Last year in Kuala Lampur, Malaysia, President Barack Obama announced that he would convene a summit of the Association of Southeast Asian Nations (ASEAN). Late in December the White House set the date for the summit, Feb.15-16 2016 at the “Camp David of the West Coast,” Sunnylands, California. President Thein Sein of Burma was among the leaders who were confirmed for the summit. However, just four days before the summit began Thein Sein surprisingly canceled his trip and sent Vice President Nyan Htun in his place.

Originally, the reason given for the cancellation was that Thein Sein “had other business to attend to.” Since then the Burmese government has stated that President Thein Sein wouldn’t attend the two-day summit because he is committed to presiding over the “transition of political power” from his government’s military-backed rule to Aung San Suu Kyi’s elected National League for Democracy (NLD).

International media reports have parroted the government line, some, such as the Economic Times that “a surprisingly smooth initial phase of the political transition has since been clouded by rumours and speculation — especially over who will be tipped to succeed Thein Sein as president.” Most reports omitted the fact that the Burma Task Force filed a lawsuit against Thein Sein and other officials “alleging crimes against the Rohingya minority that..amount to genocide.” Burma Task Force intended to serve Thein Sein and his associates with the lawsuit at the ASEAN summit. There are indications that Thein Sein was informed beforehand of the highly embarrassing possibility that he could be served with the lawsuit and therefore wanted to avoid just such a scenario.

There were then clearly additional reasons why Thein Sein decided to cancel his trip to Sunnylands. The specter of him and other top Burmese officials being served with a lawsuit for crimes against humanity is the type of attention no leader, especially one implicated in war crimes wants.

The stand-in for Thein Sein, Vice President Nyan Htun is not much better when it comes to human rights. Htun, is directly implicated in crimes against the Rohingya, as Prof. Maung Zarni notes:

Nyan Htun is ex-Admiral and under his watch, the Burma Navy was directly involved in Rohingya persecution, according to the trafficked Rohingya refugees who left Burma by boat whom my wife and I interviewed. Navy ships have towed traffickers’ boats out of Burma’s territorial waters while confiscating the boat fuel and leaving the boats in high seas to drift away.

It must be reiterated that the leadership of Burma has presided over a modern-day genocide. Seven Nobel Prize laureates, Queen Mary University and the Yale Law School have all stated that the types of crimes that are being committed against the Rohingya fit the stages and legal definition of genocide. Journalists and the media should pay closer attention to these facts when reporting on why the leader of a nation that is committing genocide would cancel his trip just a short time before it was set to begin. Perhaps it isn’t simply for the “official reasons” given, but also reasons that they would not like to share?

A version of this article also appeared on the Burma Task Force USA website.



  1. Recent “genocide” reports have been dismissed by most independent scholars as weak on fact and lacking in credibility. The reports have aroused little or no enthusiasm among UN agencies and advisers, while no government has endorsed them. True, the situation of the Rohingya is dire, but as Heads of State are guaranteed full diplomatic immunity, the US authorities would instantly quash any attempted action and would never have invited the President and his team to come in the first place if they were to be subject to embarrassment.

    Many other ASEAN Heads of State invited come from countries which are strongly criticised for their human rights record, such as Thailand and Vietnam. No doubt critics would just love to impeach them as well, but that is pure wishful thinking. There is no question of any Head of State officially invited to the US being “served with a lawsuit”. No doubt there will be banners and protests, and attempts to “serve” all kinds of documents, but that is only par for the course. The rest of the Myanmar team are already in the US, unmolested and unscathed.

    • This is another part of your article entitled “Myanmar, Human Rights and Academic Integrity” published 4 November 2015 that you fail to mention in your post.
      “The wretched situation of the Muslim minority in Rakhine State continues to be a focus of international attention and is dealt with at length in the reports of the UN Secretary-General and the Special Rapporteur. The situation is also discussed in two studies recently released, one by the International State Crime Initiative (“ISCI”) of Queen Mary University of London, the other by the Allard K Lowenstein International Human Rights Clinic at Yale Law School (“Yale IHRC”). Both studies are supported by the Al Jazeera Investigative Unit which has released video and other materials to support the presentations of both reports…The ISCI report is focussed, independent and principled, based on a 12-month period of research, of which four were spent in Myanmar. It concludes “that genocide is taking place in Myanmar and warns of the serious and present danger of the annihilation of the country’s Rohingya population.” I do not personally agree with this conclusion and have a number of reservations about the interpretation of the evidence. It is however a serious report and merits attention by governments and institutions.”

