
Monks: Buddhism and Activism in Burma.
[69]
Human Rights Watch, The Resistance of the
Monks: Buddhism and Activism in Burma.
[70] FIDH (Federación Internacional de Derechos Humanos)
& ITUC (International Trade Union
Confederation), Burma’s “Saffron Revolution” is not over: Time for the
international community to act
[71] FIDH (Federación Internacional de Derechos Humanos)
& ITUC (International Trade Union
Confederation), Burma’s “Saffron Revolution” is not over: Time for the
international community to act
[72] The Special
Rapporteur on the situation of human rights in Myanmar, Report of the Special Rapporteur on the
situation of human rights in Myanmar, delivered to the General Assembly, U.N. Doc. A/53/364, 59 (Sept. 10,
1998). Mr. Lallah was Special Rapporteur from 1996-2000.
[73] The Special
Rapporteur on the situation of human rights in Myanmar, Report of the Special Rapporteur on the
situation of human rights in Myanmar, delivered to the General Assembly, U.N. Doc. A/61/369, 32 (Sept. 21,
2006) (hereinafter Myanmar Rapporteur 2006 I). Mr. Pinheiro was Special
Rapporteur from 2000-2008.
[74] Situation of human
rights in Myanmar, G.A. Res. 61/232, U.N. Doc. A/RES/61/232 (Mar. 13,
2007).
[75] Situation of human
rights in Myanmar, Comm’n on H.R. Res. 2005/10, U.N. Doc. E/CN.4/RES/2005/10,
3 (Apr. 14, 2005).
[76] Mandate of the
Special Rapporteur on the situation of human rights in Myanmar, Hum. Rts.
Coun.Res. 7/31, U.N. Doc. A/HRC/RES/7/31,
1 (Mar. 28, 2008).
[77]
International Human Rights Clinic at Harvard Law School, Crimes in Burma.
[79] Irish Centre for Human Rights, Crimes Against Humanity in Western
Burma: The Situation of the Rohingyas, p. 95 (2010),
http://burmaactionireland.org/images/uploads/ ICHR_Rohingya_Report_2010.pdf
[80] Human Rights Watch, Burma: The Rohingya Muslims: Ending a Cycle of
Exodus?, p. 29 (Sept. 1996),
http://www.hrw.org/reports/pdfs/b/burma/burma969.pdf.
[81] Human Rights Watch, “The Government Could Have Stopped This”:
Sectarian Violence and Ensuing Abuses in Burma’s Arakan State, p. 46 (July
31, 2012),
https://www.hrw.org/report/2012/07/31/government-could-have-stopped/sectarian-violence-and-ensuing-abuses-burmas-arakan;
Minority Rights Group International, World Directory of Minorities and
Indigenous Peoples - Myanmar/Burma: Muslims and Rohingya (2008),
http://www.refworld.org/docid/49749cdcc.html.
[82] Human Rights Watch, “All You Can Do Is Pray”: Crimes Against Humanity
and Ethnic Cleansing of Rohingya Muslims in Burma’s Arakan State p. 112
(Apr. 22, 2013),
https://www.hrw.org/report/2013/04/22/all-you-can-do-pray/crimes-against-humanity-and-ethnic-cleansing-rohingya-muslims;
[83] Physicians for Human Rights, Stateless and Starving: Persecuted
Rohingya Flee Burma and Starve in Bangladesh, pp. 9-11 (Mar. 2010),
https://s3.amazonaws.com/PHR_Reports/stateless-and-starving.pdf
[84] U.N. Commission on Human Rights, Report on the Situation of Human
Rights in Myanmar, Prepared by the Special Rapporteur, Mr. Yozo Yokota, in
Accordance with Commission Resolution 1994/85, UN Doc. E/CN.4/1995/65
(1995), para. 118
[85] International Labour Office (ILO), Developments Concerning the
Question of the Observance by the Government of Myanmar of the Forced Labour,
GB.291/5/1 (Nov. 2004).
[86] Human Rights Watch, Crackdown on Burmese Muslims, p. 11 (July
2002), https://www.hrw.org/legacy/backgrounder/asia/burmese_muslims.pdf; Human
Rights Watch, Burma: Rape, Forced Labor and Religious Persecution in
Northern Arakan, p. 17 (1992),
http://www.hrw.org/reports/pdfs/b/burma/burma925.pdf.
