Digital Press Briefing with Dr. Beth Van Schaack, Ambassador-at-Large for Global Criminal Justice

MODERATOR:  Greetings from the U.S. Department of State’s Asia Pacific Media Hub.  I would like to welcome journalists to today’s on-the-record briefing with Dr. Beth Van Schaack, U.S. Department of State Ambassador-at-Large for Global Criminal Justice.  As we mark three years since the military coup in Burma, Ambassador-at-Large Van Schaack will discuss the resulting violence and humanitarian disaster, as well as U.S. efforts to seek justice and accountability.

With that, let’s get started.  Ambassador Van Schaack, I’ll turn it over to you for your opening remarks.

AMBASSADOR VAN SCHAACK:  Wonderful.  Thank you so much, and thank you to all the participants here for joining this call on what is the anniversary of the coup in Burma.  I will deliver a few opening remarks, and then I’m really pleased to turn to all of your questions.

So just to begin, the United States has long supported the people of Burma and their objective to chart their own future towards an inclusive union in which all of the different communities enjoy full civil rights regardless of ethnicity or religion, and we continue to stand in solidarity with the people of Burma and their resolve to bring democracy, stability, and human rights to their country.

Burma has witnessed decades of violence and instability, and this includes widespread and systematic attacks against many different ethnic and religious communities and civilians pressing for a more democratic future.

Following a rigorous factual and legal analysis, the United States Secretary of State determined that members of Burma’s military have committed genocide and crimes against humanity against Rohingya in 2017, when hundreds of thousands of Rohingya were forced from their homes to escape violence.  Since the coup three years ago, the military regime has escalated its brutality against those who hope for democracy in Burma.  The regime has carried out executions of pro-democracy activists, political leaders, and peaceful protestors.  It has killed thousands of men, women, and children, destroying schools and places of worship.  It has also suspended most civil liberties and detained and tortured political prisoners.

We reiterate our call for the military to change course and to stop the violence and to engage in meaningful and inclusive dialogue towards a future democratic Burma.  We also call on the international community to increase support for the broad range of political, ethnic, and religious stakeholders seeking a credible and inclusive democratic process to elect a representative government in Burma.

As Ambassador-at-Large for Global Criminal Justice, I am tasked with advising the Secretary of State and others within our government on issues related to justice and accountability around the world.  In this role, I visited Cox’s Bazaar last year and met with survivors, their advocates, and a number of U.S. civil society partners who are working in the camps to document abuses and to train refugees to do this work themselves within their communities.  The situation is dire in the camps.  Relations between Rohingya and their host communities and the Government of Bangladesh are strained, and one question that everyone asked me was:  What are the prospects for justice for the genocide and crimes against humanity that they experience prior to their flight into Bangladesh?

And what I was able to explain to them and discuss with them is that the crisis in Burma has generated an unprecedented mix of accountability responses.  The Gambia, which is a West African nation, acting with the support of the Organization of Islamic Cooperation, initiated a lawsuit in the International Court of Justice in The Hague, alleging that Burma is in violation of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide.  In January 2020, the International Court of Justice ruled that Burma must take measures within its power to prevent genocide against Rohingya and to preserve evidence.  The United States has shared information with The Gambia’s lawyers as they prepare their submissions to court.

Also in The Hague, the Office of the Prosecutor of the International Criminal Court has opened an investigation into events in Rakhine State in 2017 and ’18.  Given that Bangladesh is a Rome Statute State Party, the International Criminal Court has authorized the prosecutor to investigate crimes such as deportation from Burma that occur at least in part on Bangladeshi territory.

There are also cases pending in national courts.  Soon after I visited Cox’s Bazaar, several survivors traveled to Argentina to give live testimony before a judge in a case invoking universal jurisdiction over international crimes.  There are several international accountability mechanisms that are supporting all of these cases.  This includes the Independent Investigative Mechanism for Myanmar.  The United States has provided the IIMM, as we call it, with funding for its mission to collect, preserve, and analyze evidence of the most serious international crimes and violations of international law that have been committed in Burma since 2011.  This includes funding for witness protection and to conduct open-source digital investigations since it is impossible to gain access to the territory of Burma to conduct on-the-ground investigations.

On the political front, the United States priority is to bring an end to the violence and restore the country to a path of democracy.  In this regard, the United States has ramped up economic and political pressure on the military regime, including by restricting U.S. dollar transactions with state-owned enterprises that enable the military to kill and harm civilians.  In fact, just this week, the United States announced it was designating four more individuals and two entities linked to Burma’s military regime.  To date, the United States has sanctioned 91 individuals and 50 entities in Burma.  Other states have also sanctioned individuals and entities associated with grave international crimes, and we are often coordinating our sanctions with our allies.

