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CASS Weekly Update 17 – 23 December 2020

CASS Weekly Update

17 - 23 December 2020
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CASS Weekly Update 17-23 December_Cover

Contributing information sources to the CASS Weekly Update include public and non-public humanitarian information provided by open traditional and social media sources, local partners, UN Agencies, INGOs, and sources on the ground. The content compiled by CASS is by no means exhaustive and does not necessarily reflect CASS’s position. The provided information, assessment, and analysis are designated for humanitarian purposes only.

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In Focus

Beyond the #ArakanDream2020

Perspectives from the ground regarding the Arakan Army-Tatmadaw dialogue suggest measured expectations, and new challenges for a much-needed humanitarian response in 2021.

Talks between the Arakan Army and Tatmadaw have continued since the rapprochement between the two actors in mid-November, sustaining a lull in armed clashes in western Myanmar. The success of the talks thus far, which centre around the potential for new polls, is being received in various ways on the ground in western Myanmar. In conversations with eight respondents from diverse ethnic communities across central and northern Rakhine State, there are clear hopes for peace, although expectations are measured.

Respondents cited the ongoing internet restrictions in central and northern Rakhine State as a limitation to their own analysis — information about developments is difficult to access. In general, however, a narrative has emerged of a positive response to the fact that the Arakan Army had the opportunity to raise its demands to the Tatmadaw. This challenges suggestions that communities see dialogue as premature. However, there is widespread recognition that Arakan Army demands, particularly that for a ‘confederacy’, are unlikely to be met in full. Many respondents cited this, and continued sightings of Tatmadaw deployments, as indicators that armed clashes may soon intensify again.

Some community members noted that it was unsurprising that the negotiations and lull in clashes had coincided with the monsoon paddy harvest season, which takes place November to December. Around 98 per cent of Rakhine State’s total paddy cultivation comes from the monsoon crop, compared to only 2 per cent from the summer crop, making it vitally important. Some attributed the timing to armed actors’ attempt to ensure communities’ food security, but others cited the fact that armed actors themselves rely on farmer’s outputs to sustain their troops.

Among Rohingya and other non-Rakhine communities in Maungdaw Township, there are clear narratives linking the current negotiations to international accountability mechanisms and the Arakan Army’s delivery of two Tatmadaw soldiers to the International Court of Justice in September. Respondents suggest that the Arakan Army’s campaign to expose Tatmadaw atrocities to international courts has influenced the Tatmadaw to come to the negotiating table. While many international observers remain sceptical about the potential for international pressure to influence the Tatmadaw, confidence can be found among those on the ground. The fact that this narrative has gained a foothold in northern Rakhine State, but not elsewhere, also reflects that a gap remains between perceptions in Rakhine and non-Rakhine communities, as well as between those living in the northern, central and southern regions of the state.

While there was little hope for positive change emerging from the existing electoral system, people continue to note the value of having elected representatives in parliament, and say they would welcome elections where possible. As reported previously by CASS, this suggests that communities’ views towards electoral politics are more nuanced than mere ‘disillusionment’.

Meanwhile, conflict dynamics continue. Local sources in Paletwa Township report that the Tatmadaw and Arakan Army engaged in a skirmish there on 22 December, apparently a result of patrols from the two sides meeting unexpectedly. The same day, four Rohingya villagers were injured when Tatmadaw troops reportedly entered a village in Kyauktaw Township and took goods from the market without paying. These incidents illustrate the fragility of the current lull, ongoing protection concerns, and the potential for another escalation of clashes.

Looking forward, if negotiations with the military or civilian authorities move into a more advanced stage, the Arakan Army will face new challenges familiar to more established ethnic armed organisations elsewhere in Myanmar. One is a legitimacy challenge — how does the Arakan Army maintain popular support among its constituency while also making concessions in negotiations with authorities? So far, the Arakan Army has proven adept at managing these political challenges, although its experience to date has been limited.

There remain particular challenges for the Arakan Army in terms of clarifying its objectives. The Arakan Army has never articulated the details of its social media by-line ‘#ArakanDream2020’ or ‘Way of Rakhita’ rhetoric, although its leadership have consistently referenced the autonomy held by the United Wa State Army as a model for its system of confederacy. The vague nature of the objective allows the rebels flexibility in negotiations, but also presents challenges vis-a-vis its support base. When an Arakan National Party parliamentarian suggested to the media last week that the Arakan Army did not want Independence, but merely some form of autonomy, he was attacked by ethnic Rakhine social media users insisting that the Arakan Army was fighting for a state independent from Myanmar.

In reality, such lofty concessions from the Tatmadaw remain distant, as the Tatmadaw’s raison d’etre is to prevent the splintering of the Union. The real space to watch will be how the Arakan Army develops its nascent governance system on the ground. While other ethnic armed organisations hold a distinction between their political and armed wings, the Arakan Army’s ostensible political wing, the United League of Arakan, remains either underdeveloped or very well hidden. Sources on the ground in Rakhine State report that United League of Arakan civilians are now embedded in communities, yet the Arakan Army has rarely invoked that name. Instead, the village- and town-level committees that the Arakan Army has established for administrative purposes are referred to as ‘Arakan Authorities’ or similar.

The realities of these developments on the ground will inevitably have new implications for international agencies in 2021. As the Arakan Army consolidates its influence over territory, IDPs and Rohingya will fall under its umbrella. Agencies will find new barriers to accessing those communities outside the reach of the state government, and the relationships built with civil society groups in 2020 will become increasingly valuable. While some Rohingya this week reported to CASS that they expect the Arakan Army and its inclusive interpretation of a multi-ethnic ‘Arakan’ to be more sympathetic to their plight than the Tatmadaw (something also hinted at by the Arakan ethnic armed groups merger last week), they continue to recognise the vulnerabilities inherent in their current circumstances. Protection risks will not disappear anytime soon. An international presence will continue to be vital.

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1. Tensions Rise in Kayin State

Hpapun Township, Kayin State

On 15 December, the Tatmadaw Information Team released a statement claiming that Brigade 5 of the Karen National Liberation Army (KNLA), the armed wing of the Karen National Union (KNU), opened fire on a group of Tatmadaw soldiers near Me Waing village in Hpapun Township, Kayin State, injuring several troops. The Tatmadaw also accused the KNLA of violating the Nationwide Ceasefire Agreement (NCA) Code of Conduct, alleging another five landmine and four sniper attacks in the same area this month. The KNU has retorted that the Tatmadaw arrived in Me Waing village after the NCA was signed in late 2015, and has gradually increased its troop deployments — raising public fears. According to the KNU spokesperson in Hpapun Township, Major Saw Kaleh Doe, the Tatmadaw deployed two more battalions this month, increasing tensions and sparking armed clashes. KNLA Brigadier General Sha Htu Waw also told the Irrawaddy that the Tatmadaw ignored a 1 December KNLA demand that the Tatmadaw withdraw its troops from those areas by the end of 2020. The KNLA also captured and detained two Tatmadaw soldiers on 15 December, demanding the Tatmadaw remove its base from Me Waing village in return for their release. Armed clashes between the Tatmadaw and the KNLA around Me Waing village have escalated since early 2018 over road reconstruction work, as mapped below. Simultaneously, competition between the KNLA and the Tatmadaw over gold mining rights and other extractive projects in Hpapun Township is also contributing to tensions. The Tatmadaw spokesperson has alleged that the cause of the recent fighting is competing interests over natural resources in those areas. The KNU report a total of 88 armed clashes from April to June this year in Kayin State. More than 300 people have been displaced as a result.

A peace monitoring failure?

Despite both sides technically cooperating in the NCA, the gradual build-up of Tatmadaw units in Hpapun Township and the fight for territorial control of a controversial road-building project has driven instability and numerous armed clashes, resulting in civilian displacement. The KNLA is seriously concerned about the road construction project through an area of mixed-control, as it would enhance logistic support for the Tatmadaw, thus threatening the KNLA’s control of the area. In July 2020, following the alleged murder of a Kayin woman by Tatmadaw soldiers in Hpapun Township, several thousand civilians took part in a series of protests against the Tatmadaw regarding increased civilian casualties and Tatmadaw artillery strikes, demanding that the Tatmadaw troops leave. Both the Tatmadaw and the KNLA have raised objections in Karen State’s Joint Ceasefire Monitoring Committee (JMC) — a mechanism of the NCA — regarding violations of the peace agreement, with the Tatmadaw filing 39 separate complaints. However, the KNU has accused the Tatmadaw of using the JMCs as its military committee, citing their failure to resolve tensions and disputes at ground level. Sources close to the disputes cite widespread perceptions of the JMCs as ineffectual at dispute resolution and dysfunctional. Indeed, regular JMC meetings have not taken place since 2018 at either Union or state levels. Despite the KNU requesting reform of the JMCs, the Union-level JMC and the Tatmadaw have delayed addressing this issue to date. If the Tatmadaw and the KNU/KNLA cannot resolve the current tension in Hpapun Township, it is likely to spread to other areas, decaying trust in the institutions of the NCA and distorting the national reconciliation and peace process. Indeed, local actors recently lambasted the JMC for its failure to address armed clashes in Northern Shan State’s Kyaukme Township. Therefore, international communities should encourage both the Tatmadaw and the KNU/KNLA to refrain from armed conflict, while advocating for reform of the JMC.

2. Forced Relocations Spell HLP Woes

Mongkaing Township, Southern Shan State

In the first week of December, the Restoration Council of Shan State (RCSS) reportedly ordered the relocation of a village of some 30 Ta’ang (Palaung) households from Mongkaing Township, Southern Shan State, to a nearby ethnic Shan village. Sources in the area allege that the armed group has plans for resource extraction in the area, citing the RCSS marking the area following relocations, and the presence of a nearby coal mine reportedly linked to Chinese business interests. The village area is also known locally for its involvement in the opium trade, a business that the RCSS has opposed vocally. For civilians, the relocations evoke memories of the frequent forced relocations which characterised civil war and the Tatmadaw’s ‘Four Cuts’ policies in Shan State in the 1990s and 2000s.

Few changes for rural poor

For civilians, forced relocations can mean a complete disruption to livelihoods and stability. The Ta’ang villagers affected in this case now exist as displaced persons on the margins of a Shan village with which they reportedly have little connection and few social safety nets. Many rural farmers lack the paperwork and identity documents to seek restitution for lost properties, meaning they now face uncertain livelihoods, and long term housing, land and property challenges. Indeed, swaths of land across conflict-affected areas of Shan State are affected by land confiscations. In many cases multiple persons lay claim to land which has been confiscated and resold. International humanitarian agencies should assist local organisations seeking justice for communities affected by housing, land and property issues, while also remembering that the protection risks faced by communities in all areas of Shan State can be diverse. For now, local welfare groups are collecting warm clothes, blankets and rice for the displaced, and individual or larger donors can contact CASS to link with these first responders.

3. NLD Calls for Unity, Ethnic Parties Respond

Various locations

On 21 December, a senior leader of the Kayah State Democratic Party (KySDP) told the media that the KySDP would request the ruling National League for Democracy (NLD) party to appoint a KySDP member as the Speaker of Kayah State Hluttaw (Parliament), citing the NLD’s 12 November call to build a federal union. A newly-formed NLD committee, also announced on 12 November, will be led by three people, including Magway Region Chief Minister Dr Aung Moe Nyo, and Kayin State Chief Minister Daw Nan Khin Htwe Myint. The NLD has said they will hold talks with ethnic parties in January 2021, and the party will consider any proposal submitted by ethnic parties to participate in Union and state governments. The general secretary of the Shan Nationalities League for Democracy (SNLD) — the third most successful party nationwide in the 2020 general election — said that they will not demand any political positions in government, but will focus on constitutional reform based on self-determination and equality. However, U Pe Than, a policy steering committee member of the Arakan National Party (ANP) told the media that they would ask the NLD for the post of Rakhine State Chief Minister. At the time of writing, 12 political parties and organizations, including the Kachin State People’s Party, Lisu National Development Party, New Karen Party Peace Group and the United Wa State Army, have responded to talks with the NLD, while other leading ethnic parties, including the ANP, the SNLD, and the Mon Unity Party, have yet to reply.

Unite or divide? 

While this new committee will attempt to address the NLD’s call to 48 ethnic political parties to join in an effort to forge a federal union, some ethnic parties remain sceptical. In 2019 the NLD formed a similar committee — aimed at restoring trust and relationships with ethnic parties — but led by Rakhine State Chief Minister U Nyi Pu. Sources close to the ANP noted, however, that the committee failed to achieve its desired outcomes, and instead worsened the situation in Rakhine State because it couldn’t address ethnic parties’ demands. Participating in Union and state governments and amending the 2008 constitution, particularly article 261 (which allows for Naypyidaw to appoint state and regional government chief ministers) are likely to be major issues during the talks. Holding new elections in areas of Rakhine and Shan states where polls did not go ahead on 8 November will be another elephant in the room. As the NLD promised in its election manifesto to establish “a genuine federal democratic union based on the principles of freedom, equal rights and self-determination,” it will strive to establish a collaborative platform with ethnic parties. However, amending article 261 will remain challenging, as the NLD leaders have remained concerned about exploitation by the Tatmadaw or its allies if they agree to delegate power to state and regional parliaments. The NLD and the Union Election Commission are unlikely to agree to new elections in Rakhine and Shan states, due to legal constraints that prohibit holding by-elections in the first and fifth year of any new government. Since collaboration between political parties and inclusive dialogue play a crucial role in establishing effective government and ensuring political stability, international agencies should appreciate the NLD calls for a unity government, while encouraging ethnic parties to establish dialogues with the NLD.

