Oral Update by Ms. Yanghee Lee, Special Rapporteur on the Situation of Human Rights in Myanmar at the 38th Session of the Human Rights Council

Mr President, distinguished representatives, ladies and gentlemen,

I am honoured to once again address this Council to present my oral progress report pursuant to the HRC resolution 37/32 on the situation of human rights in Myanmar. The resolution mandates me to “continue to monitor the situation of human rights” and to “measure progress in the implementation of the recommendations of the Special Rapporteur”. I note that the resolution also called on the Government of Myanmar “to resume without delay its cooperation with the Special Rapporteur in the exercise of the mandate, including by facilitating further visits”. From the outset, I would like emphasize that I still hope that the Government of Myanmar will resume its cooperation with my mandate. Execution of the mandate and fulfilling the responsibilities entrusted to me by the Council have been extremely difficult due to the continued denial of my access to the country, contrary to the Council’s March resolution. Additionally, I regret to inform the Council that I received no reply from the Government of India to my request to visit New Delhi, Mizoram and the State of Jammu and Kashmir in order to meet the refugees from Myanmar who are present in India. It is imperative that member states respect the mandates established by this Council and provide timely and reasonable answers to requests made by Special Procedures mandate holders to effectively discharge their mandates.

Mr President,                                      

In light of the Myanmar Government’s refusal to cooperate with me, I am about to undertake my mission to Bangladesh where I will visit Dhaka and Cox’s Bazar. I have also made a specific request to the Government of Bangladesh to facilitate a visit to Bashan Char island and the Konarpara areaon the Bangladesh side of “no man’s land” where Rohingya from Myanmar have been staying nearly a year. I would like to add my voice to that of the Human Rights Committee and remind Bangladesh about international standards and obligations for the protection of Rohingya refugees. In Cox’s Bazar, I will meet members of the refugee community, with over 700,000 having arrived since August 2017. As that number continues to rise, I must give pause to consider the terrible situation that now presents itself, how it was possible that it occurred, and the way forward.

In these deeply troubling times, I am reminded that the founding resolution that established the mandate of the Special Rapporteur on Myanmar established by Commission on Human rights resolution 1992/58 [quote starts] “calls upon the Government of Myanmar to create necessary conditions that would end the exodus of Myanmar refugees to neighbouring countries as well as to facilitate their early repatriation from their countries of refuge” [quote ends].

Successive Special Rapporteurs have documented innumerable allegations of human rights violations and abuses, and violations of international humanitarian law committed by the security forces since 1992. Despite the calls, early warnings and efforts made by mandate holders, violence, persecution, discrimination, domination and hatred against ethnic and religious minority communities continue across the country. Indeed, a recounting of the current displacement figures is illustrative of the flagrant disregard for human rights held by the military and successive Governments, including the one in office today. UNHCR said last week in its global trends on forced displacement report that Myanmar is now the world’s fourth largest refugee producing state; this is a shameful fact. As I address you today, there are around a million Rohingya refugees in Bangladesh, some of whom have been there since the 1990s. We must not forget that over 128,000 mostly Rohingya people remain interned in camps following violence in central Rakhine in 2012.

There are approximately 123,000 displaced people in Kachin and Shan States as a result of armed conflict that has been waged since 2011 and been particularly brutal in recent months. Renewed conflict in Kayin State drove two and a half thousand people from their homes earlier this year, and around 121,000 people have been living on the Thai-Myanmar border for decades, too fearful to return home. These figures comprise an enormous number of people whose rights the Myanmar Government has failed to protect, respect and fulfil.

Mr. President,

I note the Memorandum of Understanding (MoU) recently signed between the Myanmar Government, UNHCR and UNDP in early June to assist the process of repatriation from Bangladesh. It is disconcerting that the MoU remains not publicly available and there has not been transparency about its terms. I am dismayed about the fact that the parties to the MoU, including the United Nations agencies involved in this process, have apparently failed to recognise Rohingya living in Bangladesh as refugees and as Rohingya. Most frightful still is the fact that the Rohingya refugees have not been included in any of the discussions around this MoU nor consulted in relation to the repatriation process as a whole. I would like to ask your Excellencies, how can the process of repatriation be voluntary with the people who the process is for excluded from it? How can you be sure that any return is based on individual informed consent? Let’s stop for a moment and ask ourselves what “voluntary, dignified, safe, and sustainable” returns really mean, and whether that is achievable in the current framework.

I have been consistently informed by Rohingya refugees that it is futile to speak about their safe, voluntary, dignified and sustainable return unless the root causes of their exodus are properly addressed. It is paramount that the Myanmar Government dismantle the system of discrimination against the Rohingya by law, policy and practice that continues to exist, and guarantee fundamental human rights to them, including by restoring their citizenship rights and property. The refugees’ return to Myanmar must occur in full respect of the norms and standards of international refugee law and international human rights law. I emphasise that no return should take place unless the conditions in Rakhine State, indeed across the country, are truly safe, enable returnees to enjoy their rights, services are accessible for all, and freedom of movement is guaranteed. UN agencies must involve refugee men, women and children in decisions about their fate. The needs of men, women, girls and boys, persons with disabilities and the elderly, for example, need to be addressed. Any hasty return without adequate consultation and before the appropriate conditions are in place in Myanmar will not be sustainable, and will only lead to history tragically repeating itself into the future.

