The Subaltern in Search of Speech

Featured image by Bernat Armangue/AP

Editor’s Note: The following is the text of the author’s keynote address at a
Conference on International Accountability in Burma, chaired by Professor
Gayatri Spivak
Professor Gayatri Spivak Chakravarti,

DR. RADHIKA COOMARASWAMY-02/11/2019

I would like to thank you, Mr. Mawng Zarni and his enthusiasm for bringing
me here today to discuss one of the most important issues of our lifetime.
Every generation loses its way, stops being vigilant, begins to believe in false
Gods and then there is terrible violence. Scholars and lawyers are left to
debate whether it is genocide or war crimes or crimes against humanity. This
happened in the 1940s and the 1990s. One such episode took place in August
2017.
I speak today as a member of the United Nations Fact Finding Mission on
Myanmar set up in March 2017 after large scale attacks on the Rohingya
civilian population in Rakhine state by the Burmese Security Forces, or the
Tatmadaw, but before the terrible violence of August 2017. Our mandate was
“to establish the facts and circumstances of the alleged recent human rights
violations by military and security forces, and abuses, in Myanmar, in
particular in Rakhine state.” We were expected to report to the Human
Rights Council. We submitted the short report to the Council in August 2017
and the large report of four hundred pages was made available in September.
The methodology we used, relying on “reasonable grounds” as the human
rights standard of proof, was the process followed by fact-finding missions.
We had a team of investigators living in the field for up to three weeks at a
time and we conducted over 800 interviews with victims and witnesses,
interviews with experts and specialists and video footage and satellite imagery
that fill the pages of our report. We had the assistance of military experts and
gender specialists as well as experts on international criminal law. We made
field visits to Cox Bazaar, Bangkok and Malaysia to meet with witnesses.
On a personal note let me say that these visits and studying the Rohingya
question has been one of the defining experiences of my life. The other such
defining moment was the Rwandan genocide of the 1990s. I could say that
after these experiences my very being was broken, not only is there a visceral
experience of horror, but all the assumptions you have about human nature
and experience are reordered. In both cases, as Special Representative and
Special Rapporteur we went to the field within a month of the incidents. This
is important because a few months after the immediate experience, stories are
more constructed, discourses more settled and patterns of conversation more
set in their ways. When we went, just three weeks after the events, people
were articulating their stories for the first time with the hesitancy and
uncertainty that comes from being a victim close to the terrible incidents you
have faced.
What I am going to do is to first describe to you one of the worst emblematic
incidents that took place in August 2017, put together by our investigators
through interviews and satellite imagery. Once that imagery is described we
can explore the words and the analysis that eventually follow.
The events I am going to describe took place in Min Gyi, known in Rohingya
as Tula Toli, which is located in Mangdaw province in northern Rakhine
state. In March of 2017 the Arakan Rohingya Salvation Army attacked two
police sites near Tula Toli. The government also claimed that they burned the
homes of some of the Mro ethnic minority. In response to this the Tatmadaw-
Burmese security forces -carried out one of their so-called “clearance
operations”. They began in the periphery, used launchers to set houses on fire
and shot at villagers escaping to the hills. They kept moving sector-to-sector,
setting houses on fire and shooting at those escaping. Many villagers were shot
and injured while fleeing.
After that, the soldiers moved into the village proper once they knew there
was no resistance. The ethnic Rakhine neighbors of the Rohingyas and the
police joined them. Those who did not flee and remained were rounded up.
Men and boys were separated from the women and children. Then the men
and boys were systematically shot. Those who survived gun shot wounds were
attacked by long knives and the slitting of their throats. Their dead bodies
were put into a pit, covered with tarpaulin and set on fire with gasoline. All
valuable items were removed from the dead bodies before they were set afire.