Other Developments

New travel restrictions have been put in place in Sittwe Township, and residents now require a letter of permission from authorities to travel out of Sittwe Township. Restrictions in the township have been stringent when compared to neighbouring townships, something many local residents suspect is related as much to the civil war as to COVID-19.

The International Court of Justice has authorized the establishment of an ad hoc committee, composed of three judges, to assist the Court in monitoring the implementation of provisional measures, including in Myanmar. Myanmar’s two reports to the court to date remain unpublished, and continued abuses against Rohingya in 2020 will likely be considered as violations of the court’s measures.

The National League for Democracy spokesperson told the media that its central committee has continued corruption investigations into the party chair for Chin State’s Thantlang Township, who wrote recommendation letters for six companies bidding in an education department construction tender after they donated cash to the local party branch. According to the party’s Chin State chairperson, the township party chair submitted his resignation letter on 1 December, following an investigation by the party’s Chin State Discipline Committee. Corruption has dogged the ruling party in its first term of office, but this made little dent in its electoral popularity in 2020.

On 15 December, the Taungup Township Court heard from three witnesses in a case against four prominent townspeople charged under the 2014 Counter Terrorism Law on accusations of affiliation with the Arakan Army. While the court will likely not rule for months, the accused have already been in jail for over half a year. A new thematic paper from CASS considers the negative impacts arrests under the Counter Terrorism Law have had for communities, and how international agencies can best support.

  • What To Watch
  • Key Readings
  • Talks between the top Arakan Army leadership, including Commander-in-Chief Twan Mrat Naing, and the Tatmadaw’s top negotiator Lieutenant General Yar Pyae are still expected to occur before the end of the year.
  • Myanmar’s 73rd Independence Day falls on 4 January. It is also the second anniversary of the Arakan Army’s 2019 attack on police outposts in northern Rakhine State, which precipitated a sharp escalation in war in western Myanmar. Will early 2021 be marked by a re-escalation, or can a de-escalation be negotiated?
  • On 30 December, the three civil society activists arrested on 10 December for taking part in a commemoration of International Human Rights Day will appear in a Sittwe court, on charges under Article 19 of the Peaceful Assembly and Peaceful Procession Law.
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CASS Weekly Update 10 – 16 December 2020

CASS Weekly Update

10 - 16 December 2020
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Contributing information sources to the CASS Weekly Update include public and non-public humanitarian information provided by open traditional and social media sources, local partners, UN Agencies, INGOs, and sources on the ground. The content compiled by CASS is by no means exhaustive and does not necessarily reflect CASS’s position. The provided information, assessment, and analysis are designated for humanitarian purposes only.

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In Focus

Missing Link in Peace Talks

Positive developments in talks between the Tatmadaw and Arakan Army have drawn attention to their key weakness: civilian-military relations.

Hopes for new elections in Rakhine State were raised on 15 December when Myanmar’s President, U Win Myint, requested all stakeholders to assist in the holding of polls during his Rakhine State Day address. This raised several eyebrows, as just days before, a National League for Democracy (NLD) party spokesperson had suggested to the media that polls were unlikely.

While the civilian government’s position on elections remains unclear, they have resisted engaging in broader peace talks between the Tatmadaw and Arakan Army. Indeed, there is a need to differentiate the distinct, if linked, issues of elections and peace discussions.

Positively, on 9 December, representatives of the Tatmadaw and the Arakan Army held bilateral, face-to-face, discussions for the first time — encouraged by the mediation of the Japanese Special Envoy to Myanmar. The discussions took place for approximately one hour in Panghsang, the United Wa State Army-controlled city located on the China-Myanmar border, and followed a 30 minute online conversation on 25 November. This represents the first bilateral meeting between the adversaries, and follows two years of intense fighting in western Myanmar. The adversaries met previously on 31 August and 17 September 2019 during talks between the Tatmadaw and the Northern Alliance.

While the Tatmadaw did not release a formal statement, Radio Free Asia reported that the Deputy Chief of Military Security, General Toe Yi, led the delegation team, while General Nyo Htun Aung represented the Arakan Army. The Arakan Army spokesperson, U Khaing Thu Kha, noted that the two groups mainly discussed holding elections and ensuring a ceasefire in Rakhine State. Suggesting that the Tatmadaw continues to be optimistic, in a 15 December statement addressed to ‘Rakhine indigenous siblings’ to mark Rakhine State Day, the Tatmadaw Commander-in-Chief again referred to the group without the usual ‘terrorist’ label.

Missing link?

While welcoming the talks, a member of the Arakan National Party’s Political Leadership Committee, U Pe Than, called on the civilian government to join. Indeed, since the start of this process, the NLD has been left outside. Its absence has the potential to feed into existing tensions and mistrust between the Tatmadaw and civilian government. The civilian government does not want to be seen to be following the Tatmadaw’s lead, especially not in relation to a major national issue so soon after a general election.

While an NLD spokesperson has encouraged a ceasefire and settlement, party supporters have criticized the fact that the talks did not cover the issue of the three NLD members who were abducted by the Arakan Army in October — a key sticking point for the civilian government’s engagement with the armed group.

The risk of new fighting emerging is also high. Intense armed clashes between the Tatmadaw and the Arakan Army have significantly declined in Rakhine State and Paletwa Township since 12 November. However, while armed clashes have lulled, conflict dynamics remain active, as reported in the CASS Weekly Update last week. This week, locals from Paletwa Township continue to report new Tatmadaw movements, raising concerns of new clashes. In Ann Township too, landmine incidents continue to be reported, and troop movements prevent villagers’ movement around the Dar Lat village tract area, reportedly causing food security issues.

Cautiously optimistic

While the President’s apparent support for new polls has fed optimism, this should be tempered. To settle a bilateral agreement, the Tatmadaw will have to step back from its no tolerance policy toward the Arakan Army, and recognise some presence of the armed group in western Myanmar in some form. The Arakan Army may have to step back from its demands for a ‘Confederate State’ in western Myanmar. These are heavy demands, and may precipitate an escalation of armed clashes again — a not unlikely prospect, given the fact that progress on elections depends on the approval of the civilian government.

Sources close to the Arakan Army told the media this week that General Tun Myat Naing, the Commander-in-Chief of the Arakan Army, is expected to meet with the Chairman of the Tatmadaw’s peace talks committee, Lieutenant General Yar Pyae, before the end of December. It is increasingly clear that for talks to be a success, inclusiveness will be key, and international actors should encourage all stakeholders to overcome the current barriers.

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1. Rakhine Armed Groups Merge for Unity

Western Myanmar

On 12 December, the National United Party of Arakan/Arakan Army (NUPA/AA) released a statement announcing it had merged with the United League of Arakan/Arakan Army (ULA/AA), the leading ethnic armed group in Rakhine State. The spokesperson for NUPA, U Soe Lin Tun, said that they had decided to merge with the ULA/AA now — due to the death or poor health of some NUPA leaders — at a meeting of the NUPA Central Committee on 11 November on the Bangladesh border. NUPA was formed on 4 January 1994, itself a merger of four Rakhine organizations — the National United Front of Arakan (UNFA), the Communist Party of Arakan (CPA), Arakan National Liberation Party (ANLP) and Tribal Nationalities Party (TNP). Its key political principles were; uniting Rakhine people; striving for self-determination and political equality; and establishing a federal state. NUPA also established an armed wing, the Arakan Army. The well-known Khaing Razar served as the Commander-in-Chief of NUPA/AA and tried to establish a base on the Myanmar-Bangladesh border. However, Khaing Razar was assassinated by the Indian Navy along with five other leaders on the Indian archipelago of Andaman on 11 February 1998. The remaining 36 field fighters and Karen cadres were arrested and imprisoned for more than a decade in India. On their release in June 2012, 31 of the insurgents were granted asylum in the Netherlands under a resettlement program organized by the United Nations High Commissioner for Refugees. As well as confirming the position of the ULA/AA as the predominant ethnic Rakhine armed group, the merger may have implications for social cohesion in western Myanmar.

Restoring Rakhine-Rohingya relations?

Unlike many other Rakhine political organizations, NUPA has a strong track record of advocating for and building relationships with Rohingya leaders during armed struggles. In 2000, NUPA and the Arakan Rohingya National Organization (ARNO) formed the Arakan Independence Alliance (AIA), the first coalition between Rakhine and Rohingya leaders since independence in 1948. On 7 February 2001, NUPA released a statement raising their concern about the increase in sectarian violence against the Rohingya in Rakhine State, warning that the military government could stir up communal agitation to divide Buddhists and Rohingya by exploiting a violent dispute in a tea shop in Sittwe that month. They accused the government of enforcing discriminatory policies which worsened refugee outflows. As documented by the Transnational Institute, another NUPA leader Khin Maung again warned about the potential implication of communal division in Rakhine State at a 2006 peace conference in Bangkok. Sources say that NUPA leader’s effort to improve Rakhine-Rohingya relations was marginalized due to pressure from other Rakhine leaders who were less conciliatory towards the Rohingya. The NUPA-ULA/AA merger is likely to create room for restoring and strengthening Rakhine-Rohingya relations, while enhancing the legitimacy of the Arakan Army’s presence in Rakhine State. Since this relationship plays a crucial part in finding durable solutions in Rakhine State, international agencies should continue monitoring dynamics on the ground, which may be at odds with narratives shared by the top leadership. As noted by NUPA leaders, and many others since, it is also clear that social cohesion has a distinct vertical component, and international actors should continue to work with authorities to address divisive policies.

2. EAO Clashes Deteriorating Intercommunal Trust

Namtu Township, Northern Shan State

Four civilians were injured and over 300 others have been displaced from at least seven villages to Shwe Sagawar monastery in Mansan village, Namtu Township, in Northern Shan State as a result of clashes between rival ethnic armed organisations from 7-10 December. As of 13 December, 212 displaced people from five villages were still residing at the monastery, while the remainder have returned. Clashes began between the Restoration Council of Shan State (RCSS) and the Ta’ang National Liberation Army (TNLA), before intensifying when the Shan State Progress Party (SSPP) reportedly entered the fray to fight alongside the TNLA. The involvement of the SSPP in the conflict may have been motivated by an RCSS attack on an SSPP base in neighbouring Hsipaw Township on 5 December– the first clash between those two Shan EAOs since April 2019. The 11 May 2019 ceasefire agreement between the RCSS and SSPP also had a cooling effect on the RCSS-TNLA conflict, due to the TNLA-SSPP alliance. Meanwhile, the RCSS and the TNLA have only met for discussions once, in 2017, despite armed clashes between the two starting in 2015. These recent clashes have left people in Namtu Township concerned about an escalation of sporadic fighting between the TNLA and the RCSS, which spiked in 2015, 2016, and again from late 2018 to mid 2019 when the SSPP and the TNLA joined forces. Some local civil society and religious leaders are attempting to engage stakeholders to prevent escalation.

Fighting for territory or public support?

For now, serious escalation is unlikely, given the lack of large-scale reinforcements, further clashes, or harsh public exchanges of words — but the SSPP’s return to conflict with the RCSS is alarming. The increasing rivalry between the two Shan armed groups – for territory and public support – may have significant implications. Recent clashes do not meet the intensity of previous years, although RCSS, TNLA and SSPP troops have maintained a presence and consistent movements. Indeed, the TNLA and SSPP seem to have interpreted the recent military assaults from the RCSS (especially the 5 December clash) as aggressive encroachment. Local sources confirm that the recent RCSS movement is unusual. In general, the Tatmadaw can be expected to resist deep involvement in this impasse, in order to maintain the relatively stable relationships it has with the SSPP and the RCSS, and to avoid escalation with the TNLA after several quiet months. However, the breakdown of the RCSS-SSPP ceasefire may force fighting to spill into nearby Kyaukme, Hsipaw and Lashio townships. Meanwhile, other side effects from these recent intergroup tensions have already been reported from the ground, including increased communal tensions within Shan communities, as well as between Shan and Ta’ang communities. Agencies should discuss with Ta’ang and Shan CSOs any opportunities to support existing efforts to mitigate inter-armed group and communal tensions in the area.

3. Activists Arrested on Human Rights Day

Sittwe Township, Rakhine State

On 10 December, three civil society activists were arrested in Sittwe, the capital of Rakhine State, while taking part in a small peaceful event which they described as a ‘commemoration’ of Human Rights Day. Police have released the activists on bail, but are pressing charges under the Peaceful Assembly and Peaceful Procession Law, which prescribes that peaceful assemblies and processions are only permitted if not contrary to vague notions of ‘security, rule of law, community peace and tranquillity or public morality’. Organisers from the Arakan Humanitarian Coordination Team told CASS they did not realise that permissions were required to hold the commemoration, as it was not a protest.

Breaking the mould

Despite genuine efforts by decision-makers and civil society groups to move Myanmar away from the authoritarian systems which have defined its politics for decades, it is clear that old habits die hard. Freedom of expression activists have recently noted that defamation laws have increasingly been used by Myanmar’s civilian government, corresponding to a decline in freedom of expression across the country. The Peaceful Assembly and Peaceful Procession law is another of various tools frequently used by authorities to stifle voices deemed critical, even when those voices aren’t directly criticising civilian or military authorities, as in this case. It has proven exceptionally difficult to reform the behaviour of civil servants and police raised and trained under the military-led regime, an institution which continues to oversee the police force alongside three key government departments. International actors should advocate for the dropping of charges against the activists, and to allow space for domestic advocacy groups to continue targeted and informed advocacy for the reform of laws which can be used to stifle freedoms of expression, such as the type offered by human rights advocacy group Freedom Of Expression Myanmar.

