TWN Info Service on UN Sustainable Development (Mar18/04)
16 March 2018
Third World Network

Myanmar: Violations amounting to international crimes, says UN probe
Published in SUNS #8641 dated dated 14 March 2018

Geneva, 13 Mar (Kanaga Raja) - The United Nations-mandated Independent International Fact-Finding Mission on Myanmar has reported that the body of information and materials it is collecting is "concrete and overwhelming" and points at "human rights violations of the most serious kind," being committed in Kachin, Shan and Rakhine states.

In an interim oral report to the thirty-seventh session of the UN Human Rights Council on Monday, the three experts of the fact-finding mission said these violations in all likelihood amount to "crimes under international law."

The oral report by the fact-finding mission was presented during the interactive dialogue on the human rights situation in Myanmar, where the Special Rapporteur on the situation of human rights in Myanmar, Ms Yanghee Lee (South Korea), also presented her report.

In her statement, Ms Lee said that she is becoming more convinced that the crimes committed in Rakhine state bear the hallmarks of genocide. She called in the strongest terms for accountability.

The Special Rapporteur also called for the establishment of a structure to be based in Cox's Bazar, Bangladesh, under the auspices of the United Nations to investigate, document, collect, consolidate, map, analyze and maintain evidence of human rights violations and abuses (see below).

The Independent International Fact-Finding Mission on Myanmar comprises Mr. Marzuki Darusman (Indonesia), the Chair of the Fact-Finding Mission, together with Ms. Radhika Coomaraswamy (Sri Lanka), and Mr. Christopher Dominic Sidoti (Australia).

The UN Human Rights Council, in a resolution adopted on 24 March 2017, decided to dispatch urgently an independent international fact-finding mission to establish the facts and circumstances of the alleged human rights violations by military and security forces, and abuses, in Myanmar, in particular in Rakhine State.

Mr Darusman, joined by his two fellow experts, delivered the oral report of the Fact-Finding Mission, in which he said that the Mission is focusing on establishing the facts and circumstances of alleged human rights violations and abuses in Myanmar, in particular in Rakhine, Kachin and northern Shan States, since 2011.

The Fact-Finding Mission has made significant progress in fulfilling its mandate, he added.

The interim report was based on information gathered during a series of missions undertaken to Bangladesh, Malaysia, Thailand and the United Kingdom, where the Fact-Finding Mission and its teams of investigators had conducted over 600 in-depth interviews with victims and witnesses of alleged human rights violations and abuses.

They have also received and analysed satellite imagery, photographs and video footage of events.

"We are proceeding thoroughly, meticulously, to gather information, analyse it and draw conclusions," said Mr Darusman.

According to the report, the Myanmar Government has rejected the need for and blocked every attempt of an independent and impartial investigation, including by the Fact-Finding Mission.

Even though Myanmar has denied access, the Fact-Finding Mission said it has "no shortage of credible and reliable information."

"Our team is in the process of further verifying, authenticating, corroborating and analysing this wealth of information, with a view to presenting solid and comprehensive findings on the human rights situation in Myanmar from 2011 onwards in our final report to this Council in September," said the experts.

According to their report, the long-standing conflicts in Kachin and Shan states have recently intensified, leading to more reports of serious violations of international human rights and humanitarian law committed in these areas by the security forces.

"These include reports of extrajudicial killings, arbitrary deprivation of liberty, enforced disappearances, destruction of property and pillage, torture and inhuman treatment, rape and other forms of sexual violence, forced labour, recruitment of children into armed forces, and indiscriminate or disproportionate attacks."

The Fact-Finding Mission is also looking into reports of human rights abuses and violations of international humanitarian law committed by ethnic armed organizations, including the recruitment of children and the failure to take feasible precautions in attacks.

In many of these cases, civilians have been at the receiving end of the violence, it said.

"Victims and witnesses told us about their suffering and how their lives are forever broken as a result of violence in this part of the country," said Mr Darusman.

"They spoke about their displacement as a consequence of the years of armed conflict in Kachin and northern Shan, where they are unable to return to their home villages. They told us about the effect of living in dire conditions in IDP [internally displaced persons] camps, with inadequate food and without protection."

"At this very moment, we are deeply concerned about the clashes between the Myanmar military and the Kachin Independence Army since January 2018, including through airstrikes in areas around the town of Tanai in Kachin, displacing thousands of civilians, as reported by the Special Rapporteur," said the experts.