After that the soldiers took women and girls in groups of five and seven to
some larger houses in the village. Children were removed from their mothers
and also thrown into the pits with the dead men. The women and girls
huddled in these houses. Their jewellery was taken from them. They were
beaten, brutally raped in every possible way and sometimes stabbed. Then the
houses were set alight with the women in them. Women who survived by
escaping through side and back doors met us in Cox Bazaar and displayed
serious burn marks and scars that are consistent with their accounts. By the
end of the clearance operations, all structures in the village were destroyed
and all the people had either fled or died. The satellite imagery shows this
vividly in our report.
The attack on Tula Toli was reconstructed by our investigators after extensive
interviews, video and satellite material, information gathered by other groups
working in the areas, and the analysis of experts in respective fields. Tula Toli
was one of the worst emblematic incidents but it conveys the pattern of the
Tatmadaw clearance operations that are at the core of our report.
In situations like this the world increasingly turns to the law and legal analysis
that is supposed to cure victims of the need to retaliate and to allow for some
vindication. The law unlike other disciplines can be backed by sanctions and
punishment and every victim we spoke to was very clear, they wanted justice.
They wanted vindication. And yet law as a tool must always be used with
caution. Implementation of the law in most societies and in international
systems is extremely difficult. It may actually deeply frustrate communities,
raising expectations and then dashing their hopes. Their countless telling of
stories may result in nothing tangible and the feelings of betrayal become
palpable. Social activists must work closely with legal practitioners to ensure
that communities fully understand what is taking place.
Strangely Winston Churchill, not a great humanitarian, described what the
Germans did in the eastern Soviet Union in the 1940s as a “crime without a
name”. Horrific acts were taking place, armed with modern technology, and
the world had no name for that crime. It was only in 1944 that Raphael
Lemkin introduced the word Genocide into our Lexicon. In 1946, the United
Nations General Assembly at its first session by resolution accepted genocide
as a crime under international law and in 1948 adopted the Convention on the
Prevention and Punishment of the Crime of Genocide.
Is what happened to the Rohingya genocide? What else could it be? Amnesty
International, Human Rights Watch have yet to say they have the evidence for
a clear case of genocide. In our report we finally stated that there was
“sufficient information to warrant the investigation and prosecution of senior
officials in the Tatmadaw chain of command so that a competent court can
determine their liability for genocide”. We felt six named generals, including
Minh Aunt Laing, the Commander in Chief, warranted further investigation
to be prosecuted for the crime of genocide. As you know the Human Rights
Council has decided to set up a Prosecutorial mechanism to do just that and
create prosecutorial files which can be used in a court of law- either an
international tribunal set up in the future or national courts using universal
jurisdiction. So many groups find it difficult to “name” genocide and allow
mass atrocities to be a “crime without a name” because of the high threshold
of the law. For lawyers, and perhaps for everyone, genocide is so horrific and
so disturbing that even pronouncing it appears to have consequences.
Nevertheless, we must not forget that the other crimes that are clearly covered
in our report, crimes against humanity and war crimes are also horrific
crimes and evoking genocide is not the only way to ensure accountability.
The part of the crime of genocide that is difficult for lawyers and which has
kept this body of law away from the Courts is the term “intent to destroy”.
The Prosecutor has to prove in Court that the perpetrator had the “intent to
destroy, in whole or in part…”. Genocidal intent is the key issue in any
prosecution. Traditionally this term was interpreted very literally. You
needed direct evidence that showed purposive intent- rather than just mere
knowledge- i.e. a written order, a voice cut or something in which the
perpetrator states his intention and purpose. This is nearly impossible to
discover as very few would make declarations of that intent. Recently,
especially after Bosnia and Rwanda, courts and jurists are moving away from
this very strict, narrow interpretation of the law to arguing for circumstantial
evidence to be allowed before the courts and for knowledge based as well as
purpose driven genocide to be recognized.
In our report we have extensively dealt with all aspects of the requirements of
genocide. We have shown clearly that the Rohingya are a protected group as
required by international criminal law- the ultimate subaltern group as
Professor Gayatri Spivak has called them. The Tula Toli incident shows you
how the perpetrators committed the physical acts described in international
law; killing of members of the group, causing serious bodily and mental harm,
deliberately inflicting conditions of life calculated to bring about the physical
destruction of Rohingya, and imposed measures intended to prevent births of
Rohingya.
