To Member and Observer States of the UN Human Rights Council
Cc: The UN High Commissioner for Human Rights
1 March 2023
Open letter: The UN Human Rights Council must take concrete steps to actualize justice and bolster support for the people of Myanmar’s will for federal democracy and human rights
We, the undersigned 160 Myanmar, regional and international civil society organizations (CSOs), call for the United Nations Human Rights Council (UNHRC) to take concrete actions to advance accountability through all possible avenues, protect human rights of the Myanmar people, and strongly support their will for federal democracy.
We welcome the UNHRC resolution of 1 April 2022 which acknowledged the human rights situation in Myanmar as one of the Council’s important agenda. We however recognize that the resolution failed to adequately reflect or address the severity of the human rights and humanitarian crisis in Myanmar. The resolution also fell short in advancing justice and ending rampant impunity enjoyed by the Myanmar military for decades. During the 52nd Regular Session of the UNHRC, we call for the adoption of a meaningful and robust resolution which reflects the Myanmar people’s desire for federal democracy, pursues all available mechanisms and avenues for justice and accountability, and bolsters effective locally-led frontline humanitarian assistance.
While monitoring and reporting mandates on Myanmar by the UNHRC remain strong and robust, there is an urgent need for the Council to strengthen its efforts for justice and accountability. The creation of the Independent Investigative Mechanism for Myanmar (IIMM) to collect evidence of the most serious international crimes in Myanmar and prepare files for criminal prosecution — following the findings of the Independent International Fact-Finding Mission on Myanmar — was a substantial step in the right direction. However, the IIMM is not mandated to initiate prosecution, rendering justice elusive for victims of the most serious international crimes committed in Myanmar prior to its establishment in 2018, including the Rohingya genocide. Currently, there is no international court that has an investigation into all crimes committed in Myanmar.
We further express disappointment at the insubstantial UN Security Council (UNSC) resolution on Myanmar, adopted in December 2022, which failed to either uphold the Council’s responsibilities under Chapter VII of the UN Charter or refer the situation in Myanmar to the International Criminal Court (ICC).
The UNHRC must move the UN beyond solely gathering evidence to making justice a reality in Myanmar, by calling on the UN General Assembly (UNGA) and the UNSC to refer the situation in Myanmar to the ICC or establish a tribunal of its own. At the same time, we urge the Council to welcome the declaration lodged by the National Unity Government (NUG) under Article 12(3) of the Rome Statute to accept the ICC’s jurisdiction over international crimes committed in Myanmar territory since 1 July 2002, a significant step towards justice taken by Myanmar’s legitimate government. Finally, we urge the UNHRC to further recommend the UN member states, agencies and mechanisms supply financial, political and technical support for ongoing universal jurisdiction efforts in Argentina, Germany, Indonesia and Turkey.
Achieving accountability in Myanmar means justice for victims of the world’s most heinous crimes. Equally, securing justice will “[restore] any semblance of democratic rule, security and stability to the country,” as the High Commissioner himself stated, and by extension to the Southeast Asian region.
We are alarmed by the UN’s apathy towards the Myanmar military’s total disregard and undermining of the Five-Point Consensus (‘5PC’), devised by the Association of Southeast Asian Nations (ASEAN), in the past 22 months. ASEAN itself has explicitly requested UN support in implementing the 5PC, while the UNSC resolution called for the implementation of it. The UN can no longer hide behind ASEAN. The UNHRC must strongly recommend the bloc to move beyond its failed plan based on extensive consultation with the NUG, ethnic revolutionary organizations (EROs) and civil society. It must further call on the UNSC to use all instruments at its disposal, including enforcing punitive measures, should the junta fail to comply with the resolution.
For the past two years, the military junta has deliberately carried out extrajudicial killings, massacres, sexual and gender-based violence, mass arbitrary arrests, torture in detention and other horrendous violations against civilians in Myanmar in a widespread and systematic manner. Since the failed coup, the junta has slain over 3,000 people and sentenced 144 people to death. In July 2022, it abhorrently executed four democracy activists, an act which the IIMM stated “could constitute crimes against humanity or war crimes.” We welcomed statements by the UN Secretary-General and the UNSC to condemn the execution, and urge the UNHRC to strongly follow suit.