4. Displaced Rice Farmers Face Poor Harvest

Central Rakhine State

The overall rice production volume in central Rakhine State from the current harvest season is expected to drop significantly, due to the high number of acres of uncultivated farmland resulting from conflict and other related factors. Many farmers in Rathedaung and Kyauktaw townships in particular, and others in Mrauk U, Ponnagyun, Minbya and Myebon townships, were unable to plant paddy during the rainy season as a result of displacement or security concerns. Other farmers, who managed to plant paddy but were subsequently displaced, are now harvesting paddy during the current lull in armed clashes. Many farmers and casual labourers have been returning to villages or travelling to other locations for livelihood opportunities, security permitting. Conflict-vulnerable areas include farmlands on hilly areas where clashes have occurred previously, near Tatmadaw camps, or lowland farms near major waterways used by the Tatmadaw. Although many farmers and agricultural labourers can now engage in the harvest and transportation of crops in conditions safer than the 2019 harvest, they continue to face many challenges – fuelling concerns about making a viable return on crops.

Cost-return considerations

In most cases, farmers now have to spend more for lower-than-usual yields. This is due to several reasons. First, most displaced farmers have little or no access for the manual labour required for a successful season, including: applying fertilisers, weeding, adjusting irrigation or embankments, and other activities. Second, unfavourable weather and unreliable storm conditions have negatively affected paddy growth. Third, farmers report a scarcity of both manual and mechanised harvesting service providers, which mean both high labour costs and a high amount of waste due to delay (including overripe rice grains falling onto the soil). Due to low productivity in several areas, the local rice sector is expecting that the price of rice in Rakhine State during this harvesting season may be higher. However, it may be difficult for farmers to benefit from these higher prices, as they face continued displacement and little access to buyers. Rice prices in central Rakhine State vary, largely due to factors of quality, variety and logistics. Local security dynamics have also exacerbated these differentials, due to risk and the perceptions of poorer quality of produce — raising the potential of food insecurity for the most vulnerable. International agencies should support local rice mills and wholesale rice traders to meet fair and favourable conditions for millers, traders and farmers. One way forward will be to procure rice locally, although longer term programmes, including, rice banks, are also worth exploring.

Other Developments

On 11 December, a Myanmar military tribunal sentenced three soldiers to 20 years prison for raping a woman during military operations in a Rathedaung village in June this year. The sentencing fits a pattern in prosecutions in recent years, with low-ranking troops scapegoated for serious, institutionalised, abuses.

A man was reportedly attacked in Maungdaw Township on 9 December. A local village leader has alleged that the Arakan Rohingya Salvation Army was behind the attack, but few further details are available. There are a number of Rohingya armed groups operating along the Myanmar-Bangladesh border, although locals report that officials tend to brand them all with the name of the most notorious — the Arakan Rohingya Salvation Army.

The number of COVID-19 cases among Tatmadaw soldiers in Rakhine State has risen dramatically in recent weeks, again indicating that the presence of the virus in Myanmar is likely to be much more widespread than suggested by testing.

A company in Kyaukphyu Township has begun production of edible bird nests, a popular foodstuff formed by the saliva of swiftlets. Edible bird nests are naturally formed in various places in Myanmar, but are commercially produced in Myanmar’s southeast, where the industry is among the top tax-payers. The production may present new livelihood opportunities previously unexplored in Rakhine State.

On 16 December, the Kaman Ethnic Social Network released a statement protesting the Tatmadaw Commander-in-Chief’s exclusion of the Kaman ethnic group from his 15 December Rakhine State Day statement. The statement only includes the names of six out seven officially recognised indigenous ethnic groups in Rakhine State. The Kaman — a mostly Muslim minority — are predominant in southern Rakhine State, as described in this CASS thematic paper on Information Ecosystems.

Myanmar authorities have announced that domestic and international flights can resume operations on 16 December and 1 January respectively, although many restrictions are likely to remain in place.

  • To Watch This Week
  • Key Readings
  • Arakan Army leader Tun Myat Naing and Chairman of the Tatmadaw’s peace talks committee Lieutenant General Yar Pyae are expected to meet before the end of the month for peace discussions. As discussed above, outcomes are likely to be limited without involvement of the civilian government.
  • Rumours have been swirling for weeks that Naypyidaw is preparing to re-open 3G or 4G internet lines in Rakhine State and southern Chin State. A reconnection may indicate a goodwill gesture from the military and civilian government towards the Arakan Army.
  • A new report from RAFT Myanmar explores how ethnic and religious identities have influenced attitudes, behaviours and relationships among different communities in central Rakhine State. The report takes a deep dive into relations between minority groups in western Myanmar.
  • Médecins Sans Frontières has released a briefing paper considering its engagement with governmental health departments in various contexts, including Myanmar. Amongst other topics, the paper explores how operating in Rakhine State has raised concerns about impartiality and neutrality.
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CASS Weekly Update 3 – 9 December 2020

CASS Weekly Update

3 - 9 December 2020
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Contributing information sources to the CASS Weekly Update include public and non-public humanitarian information provided by open traditional and social media sources, local partners, UN Agencies, INGOs, and sources on the ground. The content compiled by CASS is by no means exhaustive and does not necessarily reflect CASS’s position. The provided information, assessment, and analysis are designated for humanitarian purposes only.

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In Focus

Island Relocations

The numerous unknowns regarding the voluntariness of Rohingya refugee relocations to Bangladesh’s Bhasan Char reflects the need for access and assessments on the island.

On 3 December, Bangladeshi officials began relocating Rohingya refugees from the camps in Cox’s Bazar district to Bhasan Char, a remote island around 60 kilometres off the coast of Bangladesh, where the government has constructed facilities to host some 100,000 people. Some 2,000 people were transported last week, joining approximately 300 others already resident on the island. The United Nations released a statement clarifying that it was not involved in the relocation. Much of the international community has opposed the relocations since they were initially announced in 2015, and human rights groups again released statements protesting the latest development.

After Myanmar military ‘clearance operations’ forced over 730,000 Rohingya out of Myanmar and into Bangladesh in 2016 and 2017, the initial response from the Bangladesh population and government was one of great sympathy, and a willingness to provide assistance. Since then, however, the pressures that the refugee population has placed on the economy, environment and social structures has served to increasingly politicise the refugee issue. Increasingly hostile media coverage and allegations of Rohingya involvement in various illicit activities have fanned these flames.

International media focus this week has largely focused on the involuntariness of relocations, reflecting a narrative of opposition. The Bangladesh Foreign Minister has rejected suggestions that relocations were involuntary, and says thousands more will soon be relocated to the island in “coming weeks or months”. While there certainly is steadfast opposition from many civil society groups in the camps, and one case of forced relocation is too many, the narratives found among the camp community are diverse. To help understand perspectives on the relocations, which will inform future developments among communities, CASS researchers dug into the details of these perspectives through conversations with people in the camps.

Refugees report that when Bangladeshi authorities began collecting names for relocations earlier this year, authorities told them that the reasons for relocation were overcrowding, refugee-host community tensions, and gang-related violence and insecurity. Authorities reportedly told many of those who agreed to relocate to Bhasan Char that they would be permitted periodic visits back to Cox’s Bazar to visit relatives. However, in recent weeks unverified rumours spread through the camps, alleging that those who relocate would not be allowed to return, and that they would be denied the right to freedom of movement beyond the island. As such, some of those who initially agreed to move to the island changed their minds, but authorities forced them onto buses taking them to the island nonetheless.

Some refugees say that concerns about overcrowding in the camps, and concerns about safety and insecurity informed decisions to relocate. For decades violent criminal gangs have operated in the refugee camps on the Bangladesh-Myanmar border. In September and October, tensions between the Arakan Rohingya Salvation Army and the ‘Munna’ group escalated into gun fights. At least seven civilians were killed and hundreds displaced within the refugee camp. There is an assumption among refugees that the Arakan Rohingya Salvation Army or other criminal gangs responsible for various forms of violence in their communities will have difficulty operating in Bhasan Char, a secluded island near Bangladeshi naval facilities, far from the Myanmar border and drug trading routes.

There is also a perception among refugees that the Arakan Rohingya Salvation Army holds responsibility for the relocation — that gang or crime-related insecurity and violence has encouraged authorities to push ahead with relocations. The capacity of the group, and other gangs, to mobilise violence continues to bestow on them a coercive form of influence among the refugee population. Many refugees believe this to be true of Bangladeshi authorities as well, given the latter’s increasing willingness to target them with violence, arrest, and incendiary rhetoric about criminality within their community.

Among refugees, there are clear concerns about education, health care facilities and job opportunities on Bhasan Char. In Cox’s Bazar, Rohingya can work as labour for the host community — albeit under conditions far more favourable to the employer — but there are few opportunities expected on a remote island. The refugees have furthermore expressed concern that international aid agencies will not support them on the island, mindful of that community’s stated concerns about protection issues, their ability to meet basic standards in humanitarian programming, and the voluntariness of the relocation.

Concerns about what the relocation will mean for the long-term future of the Rohingya in Bangladesh are also prevalent, with some expressing the belief that the relocation may be a step backwards for repatriation. Indeed, the Bangladeshi government’s coercive approach to the relocations suggests they hold little hope for the scaled return of the Rohingya to their place of origin in western Myanmar any time soon, where Rohingya still face strict restrictions on access to basic rights and citizenship, and where an intense civil war between the Myanmar military and mostly ethnic Rakhine Buddhists has killed or injured over 1,000 civilians since December 2018.

Given the lack of clarity regarding voluntariness as well as conditions on the island, it is essential that the United Nations and other international groups continue to advocate for access to the island to assess the nature of relocations. With that said, the opposition of international actors to the Bangladeshi government’s plan has reportedly made operating conditions difficult for international agencies. Permissions to operate are increasingly difficult to obtain, a practice which many international groups perceive as punishment for opposing relocations to Bhasan Char. While recognising the challenges facing Bangladeshi authorities and society, there is a clear need to continue advocacy to the government to ensure voluntary relocations and humanitarian access to vulnerable communities on Bhasan Char.

You will be reading about:

1. Gunfire Breaks Silence as IDP Returns Continue

Rakhine State

In the first direct contact since talks broke down in 2019, the Tatmadaw and Arakan Army spoke online for approximately 30 minutes on 25 November. On 5 December, however, communities in Rathedaung reported Tatmadaw firing from a military base. Other reports of gunfire in Rathedaung and Ponnagyun townships were also reported over the last two weeks, including instances of Tatmadaw firing on civilians. All incidents reportedly occurred in the absence of clashes with the Arakan Army. At the same time, new Tatmadaw troop movements through Sittwe, Rathedaung and Paletwa townships have been interpreted by local communities as reinforcements for fresh fighting. Although Tatmadaw gunfire have blocked some returns, IDPs continue to travel back to their places of origin as the lull in active clashes continues. On 3 December, local civil society organisation Rakhine Ethnics Congress reported that 79,002 people are currently displaced in sites and another 115,092 are displaced outside of sites or are otherwise conflict affected. This is a reduction from 80,903 and 154,012 respectively since 2 November, with the numbers falling notably in Ann, Buthidaung, Rathedaung townships and to a lesser extent Pauktaw Township. The Rakhine State government, meanwhile, reports a total of 94,080 persons displaced in the state as of 14 November.

Counting conundrum

These security incidents illustrate how conflict dynamics remain active in western Myanmar, despite the absence of active clashes. Attempts to account for IDP returns have also highlighted the ongoing difficulties in the counting of IDPs. As indicated by the Rakhine Ethnic Congress figures, very few of the IDPs returning are leaving the formal displacement sites. Many of those reported as returning, as discussed in last week’s CASS Weekly Update, are likely those who have regularly moved between displacement sites and places of origin, primarily for livelihood purposes. IDP numbers in western Myanmar remain difficult to track. Much displacement is elastic and temporary, and figures from different sources rarely align. The phenomenon of IDP returns over the last month has brought these issues into the open, reflecting the need for comprehensive and transparent methods for the accounting of displacement — something made difficult by official restrictions on access. As civil society actors are already active in these spaces, international groups with expertise can extend support to strengthen methods. Meanwhile, with the onset of Myanmar’s winter season, both IDPs and villagers have reported needs for blankets and warm clothes. Rohingya communities in Buthidaung Township have also noted these needs and request support from international agencies.

2. Cold Water on Rakhine Election Initiative

Rakhine State

Although no active clashes between the Tatmadaw and Arakan Army reported for almost one month, negotiations to hold new elections in Rakhine State appear to have floundered. The key media in this process, the Japanese Special Envoy for National Reconciliation in Myanmar Sasakawa, on 4 December expressed his disappointment with Myanmar State Counsellor Aung San Suu Kyi and the Union Election Commission (UEC) chair, citing the fact that neither office made any specific comments in response to his request to hold elections in Rakhine State. As detailed in last week’s CASS Weekly Update, Sawakawa has been mediating between the military, government and Arakan Army with the aim of facilitating elections in areas of western Myanmar where polls were cancelled during Myanmar’s 8 November general election.  Sawakawa told the media he was disappointed with the UEC’s failure to report his assessment on stability in Rakhine State and his call for elections, alleging that he made his visit to Myanmar because the UEC promised elections were possible if conditions stabilized. Meanwhile, on 2 December, the Rakhine State Sub-election Commission Chair, Daw Tin Hlaing, said that her sub-commission is ready to hold supplementary polls, having already made preparations before the surprise mass cancellations in October. In contrast, the Tatmadaw has said additional preparation is required. On 12 November, the Arakan Army called on the Tatmadaw and National League for Democracy (NLD) to hold new elections in Rakhine State, a proposition welcomed by the Tatmadaw.