With regard to genocidal intent, we show certain communications from the
perpetrators that suggest genocide, evidence related to others who may have
acted at the behest of the accused, clear contextual evidence in the form of
plans, policies and preparation of acts of genocide, contextual evidence in the
form of modus operandi and evidence of the breadth, scale and the brutality
in the nature of the attack
Let us follow the journey of one lady who spoke with us. The soldiers entered
the village and she watched as her house was burned to the ground and her
husband killed. She was taken to another large house. She told me of the bite
marks and the burn marks that hurt her body. She was wearing a hijab with
gold embroidery that the Qatari relief agency had given her to clothe her
when she crossed the border. She looked around and realizing there was
privacy lifted the hijab and showed me her marks. She said she fled using the
back door when they started setting fire to the house. She joined a group that
was going through the mountains and after what appears to have been a
traumatic game of hide and seek she arrived in Bangladesh. She had not been
able to trace her children.
The law is chosen as the first refuge of activists because it has sanctions. It has
the potential to punish wrongdoers. Law can also bring clarity, especially in
Asia where deals are made that obfuscate core values in the interest of
stability. The law can step in and say you cannot kill or negotiate away the
dignity of a people. This is right, this is wrong and these are the alternatives
before us. This attempt at clarity and an attempt to collect evidence for
sanction and punishment are some of the core goals of the report.
With regard to punishment, our report asks for the Security Council to be
seized of these issues and to refer Myanmar to the International Criminal
Court. The Court had previously responded to Bangladesh and is ready to
exercise jurisdiction on the crime of “forced deportation” of the Rohingyas
into Bangladesh though in analyzing forced deportation it may have to look at
the crimes committed at home in Myanmar. We also asked for visa bans and
asset freezes for individual perpetrators. Such action has already been taken
by the EU and the United States with regard to some actors.
We must accept the fact that the Security Council at present is not going to be
a radical actor when it comes to taking forward the case of Myanmar. At the
same time we have been surprised at the international political will on
Myanmar. The coalition of the Organization of Islamic Co-operation, the
European Union and Latin American countries has taken action against
Myanmar further than action against other parties. We cannot even begin to
thank Burmese human rights and civil society actors who have energised all
public institutions and kept the international community aware of the
expectations. Without that social agitation, legal action would have been
minimal. And yet the law has its limitations. Gathering the data in an era of
instant communication and satellite imagery can be done but without political
will to follow the law through, to refer to tribunals, to set up prosecuting
authorities, to effect sanctions, legal strategies can fail.
Though we have a very comfortable majority of the international community
who want to condemn in the strongest terms the actions of the Myanmar
government, only a much smaller group wants to go toward sanction and
accountability. The fear of accountability is linked in the minds of many
developing countries with a fear of losing sovereignty. Accountability is
resisted by countries like India on the face of it because of their theoretical
stance on sovereignty. Is Sovereignty the bulwark against imperialism or just
the emperor’s clothes is a discussion we have to have at some other date.
Columbia University with its long emphasis on post colonial studies, its
alertness to the ever-changing pathways of international power and the
demasking of power relations behind self righteous moral authority will
remind of us any slippage. But with regard to the Rohingyas, the world and
academic communities are mostly united- those unusual moments in history
when everyone seems to stop and say “For Gods sake, do something!”
Having dealt with some of the legal issues I would like to focus on three
aspects of our report- communications and hate speech, apartheid and the
nature of the systematic discrimination against the Rohingya and the power of
the Tatmadaw.
Communications was a key factor in the mass atrocities committed in
Myanmar. It was not the village whisper that was paramount but modern
technology, especially social media. The Tatmadaw and its leaders
communicated with the larger community and through social media that
clearly sowed a derogatory and dehumanising image of the Rohingyas. This
same tactic was used by religious organizations led by extremist members of
the clergy. The constant “othering” of the Rohingyas, calling them Bengalis
and portraying them as a threat to the nation fueled fear and resentment thus
making genocidal violence against them acceptable.