[87] International Federation of Human Rights Leagues (FIDH), Burma:
Repression, Discrimination and Ethnic Cleansing in Arakan p. 18 (Apr.
2000), https://www.fidh.org/IMG/pdf/arakbirm.pdf
[88] Human Rights Watch, “All You Can Do Is Pray”: Crimes Against Humanity
and Ethnic Cleansing of Rohingya Muslims in Burma’s Arakan State p. 112
(Apr. 22, 2013), https://www.hrw.org/report/2013/04/22/all-you-can-do-pray/crimes-against-humanity-and-ethnic-cleansing-rohingya-muslims
[89] The Arakan Project, Forced Labour Still Prevails: An Overview of
Forced Labour Practices in North Arakan, Burma, p. 2 (May 30, 2012),
http://www.burmalibrary.org/docs13/AP-Forced_Labour_prevails.pdf.
[91] Aubrey Belford & Soe Zeya Tun, “Forced Labor Shows Back-Breaking
Lack of Reform in Myanmar Military,” Reuters (July 2, 2015),
http://www.reuters.com/article/2015/07/02/us-myanmar-rohingya-forcedlabour-idUSKCN0PC2L720150702.
[92] U.N. Commission on Human Rights, Report of the Special Rapporteur
(1993), see above note 92, para. 77.
[94] U.N. Committee on the Elimination of Discrimination against Women, Concluding
Observations of the Committee on the Elimination of Discrimination against
Women - Myanmar, U.N. Doc. CEDAW/C/MMR/CO/3 (2008), para. 24.
[95] Kyaw Kyaw Aung & Parameswaran Ponnudurai, “Emergency Declared in
Rakhine,” Radio Free Asia (June 10, 2012),
http://www.rfa.org/english/news/myanmar/emergency-06102012151543.html.
[96] Human Rights Watch, Burma: Government Forces Targeting Rohingya
Muslims (June 31, 2012), https://www.hrw.org/news/2012/07/31/burma-government-forces-targeting-rohingya-muslims;
Amnesty International, Abuse Against Myanmar’s Rohingya Erodes Recent
Progress (July 19, 2012),
http://www.amnestyusa.org/news/press-releases/abuse-against-myanmar-s-rohingya-erodes-recent-progress.
[98] “Muslim Homes Razed in Burma’s Rakhine State - Report,” BBC News (Aug.
14, 2012), http://www.bbc.com/news/world-asia-19263926.
[99] Andrew Buncome, “Homeless and Helpless: The Rohingya Muslims of the
Rakhine State,” The Independent (Dec. 5, 2012),
http://www.independent.co.uk/news/world/asia/homeless-and-helpless-the-rohingya-muslims-of-rakhine-state-8386822.html
[100] Monks’ Association, 12 Statements Agreed and Decided by the Meeting of
Monks from the Various Groups from Rathedaung Township (July 5, 2012) (on file
with Fortify Rights) [12 Point Statement].
[101] Arakanese Youth Monks’ Association, “Proclamation to All Arakanese
Nationals” (July 2012) (on file with Fortify Rights).
[102] Mrauk Oo Monks’ Association, E-Mail Message to Membership (July 9, 2012)
(on file with Fortify Rights).
[103] Rachel Vandenbrink, “Call To Put Rohingya in Refugee Camps,” Radio
Free Asia (June 12, 2012), http://www.rfa.org/english/news/rohingya-07122012185242.html
[104] “Monks Stage Anti-Rohingya March in Myanmar,” Al Jazeera (Sept.
2, 2012),
http://www.aljazeera.com/news/asia-pacific/2012/09/201292175339684455.html
[105] “Myanmar Brings Charges Against Detained U.N. Staff,” Reuters
(July 13, 2012),
http://uk.reuters.com/article/2012/07/13/uk-un-myanmar-detentions-idUKBRE86C0P320120713
[106] Jason Motlagh, “These Aren’t Refugee Camps, They’re Concentration Camps,
and People Are Dying in Them,” Time (June 17, 2014)
http://time.com/2888864/rohingya-myanmar-burma-camps-sittwe/.
[107] Jason Szep & Andrew R.C. Marshall, “Special Report- Witnesses Tell
of Organized Killings of Myanmar Muslims,” Reuters (Nov. 12, 2012),
http://in.reuters.com/article/2012/11/12/myanmar-fighting-muslims-rakhine-idINDEE8AB00I20121112
[108] Todd Pitman, “Divided Town Challenges Myanmar’s Democracy Hopes,” The
Jakarta Post (Oct. 1, 2012),
http://www.thejakartapost.com/news/2012/10/01/divided-town-challenges-myanmars-democracy-hopes.html.
