U.N. Security Council: Refer Mass Internment Of Muslims And Other Atrocities In Myanmar To ICC

Mass arbitrary detention, life-threatening restrictions in Rakhine State

(BANGKOK, April 4, 2024)– The Myanmar military junta’s ongoing confinement of more than a half million Rohingya Muslims to internment camps and villages in Rakhine State constitutes a situation of mass arbitrary detention and an act of genocide under international law, said Fortify Rights today. According to a new investigation by Fortify Rights, the junta not only continues to confine Rohingya en masse, but it has also tightened restrictions on lifesaving humanitarian aid to Rohingya and Kaman Muslims in internment camps and villages throughout the state.

The U.N. Security Council is expected to convene for an open briefing on Myanmar today, the first since February 2019. The meeting is expected to focus on the situation in Rakhine State.

“Day after day, the junta continues to confine Rohingya to mass internment while denying them aid,” said Pavani Nagaraja Bhat, Investigations Associate at Fortify Rights. “In this case, denying access to lifesaving aid while also denying freedom of movement is genocidal. Along with other atrocities occurring with impunity throughout the country, the Myanmar junta’s mass arbitrary detention and deprivations in aid should compel international action to hold members of the military criminally responsible for their ongoing crimes.”

Between November 2023 and March 2024, Fortify Rights interviewed 13 Rohingya and Kaman Muslims in internment camps in Pauktaw and Sittwe townships, including the Aung Mingalar ghetto, in Rakhine State, also known as Arakan State. Fortify Rights also spoke with a representative of an international humanitarian organization operational in Rakhine State.

“The military has put a total lockdown on transportation,” a 32-year-old ethnic-Rohingya resident of Ah Nauk Ye internment camp in Pauktaw Township told Fortify Rights on November 1, 2023, explaining the Myanmar military junta’s near complete restrictions on movement and aid for Rohingya and Kaman Muslims in Rakhine State.

In late January 2024, the Arakan Army (AA)—an ethnic resistance organization in Rakhine State–seized control of Pauktaw Township from the military junta. The area in Pauktaw Township under AA control includes three Rohingya internment camps. However, any humanitarian aid to the internment camps must travel through the state capital, Sittwe, where the junta still maintains control and is imposing draconian restrictions on aid and access to interned Muslims.

“As the Arakan Army gains control over more territory in Rakhine State, it should acknowledge the rights of Rohingya and protect the rights of all civilians,” said Pavani Nagaraja Bhat. “The Arakan Army should also urgently end the mass detention of Rohingya in areas they control.”

The Myanmar military and state-level junta representatives in Rakhine State confined more than 152,000 Rohingya Muslims to more than a dozen internment camps in multiple townships of Rakhine State. Most of the detainees in the camps have been confined for the last 12 years, since state-sanctioned attacks against Muslims in Rakhine State in 2012. An estimated 500,000 other Rohingya remain confined to villages in Rakhine State, mostly in the three northernmost townships—Maungdaw, Buthidaung, and Rathedaung. In 2012, Aung Mingalar in the state capital, Sittwe, became the last remaining Muslim neighborhood in the city. In effect, it is an additional internment camp.

The impacts of severe restrictions on freedom of movement in Rakhine State are exacerbated by the prevention or obstruction of humanitarian aid by the military junta since its February 2021 attempted coup d’état and the uptick in fighting with the AA. A 53-year-old fisher and resident of Ah Nauk Ye internment camp in Pauktaw Township told Fortify Rights:

Since the clashes resumed between AA [Arakan Army] and the junta in November 2023, I’ve been facing extreme hardships in finding daily food in the [internment] camp. … I no longer receive rations and assistance from WFP [World Food Programme]. … I used to go fishing, but now I can’t go to the river because the junta’s navy has been stationed there. [The Myanmar Navy] restricted all the [Rohingya] fishers from going to the river.

“Six family members depend on me as I’m the sole earner in my family,” he added. “Sometimes, I can only eat one meal a day.”

A 53-year-old ethnic-Kaman woman from Sin Tet Maw internment camp in Pauktaw Township told Fortify Rights:

[C]amp residents [like myself] do not receive relief assistance [from humanitarian organizations] these days. The price for a rice bag has increased to one lakh Myanmar Kyats [approximately US$45], and I don’t have that much money to buy rice.