Indeed, the flow of refugees to Bangladesh has not stopped and with limited access to northern Rakhine, little is known about the situation of the Rohingya there. Suffice to say, there is no evidence that the conditions under which they live have improved compared to how they were before August 2017. The conditions then amounted to systematic discrimination, and unfortunately are reportedly significantly worse now as a result of heightened movement restrictions, lack of access to livelihoods, education, health and basic services, and ongoing intimidation by Myanmar’s security forces.

Distinguished Representatives,

While the international community’s attention is consumed by the Rohingya crisis, violent conflict has sharply escalated in several other areas of the country since the beginning of the year, amid the evident stalling of the peace process. In March in Kayin State, conflict resumed between the military and the Karen National Liberation Army, a party to the Nationwide Ceasefire Agreement, and thousands of villagers were forced to flee while one was shot dead by the military. Clashes between the Arakan Army and the military in May in Chin State reportedly led to 1,000 villagers being displaced. In northern Shan State, fighting between ethnic armed groups as well as with the military has led to displaced civilians and reportedly the death of 14 and injury of 18 civilians.

The seven-year anniversary of conflict between the military and Kachin Independence Army has just passed. Across many parts of Kachin State, some of the most intense fighting in years has been seen, with clashes and indiscriminate shelling and air bombardments of civilian areas devastating thousands of civilians. There are distressing reports that fleeing civilians, including a number of children, were allegedly used by the military as human shields and mine sweepers. Thousands of villagers were forced to flee only to be trapped in the forest without assistance, and in some villages affected by hostilities they were reportedly blocked from leaving by the military. This brings the number of people who have been displaced by conflict in Kachin to 13,500 since January. Humanitarian access remains negligible and I am deeply concerned to receive reports that the Kachin Baptist Convention, a key provider of support to the displaced Kachin, has halted its activities in non-government controlled areas as a result of being threatened with arrest by the military. I call on all parties to the conflicts to end hostilities, to protect civilians and civilian objects, and to allow full humanitarian access immediately.

I am disturbed by the Government’s recent announcement of the “National Strategy for the closure of the IDP camps in Myanmar” and that it does not entail a proper plan. While I welcome the prospect that the Government intends to deal with the problem of protracted displacement given that displaced people in Myanmar are unable to realise all the rights to which they are entitled, I have serious misgivings about the Government’s ability to close the camps and facilitate people returning to their places of origin in accordance with international standards while conflict continues and without addressing the root causes of displacement. Any return must be voluntary, safe, dignified and sustainable. I call on the Government to share concrete details about how it proposes to carry out the closure process, including holding genuine community consultations.

Excellencies,

This brings me to Myanmar’s democratic space. Demonstrations against the conflict around the country and in support of peace took place in several cities in April and May. It is unacceptable that protestors in Yangon who staged a sit-in were violently dispersed by the police and unidentified plain clothed men. Excessive use of force against peaceful protestors is unwarranted. Some 45 activists were arrested around the country and are being prosecuted for exercising their rights of freedom of expression and assembly.

Aung Ko Htwe is in prison, convicted at the end of March of the crime of telling journalists of his experiences as a child recruit of the Tatmadaw after being prosecuted under charges brought by the military. He should be released unconditionally without delay.

Additionally, Kyaw Soe Oo and Wa Lone, the two brave Reuters journalists who uncovered the Inn Din massacre, still languish in jail. The charges they are facing have been shown to be spurious by the statement of a policeman who testified that their arrest had been set up on the orders of his superior officer. He has been convicted and imprisoned following facing disciplinary proceedings for meeting with the journalists. I reiterate my call for the immediate release of these two journalists, and for the charges against them to be dropped.  

I am further seriously concerned about the instruction issued just this week by the Ministry of Cultural and Religious Affairs that restricts Islamic and Arabic teaching, as well as building new places of worship of the Bible and the Quran. Reportedly, religious teachings may only be carried out at Ministry approved mosques and madrasas in Myanmar language using Ministry approved textbooks, and teaching at home is prohibited. The Myanmar Government must respect the rights of all people to freely teach and study their religion in their chosen tongue.

Ladies and Gentlemen,

As the Council is fully aware, it has been more than ten months since the start of the violence that forced the Rohingya to leave Myanmar. Since that time, I have been consistently reporting of the credible evidence that exists of violations of human rights including the widespread and systematic attacks by security forces against the Rohingya community, possibly amounting to crimes against humanity. I have also been reporting on possible commission of war crimes and crimes against humanity by security forces in the other border areas of Myanmar, including Kachin and Shan States, where ethnic populations have endured protracted conflicts since shortly after Myanmar gained independence in 1948. 