De-escalation headstart

While it is regularly reported that Rakhine communities are vastly disillusioned with the electoral process, CASS’ monitoring suggests a more nuanced picture. Communities continue to see value in having elected representatives at the Naypyidaw level, but do see the electoral system, as currently configured, as stacked against them. The shifting attitude of the Arakan Army’s leadership regarding elections may also serve to swing public opinion behind new polls. However, the UEC continues to face legal constraints — as electoral laws do not allow a by-election for one year after a general election. On the other hand, others have pointed to the fact that the electoral law may contradict the 2008 Constitution, article 399, section (e), which allows the election commission to “postpone elections of the constituencies where a free and fair election cannot be held due to natural disaster or local security situation”. This apparent contradiction lies in the interpretation of ‘postpone’ and will remain dependent on the final interpretation and decision of the Constitutional Tribunal Court. Since ethnic Rakhine parties won most of the central and northern Rakhine State constituencies in the 2010 and 2015 elections, the ruling NLD government finds little self-interest in supporting new polls there now. The UEC is, meanwhile, likely to maintain its security concerns, as the Arakan Army still exercises widespread influence at the village level, although most locals suggest the government should cooperate with the Arakan Army to hold supplementary elections. Such elections are widely seen as an initial step in the de-escalation of armed clashes and trust-building required for eventual peace talks between the Tatmadaw and the Arakan Army. As such, international agencies should encourage the NLD’s government and UEC to hold supplementary elections in Rakhine State, in the pursuit of a de-escalation of armed clashes and the safe return of IDPs.

3. Civilian Abductions: What For?

Northern Shan State

In Mogoke Township on 4 December, the Ta’ang National Liberation Army (TNLA) abducted U Kyaw Win — the wealthy owner of the well-known San Pya Bakery chain — in broad daylight. While the TNLA’s spokesperson did not respond to questions about the abduction during a subsequent media interview, the TNLA has a track record of civilian abduction. For example, in October 2020, the TNLA abducted a 50-year-old woman in Mogoke Township, and only released her after a ransom of 30 million Kyat (USD $22,700) was paid after nine days.The victim told the media she was tortured by the TNLA during her detention. As discussed in last week’s CASS Weekly Update, an escalation of armed clashes between the Tatmadaw and the TNLA began in Mogok Township on 24 November, displacing some 1,000 people to urban areas or forcing others to take shelter in the forest. However, the trend of abductions is not limited to the TNLA. On 6 December, the Shan State Progressive Party/Shan State Army (SSPP/SSA) admitted to the abduction of a woman from Le Gyi village, Mogoke Township, alleging that she was selling drugs there. An SSPP spokesperson said that she faces six months imprisonment for drug dealing, and that another 16 people from Mogoke and Kyaukme townships have been detained by the SSPP over accusations of drug dealing.

Protecting human rights

Neither the TNLA nor SSPP have signed the Myanmar government’s Nationwide Ceasefire Agreement, and are experiencing increased tension with the Tatmadaw across Northern Shan State. The TNLA is a member of the Northern Alliance together with the Kachin Independence Army, the Arakan Army and the Myanmar National Democratic Alliance Army. While the Arakan Army has used abductions for political purposes in western Myanmar, most civilian abductions by ethnic armed groups in Northern Shan State are seen by locals as simply kidnapping for money. In contrast, the Arakan Army has deployed civilian abductions to enforce cooperation with its emerging governance system, and in mobilizing government and international attention to the war in Rakhine State. Three NLD candidates abducted in October from Taungup Township, southern Rakhine State, remain in Arakan Army custody, despite the NLD party demanding their immediate release.  Although arbitrary arrests and high-profile civilian abductions by ethnic armed groups are likely to be seen as yet another tactic to attract public attention to ethnic armed conflicts, they do open up public debate on violations of international human rights and international humanitarian law.

The United Nations Independent International Fact Finding Mission has previously noted that the TNLA, among other ethnic armed groups, has a history of arbitrarily arresting and detaining civilians. As per the International Covenant on Civil and Political Rights, “no one may be deprived of his or her liberty except for reasons and under conditions previously provided by law” and that “no one may be subjected to arbitrary arrest or detention”. Furthermore, all parties to armed conflict are obliged to “inform a person who is arrested of the reasons for arrest”, “to bring a person arrested on a criminal charge promptly before a judge”, and “to provide a person deprived of liberty with an opportunity to challenge the lawfulness of detention”. It is important to remember that the doctrine of ‘command responsibility’ also extends to non-State armed groups. Where commanders exercising effective control over troops have failed to take necessary and reasonable measures to prevent and punish crimes about which they had knowledge (or should have had knowledge), individual criminal responsibility for the acts of these troops may attach. International agencies should recognise ethnic armed groups’ obligations under international law and raise concerns about civilian abductions by any armed group. Moreover, providing training to CSOs, political parties and other community members regarding armed actors’ obligations under international law should remain a crucial part of any strategy that empowers local voices and supports sharing of information to all stakeholders.

4. Union Election Commission Rejects Tatmadaw Demand

Naypyidaw

On 30 November, the Tatmadaw released a statement announcing it would review the election process at polling stations in 218 townships where Tatmadaw soldiers and families cast their votes during Myanmar’s 8 November general election. The Tatmadaw also demanded that the Union Election Commission (UEC) grant them access to ‘public’ documents for the review process. On 7 December, the UEC issued a statement rejecting the Tatmadaw’s demand to copy electoral documents, raising tensions between the UEC and the Tatmadaw. The UEC claimed that the Tatmadaw request is not in line with electoral laws and by-laws, which do not allow election-related documents to be copied. The National League for Democracy (NLD) spokesperson, Dr Myo Nyunt, agreed with the commission’s decision, and remarked that the Tatmadaw was acting beyond its mandate. In contrast, Dr Aung Myo, a well-respected scholar of civil-military affairs, argued that the Tatmadaw’s demand was consistent with articles 6 and 20 of the 2008 Constitution, which encourages the Tatmadaw’s participation in “the National political leadership role of the State”. The executive director of the People’s Alliance for Credible Elections (PACE) said that the UEC should promote public access to information about elections by addressing such disputes, despite existing laws which may prohibit it. In the meantime, 19 political parties, including the main opposition party, the Union Solidarity and Development Party, issued an open letter to the President on 25 November requesting him to take action against the UEC for voter fraud and irregularities in the election.

Dynamic civil-military relationship

The civil-military relationship has remained highly dynamic throughout the election and post-election period. In 2020, the Tatmadaw and the NLD government rarely criticized each other openly until October, despite sharing a relationship obviously strained by the constitutional amendments process. From 2 November, the tensions were aired publicly, as the Tatmadaw raised concerns about the UEC’s performance and the civilian government’s role in the 2020 elections. However, concerns of a military intervention were soothed on election day, when the Commander-in-Chief told the media that he would accept the peoples’ electoral wishes. On 12 November, the Tatmadaw’s spokesperson said that they would not support a Union Solidarity and Development Party request to hold the election again under Tatmadaw’s supervision, effectively abandoning the party which once served as a military proxy. Many observers were therefore surprised, when, one month later, the Tatmadaw again raised concerns about the UEC and the process, and announced investigations.

Despite being deeply involved in politics, the Tatmadaw’s leaders hold serious concerns about civilian politicians’ propensity to undermine the systems of checks and balance in Myanmar’s democracy, and the monopolisation of power presents one key threat. Indeed, it was a perception that the civilian government was unable to stop the disintegration of the country which prompted the military to seize power initially in 1958. Thus, the Tatmadaw appears to be assuming an opposition role to challenge the NLD government and UEC when other opposition parties are too weak to do so. In this vein, it is worth noting that on 1 December, the vice-chair of the NLD, Dr Zaw Myint Maung, said that his party would no longer allow state and regional parliaments to impeach state and regional governments, raising public concerns about the effectiveness of any checks and balances. Since the civil-military relationship is the lifeblood of democracy and the peace process in this country, encouraging the NLD to maintain its constructive engagement strategy with the military should be a key agenda item for international actors.

5. Corn Farmers Fret as Chinese Demand Drops

Northern Shan State

With the harvesting season underway, corn farmers and traders in Northern Shan State are expecting lower-than-usual orders from Chinese buyers due to COVID-19 border constraints. Although Thailand has emerged as another major buyer of corn (for animal feed) from Myanmar since 2018, the majority of corn grown in Northern Shan State is exported to China. This is mainly due to its close proximity, strong market linkages, and higher prices. However, Myanmar traders who focus on the Chinese market are currently facing time-consuming procedures along major logistical routes and border trade gates due to COVID-19 control measures and strict security checkpoints on the Myanmar side (one at Hseni and another one at Muse 105-mile) aimed at controlling drug trafficking. The bottlenecks created result in higher costs for each trip. Furthermore, in addition to the regular bribe money to local authorities (200,000-300,000 kyats per truck depending on its size and weight of goods), local traders and transporters now have to pay other additional costs. They include the 72-hour-valid swab test fee of 35,000 kyats (once or twice per round-trip) and the fee of 200 yuan to a Chinese driver who takes control of the vehicle at the border. Farmers fear that this will result in few exports to China. Indeed, since COVID-19 restrictions began affecting border trade routes in April 2020, the movement of goods across the border has reduced significantly. For instance, according to the Department of Trade, the value of exports through the Muse border gate in Oct-Nov 2020 is around 305 million USD –  42% lower than in 2019. As in Northern Shan State, corn is also a significant cash crop in Southern Shan, Kachin and Kayah states. Likewise, the Chinese market is also an important destination for corn farmers from these areas and corn farmers in those areas can be expected to face similar difficulties.

Who bears the risks and costs?

The uncertainty caused by new official and unofficial regulations has induced a slowdown in border trade, creating more risk for traders. In order to maintain a viable profit margin for their service, traders collect a higher return (than normal) for themselves to offset the risk and include the higher logistical costs when they calculate the price offered to farmers. In other words, a farmer’s share in the corn supply chain profit pie can be expected to be reduced further. Against this backdrop, the majority of farmers have limited alternative options beyond selling their harvest right away, or delaying just a few weeks or months if prices are too low. Highly indebted farmers in particular cannot afford to delay selling their harvest because they need to pay back loans to lenders as soon as possible. The potential impact of low prices at harvest season for farming households can be disastrous and possibly long-term, including increased dropout rate of children from school, and a potential loss of productive or other important household assets which are used as collateral or sold to repay loans – leading to a cycle of indebtedness and poverty. While specialised development agencies and the Myanmar government need to strengthen the diversification and stability of export and domestic markets in the long term, other relevant agencies and government departments should also explore short-term mitigation interventions in the most vulnerable areas, such as ‘cash for education’ initiatives in village tracts with concerning middle- and high-school dropout rates.

Other Developments

Two ethnic Shan armed groups, the Restoration Council of Shan State and the Shan State Progressive Party, clashed in Hsipaw Township on 7 December 2020, while the former also clashed with the Ta’ang National Liberation Army in Namtu Township on 7 December. Communities in the townships are concerned about the potential for the intensification of armed conflict in the areas, where clashes are infrequent.

A displaced person at an IDP in a Sittwe monastery has tested positive for COVID-19, sending the monastery, which hosts 136 people from Kyauktaw and Rathedaung townships, into lockdown. Few cases of the virus have been identified among IDPs, although testing in the sites remains minimal. Previous experience suggests that the delivery of aid to IDP sites with suspected cases will be affected, and humanitarian agencies should work with local partners to ensure modes of delivery are sustained.

  • To Watch This Week
  • Key Readings
  • On 11 December a military court martial will hand down a verdict on charges against three Tatmadaw soldiers accused of raping a woman in Rathedaung Township on 29 June. Court martials have historically scapegoated low-ranking troops for abuses before letting them off early, but the Tatmadaw may be hoping to reduce the pressure from international courts by showing it takes abuses seriously.
  • The Irrawaddy considers the future of Aung San Suu Kyi’s State Counsellor position, civil-military relations and power sharing in Myanmar’s dual executive.
  • Myanmar’s current COVID-19 prevention measures are a blunt tool which need revision, argues Frontier Myanmar.
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The Legal Front: Counter-Terror Prosecutions in Rakhine

The Legal Front:
Counter-Terror Prosecutions in Rakhine

December 2020
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Executive Summary

The Myanmar government designated the Arakan Army (AA) a terrorist organization on 23 March 2020. Since then, the Myanmar military, as a means to suppress the insurgency in Rakhine State, has increasingly used the 2014 Counter Terrorism Law (CT Law) to arrest and sue local people alleged to have ties to the AA. In fact, the military began to open criminal cases under this law months before the AA was declared a terrorist organisation.

The courts have discharged or dismissed many cases brought under the CT Law due to insufficient evidence. However, lawyers in Rakhine State report that the number of arrests and cases opened by the Myanmar military under the statute is increasing rapidly. This trajectory is likely to steepen unless a ceasefire agreement is reached between the military and the AA, or the Union Government’s Central Committee for Counter Terrorism reverses its designation of the AA under the law. With few signs of dialogue emerging, and widespread cancellations of 2020 elections in western Myanmar, neither outcome looks likely. In addition to food shortages, casualties, and documented rights abuses, the CT Law and its usage thus far represent yet another modality by which civilians continue to be drawn into the conflict. It is, therefore, essential that response actors understand the various judicial mechanisms at play.