[109] U.N. High Commissioner for Refugees, Regional Office for Southeast Asia,
Irregular Maritime Movements in Southeast Asia—2014 (Apr. 2015),
http://storybuilder.jumpstart.ge/en/unhcr-imm
[110] U.N. Humanitarian Chief Says Conditions Dire for Some Refugees from
Myanmar Ethnic Strife, Associated Press (Sept. 12, 2012)
[112] Save the Children, Daily Status Update (Key Rakhine Operational Areas)
(Apr. 1, 2014) (on file with Al Jazeera Investigative Unit).
[113] Human Rights Watch, Burma: Rohingya Muslims Face Humanitarian Crisis (Mar.
26, 2013),
http://www.hrw.org/news/2013/03/26/burma-rohingya-muslims-face-humanitarian-crisis
[114] Alexandra Zavis, “Myanmar Orders Doctors Without Borders to Cease Operations,”
L.A. Times (Feb. 28, 2014),
http://www.latimes.com/world/worldnow/la-fg-wn-myanmar-orders-doctors-without-borders-to-cease-operations-20140228,0,2115340.story.
[115] Jane Perlez, “Ban on Doctors’ Group Imperils Muslim Minority in
Myanmar,” N.Y. Times (Mar. 13, 2014),
http://www.nytimes.com/2014/03/14/world/asia/myanmar-bans-doctors-without-borders.html
[116] United to End Genocide, Burma Backgrounder (July 10, 2015),
http://endgenocide.org/conflict-areas/burma-backgrounder.
[117] Jason Szep, “Special Report - In Myanmar, Apartheid Tactics Against
Minority Muslims,” Reuters (May 15, 2013),
http://www.reuters.com/article/2013/05/15/us-myanmar-rohingya-specialreport-idUSBRE94E00020130515.
[118] Director General Kyaw Soe, Submission on the Development of Rakhine State
(Oct. 15, 2013) (on file with Al Jazeera Investigative Unit).
[119] Human Rights Watch, Burma: Government Plan Would Segregate Rohingya (Oct.
3, 2014),
http://www.hrw.org/news/2014/10/03/burma-government-plan-would-segregate-rohingya.
[120] Gerry Mullany, “Report on Unrest is at Odds with Account of Myanmar,” N.Y.
Times (Jan. 24, 2014),
http://www.nytimes.com/2014/01/25/world/asia/un-says-muslims-were-massacred-in-tense-myanmar-
region.html; see also Jane Perlez, “Rise in Bigotry Fuels Massacre
Inside Myanmar,” N.Y. Times (Mar. 1, 2014),
http://www.nytimes.com/2014/03/02/world/asia/rise-in-bigotry-fuels-massacre-inside-myanmar.html.
[121] “UN Urges Burma to Investigate Rohingya Deaths After Latest Violence,” The
Guardian (Jan. 24, 2014), http://www.theguardian.com/world/2014/jan/24/un-burma-investgate-rohingya-deaths-violence.
[122] Gemima Harvey, “Myanmar: The Worsening Plight of the Rohingya,” The
Diplomat (Mar. 19, 2014),
http://thediplomat.com/2014/03/myanmar-the-worsening-plight-of-the-rohingya
[123] Jonah Fisher, “Anti-Muslim Monk Stokes Burmese Religious Tensions,” BBC
News (Aug. 29, 2013), http://www.bbc.com/news/world-asia-23846632
[125] Prosecutor v. Kambanda, Case No. ICTR-97-23-S, Judgement and Sentence,
para. 40(1) (Sept. 4, 1998); Prosecutor v. Kovacevic and Drljaca, Case No.
ICTY-IT-96-24, Indictment, para. 9 (Mar. 13, 1997); see also Schabas, Genocide
in International Law, see above note 277, p. 156 (discussing the
omission).
[126] See, for example, Prosecutor v.
Muhimana, Case No. ICTR-95-1B-T, Judgment and Sentence, para. 502 (Apr. 28,
2005) (“Serious bodily harm is any serious physical injury to the victim, such
as torture and sexual violence. This injury need not necessarily be irremediable.
