By Kyaw Phyo Tha 2 July 2020
YANGON—The Myanmar military has drawn criticism from local and international rights activists and legal experts for declining to reveal any details of its recent prosecution of three army personnel for the killing of 19 Rohingya in Gutar Pyin Village in northern Rakhine State in August 2017. The killings occurred during clearance operations by the Myanmar military (or Tatmadaw) against the Arakan Rohingya Salvation Army (ARSA).
On Tuesday, the military’s Tatmadaw Information Team said a senior army official, an army officer and a soldier had been tried in military court proceedings “for not following the rules of engagement” in the village in northern Rakhine’s Buthidaung Township. However, the military revealed neither what kind of punishments the three earned, nor the length of their sentences.
More than 60 incidents of fighting broke out between government troops and ARSA fighters in 12 villages, including Gutar Pyin, as the government launched operations to wipe out Rohingya insurgents in northern Rakhine following a series of attacks by ARSA on police outposts in the area.
According to the Independent Commission of Enquiry (ICOE), a Myanmar government-backed investigation commission set up to probe alleged human rights violations in Rakhine State, nearly 1,000 people were killed at four massacre sites, including Gutar Pyin, during the clearance operations.
The operations prompted an exodus of more than 700,000 Rohingya to neighboring Bangladesh. Those who fled said they suffered or witnessed gang rapes, extrajudicial killings, lootings or torching of property by security forces, leading UN investigators to conclude that the operations had “genocidal intent”, as well as paving the way for the filing of a case against Myanmar at the International Court of Justice (ICJ) last year. Both the Myanmar government and military have denied the accusations and denounced ARSA as a terrorist organization.
The Myanmar military, which is in charge of all security forces, including those accused of committing atrocities against the Rohingya, said it had been investigating and preparing to open court martial proceedings against soldiers accused of mass killings of Rohingya insurgents in 2017. The investigations were recommended by the ICOE.
The military set up a court martial to prosecute the Gutar Pyin case in November last year, and the trial ended in April.
Military spokesperson Brigadier General Zaw Min Tun told The Irrawaddy that the security forces were under siege by ARSA members and villagers in Gutar Pyin on Aug. 28, 2017.
“There was some weakness in following the rules of engagement when they [the security forces]returned fire. But you can’t say it was done intentionally,” he said.
Asked why the military had not made public the details of the punishments, the spokesperson said the incident occurred while the security forces were in the process of defending the state and preserving regional stability.
“That’s one reason. The other is esprit de corps,” he said.
However, this reasoning failed to impress human rights lawyers like U Thein Than Oo.
“Nonsense!” he boomed.
The lawyer said the trio were punished due to their failure to observe army discipline, something that had damaged the military’s reputation; he suspected there must be other reasons for not revealing the details of the punishments.
“The punishments were probably unfit to be made public,” he added.
Of the four massacres identified as having occurred during the clearance operations, the Gutar Pyin case is the first to be tried at a court martial. The military said it had established courts of enquiry for two others and investigations are under way.
The court martial for the Gutar Pyin case was established in November, shortly before State Counselor Daw Aung San Suu Kyi appeared at the ICJ in December, after Gambia filed a lawsuit with the court accusing Myanmar of committing genocide against the Rohingya.
At the court, Myanmar’s de facto leader didn’t dispute that amid the armed conflict in Rakhine there may have been violations of human rights and infringements of universally accepted norms of justice and the rule of law during the military response to ARSA’s attacks on security outposts. But she declared firmly that those crimes didn’t amount to genocide and that those involved in war crimes would be tried by local military courts, as Myanmar’s Constitution requires.
Daw Aung San Suu Kyi even told the court she was pleased by the formation of a court martial for the Gutar Pyin case and hoped justice would be done. Six months later, in June, the military announced that the three military personnel had been prosecuted, but did not release any further details.
Kingsley Abbott, coordinator of the International Commission of Jurists’ Global Accountability Initiative, told The Irrawaddy that the absence of public knowledge about the court martial is concerning on many levels. He said soldiers accused of serious human rights violations should be prosecuted in civilian courts, not military courts.
“The reference by the military to ‘esprit de corps’ only underscores how the whole process lacked the required independence and impartiality,” he said.
The fact that Myanmar had dealt with these serious human rights violations in a manner that falls far short of international law and standards, he warned, is likely to be relevant when the ICJ goes on to consider whether Myanmar is fulfilling its obligations under the Genocide Convention to prevent and punish genocide.
It’s not the first time international skepticism has been voiced about military justice in Myanmar. In 2019, the untimely pardon of the perpetrators of a separate mass killing at Inn Din Village in Rakhine’s Maungdaw Township cast serious doubt on the credibility of military trials among the international community. Even Daw Aung San Suu Kyi told the ICJ that, “Many of us in Myanmar were unhappy with this pardon.”
U Aung Myo Min, a human rights defender and the executive director of Equality Myanmar, said Myanmar should be careful in handling the issue, as it has attracted serious international attention.
“Only when we know how they were punished will we see whether justice has been done, as it is a crime committed by soldiers against civilians,” he said.
The human rights defender suggested the military should place more value on the dignity of the institution as a whole, rather than esprit de corps, saying the 2019 pardon damaged the military’s reputation.
“The institution’s dignity should be the first priority. So, it’d be better if they made public how the three were punished,” he said.