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Key Findings

    • To date, the primary reason judges have dismissed or discharged cases brought under the CT Law is lack of evidence. This is largely to do with military personnel failing to attend hearings and provide testimonies. However, in recent months the military has worked to increase attendance, and has gone so far as to transfer cases to less conflict-affected parts of the state to reduce the risk previously posed to military personnel traveling to AA-friendly territory.
    • Judges in Rakhine State are under increasing pressure to take more rigorous action in dealing with CT Law cases, and their corresponding caution has resulted in fewer dismissals or discharges in recent months.
    • Lawyers involved in these cases often work in silos, unaware of work being done elsewhere, especially where cases occur in different townships. This absence of coordination weakens the opportunity to exchange information and learn from others’ experiences.
    • A lack of timely public reporting makes it difficult to track exactly how many cases have been opened or how many people have been charged under the CT Law across Rakhine State. This opacity hinders advocacy efforts.
    • Local Rakhine lawyers have been providing free legal aid to the accused, many of whom cannot afford other legal support. While some are private lawyers, others are working for non-profit legal aid organisations. Some local NGOs offering free legal aid services have focused their attention on helping those facing charges under the CT Law. 
The Rakhine State Legal Aid Board and its members also provide free legal aid services for those accused or facing charges. This body is a state-level branch of the Union Legal Aid Board, which was established by the National League for Democracy government in 2018 in accordance with the 2016 Union Legal Aid Law, has branch offices at the district and township levels. However, the economic ramifications of imprisonment extend far beyond legal costs. Not only are those arrested often important contributors to household finances, the cost of traveling to the place of confinement and the financial burden of feeding a prisoner can destitute entire families.

Recommendations

There are a number of actions that response actors — local and international — could take to support legal actors working in Rakhine State to mitigating negative impacts on civilians:

    • Organise community awareness-raising activities about the CT Law in collaboration with the lawyers, lawyers’ associations, and NGOs. So far, very little attention has been given to local awareness-raising despite the growing need. Such training could cover the main provisions of the law, the rights of those accused, and fair trial standards. Many communities lack a thorough understanding of legal rights. For instance, many of those thus far arrested were not given access to a lawyer during the interrogation period. In some cases, family members have not been allowed to see the detained. As such, sensitisation activities or training on legal rights related to criminal and trial procedures would benefit not only the accused but also broader communities.
    • Encourage law enforcement authorities, including the police and the judiciary, to be more transparent with their actions and to respect the human rights and legal rights of civilians, as contained in both Myanmar and international laws. All investigations should be transparent, conducted lawfully, and trials made accessible to the public. For the children and women arrestees, the authorities must abide by the rules and regulations set out in the 2019 Child Rights Law of Myanmar as well as the UN Convention on the Rights of the Child and the UN Convention on the Elimination of all Forms of Discrimination Against Women, to which Myanmar is a signatory.
    • Engage the lawyers and organisations providing legal aid support in order to identify the opportunities and challenges they face, and to assess their capacity. Response actors can then design support programmes that are targeted and effective in responding to identified needs. Given that the number of cases brought under the CT Law is increasing, it might be beneficial to establish a community of practice involving all the lawyers working on such cases to facilitate learning exchange.
    • Provide financial support to those facing trial and their family members throughout the trial period. Interviews indicate that most of the detainees and accused are poor and often cannot even afford the cost of traveling to stand trial. Given that the trials can take a long time — some cases taking up to a year or more — they place a severe financial burden on the many people concerned. Response actors should study the economic impact these trials have on entire families and look into opportunities for funding or partnering with local CSOs and voluntary social work (parahita) actors to help alleviate these financial burdens.
    • Document any human rights violations that take place during different phases of the judicial process — from arrest and throughout the trial period. A strong evidence base will be essential for any advocacy work to improve the conduct of law enforcement authorities and ensure the independence of the judiciary.

Introduction

Judges in Rakhine State – as elsewhere in Myanmar – continue to operate under the legacy of authoritarian rule. Though the National League for Democracy (NLD) government pledged to establish a fair and unbiased judiciary in its 2015 campaign, it has not done anything of significance to improve the function of the courts. As a result, public trust in the judiciary in Rakhine State remains very low. The perception that judges act as administrators of state policies and directives from higher-level officials, rather than on the basis of the rule of law and judicial independence, is widely held. As a result, many believe judicial mechanisms to be tools of control and suppression rather than a means by which justice can be served and rights protected.

Compounding this, the government (more specifically, the Office of the Advocate General) as well as the judiciary, have failed to publicly release information related to court cases associated with the 2014 Counter Terrorism Law (CT Law), despite the growing numbers of prosecutions under the law in western Myanmar’s Rakhine State. Instead, the government has pressured lawyers not to disseminate information publicly. Additionally, there have been no public awareness-raising activities about the CT Law — neither its scope nor its sentencing directives. As a result, communities know very little about what is included in the law, their rights under it, or what kind of punishment they could potentially face.

To capture a comprehensive picture of the situation, this paper first discusses the background and context leading up to the current armed conflicts between the Myanmar military and the Arakan Army (AA) in Rakhine State, and the government’s designation of the AA as a terrorist organisation. The background section also examines key provisions related to the offences and punishments covered under the CT Law and the organisational structure and mandate of the Central Counter Terrorism Committee formed under the CT Law.

Second, the paper discusses Myanmar’s judicial system, some basic knowledge of which is essential to understand the structure of the courts and the power of the judges in Rakhine State. The section also provides information concerning the appointment system of judges at different levels, dynamics of ethnicity, and the authority of judges with reference to the relevant laws, including the 2008 Constitution of Myanmar and the 2010 Union Judiciary Law.

Third, the paper explores the court cases brought by the military under the CT Law, causes for the discharge or dismissal of certain cases, and their recent developments. This section also discusses the opinions of lawyers regarding the outcomes and conditions of the cases, judges’ likely motivations, and the increasingly precarious situations facing them.

Methodology

This study adopts a qualitative approach to data collection and analysis and includes a desk review and interviews with the lawyers who have been working on the cases brought under the CT Law. The desk review includes the study of publicly available materials, including the content of the CT Law,  2008 Constitution, and 2010 Judiciary Law, media articles, and reports published by the Union Supreme Court, the Rakhine State High Court, and non-governmental organisations.

A combination of purposive and convenience approaches was used to identify lawyers for interviews. Altogether, eight lawyers from Rakhine State were interviewed – six from Sittwe, one from Mrauk U, and one from Kyauk Phyu. While some are private lawyers, others are members or heads of non-governmental legal aid organizations and lawyers’ associations. Two retired senior judges were also interviewed, bringing the total number of research participants for this paper to 10.

Background

With an estimated 7,000-strong force, the AA has become a powerful ethnic armed organisation and a formidable threat to Myanmar’s government and the military, as well as its ongoing peace process. Although Rakhine State has seen some armed struggle in the past, the armed groups involved attracted few recruits and had limited resources. By comparison, chronic poverty and a lack of job opportunities have combined with rising anti-union sentiment to bolster support for the AA, swaying many young Rakhine to join.

The 2009-2010 Integrated Household Living Condition Survey (IHLCS) ranked Rakhine State as the second poorest state in terms of overall poverty: 43.5 percent compared to the national average of 25.6 percent.1 The World Bank, however, recorded a higher prevalence of poverty, at 78 percent, with its GDP 25 percent below the country average.2

The report of the Advisory Commission on Rakhine State, chaired by the former UN Secretary General Kofi Annan, also states:

“…the state is marked by chronic poverty from which all communities suffer, and lags behind the national average in virtually every area. Protracted conflict, insecure land tenure and lack of livelihood opportunities have resulted in significant migration out of the state, reducing the size of the work force and undermining prospects of development and economic growth.”3

Political dissatisfaction has also increased support for the AA. In the general elections held in November 2015, the Arakan National Party (ANP) — the largest Rakhine ethnic party — won 22 of the 35 elected seats in the 47-member Rakhine State Hluttaw (parliament). However, the Bamar-dominated National League for Democracy (NLD) appointed a Chief Minister from among its own party, despite winning only nine seats in the Rakhine State Hluttaw. Many in Rakhine State were disappointed by what they regarded as the denial of their political rights, which has in recent months manifest as an overarching sense of disillusionment with the democratic process. In October 2020, Myanmar’s Union Election Commission canceled polls in vast swaths of Rakhine State ahead of Myanmar’s 8 November 2020 general elections on security grounds. The cancellations were interpreted as political and are expected to fuel grievances.

Increased support for the AA has fundamentally changed the political landscape, as it gives legitimacy, as well as strength, to the armed group as the representative of the Rakhine people. On 10 April 2020, the 11th anniversary of the AA, the group’s general, Tun Mrat Naing, underlined the importance of the public’s support in his speech:

“One of the main reasons why the Arakan Army can firmly stand up and resist full-force offensive attacks of the enemy is because the entire population of Arakan supports us … Our Arakan Army is absolutely legitimate in Arakan where the people of Arakan support us with their own will and political recognition.”4

Hardening perceptions of marginalisation, the Myanmar military left western Myanmar out of its unprecedented unilateral ceasefire announced on 21 December 2018. Although the military claimed that Rakhine State was excluded because of the ongoing threat from the Arakan Rohingya Salvation Army — a small armed group of the Rohingya active in northern Rakhine State and parts of Bangladesh — few in Rakhine State believed the narrative.5 Instead, many in Rakhine State assumed that the AA’s expansion into the northern parts of the state was the underlying reason.

The AA responded to their exclusion with a coordinated, early morning attack on four border outposts in Buthidaung Township in northern Rakhine State, killing 14 police officers on 4 January 2019, Myanmar’s 71st Myanmar Independence Day.6 Since then, the armed conflict between the Myanmar military and the AA has escalated and affected all townships in northern and central Rakhine State, and increasingly those in the state’s south. Hundreds of civilians have been killed or injured. Local civil society organisation Rakhine Ethnics Congress reports that 80,903 people are currently displaced in sites and another 154,012 are displaced outside of sites or are otherwise conflict affected in the state, while the Rakhine State government reports a total of 94,080 persons displaced.7 Displacement remains elastic, dynamic, and difficult to track.

Infographic_V2_Civilian Casualties_Rakhine_Paletwa_CASS_Small_8.

There are few signs of de-escalation in the near future,8 particularly following the government’s designation of the AA as a terrorist group. On 23 March 2020, the Anti-Terrorism Committee, headed by the Minister of Home Affairs, who is also a general in the Myanmar army, designated the AA as a terrorist organisation under the 2014 CT Law. The committee’s statement accused the AA of causing “…serious losses of public security, lives and property, important infrastructures of the public and private sector, state-owned buildings, vehicles, equipment and materials.”9 On the same day, President U Win Myint also declared the group unlawful under the 1908 Unlawful Associations Act.10

Counter Terrorism Law

Offences under the CT Law are subject to severe punishments, including life imprisonment and the death penalty. For instance, section 49 of the law authorises a minimum sentence of 10 years, and a maximum of life imprisonment or the death penalty for “acts to produce, transfer, maintain, provide or offer to provide the weapon and ammunitions, biological, chemical and nuclear weapons or explosive weapons, nuclear material to a terrorist or member of any terrorist group.” To date, sections 50(a), 50(j), and 52(a) have been the most frequently-applied charges.

Section 50(a) of the law authorises a minimum sentence of 10 years and a maximum of life imprisonment for causing severe damage to the security, or the life and property, of the public, or for forcing the government or any organisation to commit an unlawful act or to refrain from following the law. Section 50(j) also authorises the same level of punishment for providing financial support and services, helping to raise and transfer funds, or possessing or managing the assets of a terrorist group knowingly or with reasons to know. The vague language and definition of the latter section allow authorities a broad interpretation. Section 52(a) authorises a sentence of three to seven years in prison for “knowingly participating in a terrorist group, knowingly concealing or harboring a terrorist group, or giving permission for a terrorist group to use a building or gather.”

Sections 51(b) and (c) have also been used to arrest and charge suspects for allegedly possessing arms and explosives. These sections allow the imprisonment of five to 10 years for “an offence against plastic explosives” and for the “production, distribution, sale, gift or possession of explosive material, bomb or arm to commit terrorist bombing or to abet in the commission of terrorist bombing.” A sister and brother-in-law of the AA Chief General Tun Mrat Naing have also been arrested and charged under this section of the law for allegedly possessing explosive devices.11

Another worrying aspect of the law is the structure and mandate of the Central Committee for Counter Terrorism. This committee comprises the ministers and high-level officials from various ministries and agencies and is chaired by the Minister of Home Affairs, a general appointed by the commander-in-chief. There are no criteria or qualifications for the members of the committee, nor any limit on the numbers of committee members.

The term of office for the members is not clearly defined either. Section 5 of the law only states: “the Union Government shall form the Central Committee for Counter Terrorism consisting of the Union Minister for the Ministry of Home Affairs as Chairman, Ministers from the relevant Ministries, and the responsible persons from the Government departments and organisations as members, and may re-form the Central Committee as may be necessary.”

The powers of the committee are also not clearly specified. For instance, section 6(e) vaguely describes that the committee could declare “any organisation, association or group as a terrorist group and any person as a terrorist, and revocation of such declaration with the approval of the Union Government or under the declaration of the United Nations Security Council.” It is unclear what evidential basis is needed to justify declaring a group to be a terrorist organisation.

Moreover, the law provides blanket immunity for the Committee members as well as military personnel. They cannot be prosecuted for any wrongdoing in their acts of counter terrorism. Section 71 declares, “No prosecution shall lie in any court against any person or any member of any organisation assigned to perform any function and duty contained in this Law for the performance thereof in good faith.”

Myanmar Judiciary

In theory, the 2008 Constitution of Myanmar guarantees the separation of powers and the independence of the judiciary. The Constitution states: “The three branches of sovereign power, namely: legislative power, executive power and judicial power, are separated to the extent possible, and exert reciprocal control, check and balance among themselves.”12 This horizontal separation of power among the three branches is also replicated in the governance structures in regions, states, and self-administered areas.