      In your article, you do a lot of detailed analysis of the faulty techniques and methods used in the Yale IHRC report, but spend no time discussing the “reports of the UN Secretary-General and the Special Rapporteur” other than that they deal “at length” with the “wretched situation of the Muslim majority.”The International State Crime Initiative” that you call a “serious report” directly says “that genocide is taking place in Myanmar and warns of the serious and present danger of the annihilation of the country’s Rohingya population” – you vaguely say you don’t personally agree with the conclusion and have reservations about the evidence, but provide no details.

      So you have not supported the conclusion in your comment – “Recent “genocide” reports have been dismissed by most independent scholars as weak on fact and lacking in credibility” – because you’ve only cited one faulty report and the one “serious” report you have cited supports the fact there is genocide taking place in Myanmar.

      • I cannot take the ISCI report seriously. It was an academic exercise by four young lady graduates led astray by the militant activist group ‘Fortify Rights’ They did not even visit Myanmar. Many of my contacts are appalled that a responsible seat of learning like Yale should have given credence to such a misguided exercise.

        You only need to look at the individual contributions by delegates to the Universal Periodic Review of human rights in Myanmar last November in Geneva to note that no one raised the spectre of “genocide”, neither Saudi Arabia, nor Pakistan, nor Turkey, nor Bahrain nor any other mainly Islamic country. Nor did the UN Sec Gen’s special adviser on the Prevention of Genocide in his latest comment (at the time of the 8 November elections) make any such statement, though he was as concerned as we all out about the situation in Rakhine State. So I stand by what I said, and call in support all 193 members of the United Nations.

        I have refrained from a detailed public commentary on the ISCI report, partly because they are serious and open minded and invited me to QMH for a lengthy, private discussion. But I have made some comments to them in confidence.

  2. I don’t think they would do such a foolish act in the most sensitive time of burmese politic. What we burmese people want now is only a smooth transition to a new democratic goverment. We don’t want to go through another half a century of military rule.

  3. We want to thank the Chicago Monitor for this timely piece and correct some of the comments’ misinformation about the Yale Law School International Human Rights Clinic’s work. We worry that this misinformation has begun to distort this important discussion.

    First, we want to clarify the purpose of the Yale study. The Yale Human Rights Clinic collaborated with Fortify Rights to produce the legal analysis to which this piece and Mr. Tonkin refer. Fortify Rights, an NGO started by people with experience working for Human Rights Watch, Amnesty International and several humanitarian organizations, has done years of first-hand research in Rakhine State and throughout Myanmar. Fortify Rights asked the Yale Clinic to do a legal analysis of the situation of the Rohingya to determine whether it meets the international-law definition of genocide. We considered interviews and documents that Fortify Rights and Al Jazeera had gathered in Myanmar, as well as reporting by other respected human rights organizations. We did not do on-the-ground research ourselves, not because, as Mr. Tonkin suggests, we were “led astray,” but because, our role was to bring independent legal expertise to bear on the already-substantial evidence gathered by Fortify Rights and others over many years. Notwithstanding Mr. Tonkin’s unfortunate ad hominem attempt to demean our team by referring to us dismissively as “four young ladies,” our analysis was cautious and well supported by law.

    Second, there appears to be confusion over the conclusion of our study. Our legal analysis did not conclude definitively that genocide has occurred in Myanmar. As careful readers of our study will note, we stated that no definitive determination about whether genocide has occurred could be reached without a full investigation by a body with robust investigative authority. We recommended that the United Nations Human Rights Commission convene a Commission of Inquiry to fully assess the situation of the Rohingya and of the Rakhine Buddhists. Given the exclusively legal nature of our inquiry, our conclusion was narrow: Substantial evidence suggests that each element of the crime of genocide, as established in the 1948 Genocide Convention, has been met. The Rohingya are a group within that legal definition; acts enumerated in the Genocide Convention have been perpetrated against the Rohingya; and these acts were perpetrated with an intent to destroy the Rohingya as a group, in whole or in part.