On the humanitarian front, the U.S. Government has provided nearly $4.2 billion in assistance to assist refugees in Bangladesh and also for other needs.  We also are pressing for unhindered humanitarian access across the country, including in opposition-held or controlled areas.

Going forward, the United States will continue to conduct extensive documentation of the atrocities against Rohingya and other communities across Burma following the coup, and to call for accountability for human rights abuses and for corruption.  This is an essential foundation for building a democratic society characterized by the rule of law.  We will continue to support the people of Burma in their own efforts to seek truth, justice, and accountability.

So with that, I’ll stop and I really look forward to our questions.

MODERATOR:  Thank you so much, Ambassador Van Schaack.  We will now turn to the question-and-answer portion of today’s briefing.  Our first question came in in advance from Hui Yee Tan of The Straits Times, who’s based in Bangkok, Thailand, and Hui Yee asks:  “Beyond sanctions, what is the U.S. doing to bring to justice those responsible for gross human rights violations being perpetuated in Myanmar right now?”

AMBASSADOR VAN SCHAACK:  Yes, thank you so much, Hui Yee, for that question.  It’s really an excellent one.  We do have a broad range of sanctions of individuals and entities, which I mentioned, including banks, the Myanma Oil and Gas Enterprise, and other entities that are linked to the military.  We also can sanction individuals associated with these entities who are benefiting from the abuses being taken place within Burma.

But beyond sanctions, we’re very keen to support efforts to bring accountability for crimes committed against Rohingya, but also crimes committed in connection with the coup and broader efforts of the different groups and communities within Burma who are seeking a more democratic future.

So in this regard, we’re able to engage in information sharing with lawyers who are bringing these cases before various courts.  We assisted several Rohingya refugees to travel from Cox’s Bazaar down to Buenos Aires, where they were able to give live testimony before a court of law.  This was the first time that this had been done, and it was a very meaningful experience.  I also spoke when I was in Cox’s Bazaar to some other individuals who had testified in The Hague before the International Court of Justice, the World Court, and this is a case that the United States has worked to support.  We’re also funding a number of organizations working in the camps in Cox’s Bazaar and elsewhere to document information that might be used as evidence in a range of accountability exercises around the world in various courts.  The documentation of these abuses is a really central condition precedent for there to be accountability, and we are able to assist in the training of Burmese individuals to do this work themselves to an international standard.  So there’s an enormous capacity building component to the assistance that we’re providing.

So this, I hope, gives you a bit of a snapshot into the types of assistance that the United States and other states are providing in order to address the gross human rights violations that are being perpetrated in Myanmar now.

MODERATOR:  Thank you.  We had a couple questions come in that are a bit related, on support to civil society and media, so maybe I’ll group them together and let you jump in after that.

First we have one from Nhu Nguyen of OEC, based in Da Nang, Vietnam, who asks:  “What do you think of the way that the ASEAN countries are handling the military dictatorship in Burma?  The U.S. Government opposed the joint military drill conducted by Russia and ASEAN nations, which included Burma, last year, and China and Russia have continued to provide military support to this dictatorship.  Is there a chance that the U.S. and the ASEAN nations will collaborate to create a plan of action to support Burma’s civil society?”

And then connected to the civil society piece, we had a question from Hsu Mon Phyo of Delta News Agency in Thailand:  “My question is if there any programs for the independent media in Myanmar?”

Over to Ambassador Van Schaack.

AMBASSADOR VAN SCHAACK:  Great, thank you so much.  So we have long supported the ASEAN Five-Point Consensus, and we really appreciated the leadership that Indonesia demonstrated last year, in 2023, as the ASEAN chair, in leading efforts to press for the full implementation of the Five-Point Consensus, and we look forward to working with Laos this year as they take over the chair.

We supported the decision of ASEAN to downgrade Burma’s participation in ASEAN summits, and we continue to urge ASEAN members as well as other members, of course, of the international community to press the regime to cease the violence, to release all of those who have been unjustly detained, and to help together establish Burma’s path to an inclusive, representative democracy.

The regime has – we have to be realistic – failed on all fronts to make any meaningful progress on the Five-Point Consensus.  We really respect the centrality of ASEAN here, and we value our partnership with ASEAN.