Generally, the judicial system in Myanmar consists of four levels of courts: Township Courts, District Courts, High Courts of the States and Regions, and the Supreme Court of the Union. Currently, there are 442 courts across Myanmar — a Supreme Court of the Union, 14 State and Regional High Courts, 75 District Courts and Self-Administered Zone Courts, 330 Township Courts, and 22 other courts (Juvenile Courts, Municipal Court, and Traffic Courts) across Myanmar.13 The Courts of the Self-Administered Division and Zones are at the same level as the District Courts.

The Township Courts are the lowest-level with original jurisdiction in both civil and criminal cases. Above the Township Courts are the District Courts, which have original jurisdiction in some matters as well as the jurisdiction to hear certain appeals from Township Courts. Township and District Courts are supervised by High Courts, of which there is one in each of Myanmar’s 14 regions and states. The High Courts also supervise the Courts of the Self-Administered Division/Zone, and courts of special jurisdiction such as Juvenile Courts, Municipal Courts, and Traffic Courts.14

At the apex stands the Supreme Court, which is the court of final appeal and has appellate jurisdiction to decide on judgments passed by state and regional High Courts, and judgments of the other courts in accordance with the law. The Supreme Court also has the duty and power to: (a) supervise all courts in the Union; (b) direct to adjudicate the important cases of the High Court of the Region or State, Courts of the Self-Administered Division, Self-Administered Zones and District Courts by a bench consisting of more than one judge.15 It is also authorised to issue writs and protect the fundamental rights of citizens prescribed in the Constitution.16

However, the Supreme Court has no authority over the Courts-Martial and the Constitutional Tribunal. The 2008 Constitution of Myanmar states, “Without affecting the powers of the Constitutional Tribunal and the Courts-Martial, the Supreme Court of the Union is the highest Court of the Union”.17 The Courts-Marshal adjudicate matters relating to Defense Services personnel, and the 2008 Constitution forbids both the executive and the judiciary to influence or interfere in the military justice system led by the Courts-Martial, which is under the absolute control of the military. Furthermore, the 2008 Constitution gives the Constitutional Tribunal authority to interpret the Constitution and to review and ascertain whether the laws enacted by the government are in line with its provisions. The Constitutional Tribunal is a separate judicial organ with nine members appointed for fixed, five-year terms; the President, the Speaker of the Pyithu Hluttaw, and the Speaker of the Amyotha Hluttaw each select three members of the Tribunal, and the Supreme Court has no authority over this organ.18

Infographic_V2_Myanmar Court System_Myanmar_CASS_Half-A4

To guarantee judicial independence, the 2008 Constitution provides that the judges of the Supreme Court can hold their offices until they reach the age of 70, to be removed only through an impeachment process at the Union Hluttaw. In terms of qualification, a person appointed as chief justice of the Union or Judge of the Supreme Court of the Union must not be younger than 50 years of age or older than 70; have served as a Judge of the High Court of the Region or State for at least five years, a Judicial Officer or Law Officer for at least 10 years no lower than the level of the Region or State level, or have practiced as an Advocate for at least 20 years; or who is, in the opinion of the president, an eminent jurist.19

However, judicial independence is significantly undermined by the extent of control the executive branch has over the body. The president nominates the chief justice of the Supreme Court, and the Pyidaungsu Hluttaw has no right to reject the nomination unless it is clearly proven that the nominated person does not meet the qualifications defined under the Constitution. On a similar basis, and in consultation with the chief justice of the Supreme Court, the president also nominates other judges of the Supreme Court and the chief justices of the State and Region High Courts.

Judges in Rakhine

The Appointment System

In Rakhine State, there are 23 courts altogether — 17 Township Courts, five District Courts, and the High Court. According to the Annual Report of the Rakhine State High Court for the Year 2018 (published in 2019), there are altogether 37 judges in Rakhine State (three High Court judges, five District judges, five Deputy District judges, 16 Township judges, two Additional Township judges, and six Deputy Township judges). There were 23 vacancies (six Deputy District judges, one Township judge, six Additional Township judges, and 16 Deputy Township judges).20

Under the 2008 Constitution, the president appoints the Chief Justice of the High Courts of the States and Regions in consultation with the Chief Justice of the Union. Thus, the Chief Justice of the Rakhine State High Court is an appointee of the president and remains under the supervision of the Chief Justice of the Union. As with the Supreme Court, to maintain the independence of the High Court, the Constitution provides that the judges of the High Courts can hold their offices until they reach 65 years of age, retire, or are removed from office through an impeachment process at the state or regional Hluttaw.

Other judges of the Rakhine State High Court are appointed by the chief minister of Rakhine State in coordination with the chief justice of the Union Supreme Court. Obviously, there is a great deal of authority to be exercised by both the executive and the Union Supreme Court in appointing the judges of the High Court. Though the nominations are sent to the State Hluttaw for approval, the State Hluttaw has no right to refuse the nominated persons unless it is clearly proven that the nominee does not meet the qualifications prescribed under the Constitution.

To qualify, the chief justice or judges of the High Court must not be younger than 45 years of age or older than 65. Professional requirements include either service as a judicial official or law officer for at least five years at a level not lower than that of the Region or State level; a judicial official or law officer for at least 10 years at a level not lower than that of the district level; practice as an advocate for at least 15 years; or being, in the opinion of the president, an eminent jurist.21

Unlike the judges of the Supreme Court and High Courts, who are politically appointed, the judges of the District and Township Courts are appointed by the Supreme Court of the Union. Currently, the power to appoint, transfer, promote or discipline the subordinate judges at District and Township levels lies mainly with the chief justice of the Union. Lower-level judges are selected like other civil servants through a Public Service Selection and Training Board, formed by the president to carry out duties for selecting, training civil service personnel, and prescribing civil service regulations.22 All civil servants, except the Defense Services personnel and members of the Myanmar Police Forces, are under the jurisdiction of the Union Civil Service Board Law.

However, in practice, the Supreme Court alone has full discretion regarding the posting, promotion, transfer, and disciplining of the lower-level judges. There is a training facility in Hlaing Tharyar Township in Yangon, and judges of different levels, including the new recruits, attend the courses offered by the Union Supreme Court and the Attorney General’s Office.

Judges and Their Ethnicity

All the judges in the High Court of Rakhine State are ethnic Rakhine, and they are political appointees as described above. At the district level, most of the judges in the northern part of Rakhine State (Sittwe, Mrauk U, and Maungdaw districts) are ethnic Rakhine. Although the district judge of Sittwe is not Rakhine, the two additional district judges are. Almost all the township-level judges in northern Rakhine State are ethnic Rakhine. On the other hand, most of the judges in the southern districts (Thandwe and Kyauk Phyu) are Bamar, including both the district judge and the deputy district judge in Kyauk Phyu.

Historically, Rakhine State, especially northern Rakhine State, has never been a location of choice for civil servants, including judges and judicial officers. For a civil servant, a posting to northern or even central Rakhine State can be seen as a punishment. Rakhine State, in general, can be difficult to navigate for a non-native: the locals rarely speak Burmese; transportation and communications can be extremely challenging, both due to lack of infrastructure as well as the heavy monsoon rains and other difficulties associated with a predominantly riverine terrain. More recently, the security conditions have become increasingly precarious due to the active armed conflicts between the Myanmar military and the AA.

The centralized system of appointment and transfer also offers no scope or choice for the judges. Like other civil servants, the judges cannot defy or appeal the decisions made by their superiors with regard to postings, promotions, and transfer. In theory, the judges could make suggestions for their postings but often fear that doing so could attract anger and admonishment from their seniors. In effect, the district and township judges have to go where they are assigned. To date, the Union Supreme Court has tended to appoint ethnic judges to judicial positions in ethnic areas. As such, most of the judges in Rakhine State happen to be Rakhine, which is more or less the same as in other remote ethnic areas.

Judicial Authority

Township Courts have original jurisdiction in both civil and criminal cases. Above the Townships Courts are the District Courts, which have original jurisdiction in serious disputes, including criminal cases that could be punished with more than seven years’ imprisonment. District courts also have jurisdiction to hear appeals from Township Courts. Township and District Courts are supervised by the High Court.

According to the 2010 Union Judiciary Law, the High Court of the Region or State supervises the judicial matters of the District Courts and Township Courts. The Jurisdiction power of the High Court according to the 2008 Constitution and 2008 judiciary law include:

a) adjudicating on an original case; 

b) adjudicating on an appeal case; 

c) adjudicating on a revision case; 

d) adjudicating on cases prescribed by any law.

Additionally, they also have the jurisdiction to:

a) adjudicate on a case transferred to it by its own decision within its jurisdiction of the region or state; 

b) adjudicate on a transfer of a case from any court to any other court within its jurisdiction of the region or state.23

The 2010 Union Judiciary Law does not define the jurisdiction and powers of the District and Township Courts. In accordance with the Code of Criminal Procedure, a High Court judge or District Court judge may pass any sentence authorized by law, but any sentence of death is subject to confirmation by the Supreme Court. When a High Court or District Court passes the sentence of death, the sentence cannot be executed unless it is confirmed by the Supreme Court. The deputy district judge may pass any sentence authorized by law, except a sentence of death or of imprisonment for a term exceeding seven years. A Township judge and an Additional Township judge (if empowered with special magisterial powers) may pass sentences not exceeding seven years. Deputy Township judges can impose sentences according to their magisterial powers.24

Counter Terrorism Cases

Early Application Dismissals and Discharges

The Myanmar military began to use the CT Law to arrest and sue local people for their alleged ties to the AA in 2019 — as early as a year before it was declared a terrorist organisation. In fact, the top five leaders of the AA, along with some villagers from Mrauk U Township, were charged under section 50(a) of the law months before the government designated the AA a terrorist organisation.25 Although there is no official data available, several of these cases, and the accused involved, were either dismissed or discharged by the courts. Indeed, section 253 of the Code of Criminal Procedure mandates a judge to release the accused if there is insufficient evidence to bring forward the charge.

The lawyers interviewed for this study highlighted three key reasons for the dismissals or discharges.

Firstly, the evidence used against the accused was extracted mainly through interrogations during military detention, and the court cannot solely rely on such evidence when moving forward with prosecution. This is both a matter of law and common practice. When there is no other evidence apart from that extracted during police or military interrogations, the court cannot (or rather, does not) rely on it alone. In accordance with section 162 of the Criminal Procedure Code, evidence, such as testimonials, must be acquired in an environment free from threats or duress. As a result, the judge must decide whether the evidence presented is true or trustworthy, and the matter by which the evidence is extracted is thus generally taken into consideration. When there is other evidence or testimonials available, and evidence extracted through the interrogations can be corroborated, the Court then considers it with all other available evidence to make a judgment.

Secondly, the plaintiff’s witnesses (military personnel) failed to appear in court to provide testimonies against the accused, and the judges had to discharge the cases. It is difficult to say exactly why military personnel failed to appear; however, some of the lawyers interviewed for this paper suggested that the lack of security played a role, particularly in the areas outside of Sittwe. However, it may also be the case that military personnel on the ground were merely busy (Rakhine State is, after all, a front line) and had no time to attend court hearings.

Thirdly, the lawyers who were providing legal aid to the accused also argued in court that there was no strong legal basis for using the CT Law to prosecute the accused as the AA had not yet been declared a terrorist organisation.

Judicial Activism?

In the opinions of the lawyers interviewed, the judicial decisions to discharge or dismiss the cases were not influenced by ethnicity. Those consulted believe that the judges based their decisions mainly upon the existing evidence and legal requirements. Overall, the lawyers hold a view that the judges, despite their affiliations to the accused in terms of ethnicity, are afraid of making mistakes and that they would not take any risks by making extrajudicial actions in favour of the accused — their careers are at stake, and a small misstep could jeopardise their prospects for promotion or transfer to better locations. In this sense, the highly centralised nature of the judicial system results in little professional independence for the subordinate judges. After all, the Supreme Court alone has full discretion regarding the posting, promotion, transfer and disciplining of the subordinate judges at district and township levels.

Some of the respondent lawyers also claimed that the whole judiciary in Rakhine State is increasingly under pressure. They claim that the chief justice of the Rakhine State High Court is now pressuring the subordinate judges to take extra caution when hearing cases brought by the military under the CT Law. Whilst it is not certain whether such pressure is self or externally imposed, there is a widespread perception that the lower-level judges are subjected to pressure from their senior officials.

This is unsurprising, given the long-tarnished reputation of the judiciary of Myanmar. Regarding the undue pressure facing the judges across Myanmar generally, a 2012 report of the International Bar Association’s Human Rights Initiative stated:

“…judges were easily intimidated. Township Court judges were often very young, because the minimum age for appointment had recently been reduced to 25, and all judges feared complaints from clients, reprimands from superior judicial officials, and pressure from the government or military.”26

The International Commission of Jurists has also indicated that political and military influence over judges remains a major obstacle to judicial independence. It points out that, depending upon the nature of cases, especially those that challenge the government or involve the vested interests of powerful individuals, the judges just render decisions based on instructions from government officials.27 Moreover, corruption is widespread and deeply embedded at different levels of the judiciary, severely affecting judicial integrity and public trust. A wide-ranging 2020 public opinion survey by civil society group the People’s Alliance for Credible Elections found that only 33 percent of respondents reported having trust in the courts, compared to 77 percent trusting in the state counsellor, and 43 percent trusting in the military. In ethnic states, levels of trust in the courts dropped again to just 31 percent.28

Official Designation

The number of cases brought against civilians under the CT Law has increased since the AA was officially designated a terrorist organisation on 23 March 2020. Immediately following the announcement, the military warned that anyone could be prosecuted for contacting the organisation, and expanded its crackdown on those people suspected to have ties with the group, including journalists who interview AA officials. A few days after the law was introduced, the Myanmar Police arrested several journalists and editors who had interviewed the AA.29

Due to heightened security concerns caused by the intensifying conflicts across many different townships in northern Rakhine State, many cases are now transferred to and heard at the Sittwe District Court, around which the military place heavy security forces for every court hearing. Although the Sittwe District Court had previously discharged several cases involving dozens of locals due to insufficient evidence, this is no longer the case. The lawyers interviewed for this paper stated that since the AA was declared a terrorist organisation, the Sittwe District Court has yet to discharge any of the accused. This is also due to the increasing efforts of the military to provide testimonies. Participants in this research pointed out that military personnel now attend every court hearing without failure.