According to the report, large numbers of civilians were trapped and displaced for several days without adequate humanitarian assistance.

Since the beginning of the year, the escalation of violence has resulted in another wave of internal displacement in Kachin and northern Shan and has magnified the longstanding humanitarian crisis in those areas.

The Fact-Finding Mission urged the authorities of Myanmar to lift all movement restrictions and ensure that humanitarian actors can carry out their work in safety.

It noted that earlier during this Human Rights Council session, the representative of Myanmar stated that the Government will not condone impunity for human rights violations and that action will be taken against any perpetrators where there is concrete evidence.

"We welcome that, for the body of information and materials we are collecting is concrete and overwhelming. It points at human rights violations of the most serious kind, in all likelihood amounting to crimes under international law," said the experts.

It should spur action. In fact, action should have been taken long ago, since Myanmar's human rights obligations are not limited to acting when it is presented with concrete evidence, they added.

"Its duty is to ensure that all allegations of human rights violations and abuses are promptly, thoroughly, independently and impartially investigated in the first place."

This is not happening. The response of the Myanmar Government and military to the events and allegations has been totally inadequate and is of grave concern.

The report noted that the Myanmar authorities continue to accuse the international media of spreading fake news.

"We have eyewitness accounts that allow us to distil the fake news. We have seen unsettling photographs and satellite images of Rohingya villages flattened to the ground by bulldozers, erasing all remaining traces of the life and community that once was - not to mention destroying possible crime scenes, evidence, and landmarks," said Mr Darusman.

People continue to flee, reporting oppression in their villages, restrictions on movements, lack of access to food and livelihoods, and a very real fear of a new wave of violence.

The number of new arrivals in camps in Bangladesh are continuing at a pace of up to 1,000 persons per week.

At no point have the Myanmar authorities held any genuine consultation with the people concerned to understand their needs and dispel their fears. Nor are the authorities allowing the international community to play a role in ensuring that the return is voluntary, safe and dignified - with respect for human rights, said the report.

However, in light of the significant human rights issues that lie at the heart of this crisis, it is critically important for the displaced people not to be returned without adequate guarantees for human rights protection in place.

"Otherwise, we could be laying the groundwork, not for solutions, but for another repeat experience. This is amply shown in Myanmar's history," said the Fact-Finding Mission.

The Fact-Finding Mission said it has made some preliminary findings on the 2017 violence from Rakhine State.

"We take the opportunity of this interim report to state clearly that any denial of the seriousness of the situation in Rakhine state is untenable. The facts speak for themselves," it underlined.

Information collected from across Maungdaw, Buthidaung and Rathedaung Townships indicates that the "clearance operations" of the Myanmar security forces in response to the ARSA (Arakan Rohingya Salvation Army) attacks of 25 August 2017 followed similar patterns.

They resulted in the emptying and destruction of entire villages. Analysis of satellite imagery so far reveals that at least 319 villages across the three townships were partially or totally destroyed by fire after 25 August.

According to the report, the destruction encompassed tens of thousands of structures, predominantly Rohingya homes and other buildings in those villages, including mosques.

These operations further resulted in significant numbers of casualties among villagers.

"People died from gunshot wounds - often due to indiscriminate shooting at fleeing villagers, sometimes shot point blank. Some were burned alive in their homes, often the elderly, disabled or young children, unable to escape from attacks launched without warning. Many others were hacked to death by knives and swords."

Overall, said the report, the widespread and systematic nature of the violence in all three townships suggests "considerable prior military planning and organisation", which the Fact-Finding Mission is examining in detail.

All the information collected by the Fact-Finding Mission so far further points to violence of an "extremely cruel nature, including against women".

"We have collected credible information on brutal rapes, including gang rapes, and other forms of sexual violence, often targeting girls and young women."

Children were not spared in the "clearance operations", and were sometimes targeted. "We have numerous accounts of children and babies who were killed, boys arrested, and girls raped," said the experts.

The Fact-Finding Mission is in the process of analysing the respective roles and command structures of the security forces and the involvement of other actors.

"We will attribute responsibility where it is due," it said.

For the Fact-Finding Mission, the events it is examining in detail in Rakhine, Kachin and Shan states "are products of a longstanding, systemic pattern of human rights violation and abuse in Myanmar."

The final report of the Fact-Finding Mission is expected to be presented at the September session of the Human Rights Council.