We have in the report specific utterances by government officials, military
officials and perpetrators that will give you a sense of the reality in which all
this violence occurred. “We will kill you all” and “We will kill you this way,
by raping” appear to be words repeated often to the victims while the violence
was occurring.
In addition most of the mobilisation and hype could be found on Facebook.
Facebook posts by Tatmadaw soldiers speak of their excitement at killing
“Kalars”, a derogative word for the Rohingyas. “Exterminate them, look for
them everywhere, kill them, and get it over with” they posted to each other.
What would have in the past taken a week to reach the recipient reached them
and hundreds of others in an instant.
The FFM paid special attention to this social media mobilisation since it was
relatively new and unresearched. We chronicle all the derogatory language
used against the Rohingyas in Myanmar as a whole and along with the
cartoons and memes, the full impact of which is quite terrifying. It mobilises
the Myanmar people by focusing on a core theme; we are faced with an
“existential Muslim threat and a need to protect racial purity”. Between
military use and civilian use, Facebook became the major platform promoting
hate.
Two new PBS movies on Facebook have come out this year, one called “The
Cleaners” and the other called “The Facebook Dilemma.” They are about
Facebook and how they moderate content. The motto of the company until
Myanmar and other disasters was “apologise later”. Go with it and apologise
later. The person who used Facebook to push forward the democracy
movement in Egypt wails in the movie, “These tools are just enablers for
whomever. They don’t separate between what’s good and bad. They just look
at engagement metrics”. This moral vacuum may make sense in a particular
approach to freedom of speech but it has real life consequences when it comes
to hate speech. We have a long and detailed section on Facebook, its role and
its hate speech policies, including the setting up of early warning systems,
while interacting with the Office of the High Commissioner for Human Rights
and other Human rights procedures.
We must acknowledge that they have taken action. They have removed the
Facebook pages and accounts of extremist Buddhist organisations and three
Buddhist monks and on the day we published our report they took down the
accounts of 18 military leaders including that of the Commander in Chief.
There is still a great deal to be done with regard to content moderation and
hate speech. These conversations have to be had with transparency and good
faith at national and international levels. We found Facebook forthcoming in
some ways but also very opaque on others, based on a business model where
public interest has no role to play and where market entry has no
understanding of the social, cultural and political context.
The second aspect I would like to focus on is the systematic discrimination
against the Rohingya people. The International Court of Justice initially saw
Apartheid as a social structure unique to South Africa with a strange mix of
race and religion. Since the 1970s, apartheid is now a crime against humanity,
a crime seen by the Convention on the Suppression and Punishment of the
Crime of Apartheid to include similar policies and practices as what took
place in South Africa. Additional Protocols of the Geneva Convention and the
Rome statute clearly state this position.
We argue that the Rohingyas are in a situation of severe, systematic, and
institutionalized oppression. A situation similar to South Africa. When
General Aung San in the 1940s had his Constitutional meetings, the Rohingya
sat as equals a the table. Since then there has been a steady erosion and
marginalization of their status.
The first factor to be recognised in this oppression is that the Rohingyas lack
legal status. They are not stateless, they have a state but the state refuses to
give them the legal identity of citizenship. Procedures and policies with regard
to birth registration and valid national ID cards are just prohibitive and
heartbreaking.
An old woman I met at Cox Bazaar had a crumpled plastic bag which she
carries with her at all times. In it was a green card, a citizenship card given to
her grandparents at independence. Then she pulled out a white card that was
given to her in 1982 when her citizenship was taken away, She had access to
government services with this white card. Then she pulled out a paper receipt
that she was given in 2015 when the white cards had been cancelled. It was
called a national verification card though it was only a piece of paper. To get
it she had to self identify as a Bengali. She left her possessions behind crossing
the border to Cox Bazaar but she clutched these documents hoping one day
she will return.
The Rohingyas have been denied political participation. Since March 2014
only citizens can vote. They are also denied freedom of movement- they have
to apply for travel permits; they have restrictions on their travel within the
northern Rakhine and specific restrictions in central Rakhine. The
displacement camps set up after 2012 are places for the deprivation of liberty.