The junta-imposed restrictions have adversely impacted access to healthcare for Rohingya and Kaman-Muslims confined to internment camps. For example, a Rohingya man, 32, from Ah Nauk Ye internment camp in Pauktaw Township told Fortify Rights:

I am facing difficulties in getting medical treatment for my son. He has a significant health problem in his [redacted]. If [humanitarian organizations] had come, I could’ve done something about it. But as [they] cannot come to the camps any longer, I am in distress now. It’s been over a month now. It’s a strange and serious disease. He is suffering pain in his [redacted]. … I tried to get some treatment that was within my capacity. They said they would support my son’s medical treatment. … The doctor checked and suggested an operation that should be done in Tun Private Hospital or in Sittwe General Hospital. But I couldn’t return since the war broke out between the junta military and AA. There are movement restrictions.

He continued: “Even the humanitarian referral teams [of international aid organizations] are not allowed into the camp by the junta. They couldn’t get the TA [travel authorization].”

Another Rohingya aid worker explained the block on referrals of medical emergencies to the hospital in Sittwe, saying: “Beyond the time [4 p.m.], no patients can be referred because of the restrictions by the military. Patients who have an emergency during the evening and night can only pray to Allah. We don’t have a doctor in this camp.”

He also recounted the death of his 19-year-old cousin and her unborn baby in March 2022 due to junta-imposed movement restrictions. He told Fortify Rights:

My 19-year-old cousin died due to the lack of [emergency] healthcare treatment. ... One day, she started feeling delivery pain. However, she couldn’t deliver the baby. Then, her family informed…[the] community-based health worker. As he realized that the woman’s condition was serious, he called the [humanitarian organization] to try and get a referral to bring her to Sittwe Hospital. … The referral team said they would set out the next morning at 8 a.m. since the junta doesn’t allow patients to be brought in at night. ... We waited until the morning for [the humanitarian organization]. It took them hours at the navy checkpoint, and before their arrival, both the mother and the child died.

Médecins San Frontiers issued a statement in January 2024 confirming that, since November 2023, "severe movement restrictions" have prevented them “from running any of the 25 mobile clinics that deliver around 1,500 patient consultations a week.” The organization explained: “For the past nine weeks, despite our attempts to find solutions to these blockages, such as providing tele-consultations between patients and doctors, our community health workers are some of the only people with direct access to our patients.”

During the 17 weeks since MSF issued its statement, the junta prevented an estimated 25,500 patient consultations that MSF would have delivered through its 25 mobile clinics in Rakhine State.

On March 14, 2024, in his report to the U.N. Human Rights Council, U.N. Special Rapporteur Tom Andrews wrote:

Rohingya remain under an apartheid regime enforced by the SAC [State Administrative Council, i.e., the military junta], highlighted by the systematic denial of citizenship, severe movement restrictions, and denial of access to livelihoods, education, and health care. ... The intense conflict between the SAC and Arakan Army has severely impeded the delivery of humanitarian aid to vulnerable people in Rakhine. … Some humanitarian organizations report that the SAC has stopped approving their travel authorizations [to provide aid to Rohingya] in Rakhine State since late 2023.

“I want to return to my original village,” a 32-year-old Rohingya woman in an internment camp in Sittwe Township told Fortify Rights, expressing a common sentiment of those interned in camps in Rakhine State.

Another Rohingya man, 32, from Ah Nauk Ye camp in Pauktaw Township, similarly told Fortify Rights: “I want to go back to my former native village. … Everyone wants to get back their own land. This place is temporarily given to us to live and doesn’t belong to us.”

To date, the junta has taken no measures to end the confinement of Rohingya and Kaman Muslims in Rakhine State, facilitate the return of Rohingya to their native villages, or ensure reparations.

A month after the Northern Brotherhood Alliance launched Operation 1027 in Shan State, named after the date of the attack—October 27, 2023—the AA launched attacks on the junta in Rakhine State, overtaking areas previously controlled by the Myanmar military, including areas populated by Rohingya.

The AA is one of three members of the Brotherhood Alliance, which also includes the Myanmar National Democratic Alliance Army and the Ta’ang National Liberation Army.

The newest restrictions on humanitarian access to the camps in Pauktaw and Sittwe townships followed the uptick in fighting after Operation 1027.

The recent evidence collected by Fortify Rights, taken together with already existing evidence of atrocity crimes committed by the Myanmar junta, meets the “fully conclusive” standard of proof for genocide as articulated by the International Court of Justice (ICJ). Specifically, the mass arbitrary detention of Rohingya and Kaman Muslims as well as the ongoing restrictions on humanitarian aid in Rakhine State clearly and convincingly constitute conditions of life designed to be destructive of those respective groups – an act of genocide under international law.