The military so far has been unwilling, however, to productively engage with ASEAN to respond to this crisis.  We continue to support the efforts, though, to urgently and fully implement the Five-Point Consensus, and we’re going to continue to do this through our partnership with ASEAN.

Now, the question with respect to civil society actors – the quick answer is yes, that we are always looking for ways to support civil society actors, and an independent media is incredibly important in that regard.  That said, we know that it’s very difficult for media to work within the military dictatorship.  They cannot independently operate and they’re always under surveillance.  And so we have to rely very much on journalists outside of the country using open-source investigative techniques to be able to report on what is happening inside of the country.

I also want to draw attention to the BURMA Act, which was passed last year by the United States Congress, which authorizes a range of technical support and other nonlethal assistance to various groups working within Burma.  And the hope is that we can support the pro-democracy movement and increase pressure on the military.  Our assistance has promoted resilience under continued threats from the military.  We can do capacity building and we can help build cohesion amongst the various groups within Burma.

Over the past two years, we have been able to provide hundreds of millions of dollars to assist these pro-democracy groups and other ethnic organizations, and we’re really committed to focusing that assistance on civil society and away from the regime.  This includes programs to build governance capacity, to develop local health and education policies, to advise pro-democracy groups as they develop their plans for a future federal democracy, and we’re always looking for ways to explore how to better support civil society.

MODERATOR:  Thank you.  Maybe I’ll take the moderator’s prerogative here, since we have a lull, and see if I can ask you a little bit about your determination – has the military committed war crimes since the coup?  And is the U.S. planning to make a determination about any of those atrocity crimes?

AMBASSADOR VAN SCHAACK:  Yes, thank you so much.  So the main determination that we have worked on was the determination that genocide and crimes against humanity were committed against Rohingya in 2017 and 2018, when violence really ramped up.  These are two international crimes, genocide being a range of violent acts against protected groups with the intent to destroy that group in whole or in part.  And even though many Rohingya left the country – they were not massacred in the way that we have seen in other genocides – there are other ways that genocide can be committed, including with respect to serious bodily and mental harm or the imposition of conditions of life calculated to destroy the group in whole or in part.

We also found that crimes against humanity had been committed, and these are a constellation of acts that are committed against a civilian population in a widespread or systematic basis.  And the Secretary of State determined that, in fact, the attack against Rohingya had been both widespread and systematic, and had resulted in them fleeing across the border and into neighboring Bangladesh.

Since the coup, we have seen very serious human rights abuses and violations against peaceful protestors, against independent members of the media, against members of the political opposition.  We’ve seen opposition politicians subjected to arbitrary detention.  They’ve been mistreated while held in custody.  And the violence has continued to ramp up across the country.

We’re also seeing other ethnic groups being specifically targeted as well because they oppose the military regime.  And so across the country, we’re seeing the military regime targeting civilians and those who would try and chart a more democratic path for their country.

MODERATOR:  Thank you.  We have a question that came in from Aung Sway from Voice of America Burmese Service.  “My question for the ambassador is:  Could you provide insights into the U.S. strategy regarding sanctions and other economic measures in response to the coup and how they aim to impact the military regime?”

AMBASSADOR VAN SCHAACK:  Absolutely.  There is definitely a theory and a strategy behind our sanctions.  The goal is to pressure the military to end the violence against civilians, and to do this, we’re trying to block revenue that the military would enjoy, including through acts of corruption and self-dealing, but also to have real consequences for participating in violence – so limiting the ability of members of the military and others to travel freely around the world.

We’ve designated numerous leaders of the State Administrative Council, the so-called SAC, and other regime individuals who have overseen violence, have been the architects of violence, or have otherwise aided the regime’s suppression of the people’s democratic will.

We’re also looking to target these revenue streams that enable the military to purchase weapons and to use violence against civilians and ethnic and religious communities across Burma.  So, for example, we have targeted state-owned banks and the Myanma Oil and Gas Enterprise, so-called MOGE – again, with the goal of curtailing the ability of the military to have access to foreign currency, and which of course is what it needs to use in order to procure additional weapons.

So, as I’ve mentioned, we’ve designated dozens and dozens of individuals and entities.  We are very conscious, though, of trying to avoid unintended consequences for the population at large.  So we’re trying to focus on these very targeted sanctions against entities and revenue streams and particular individuals who would be – support military leaders, arms traders, sort of businessmen who are engaged, and businesswomen, people who are engaged in corruption and who are otherwise affiliated with the regime.