The movements of the Rohingyas within Rakhine are strictly controlled and
they are often harassed at checkpoints.
The Rohingyas are denied meaningful access to food and livelihood. Rakhine
state, in 2015, before the current developments, had the global highest rate of
acute malnutrition. The movement restrictions prevent the Rohingyas from
having proper access to livelihood, whether cultivating land or going fishing.
Movement restrictions and discrimination at health facilities affect their right
to health. Many Rohingyas are prevented from entering the formal education
system, and have even less access to middle school and high school. Since 2012
they have no access to tertiary education at Sittwe University.
Perhaps the most hateful of the practices against the Rohingyas relate to their
private life. The Association for the Protection of Race and Religion- Ma Ba
Tha were responsible for the enactment of the Population Control Law of
2015, primarily aimed at the Rohingyas, and the number and spacing of their
children, The Buddhist Women’s Special Marriage Law which requires a
special registration process for Buddhist women marrying non-Buddhists,
The Religious Conversion Law that requires a special process for conversion
from Buddhism and the Monogamy Law which is aimed at Muslim marriage
practices are other laws introduced at the behest of Ma Ba Tha. The control of
women’s reproductive rights is often the final step of the battle once the
violence has subsided. When the state steps in to say whom you can marry,
how many children you can have, and what religion you can believe in we
have firmly entered the realm of totalitarianism.
This is why we concluded that a system of apartheid akin to South Africa did
and does exist in Myanmar with regard to the Rohingyas and unless this is
changed, sending refugees back from Cox Bazaar to Myanmar will be hard on
the conscience of the international community. In other words security is not
and should not be the only concern when we deal with the return of refugees.
The third aspect that I would like to comment on is the Tatmadaw. They were
central to the main finding of our report. No peace will come to Myanmar, no
proper stability established, unless the Tatmadaw is seriously reformed and
perpetrators brought to book. From the day President U Nu in 1958 called in
the Tatmadaw to help him restore stability, the Tatmadaw has seen it as their
calling to keep Myanmar united. After the introduction of democracy, they
have 25% of Parliamentary seats and complete control of the security
apparatus. The Tatmadaw, with its roots in Japanese resistance to the allies
has a very different trajectory to other armies in Asia though there are similar
structures. According to the EITI report published recently, the Tatmadaw
appears to have its own separate sources of financing not under the
supervision of the civilian government, giving it flexibility to carry out its own
agenda in parallel or in contradiction to the programmes of the civilian
government. The Tatmadaw is an overwhelming institution and fully controls
the security and as well as many national activities of the Burmese population.
The recent attacks on journalists are only the tip of an iceberg. With its
independent political and economic base along with its monopoly on the use of
force, the Tatmadaw is truly one of the most formidable as well as the most
brutal armed forces in the world today.
The Tatmadaw also has a legitimacy because Aung San the founder of the
nation and Aung San Suukyi’s father created the Tatmadaw and therefore
there is attachment to the institution by some political leaders and some
members of the Burman public. The army too cultivates its image as protector
and keeper of the Burman Buddhist nation. Its role in World War II in allying
with the Japanese has also raised some concerns. Many argue that Aung San
Suukyi’s inability to deal with the Tatmadaw effectively is because of this
political history. Though the report does not accuse the civilian authorities of
planning and executing the atrocities, their role in the cover up has made
many feel that they should be investigated for aiding and abetting.
For ethnic minorities, the hallmark of the Tatmadaw is what is called
“clearance operations” taking place all over the country. Based on their “four
cuts” strategy, the Tatmadaw has targeted civilians in scorched earth style of
military campaigns, including mind-boggling stories of sexual violence that
has resulted in complete impunity for the military actors. We were so
horrified by what we saw, heard and read that we decided to focus on
command responsibility and name the senior generals whom we felt were
responsible including Senior General Min Aung Hlaing, Commander in Chief.