Rearrests

Some of those previously accused and released have been rearrested using different sections of the law. For example, in Taungup Township, the military arrested five men for allegedly soliciting support, raising funds, and supplying food for the AA, and sued them under section 52(a) of the CT Law, which authorises a minimum of three years and a maximum of seven years imprisonment. Though the Court discharged them over lacking evidence, just half an hour later, the local police rearrested the men to investigate their connection to recent bombings in the township, and the military opened a new case using a different section of the CT Law.30 After hearing the testimonies of the 26 prosecution witnesses, the court discharged them for a second time on 12 August as it again found insufficient evidence for the charge. To date, this is the only case a court has discharged — twice in this instance — since the government declared the AA a terrorist organisation.

Targeted Abuse

Village Administrators

The military has arrested and charged some village administrators, accusing them of having ties with the AA.31 These arrests have caused an extraordinary level of disruption for local governance and administration as dozens of administrators in conflict areas have now resigned out of fear of arrest and other arbitrary actions of the armed actors.32 Ward and Village Tract Administrators are important officials in the General Administration Department (GAD), as they are often seen as a bridge between the communities and the state administration, and hold responsibility for the daily life of ordinary people. There have even been reports that in certain rural areas there is a very limited presence of state institutions — police, GAD, law officials, and judges — and the AA has in effect taken their place.

Politicians

Some members of the ANP have faced a similar situation. In June, the military and police arrested some local leaders and members of the ANP from Taungup and Maei sub-townships. Although the ANP leader from Maei Sub-Township was released after more than a month in military detention, the others from Taungup are still awaiting trial under sections 50(a) and 52(a) of the CT Law.33

Women and Children

A number of women and children also face charges under the CT Law. As recently as the end of July 2020, the military arrested three women and charged them under sections 50(j) and 52(a) of the law. The military claimed that it seized camouflaged military and police uniforms from the women’s houses and charged them with soliciting support and raising funds for the AA.34 UNICEF and its legal aid partners in Rakhine State have been supporting 18 children who are facing trial. The UN agency for children has noted a worrying trend in the number of children arrested and charged, although all the children it is supporting are currently under their parents’ supervision.35 However, according to one lawyer who has been working on cases involving children in Ann Township, the police there have continued to hold children in custody, even after their lawyer highlighted specific provisions for the protection of children in the 2019 Child Rights Law.

Tracking Trajectories

Many people view the military’s actions as deliberate intimidation. Even though it is widely believed that contacting a designated terrorist organisation is punishable by imprisonment, there is no specific provision in the CT Law that explicitly prohibits contact with members of designated groups. Charges under the Unlawful Association Act have also been used to discourage contact with the AA. The editor-in-chief of the Development Media Group has been in hiding for more than a year after he was charged for violating the Unlawful Association Act.

Additionally, around 30 detainees have been reported missing since January 2020. According to the Defense of the Union of Myanmar (Special Arrangements for Military Operations) Act of 1956, the military can arrest and detain for three months, “…any suspected person who did or does or will do or abet any dangerous act to the security of military personnel”. However, in many instances, detentions far exceed this legally allowable period.36 More than a dozen civilians have recently been reported as having died during, or immediately after, military interrogation.37

Complicating matters is the fact there is no precise or recent data about the number of court cases pursued, military detainees, or accused. The Union Supreme Court and Rakhine State High Court annual reports usually include the total number of court cases aggregated by types of criminal and civil cases adjudicated throughout the year. However, in both reports, there is no data concerning cases related to the CT Law.38 As the Annual Report of the Rakhine State High Court for the year 2019 is yet to be published, it remains to be seen whether it will include any information or statistics regarding cases.

Indeed, it appears that the government does not want to release official data regarding the number of court cases associated with the CT Law. According to some lawyers, state government officials — especially the Minister of Security Affairs — have even pressured lawyers to stop disseminating information and data relating to court cases on Facebook or other public platforms. Some of the lawyers who frequently gave interviews to the media describing the situation of the trials and the number of court cases have been harshly criticized by the state government.

Nevertheless, according to a statement on 20 May 2020 by the Rakhine State Attorney General in the Rakhine State Parliament, there have been more than 100 court cases in 13 townships in which people have been charged under the CT Law. The lawyers interviewed for this study also estimated that there are now more than 100 court cases involving around 800 local people, with dozens of people involved in some cases.39 Many of the accused have already fled their communities.

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CASS Weekly Update 26 November – 2 December 2020

CASS Weekly Update

26 November - 2 December 2020
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Contributing information sources to the CASS Weekly Update include public and non-public humanitarian information provided by open traditional and social media sources, local partners, UN Agencies, INGOs, and sources on the ground. The content compiled by CASS is by no means exhaustive and does not necessarily reflect CASS’s position. The provided information, assessment, and analysis are designated for humanitarian purposes only.

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In Focus

Japanese Diplomatic Intervention in Western Myanmar

Can a Japanese mediation de-escalate tensions in Rakhine and southern Chin states?

On 28 November, the Japanese Special Envoy for National Reconciliation in Myanmar, Mr Yohei Sasakawa, visited conflict-affected communities in Rakhine State together with the Japanese Ambassador by arrangement of the Tatmadaw. They visited Buthidaung and Kyauktaw townships before arriving in the state capital, Sittwe, where they met with representatives from the Arakan National Party (ANP). The visit follows the release of statements by the Tatmadaw and the Arakan Army (AA) declaring mutual support for supplementary elections in areas of the state excluded from Myanmar’s 8 November general election.

At a press conference in Sittwe, Mr Sasakawa shared his observation that conditions in the state are stable enough for elections, and that residents expressed a ‘strong desire’ for elections. Mr Sasakawa said he will request the Union Election Commission (UEC) to conduct elections as soon as possible, and noted that the Tatmadaw Commander-in-Chief is also interested in polls. The ANP welcomed the Japanese effort, and a Tatmadaw spokesperson confirmed that negotiations between the Tatmadaw and AA are underway through a mediator.

While Japan was not known as a broker in Myanmar’s civil wars, it has now assumed a more critical and significant role. In an exclusive interview with Irrawaddy News on 24 November, the Japanese Ambassador, Mr Ichiro Maruyama, confirmed that Mr Sasakawa encouraged the Commander-in-Chief Min Aung Hlaing and State Counsellor Daw Aung San Suu Kyi to hold the supplementary elections, and that he had also reached out to the AA. As a result, armed clashes between the AA and Tatmadaw in western Myanmar have ceased for the time being. According to the Tatmadaw, some basic logistic progress must be made, such as appointing ward or village-tract administrators and forming ward or village tract sub-commissions, if the UEC decides to hold the election before the end of December. The UEC has not yet announced any new polls.

Why Japan? Why now?

While Japan has been criticised for ignoring human rights abuses in Myanmar, its close engagement with the government of Myanmar and the Tatmadaw may help support a de-escalation of armed conflict in western Myanmar. Since Japan is the largest provider of development assistance to Myanmar, it holds some leverage to mediate peace talks in the conflict in western Myanmar. In 2017, the government of Japan provided USD $442.5 million in aid to Myanmar, which it increased to USD $458 million in 2018. In comparison, the European Union donated USD $79.5 million in 2018.

Economically, Japan is not the largest investor in Myanmar, ranking 10th place at some USD $1.2 billion per annum, but it is the third largest destination for Myanmar exports. Indeed, Japan’s initiative for promoting quality infrastructure investment, initiated by former Prime Minister Shinzo Abe in 2016, is also likely to be an alternative source of investment for Myanmar, which would like to reduce its dependency on China.

Politically, Japan’s vision to be a leading regional middle power explains why the island nation has invested in diplomacy in the region. Observers from the Centre for Strategic and International Studies have suggested that Japan is likely to take a leading role in shaping the foundation for stability and prosperity in the Indo-Pacific region amid growing competition between the United States and China. Its long standing presence in Southeast Asia will bolster opportunities to take a leading role.

Exemplifying this deep engagement, Japan’s Prime Minister, Yoshihide Suga, was the first foreign leader to send a congratulatory message to the State Counsellor after her election victory earlier this month, when he took the opportunity to emphasise future cooperation and support for Myanmar’s democratic nation-building. Mr Sasakawa also visited Myanmar during the election period, where he led Japan’s election observation.

Aiming high

On 24 August, Japan’s Foreign Affairs Minister visited Myanmar and met the State Counsellor and the Commander-in-Chief to discuss bilateral relations and Tatmadaw investigations into human rights abuses in Rakhine. During a telephone conversation with the State Counsellor on 29 June, Mr Motegi asserted that: “Japan will fully support Myanmar’s own efforts for improving the situation on the ground, encouraging Myanmar to take legal measures based on the recommendations of the Independent Commission of Enquiry, and to steadily implement the order for provisional measures issued by the International Court of Justice”.

As such, it is important to recognise that stopping the war in Rakhine State is just one unsure step in a long process. The government of Japan has greater ambitions, and is likely to extend its diplomatic power in mediating the Rohingya issue along the Myanmar-Bangladesh border. According to the Bangladesh Armed Forces on 12 November, the Japanese ambassador to Bangladesh, Ito Naoki, has also ensured that Japan would work with Myanmar to ensure the repatriation of Rohingya refugees from Bangladesh.

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1. Tensions Kept Alive for Kachin in Shan

Muse Township, Northern Shan State

On 17 November, the Tatmadaw and Kachin Independence Army (KIA) reportedly clashed near Nam Pa Tee and Pang Hkar villages in Northern Shan State’s Muse Township. These are the first reported clashes between the two parties in Northern Shan State since late October. The decades-old ‘on-again, off-again’ conflict between the Tatmadaw and the KIA abetted somewhat in late 2018, and local Tatmadaw and KIA troops have since tried to avoid escalation. While no formal ceasefire has been signed, an unspoken truce has meant clashes in Kachin State are few. However, occasional minor skirmishes have occurred in Northern Shan State since early 2019. In June 2020, and again from September to October, the Tatmadaw carried out ‘clearance operations’ against strategic hilltop vantage points controlled by the KIA and Ta’ang National Liberation Army (TNLA) in Muse and Kutkai townships. These missions were interpreted at that time as aiming to remove the ethnic armed groups from the two townships ahead of the 8 November elections. However, the Tatmadaw’s continuation of such offensives after the election indicate other motivations.On 17 November, the Tatmadaw and Kachin Independence Army (KIA) reportedly clashed near Nam Pa Tee and Pang Hkar villages in Northern Shan State’s Muse Township. These are the first reported clashes between the two parties in Northern Shan State since late October. The decades-old ‘on-again, off-again’ conflict between the Tatmadaw and the KIA abetted somewhat in late 2018, and local Tatmadaw and KIA troops have since tried to avoid escalation. While no formal ceasefire has been signed, an unspoken truce has meant clashes in Kachin State are few. However, occasional minor skirmishes have occurred in Northern Shan State since early 2019. In June 2020, and again from September to October, the Tatmadaw carried out ‘clearance operations’ against strategic hilltop vantage points controlled by the KIA and Ta’ang National Liberation Army (TNLA) in Muse and Kutkai townships. These missions were interpreted at that time as aiming to remove the ethnic armed groups from the two townships ahead of the 8 November elections. However, the Tatmadaw’s continuation of such offensives after the election indicate other motivations.

Intimidation as a game plan

There are three potential motivations for the Tatmadaw’s ongoing offensives. First, the Tatmadaw’s attack on KIA bases in Muse and Kutkai townships may be designed simply to punish the KIA for extending covert support to the TNLA, and to pressure the group to militarily distance itself from the TNLA. KIA and TNLA territories are largely connected to each other; for example, there are many Kachin villages under areas with an active TNLA presence. Local KIA and TNLA troops (sometimes in conjunction with other groups) occasionally conduct joint operations against the Tatmadaw. Second, the Tatmadaw is concerned about the KIA’s ambition to expand territory into Northern Shan State. As such, the Tatmadaw has consistently rejected the KIA’s right to hold any territory beyond Kachin State and publicly justifies its attack on KIA camps in Northern Shan State as legitimate. The Tatmadaw sticks with this policy despite the KIA’s arguments for its right to remain there, especially in Kachin-majority Kutkai Township and some parts of Muse and Hseni townships, where the KIA has had a continuous presence since its formation and early insurgency operations in the 1960s. Third, the Tatmadaw may be implicitly threatening an outright re-escalation of armed conflict with the KIA in Kachin State. On 8 September, the Tatmadaw demanded the KIA withdraw from two posts in Chipwi Township, Kachin State by 13 September or face a Tatmadaw offensive. It has been reported that the KIA did not remove the camps, but instead requested negotiations with the Tatmadaw’s Northern Command. While there have been no subsequent clashes in Chipwi Township, there remain significant concerns of conflict escalation in the area. Humanitarian agencies operating in Northern Shan and Kachin states should remain prepared to respond to emerging humanitarian needs and consider prepositioning of assistance to respond to conflict-induced displacement.