    Third, Mr. Tonkin takes issue with the history of the Rohingya as summarized in our paper. Mr. Tonkin’s views on this history are themselves disputed, but even if we take his version as true, the Rohingya would still constitute a group, as defined by the Genocide Convention. Mr. Tonkin’s criticisms fail to take into account how the Convention, its drafters, and subsequent legal bodies have defined the group element of genocide. International tribunals have held that the “group” determination is both objective and subjective. The Rohingya constitute a group under both approaches. Objectively, Rohingya are a religious minority; their Muslim faith alone distinguishes them as a group protected by the Genocide Convention. Even if they were, as Mr. Tonkin contends, recent descendants of Bangladeshis who settled in Rakhine State, this distinctive ethnicity renders them a group, as defined by the Genocide Convention. Subjectively, the Rohingya constitute a group because they self-identify as a group and, more importantly, their abusers have identified them as a distinctive other. Mr. Tonkin’s assertion that the term “Rohingya” is largely artificial and does not properly describe the Muslim minority living in Rakhine State does not answer the question of whether the group is protected by the Genocide Convention. International tribunals have held that “the stigmatization of a group as a distinct national, ethnical or racial group in the eyes of the alleged perpetrators” renders the victims a group for purposes of the Genocide Convention. Whether one calls the Muslims of Rakhine State Bangladeshi, Rohingya, or even the derogatory kalar, there is no question that they are being singled out as an “other” and targeted on the basis of this distinctive group identity.

    Mr. Tonkin is entitled to his own interpretation of the facts and of the law of genocide. However, his focus on disputed historical facts that have minimal relevance to the question of whether the Rohingya are a group as defined by the Genocide Convention and his failure to engage with the strong contemporary evidence tending to establish the group, act and intent elements of genocide undermine his argument. We are confident that our analysis is measured and clearly supported by the law. Mr. Tonkin’s focus on our gender is troubling. We also find it disappointing that misinformation about our study might be used to derail an urgently needed discussion about the ongoing persecution of the Rohingya. There are legitimate, civil disagreements to be had over nuances of the law of genocide and the challenge of applying it to a particular situation. Let’s have those discussions. But let’s not allow them to distract us from the real issue here: how to ensure the safety and well-being of the Rohingya in Myanmar.

  4. I very much doubt that Lowenstein IHRC have ever read my definitive commentary on their report which may be found at

    In this I made no comment at all on the law of genocide, on which I have no expertise. Nor did I say that the Rohingya “are recent descendants of Bangladeshis”. Bangladesh has only existed since 1971. Muslims have been in Arakan since the 9th if not the 8th Century.

    I put the points in my commentary to Lowenstein IHRC six months ago, but received no reply. Only then did I issue my commentary.

    I doubt that most people would find my reference to “four young lady graduates” a troubling focus on their gender, but if the ladies themselves do, then I apologise unreservedly.

    I would however still welcome their response to my detailed commentary which may be sent to

  5. This exchange was recently brought to my attention. I’m the co-founder and Executive Director of Fortify Rights, the human rights organization that Mr. Tonkin attempts to discredit as a “militant activist group.”

    Our organization investigates human rights violations, engages people with power, and supports communities and activists defending human rights. Our advisory board includes a former UN Special Rapporteur, the head of the human rights program at Harvard Law School, the President of the Robert F. Kennedy Center for Justice and Human Rights, and others. We regularly engage governments, UN agencies, humanitarian organizations, and communities—-none of whom have called us “militant.”

    Our focus is not restricted to abuses against Rohingya in Rakhine State. We’ve recently documented severe human rights abuses elsewhere in Myanmar, including torture, killings, and the use of human shields in the conflict zones of Kachin and Shan states. We’ve monitored unfair trials and exposed unjust laws used in Myanmar to target activists and low-income communities—laws that the recently elected National League for Democracy (NLD) government has avowed to amend. With Harvard Law School’s international human rights clinic, last year we documented and exposed the excessive use of force against students exercising their right to peaceful assembly. We teamed up with the families and colleagues of political prisoners to work for their release, which recently happened on April 8, thanks in large part to NLD leader Aung San Suu Kyi’s direction.