The international crime of genocide under Art. II of the Genocide Convention includes three elements: (1) the commission of one or more of the five prohibited criminal acts enumerated by the Statute (2) against a national, ethnic, racial, or religious group (3) with the intent to destroy the group in whole or in part. The infliction of conditions of life calculated to bring about the physical destruction of a group is one of the five prohibited criminal acts of genocide, which international criminal tribunals have interpreted to include subjecting a group to a subsistence diet, denial of access to basic medical services, and systematic expulsion from homes. The act also encompasses “the creation of circumstances that would lead to a slow death,” such as denying access to appropriate clothing, hygiene, and housing.

Under international law, the right to liberty is considered a fundamental right protected by the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). According to the U.N. Working Group on Arbitrary Detention, “deprivation of personal liberty occurs when a person is being held without his or her free consent,” and such deprivation is arbitrary “when it is clearly impossible to invoke any legal basis justifying the deprivation of liberty.” Arbitrary detention on the grounds of discrimination based on ethnicity, religion, or national origin is also a violation of international law.

The U.N. Human Rights Committee recognized that “detention is the act of confining a person to a certain place, whether or not in continuation of arrest, and under restraints which prevent him from living with his family or carrying out his normal occupational or social activities.” Such detention also violates the right to freedom of movement guaranteed to everyone under Article 13 of the UDHR and Article 12 of the ICCPR.

Principle 12 of the U.N. Guiding Principles on Internal Displacement also states that internally displaced persons (IDPs) can only be “interned in or confined to a camp under exceptional circumstances” when “absolutely necessary” and not “longer than required by the circumstances.”

All the Rohingya and Kaman Fortify Rights spoke with in the internment camps and the Aung Mingalar quarter have been forcefully confined since state-sponsored violence against Muslims in Rakhine State in 2012. Such confinement has prevented them from exercising their other rights, including movement and livelihood, constituting arbitrary and indefinite detention.

International humanitarian law also protects the right to freedom of movement for humanitarian aid workers. Authorities may only restrict the right to freedom of movement for aid workers in cases of “imperative military necessity” in a limited manner and only temporarily. The junta is obligated to “facilitate the free passage of humanitarian assistance” and ensure aid workers have “rapid and unimpeded access” to communities, including those in the internment camps.

The mass arbitrary detention and avoidable deprivations in aid to Rohingya and Kaman Muslims not only provide “fully conclusive” evidence of genocide under international law but also provide evidence violations of the provisional measures of protection issued in January 2020 by the ICJ in The Hague.

In November 2019, The Gambia brought a case against Myanmar at the ICJ in The Hague alleging violations of the Genocide Convention through “acts adopted, taken and condoned by the Government of Myanmar against members of the Rohingya group.” As part of the legal proceedings, on January 23, 2020, the ICJ unanimously indicated legally binding provisional measures of protection for the Rohingya people, requiring Myanmar to prevent and preserve evidence of genocide and “cease forthwith any such ongoing internationally wrongful act and fully respect its obligations under the Genocide Convention.”

In response to the evidence of mass arbitrary detention and avoidable deprivations in aid to Rohingya and Kaman Muslims, the ICJ should issue a public statement confirming the junta’s non-compliance with the provisional measures and immediately refer the matter to the U.N. Security Council for further action, said Fortify Rights.

In addition to the case against Myanmar at the ICJ, in September 2018, the ICC granted the Chief Prosecutor jurisdiction to investigate and possibly prosecute the crime against humanity of forced deportation of Rohingya to Bangladesh, as well as persecution and other inhumane acts. While the ICC is investigating forced deportation, it is not yet investigating the crime of genocide against Rohingya, nor other atrocity crimes against Myanmar people nationwide since the 2021 attempted coup, despite jurisdiction to do so granted by the National Unity Government of Myanmar.

On March 14, 2024, in his report to the U.N. Human Rights Council, U.N. Special Rapporteur Tom Andrews asked member states of the ICC to refer the situation in Myanmar to the Chief Prosecutor under Article 14 of the Rome Statute.

“The junta’s continuing restrictions on livelihood, movement, and healthcare on genocide survivors demonstrate that it has no intention to stop committing serious violations of international law,” said Pavani Nagaraja Bhat. “The international community, particularly ICC Member States, has a responsibility to hold the junta accountable by all possible means, and must do so with urgency.”

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