2. NLD Township Chair Under Investigation

Thantlang Township, Chin State

On 27 November, the National League for Democracy (NLD) Chin State Campaign Committee released a statement responding to a leaked letter of recommendation from the township’s NLD chair addressed to six companies bidding in an education department construction tender. In its statement, the committee claimed that it had instructed township campaign teams not to accept donations linked to government contracts, and reported that an investigation had been underway into allegations of corruption. The letter, written by the NLD’s Thantlang Township Chairperson, was leaked on social media on 27 November, and referred to private contractors’ donations to the party during the 2020 election campaign. As a result, public concerns have risen about potential corruption in the government contracting process. Sources said that many local contractors had donated to the NLD during the 2020 election campaign, expecting favours in the government tendering process, while some NLD MPs hold shares in local construction companies. At the time of writing, the NLD Central Committee has not released any formal announcement regarding their investigation or decision.

Fighting corruption with loopholes 

Despite its entry in the Corruption Perception Index improving from 14 in 2010 to 29 in 2019, Myanmar was still ranked 130 out of 180 countries in the Transparency International index in 2019. The NLD government made ‘fighting against corruption’ one of its key policy priorities during its first term and encouraged the independence and enforcement of the Anti-Corruption Commission by amending the Anti-Corruption law in 2016, 2017 and 2018. Indeed, in an interview with Channel News Asia in 2018, the State Counsellor Daw Aung San Suu Kyi cited the lack of ministerial corruption as her proudest achievement in office. However, some senior representatives, including the Chief Minister of Tanintharyi Region, have been charged under the Anti-Corruption law due to fraud in government contracts. The Anti-Corruption Commission Chair told the media that the current Anti-Corruption law does not address the conflict of interest issue in the government’s decision, and that the commission does not have any authority to investigate conflict of interest cases, creating many legal loopholes for public officials.

During its first, five-year term, the NLD government did little to promote the right to information, which ensures transparency and accountability of government institutions. Some existing laws even prohibit those fundamental rights. The Official Secrets Act, instituted by the British colonial authorities in 1923, enables government officials to hide corruption and misconduct. According to articles 3 and 5 of this act, anybody who collects, publishes, or communicates information, or who has, controls, uses, retains, or receives information classified as ‘secret’ can be sentenced to two years’ imprisonment, although there is no clear definition of what is meant by ‘secret’. Similarly, according to the 2019 National Records and Archives Law, accessing information stored in the National Archives without permission is a criminal offence carrying a maximum prison sentence of three months or a 500,000 Kyats (USD $350) fine. These existing laws have undermined public access to information, particularly about the government, resulting in ineffective anti-corruption measures, both within and outside of the government. Advocating the government to endorse a Right to Information act would be a crucial strategy in the fight against corruption. Meanwhile, international agencies should encourage the government to amend the Official Secrets Act and the National Records and Archives Law, in the pursuit of promoting greater transparency and accountability of government at all levels, and more effective anti-corruption measures.

3. Armed Clashes Hit Rubyland

Mogoke Township, Mandalay Region

While the lull in armed conflict has continued in western Myanmar, the Arakan Army’s Brotherhood Alliance ally, the Ta’ang National Liberation Army (TNLA) has recently engaged in a place long-untouched by Myanmar’s civil war in north-eastern Myanmar. Between 24 and 29 November, the Tatmadaw and the TNLA clashed near Pein Pyit and Kyauk Kyi villages in northe-ast Mogoke Township, Mandalay Region, near ruby and sapphire mines on the region’s border with Northern Shan State. More than 1,000 civilians were displaced as a result, but have all now returned. This fighting followed the earlier displacement of some 200 people on 7 and 8 November, when the TNLA allegedly entered villages. While it has been alleged the TNLA was forcibly recruiting, they have said they were arresting people as part of their anti-drug efforts. Mogoke is famous for its high-quality rubies, which featured in a recent episode of the Netflix drama, ‘The Crown’. The TNLA have not historically been active in the area, despite their protestations to the contrary, and their incursions into the area have inevitably brought a heavy-handed response from the Tatmadaw, who would prefer to see the TNLA contained within the Palaung Special Administrative Zone. The business from gem mining and related trade makes the area attractive for armed groups who tax the local population and mining operations.

New patterns of conflict

Local sources report that the TNLA have also increased their presence in other neighbouring townships well-known for illegal logging, another activity often taxed by armed groups. These patterns of fighting and displacement are novel for Mogoke, where the local-response ecosystems seen in conflict-affected areas of Myanmar are largely absent. In 2019, following the Brotherhood Alliance’s attack on the Tatmadaw in Mandalay Region and Shan State, the group threatened to take the fight to the Burmese heartland in the centre of the country. Given that Myanmar’s civil wars have traditionally been contained to the ethnic borderlands and have rarely directly affected the majority population, the threat and recent clashes may signal a worrying expansion of conflict. While the scale of displacement remains limited in Mogoke Township, international agencies should continue to monitor developments, as the little existing local response capacity will require international support if clashes intensify.

4. Rohingya: Securitisation Narrative Reborn

Myanmar-Bangladesh Border

On 26 November, the village administrator from U Daung village, Maungdaw Township, reported that five Muslim men working in prawn ponds were abducted by an unknown group. While reports of the abduction have raised concerns about new Arakan Rohingya Salvation Army (ARSA) activity, the U Daung village head suspects another criminal gang headed by Abdul Hakim. That gang abducted another civilian from the area in November 2019, who later escaped. The most recent developments followed a 17 November explosion — apparently targeted — which killed three civilians including one child and injured six others. The Tatmadaw blamed ARSA for the attack, who denied any involvement. The Arakan Rohingya Army have also denied responsibility, while a previously-unknown group — the Rohingya Independence Movement — have claimed responsibility. At a Battalion Commander-level meeting on 25 November in Maungdaw Township, both Myanmar and Bangladesh agreed to enhance bilateral cooperation in eradicating ARSA, and to share information regarding extraordinary events on the border and threats against innocent civilians.

More harm than good

The alleged activities of apparently newly-emergent Rohingya armed groups has again opened considerable speculation about radicalisation on the border and links to foreign jihadi networks. Such speculation is nothing new and has dominated security analysis pre-dating the emergence of ARSA. However, it is important to note that there remains very little evidence behind any of these claims, and that engaging in speculation may do more harm than good. While few people in Myanmar buy the government’s claim that the Arakan Army are ‘terrorists’, people are much more open to the idea of ‘Bengali terrorists’. Speculation about radicalisation reinforces a narrative which serves to further marginalise this extremely vulnerable population, block humanitarian access, risk new atrocities, and prevent the returns of refugees to Myanmar. While these dynamics do need to be monitored as closely as possible, Rohingya also continue to suffer abuses inside Rakhine State. In recent weeks, two Rohingya people have reportedly been abducted by the Arakan Army in Buthidaung Township, due to a failure to pay taxes levied on business.

5. Post-Election Progress on IDP Returns

Kachin State

Following Myanmar’s elections, there has been progress on the IDP returns process in Kachin State, where small-scale returns and resettlement initiatives are continuing with support from NGOs. Some 700 IDPs across 17 IDP sites in Myitkyina and Waingmaw townships have been registered by the government and Kachin Humanitarian Concern Committee (KHCC) for return, while Tatmadaw mine clearance actions were also planned. IDPs hope to return in February. Earlier this week, the Commander-in-Chief also met with Kachin Baptist Convention leaders, where the process was reportedly discussed. The KHCC works with the governmental National Reconciliation and Peace Center regarding returns — a USD $5 million initiative funded by the Japanese government and Nippon Foundation.

Return to the past?

After almost a decade of hardship in camps, IDPs are now faced with the real potential for a return to their place of origin or resettlement in new locations. Among IDPs, however, there are concerns that new fighting will emerge in the absence of any ceasefire agreement between the government and the Kachin Independence Army. The government is also engaging with local organisations and internationals separately, and the government’s willingness to engage with international agencies for the camps closure process appears to be greater in the case of Kachin State than in Rakhine State. International agencies should consider whether or not the process in Kachin State may be discussed with local authorities in western Myanmar, or elsewhere, as a model for camp closures.

6. Optimistic Returns or Coping Strategies?

Rakhine State

There has been a significant lull in fighting between the Tatmadaw and the Arakan Army in western Myanmar over the last three weeks. As such, at least 3,000 IDPs have returned to their villages during this important paddy harvesting season. Since being displaced by armed conflict from late 2018, IDPs have regularly travelled between places of origin and displacement sites for livelihoods and food security needs. These visits are to look after farmland, observe the security situation and maintain property. The current trend of returns represents a new dynamic, as it is supported, at least for now, by a halt in armed clashes. Indeed, IDP returns to places of origin have been gradually increasing, although there remains no clarity on exactly how many. Some media reports claim large numbers of returns, and have buoyed optimism about the process, but sources on the ground report few expectations.

Low expectations, limited alternatives  

During previous lulls in armed clashes, such as in mid-2020, IDPs have returned only to be displaced again. Similarly, one displaced person in Rathedaung Township this week remarked that many IDPs do not expect the returns to be permanent. That being said, the nature of returns across Rakhine State is diverse. In southern Rakhine State townships, such as Kyaukphyu and Ramree, recently displaced persons have returned with greater expectations for permanent stay in their places of origin. In other townships in central and northern Rakhine State, family members of working age have returned to villages for paddy harvesting and other related economic activities. Some of these returnees have tentative plans to bring family with them if the security circumstances are appropriate, while others expect to return to displacement sites after harvest. If the lull in clashes in western Myanmar turns into a more permanent de-escalation, more returns can be expected and that opportunity may be used by humanitarian agencies to secure access and support returnees. However, the risk of landmines and other unexploded ordnance will remain of concern and more mine risk education activities are required. Landmines prevent access to livelihoods in farmland and mountains, creating food security concerns among returnees. While no armed clashes have been reported in Rakhine State following the 8 November elections, some 14 people were killed or injured in landmine or other explosions in a two week period.

7. Risk of Premature Returns

Rakhine State

Rakhine State Government spokesperson U Win Myint told the media on 24 November that it has recently begun collecting data on IDPs who cannot return home, and for which reasons, in order to help support the returns process. However, it is still unclear how the government has been collecting such data, what this means for the classification of IDPs, and whether it may recognise more IDPs who stay in informal community establishments or with individual hosting families. According to the Rakhine State Government, as of 15 November there are 87,467 displaced people at 169 IDP sites in Rakhine State, and another 6,613 IDPs staying at relatives’ houses. Local civil society group Rakhine Ethnics Congress’ most updated dataset, released on 2 November, counts 80,903 IDPs at 167 IDP sites, and another 154,012 persons displaced or otherwise affected by conflict outside of sites.

Risking return

It is in the interest of the union and state governments to pursue a speedy closure of IDP sites as communities return to their villages. The authorities want to reduce IDP numbers and perceptions of insufficient support. At the same time, difficulties in displacement sites – such as crowded living areas and insufficient aid – are also pushing IDPs to take greater risks in returning prematurely, while the wet-season paddy harvest is a significant pull factor. However, there are many conflict-affected areas which need significant rehabilitation support and de-mining activities. Shelters have been damaged or destroyed, farmland remains contaminated with landmines or other unexploded ordnance, and many areas remain heavily militarised. For instance, sources in Rathedaung Township report that a Tatmadaw naval presence near the urban area continues to prevent civilian movement. Troop movements from both the Tatmadaw and Arakan Army are risking skirmishes, which could spark a re-escalation of clashes and a breakdown in dialogue. If armed clashes again intensify, civilians are at risk of being stuck in conflict zones, of being displaced again or of arrest and prosecution under the widely-applied Counter-Terrorism Law. International response actors should prioritise providing support to poorly resourced and overcrowded IDP sites through the existing networks of local responders, who are often best placed to identify needs in and outside of sites.

Other Developments

On 30 November, the Paletwa Township Medical Officer reported that three people recently returned from Rakhine State tested COVID-19 positive, bringing the total number of confirmed cases in Paletwa Township to eight. The virus was first detected in the township just two weeks ago, and there have been no cases of local transmission. As discussed in last week’s CASS Weekly Update, the Paletwa Hospital is not well-equipped to manage severe cases, and civilians continue to face freedom of movement constraints amid continued militarisation, despite a lull in active clashes, making access to healthcare very difficult.

The Tatmadaw has extended its unilateral ceasefire up to 31 December. Despite ongoing talks between the Tatmadaw and Arakan Army, western Myanmar has been excluded again from the extension, due to the presence of ‘terrorist’ organisations.

  • To Watch This Week
  • Key Readings
  • Indications of success in behind-the-scenes negotiations between the Tatmadaw and Arakan Army might be revealed by a Union Election Commission announcement of supplementary elections in Rakhine State over the next week. Likewise, new clashes might hint at a breakdown in the Japan-mediated talks. Late on Wednesday, the Arakan Army spokesperson confirmed that the two sides were negotiating to meet face to face.
  • In Bangladesh, the Refugee Relief and Repatriation Commissioner's Office confirmed on 24 November that it will relocate more than 1,200 Rohingya from refugee camps in Cox's Bazar district to Bhasan Char Island in the first week of December. In response, the United Nations has noted that it was not involved in the preparations, but that it remains ready to support. The international community has for the most part opposed the plan, citing concerns over suitability and voluntariness.