Without concrete action, condemnation by the international community of the tragic and unprecedented level of human rights violations and abuses and violations of international humanitarian law by security forces is simply not enough. Far too many alleged crimes have been committed, and have been documented and reported with scant consequences faced by those who perpetrated them. Power should not be absolute; power must be accountable. On ensuring accountability for gross violations of human rights and serious violations of international humanitarian law in Myanmar, we must admit that so far the United Nations and the international community have failed – once again.

I am fully aware that the primary responsibility for investigating allegations of gross violations of human rights and international humanitarian law, and for ensuring that the victims receive justice and redress, squarely rests with the State concerned. However, in the case of Myanmar, none of the investigations and inquiries established by the Government and the military in the past have met the requirements of international law that they are credible, prompt, thorough, independent and impartial, and capable of leading to the criminal prosecution of those responsible under Myanmar’s justice system. This is particularly because the Myanmar judiciary is lacking in independence and capacity.

I am also aware that the Government has recently established “an independent commission of enquiry” in order to “address reconciliation, peace, stability and developments in Rakhine.” I am not aware what legal and methodological standards the commission of enquiry will be applying in its investigation, and it does not appear to seek to secure accountability and address the root causes of the situation. Given my knowledge of the investigations of the past, the continued denial of possible wrongdoing, and lack of strong political will, I strongly query whether the commission is yet another attempt to distract the international community, diffuse the pressure the Government is facing, and neutralise the calls to end impunity. Credible investigation and prosecution of allegations of violations by security forces and abuses are critical to break the cycle of violence, end impunity and advance accountability, which has so far been absent from Myanmar. This is the sixth domestic inquiry to be set up under the Aung San Suu Kyi-led Government, with other inquiries having been set up to look into Rakhine State since 2012, and no inquiry yet effectively holding perpetrators to account. I must ask why the Government seeks to create more investigative bodies when the best way to obtain impartial, credible, and independent findings would be to allow access to me and the Fact Finding Mission which this Council established, and to set up an OHCHR office with a fully-fledged mandate.

Mr President,

The recent request for a ruling on jurisdiction under Article 19(3) of the Rome Statute over the alleged deportation of the Rohingya people from Myanmar to Bangladesh by the International Criminal Court (ICC) Prosecutor is a welcome effort. However the request is limited to one specific crime among the widespread and flagrant violations of human rights and international humanitarian law that have occurred for decades across Myanmar, and are continuing. It is therefore insufficient to achieve justice for all the people of Myanmar.

While the situation of Myanmar clearly warrants the attention of the ICC, I express deep concern about the apparent inability of the UN Security Council to unite to refer the situation. I strongly recommend the persons allegedly responsible for the crimes be investigated and prosecuted by the ICC or a credible international mechanism. I firmly believe that accountability for the crimes committed is the only way to end the cycles of violence faced by the people of Myanmar.

To prepare for such ICC investigation and prosecution, and in order to finally put an end to decades of such crimes and to take effective measures to bring justice, I recommend that the Council establish an accountability mechanism under the auspices of the United Nations without delay. In my March report to this Council, I made a proposal to establish a structure based in Cox’s Bazar. In view of the scale and gravity of the allegations of security forces’ human rights violations and abuses, and violations of international humanitarian law across the country, the structure should also look to advance justice and rights of all victims. It is therefore imperative to now consider a credible international accountability mechanism going beyond my recommendation.

The details of the accountability mechanism should be determined by the international community. However, I recommend that the accountability mechanism should have three components:

Firstly, the mechanism should interview victims, investigate violations and abuses, document allegations of human rights violations and abuses and violations of international humanitarian law, and consolidate the investigations undertaken by other mechanisms and United Nations bodies, including the Fact Finding Mission. It should have investigators and experts based in Cox’s Bazar given the proximity to so many victims. However investigation of the alleged violations and abuses should not be limited to Rakhine State but should cover the whole of Myanmar, particularly Rakhine, Kachin and Shan States, with investigators and experts traveling to Myanmar and other countries in the region to speak to victims and stakeholders.

Secondly, the mechanism should have legal and judicial experts, who would examine patterns and trends of human rights violations and abuses and violations of international humanitarian law in Myanmar, establish elements, modes and liabilities of the crimes committed, and also determine participation and responsibility of individual perpetrators, store evidence and information, and build cases consistent to international criminal law standards that can be used by future prosecutorial and judicial mechanisms.

And lastly, the mechanism should develop a framework for victim support, reconciliation and reintegration to ensure that justice in the name of victims not operate in vacuum and victims are supported throughout in their pursuance of justice.

In closing, constructive engagement with the Government of Myanmar is my utmost priority. I reiterate that I will continue to avail my assistance and advice in all matters pertaining to my mandate and overcoming challenges in Myanmar’s journey to democratization.

I thank you for your attention.    

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