We’re doing this alone with respect to our own sanctions authority, but we’re also working in concert with our allies, because that’s the way that we can strengthen and magnify the impact of any individual sanctions program.  So working with the European Union, with Australia, with the United Kingdom, with other likeminded states, we’re trying to coordinate our sanctions in order to impose real consequences on the military and to constrain its ability to utilize violence against its own people.

MODERATOR:  Okay, we have time for a couple more.  Maybe we can ask about the court cases that have been – that have been moving forward: the one opened by the The Gambia, and also I understand there’s a case on behalf of the Rohingya in Argentinian courts.  How does the U.S. support these efforts?  What is the U.S. role?  And can you tell us a little bit about how those efforts are progressing?

AMBASSADOR VAN SCHAACK:  Sure.  So first is to make the distinction between the types of cases.  So the case that The Gambia has brought within the International Court of Justice, which is also known as the World Court – this is the judicial arm, if you will, of the United Nations.  So it’s the highest court within the international community.  It’s based in The Hague.  And that is a court that adjudicates state responsibility.  So what The Gambia has argued is that Myanmar is a member of the Genocide Convention, but it has failed to adhere to the provisions of that convention, which includes a prohibition on committing genocide and also places affirmative obligations on states to prevent genocide by others within their territory.  And so The Gambia has made a number of claims that Myanmar is in violation of its obligations.  The remedy will be a judgment by the World Court that would, as I anticipate, hold Myanmar responsible.  And there may be reparations orders; there may be other orders to reverse course, to allow Rohingya to return, to ensure that they have their full civil and political human rights as full citizens of Myanmar, et cetera.

It’s a very long process.  We’re still in the early stages, but the court has confirmed that it has jurisdiction and it has imposed certain preliminary measures against Myanmar that will remain in place until the court is able to address the merits.

So that’s state responsibility.

Other cases that are proceeding in other courts are about individual criminal responsibility.  So the goal is to hold particular individuals responsible for not just violence against Rohingya, but also violence against peaceful protestors or other ethnic or religious groups within Burma.  And so there we see the International Criminal Court, the prosecutor opening an investigation into Rohingya crimes, and then in Argentina we have a universal jurisdiction case investigating a broader range of crimes, potentially.

These – this principle of universal jurisdiction is based on the recognition that any state within the world has the ability and, in some cases, the obligation to investigate the commission of international crimes and to ensure that those individuals who are responsible, who are most responsible, are held accountable for those acts.  And the remedy would be a criminal penalty of some sort.

Now, one significant limitation is usually that these courts will need to have custody of the accused.  So, at present, the International Criminal Court does not have custody over anyone who might be accused of the crimes committed against Rohingya.  So that remains to be seen.  There are, however, some insiders who have defected from the military regime and who are giving evidence to the International Criminal Court prosecutor.  Likewise, in Argentina, Argentina does not have custody of any accused; however, Argentina could issue an international arrest warrant, and that would place – would give the ability for any state around the world to execute upon that international arrest warrant if it was inclined to do so.

So gradually we’re seeing courts around the world taking on the responsibility of adjudicating the commission of international crimes around the world, regardless of the nationality of the perpetrator, the nationality of the victim, or the place of commission.

MODERATOR:  All right, thank you.  And now, Ambassador Van Schaack, if you have any closing remarks, I’ll turn it back over to you.

AMBASSADOR VAN SCHAACK:  Yes, thank you so much.  I really want to thank you for focusing on this issue in your region.  ASEAN plays a very important role here.  It’s the regional political body that is best placed to put pressure on the regime in order to bring it into alignment with the Five-Point Consensus.  And included within that Five-Point Consensus is a recognition that there has to be a more democratic future for the people of Burma, otherwise they will continue to face the kind of violence that we’ve seen really for decades now in the country.  And so it’s incredibly important that you’re able to cover these issues for your readership and also to work collaboratively with other journalists who are trying as well to shine a light on the abuses within Burma after the military coup, and even prior to the coup, against vulnerable communities.

So I really want to thank you for covering these issues, and it was a real pleasure and an honor to be able to address you this evening my time and this morning your time.

MODERATOR:  Thank you so much, Ambassador.  That brings us to the end of our time for today, and thank you for your questions and thanks very much to Ambassador Van Schaack for joining us today.  We will provide a transcript of this briefing to participating journalists as soon as it is available, and we’d also love to hear your feedback.  You can contact us at any time at AsiaPacMedia@state.gov.  Thanks again for your participation and we hope you can join us for another briefing soon.

AMBASSADOR VAN SCHAACK:  Good night.