War crimes investigators have been working secretly to compile evidence they hope can be used to secure convictions in an international criminal court.
A cache of documents collected by war crimes investigators and reviewed by Reuters has revealed how the Myanmar military systematically demonised its Rohingya Muslim minority, created militias that would ultimately take part in mass violence against the Rohingya, and coordinated their actions with ultranationalist Buddhist monks.
The documents were collected by the Commission for International Justice and Accountability (CIJA), a nonprofit founded by a veteran war crimes investigator and staffed by international criminal lawyers,
The cache reveals discussions and planning around the purges of the Rohingya population — called "textbook example of ethnic cleansing" by the UN and declared a genocide by the US — and efforts to hide military operations from the international community.
For the past four years, these war crimes investigators have been working secretly to compile evidence they hope can be used to secure convictions in an international criminal court.
Mass removal process
The documents do not contain orders explicitly telling soldiers to commit murder or rape – such smoking-gun records are rare in the field of international justice. But key in the CIJA cache is the evidence of planning, said Stephen Rapp, a former US ambassador-at-large for war crimes issues who now sits on CIJA's board. "Everything in it points to this intention to engage in this kind of mass removal process," he said.
CIJA has begun handing its Myanmar material to prosecutors in the Hague. The organisation says the records implicate more than a dozen Burmese officials, most in the military.
And while the Burmese military faces grave allegations under international law, there is no easy road to convictions. Myanmar hasn't signed the Rome Statute that created the International Criminal Court (ICC), which has the power to try individual perpetrators for international crimes.
The path to trial
As a result, the United Nations Security Council would typically have to refer allegations against Myanmar to the ICC. Such a move would likely be blocked by allies of Myanmar, say international law experts.
But other paths to trial exist. The ICC set a legal precedent in 2019 by allowing its chief prosecutor to begin investigating crimes against the Rohingya population, including deportation, because they fled to Bangladesh, which is a party to the court.
Also in 2019, majority-Muslim Gambia brought a case against Myanmar for genocide at the ICJ, on behalf of the 57 member states of the Organization of Islamic Cooperation. In July, the court cleared the case to proceed, rejecting objections filed by Myanmar.
The non-profit Burmese Rohingya Organisation UK also filed a lawsuit against both army chief Min Aung Hlaing and Aung San Suu Kyi (the country's civilian leader the time of the mass violence) in Argentina under "universal jurisdiction," a legal principle that allows brutal acts to be tried in any court in the world.
Legal experts say the chances senior military leaders will be tried soon are slim. They rarely leave Myanmar, and then only to friendly nations like Russia and China, which aren’t parties to the ICC.
Entire Rohingya villages burned
In August 2017, the Myanmar military began a brutal crackdown that sent more than 700,000 Rohingya fleeing to Bangladesh. The pogrom was carried out against the Rohingya with a ferocity that stunned the world. Refugees described massacres, gang rapes and children thrown into raging fires. The nonprofit Médecins Sans Frontières estimated at least 10,000 people died. Hundreds of Rohingya villages were burned to the ground.
Rohingya, who are mostly Muslim, trace their roots in Myanmar's Rakhine area back centuries, a reading of history supported by independent scholars. Nationalists from the country's Buddhist majority see the Rohingya as "illegitimate migrants" from neighbouring Bangladesh.