Most notably, the junta has consistently launched airstrikes on civilians, including at schools, medical facilities, and religious sites. In September 2022, it murdered 11 children at a school in Let Yet Kone village, Sagaing Region, and a month later killed over 60 innocent civilians celebrating the founding of the Kachin Independence Organisation. On 14 and 16 February 2023, the junta’s jet fighters dropped bombs in Mutraw District in Karen State, destroying two rice warehouses and seven schools, including New Generation School which has offered higher education to Karen students for over ten years. The UNHRC must accurately recognize the gravity of the crisis in Myanmar as constituting crimes against humanity and war crimes. It must further condemn the junta’s rampant airstrikes targeting civilians, strongly call for a global arms embargo which covers all weapons, munitions and other equipment, as well as the provision of military assistance, and recommend member states to suspend direct and indirect supply and brokering of arms and aviation fuel to Myanmar.
The UN further has an obligation to ensure the protection of children in armed conflict. As the Special Rapporteur on the situation of human rights in Myanmar, Tom Andrews, stated in his conference room paper, “the junta’s violent assaults on children … are part of its ongoing widespread and systematic attack on the people of Myanmar and likely constitute crimes against humanity and war crimes.”
As of 2 February 2023, over 1.2 million people have been internally displaced across Myanmar, while over 72,000 people have sought safety in India and Thailand. The junta’s primary role in creating and exacerbating the humanitarian crisis must be condemned by the UNHRC. The extension and widening of the unlawful state of emergency and martial law to cover additional 37 townships in strong resistance areas indicates that the junta only intensify its brutal attacks.
The UN must further reverse decades of systemic failures as its agencies continue to fall far short of executing any “complementary and mutually reinforcing work” to address the root causes of and improve the humanitarian and human rights tragedy in Myanmar. Most urgently, we call on the UN to stop allowing the junta to weaponize aid and ensure aid and relief reach those in direst need. To this end, it must direct its agencies and advocate for other aid providers including member states to partner with local frontline humanitarian actors, including ethnic and border-based civil society and community-based organizations, and the NUG and EROs, who have been providing assistance and services to affected communities.
The junta’s ongoing atrocities also present a tremendous obstacle to the safe, voluntary, dignified and sustainable return of Rohingya languishing in camps or harrowing conditions. The UNHRC must recognize this reality and welcome the International Court of Justice’s decision to reject Myanmar’s preliminary objections in the case lodged by The Gambia against Myanmar on the application of the Convention on the Prevention and Punishment of the Crime of Genocide. Moreover, the UN should ensure member states, in particular Myanmar’s neighboring countries, act in line with the principle of non-refoulement, not only in regard to Rohingya refugees but all Myanmar refugees.
With the current crisis unfolding, it is paramount for the Myanmar people to have their voices represented at the UN. We welcome the High Commissioner’s accurate recognition of the Myanmar military’s action on 1 February 2021 as the attempted coup in the oral update to the 50th Session of the UNHRC and the statement on 27 January 2023. The UNHRC’s decision to reject the junta’s representative at its sessions since the 47th Regular Session of the UNHRC, in response to a collective call of Myanmar civil society, was further welcomed. However, the UNHRC must recognize the Myanmar people’s democratic will, as expressed in the November 2020 general elections, and legitimate government the NUG. The UNGA’s deferral of a credentials decision on Myanmar, an explicit rejection of the junta’s attempt to claim Myanmar’s seat at the UN, allows the NUG to continue to represent the people of Myanmar through Ambassador Kyaw Moe Tun at the UNGA. This should extend to the UNHRC and other UN Offices in Geneva. To exclude the representative of Myanmar to the UNGA from the 52nd Regular Session of the UNHRC is contradictory and, in effect, denying the people of Myanmar their legitimate representation.
As the junta conspires to illegally hold sham national elections, despite lacking legitimacy, a constitutional basis, and effective control of Myanmar’s territory as also made clear by the Special Rapporteur on the situation of human rights in Myanmar, the UNHRC must unequivocally denounce any such plans, and reject potential voting results as illegitimate. The results of the 2020 elections already reflect the true will of the Myanmar people and provided the basis for the formation of the Committee Representing Pyidaungsu Hluttaw, the NUG, and the National Unity Consultative Council.
The UNHRC must fully support the democratic will of the people of Myanmar, bring about justice and accountability, and strengthen locally-led humanitarian aid. To this effect, it must mobilize member states to utilize all tools at their disposal to actualize justice through all possible routes.
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