Similarly, serious mental harm can be construed as some type of impairment of
mental faculties or harm that causes serious injury to the mental state of the
victim.”); Prosecutor v Karadzic and Mladic, Case Nos. ICTY-IT-95-5-R61,
ICTY-IT-95-18-R61, Review of the Indictments Pursuant to Rule 61 of the Rules
of Procedure and Evidence, para. 93 (July 11, 1996) (“[T]he causing of serious
bodily or mental harm to the member or members of the group or groups occurred
through inhumane treatment, torture, rape and deportation”). See also International
Criminal Court, Elements of Crimes, entered into force Sept. 9, 2002,
ICCASP/1/3, fn. 3 (“[An act causing serious bodily or mental harm] may include,
but is not necessarily restricted to, acts of torture, rape, sexual violence or
inhuman or degrading treatment.”).
[127] U.N. Commission on Human Rights, Report of the Special Rapporteur on
Violence against Women, Its Causes and Consequences, Yakin Ertürk, U.N.
Doc. E/CN.4/2006/61/Add.1 (Mar. 27, 2006), paras. 118-26.
[128] Human Rights Watch, Burma: Rohingya Muslims: Ending a Cycle of
Exodus?, p. 12 (Sept. 1996),
http://www.hrw.org/reports/pdfs/b/burma/burma969.pdf
[129] See, for example, The Sentinel
Project, Burma Risk Assessment, pp. 13, 28-29 (Sept. 2013), https://thesentinelproject.org/wp-content/uploads/2013/09/Risk-Assessment-Burma-September-2013.pdf
[130] Prosecutor v. Stakic, Case No. ICTY IT-97-24-T, Judgment, para. 517
(July 31, 2003) (including “excessive work or physical exertion” under the
act).
[131] International Criminal Court, Elements of Crimes, entered into
force Sept. 9, 2002, ICC-ASP/1/3, p. 114.
[132] Francis Wade, “Burma’s Rohingya Are Now Being Forced to Live in Sqaulid
Ghettos Watched by Guards,” Time (Feb. 4, 2014),
http://time.com/3982/rohingya-ghettos-of-burma; Emanuel Stoakes, “Burma’s
Rohingya Ghettoes Broke My Heart,” Vice (Apr. 23, 2013),
http://www.vice.com/read/visiting-burmas-muslim-ghettos.
[134] Resolutions, Objections and Proposals Adopted at the Public Meeting Held
in Rathedaung, Rakhine State (Sept. 29 - Oct. 5, 2012) (on file with Al Jazeera
Investigative Unit).
[135] Conclusions from the All-Arakanese Monks’ Solidarity Conference, Held at
Dakaung Monastery, Sittwe (Oct. 18, 2012) (on file with Fortify Rights).
[137] Amnesty
International, Southeast Asia: Persecuted Rohingya Refugees From Myanmar
Suffer Horrific Abuses at Sea (Oct. 21, 2015), https://www.amnesty.org/en/latest/news/2015/10/southeast-asia-persecuted-rohingya-refugees-from-myanmar-suffer-horrific-abuses-at-sea
[138] Emanuel
Stoakes, “Thailand Human Trafficking Death Toll Far Greater Than Feared, Claims
Rights Group,” The Guardian (May 6, 2015),
http://www.theguardian.com/global-development/2015/may/06/thailand-human-trafficking-mass-grave-burma-rohingya-people
[139] U.N.
High Commissioner for Refugees, Bangladesh Factsheet (Aug. 2015),
http://www.unhcr.org/50001ae09.pdf
[141] Case Concerning Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and
Montenegro), Judgment, 2007 I.C.J. 43, paras. 165, 431 (Feb. 26) [Bosnia v.
Serbia].
[142] Draft
Articles on Responsibility of States for Internationally Wrongful Acts, Report
of the International Law Commission on the Work of its Fifty-Third Session,
U.N. Doc. A/56/10, art. IV (2001) [Articles on State Responsibility].
[143] U.N.
Office of the High Commission for Human Rights, Myanmar: UN Expert Greets
Abolition of Notorious Border Security Force in Rakhine State and Calls for
Accountability (June 16, 2013),
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13542&.
[145] ALLARD K.
LOWENSTEIN INTERNATIONAL HUMAN RIGHTS CLINIC, PERSECUTION OF THE ROHINGYA MUSLIMS: IS
GENOCIDE OC CURRING IN MYANMAR’S RAKHINE STATE? A LEGAL ANALYSIS
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