    As Mr. Tonkin is well aware, we have focused on ongoing persecution against Rohingya in Myanmar’s Rakhine State. In 2014, we published a report entitled “Policies of Persecution,” exposing state policies in Myanmar that result in severe violations of human rights of Rohingya, including restrictions on the freedom of movement, marriage, childbirth, and other aspects of daily life. At the time, in a self-published article, Mr. Tonkin attempted to discredit that report as well, going so far as to say that the restrictions against Rohingya were “in abeyance.” In reality, Mr. Tonkin was alone in believing these restrictions were dormant and unenforced. The UN, foreign governments, and human rights groups have all acknowledged the restrictions. Most have called for their immediate abolition. Moreover, Rohingya facing these restrictions will attest to their existence and pernicious impacts.

    Mr. Tonkin’s own Foreign Minister Hugo Swire discussed abusive restrictions against the Rohingya in the UK Parliament in 2014, stating: “We have long shared many of the concerns that Fortify Rights raise in their recent report on the plight of the Rohingya, not least the restrictions on their basic human rights. We are currently implementing many of the recommendations that the report makes to the international community. We will continue to press the Burmese Government to find a long term solution to bring peace and reconciliation to the communities in Rakhine State.”

    Mr. Tonkin also suggested the restrictions against Rohingya were in no way connected to the central government. He must have overlooked the section of our report citing government ministers speaking on record in Parliament about imposing the restrictions.

    Regarding the excellent, if not deeply concerning, study prepared the Lowenstein Clinic at Yale Law School: Senior UN officials, various ambassadors and other members of the diplomatic community, and other stakeholders who are in a position to influence outcomes have read and considered the study—it is far from being condemned or dismissed as Mr. Tonkin suggests. We have discussed the study with the diplomatic community, the White House, elected officials in Myanmar, and government officials in Southeast Asia, including Thailand. Nearly all of our interlocutors express grave concern about the possibility of mass atrocities, or genocide, in Myanmar and most acknowledge the need for further investigation into the abuses that have transpired in Rakhine State—the key recommendation of the report.

    It’s worth pointing out that Mr. Tonkin has been a chief opponent of Yale’s study on the law of genocide with regard to Rohingya. On Twitter on May 14, he called the study “pathetic” and claimed to have “demolished”; however, in the comments above he now purports to have no expertise in the law of genocide.

    We regret that we have not prioritized responding to Mr. Tonkin’s other self-published criticism of the Yale study. This is due to more pressing concerns taking place in the country. We’ll do our best to respond in due time.

  6. Mr Smith is an activist, and over the several years I have known him, he agitates. Mostly he gets it right, but sometimes he gets it wrong.

    In the case of the continuing persecution and discrimination against the Rohingya, the general view at a recent UK Foreign Office workshop was to be “cautiously optimistic” about the future. Central Government of course knew perfectly well about the local anti-Rohingya regulations introduced some years ago, but after the communal violence of 2012, the local authorities were undoubtedly instructed by Central Government to suspend their discriminatory practices which had in any case rather tailed off after 2008. This doesn’t mean that the unfortunate Rohingya are not still being squeezed by local officials, but it does help to explain why the extremist group Ma Ba Tha felt they had to agitate for the four race and religion bills which are now national law.

    The NLD, who now control the Legislature and the non-military elements of the Executive, voted against these four national laws when they were passed, and have now set up a ministerial-level national committee, with four thematic sub-committees, to take a serious look at all the problems which Rakhine State is facing. The four laws remain on the statute book, but no attempt has yet been made, for example, to designate Rakhine State as a region where special birth control measure should be applied.

    The latest NLD initiative has rather taken the wind out of the sails of Mr Smith and similar organisations who would convince us that we are on the cusp of “genocide” in Rakhine State. No one else thinks so. It would be rash to predict that serious communal violence might not break out again, but there are these days many international visitors to and residents in Rakhine State keeping a close watch on what is happening.
    No doubt Mr Smith and associates will continue to lobby for an international Committee of Inquiry, but no Government is in the least interested in pursuing this notion at the present time. Practical, proactive support for the Rohingya is needed, not sterile displays of devotion to purist ideology.


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