New Sanctions Tool Could Address Rohingya Crisis in Burma

The Rohingya, an ethnic minority in Burma, have been subject to decades of abuse and persecution by the Burmese military following the country’s independence in 1948. Over the last five years, this military-driven oppression and violence has intensified. Human rights groups have documented widespread atrocities, which include killings, shelling, and widespread arson. The U.S. government has itself found “credible evidence” of extrajudicial killings, sexual violence, and arbitrary arrest, as well as the widespread burning of villages. This situation has been called a “textbook example of ethnic cleansing” by the UN High Commissioner for Human Rights, Zeid Ra'ad Al Hussein, and has led more than 600,000 Rohingya to flee Burma since August 2017.

While there has been widespread condemnation of the actions of the Burmese military and security forces, overall, the international community has failed the Rohingya. However, the U.S. government now has new tools at its disposal to address this crisis.

In 2016, Congress passed the Global Magnitsky Human Rights Accountability Act (the “Act”), which allows the President to issue sanctions against foreign persons who, among other things, commit “extrajudicial killings, torture, or other gross violations of internationally recognized human rights” against whistleblowers or human rights defenders. This marks the first sanctions regime that covers human rights issues globally, rather than targeting the nationals of a specific country. However, there have been challenges to the Act’s implementation. The Act requires the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”) to provide specific evidence that an individual targeted for sanctions is responsible for human rights violations against a particular victim and that said victim is a whistleblower or human rights defender, as defined by the Act.

In an important development, these limitations were removed by an Executive Order released by President Trump at the end of last year. Executive Order No. 13818 (the “EO”) is a new, broad sanctions tool that significantly expands OFAC’s authority to issue human rights-related sanctions. It permits OFAC to issue sanctions against foreign persons “responsible for or complicit in, or [who] have directly or indirectly engaged in, serious human rights abuse,” as well as the “leader or official of . . . an entity . . . that has engaged in, or whose members have engaged in” serious human rights abuse. As outlined by Rob Berschinski of Human Rights First, this new language shifts the requirement for issuing sanctions from conduct to status. This change means that OFAC no longer needs to prove particular conduct against a special class of people to impose sanctions. The Office only needs to show that the targeted individual is part of an entity, such as an internal security service, that has committed serious human rights abuses. Once an entity’s link to human rights abuses has been established, any official or leader of such entity can be subject to sanctions.

In granting this authority, the EO affirmed an argument that human rights groups have been making for years, namely, that human rights abuses are not isolated to faraway lands, but pose “a threat to the national security, foreign policy, and economy of the United States.” The EO thus recognizes that the United States must not only take strong, proactive action to tackle these abuses for moral reasons, but also “to protect the financial system of the United States from abuse by these… persons.”

The broad authority granted by the EO can serve as a powerful tool to effect behavioral change around the world, including to address the ongoing persecution of the Rohingya. In fact, in December 2017, OFAC invoked its authority under the new EO to designate Maung Maung Soe, who was in command of the Burmese Army and Burmese Border Guard Police, both of which were responsible for widespread human rights abuse against Rohingya civilians in Burma’s Rakhine State. This is an important first step in ending the persecution of the Rohingya. It also provides the basis for OFAC to issue sanctions against current generals and officers in the Burmese Army and Burmese Border Guard Police, as these organizations have been found to be responsible for human rights abuses against the Rohingya.

Sanctions send an important political message that such atrocities will not be tolerated and that there is a serious economic price to pay when human rights abuses take place. In the case of the Rohingya crisis, targeted sanctions provide a powerful tool to disrupt the financial and business networks relied upon by the Burmese military. Given the scale of the atrocities, combined with the clear role of the Burmese military, issuing sanctions against additional military officials and others associated with the Burmese military is necessary to stop the harm. To this end, a number of civil society organizations have written to the President to ask him to impose additional sanctions on the most senior leaders of the Burmese military and security forces.

In issuing the EO, the current administration deserves credit for taking a strong and concrete stance against human rights abuse around the world, but its commitment to this stance will depend on how it uses this new sanctions tool. To send a strong signal to human rights abusers around the world, the U.S. government must take action against Burmese military leaders and others who are responsible for the persecution of the Rohingya.

Heather Cohen, Legal & Policy Associate

Sophia Lin, Legal & Policy Coordinator