REPORT BY SPECIAL RAPPORTEUR ON MYANMAR

Also at the same interactive session, the Special Rapporteur on the situation of human rights in Myanmar, Ms Yanghee Lee, presented her report and said that she is becoming more convinced that the crimes committed in Rakhine state following 9 October 2016 and 25 August 2017 bear the hallmarks of genocide.

She called in the strongest terms for accountability, adding that not only does the Myanmar Government have a responsibility to account for the alleged crimes in Rakhine State since 9 October 2016 and 25 August 2017, and the violations that continue today, but the international community must also be vigilant.

It must not be beguiled by the proliferating Government committees and commissions, and by promises and commitments yet to be fulfilled.

As a step towards arriving at an understanding of the truth of what had happened in Rakhine State in recent months and years, she said that she is recommending the establishment of a structure to be based in Cox's Bazar, Bangladesh, under the auspices of the United Nations to investigate, document, collect, consolidate, map, analyze and maintain evidence of human rights violations and abuses.

Its aim would be to facilitate impartial, fair and independent international criminal proceedings in national or international courts or tribunals in accordance with international criminal law standards.

The focus should include incidents of violence during the security operations following the attacks on 9 October 2016 and 25 August 2017 in Rakhine State, as well as alleged attacks and abuses by ARSA and Rakhine Buddhist villagers.

In her statement to the Council, the Special Rapporteur said she was presenting her report without having access to Myanmar for the first time.

She noted that in the two years since the victory of the NLD in national elections, the Government has yet to make any real progress on legal and judicial reform.

The statute books still contain several repressive laws from the colonial era while more recent laws are also being used to target people and stifle dissenting voices.

The democratic space continues to shrink, with journalists, civil society actors and human rights defenders placed in an increasingly perilous position, particularly when speaking out about human rights abuses.

The level of hate speech, particularly on social media, has a stifling impact on asserting sensitive and unpopular views, and this is very concerning, said the rights expert.

While the Government continues to push forward with its economic development agenda around the country, she remains concerned about governance and transparency.

She said: "No one doubted that the democratic transition from decades of military rule to a civilian one would be challenging for Myanmar. As we are now unfortunately witnessing, a change in the political context does not automatically lead to positive change in the human rights context."

While the scale of violence in Rakhine appears to have eclipsed anything seen in recent years in Myanmar, ethnic minority groups in other areas of the country have, much like the Rohingya, been victims of the military's campaign of domination and discrimination for generations.

The rights expert said that continuing and escalating armed conflicts in Kachin and Shan, which receive scant international attention, are having a devastating impact on civilian populations.

She said she received information about the military conducting new ground offensives last week using heavy artillery in the Tanai gold and amber mining area of Kachin.

Additionally, the Tatmadaw has advanced into Mutraw District in Kayin State, an area controlled by the Karen National Union which is a Nationwide Ceasefire Agreement signatory.

This ceasefire violation led to 1,500 villagers from 15 villages having to flee.

"I am very concerned about these continuing offensives; the path to peace is through inclusive political dialogue, and not through military force," said Ms Lee.

The Special Rapporteur said that she has recommended in her report for the conduct of a comprehensive review of actions by the United Nations system in the lead-up, during and after the events of 9 October 2016 and 25 August 2017 regarding the implementation of its humanitarian and protection mandates and within the Human Rights Up Front framework.

In her report to the Council, the rights expert said that the external review should assess whether the UN and international community could have prevented or managed the situation differently that occurred regarding the Rohingya and in Rakhine State, and make recommendations for accountability if appropriate.

"I believe this is in line with the Secretary-General's own priority on advancing a preventive approach to human rights," she said in her statement at the Council.

Meanwhile, in a statement released on Tuesday, following his visit to Bangladesh (from 7 to 13 March) to assess the situation of the Rohingya population who had crossed the border from Myanmar, the UN Special Advisor on the Prevention of Genocide, Mr Adama Dieng, said: "Let us be clear: international crimes were committed in Myanmar. Rohingya Muslims have been killed, tortured, raped, burnt alive and humiliated, solely because of who they are."

"All the information I have received indicates that the intent of the perpetrators was to cleanse northern Rakhine state of their existence, possibly even to destroy the Rohingya as such, which, if proven, would constitute the crime of genocide."

However, the Special Advisor said, "whether or not we consider that the crimes committed amount to crimes against humanity or genocide, this should not delay our resolve to act and to act immediately. We owe this to the Rohingya population."