The Facebook postings and communications of the Commander in Chief are
absolutely chilling. His words and the action on the ground created the
conditions for unimaginable atrocities. This was true not only for the Rakhine
but also for Kachin and Shan province where crimes against humanity and
war crimes also took place. We hope our successor prosecutorial authority
will create the necessary prosecutorial files that someday may be used in a
court of law, either in an international tribunal or in countries using universal
jurisdiction. Universal Jurisdiction is when national courts in countries that
are signatories to international criminal law conventions, open themselves to
suits against any party visiting who may be accused of those crimes.
We must acknowledge that Myanmar is faced with low- level security threats
by militant groups such as ARSA. But the completely disproportionate
response by the military forces to containable violence points to another
agenda. In addition the refusal to negotiate in good faith with many of the
armed groups waging war against the state has made violence endemic and
the Tatmadaw’s response both routine and extraordinary at the same time.
The centralising, uncompromising and opaque way in which the Tatmadaw
deal with minority ethnic groups has created a permanent distrust that makes
political resolution difficult. Then when political resolution fails the
Tatmadaw goes back to violence. In the case of the Rohingyas there were
never moments of talk and reconciliation. Never a dialogue. In their case it
was always violence.
Now let me say a word about history and belonging. As Professor Gayathri
Spivak has stated over the last few years, the Rohingya have emerged as the
ultimate subaltern. Subaltern, a term reimagined by Antonio Gramsci and
brought into universal recognition by Professor Spivak has a great deal of
relevance here. The Rohingyas are not only politically, economically and
socially marginalised, their whole way of knowing and being are being
completely overwhelmed. A history has been constructed and thrust upon
them, without their consultation or participation. A history that predates to
colonial times when Myanmar had porous borders with India and China;
where populations migrated back and forth while some remained deeply
rooted. The drawing of borders in a ruthless and so-called scientific manner
by the British as they left Asia in a hurry, has had severe consequences. The
Myanmar government then accepting these borders as sacrosanct without an
understanding of history, process or compassion has created the nightmare we
face. Borders and the end of colonialism are grounds for a separate lecture
but they are a major contribution toward twentieth century conflict and
animosity.
In Myanmar and in Asia generally, history is greatly entwined with religion
and ethnicity. While Myanmar officially recognises 135 ethnic groups and
eight major ethnic groups – not the Rohingya-the state ideology under which
it functions has been very clear from the eleventh century. King Anawratha’s
rule brought the confluence of Theravada Buddhism, the Burman ethnic
group and the Burmese language as the cornerstones of state ideology
strengthened by a pastoral consciousness. Myanmar has a plural ethnic and
religious social reality but a centralised Burman Buddhist majoritarian
ideology that is rammed down the throats of others with an iron fist and the
force of the military. All the ethnic groups except the Burman have been in
conflict with the State at various times. This iron fist insists that history is
read and understood as they depict it with no room for discussion and that
belonging to Myanmar is conditioned and accepted on their terms. The
Tatmadaw are the iron fist and unless they change or implode much of what is
happening in Myanmar will remain the same.
Finally let me leave you with my strongest and most haunting memory of Cox
Bazaar. As you know I was a Special Rapporteur on Violence Against Women
and the Special Representative of the Secretary General on Children and
armed conflict. Both aspects are vividly covered in our report since we had
extremely good investigators. But the face that left its impression on me was
the face of a young man in his twenties who I was asked to interview. He was
struggling with nothing to do in Cox Bazaar. Young men are the hidden
victims of this conflict. He was the low hanging fruit that could be exploited by
anyone seeking to do mischief. He was in that pre-reason phase that Gayatri
so beautifully described in her works and it is an honour to have her here. He
was incoherent, passionate, pleading, aggressive, proud, defensive, quiet,
assertive, full of rage, and then suddenly moments of hope- but no smile and
made no sense. You knew you were in the presence of someone who was in
deep pain and terrible despair. Subaltern. He had no words, he could not
represent himself. And there was nothing in all honesty that you could do to
give him relief except perhaps to listen.
Also read “War Crimes in Sri Lanka: Stain or Slander?” and “Flip-flopping on
Accountability: A Timeline“
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