TWN Info Service on UN Sustainable Development (Mar18/11)
28 March 2018
Third World Network

Myanmar:  HRC strongly condemns gross violations in Rakhine State
Published in SUNS #8650 dated 27 March 2018

Geneva, 26 Mar (Kanaga Raja) - The United Nations Human Rights Council on Friday strongly condemned the reported widespread, systematic and gross human rights violations and abuses committed in Rakhine State since 25 August 2017, and called upon the Myanmar authorities to ensure that those responsible for human rights violations and abuses are held accountable.

Reiterating its condemnation of attacks carried out by the Arakan Rohingya Salvation Army and other militant groups, the Council also expressed its deepest concern about the disproportionate response of the military and the security forces.

It deplored the serious deterioration of the security, human rights and humanitarian situation, the exodus of almost 700,000 Rohingya into Bangladesh and the subsequent depopulation of northern Rakhine State.

The Council also adopted resolutions extending by a period of one year the mandates of the Special Rapporteur on the situation of human rights in the Democratic People's Republic of Korea, the Independent International Commission of Inquiry on the Syrian Arab Republic, the Special Rapporteur on the situation of human rights in Iran, and the Commission on Human Rights in South Sudan.

It also adopted five resolutions on the situation of human rights in Palestine and other occupied Arab territories.

The resolution on the situation of human rights in Myanmar (A/HRC/37/L.43) was adopted by a vote of 32 in favour, five against and 10 abstentions. It was one among a raft of resolutions adopted on various human rights issues during the closing of the thirty-seventh regular session of the Council on Friday.

Those that voted in favour of the resolution were: Afghanistan, Australia, Belgium, Brazil, Chile, Cote d'Ivoire, Croatia, Egypt, Ethiopia, Georgia, Germany, Hungary, Iraq, Kyrgyzstan, Mexico, Nigeria, Pakistan, Panama, Peru, Qatar, Republic of Korea, Rwanda, Saudi Arabia, Slovakia, Slovenia, Spain, Switzerland, Togo, Tunisia, Ukraine, United Arab Emirates, United Kingdom, and the United States.

Those that voted against were Burundi, China, Cuba, Philippines and Venezuela.

Angola, Democratic Republic of the Congo, Ecuador, Japan, Kenya, Mongolia, Nepal, Senegal, and South Africa abstained in the vote.

"The UN's top human rights body adopted today a resolution on Myanmar, condemning ongoing violations against Rohingya, allocating resources to preserve evidence for use in a justice mechanism, and recognising the authority of the UN Security Council to refer the matter to the International Criminal Court," said John Fisher, Geneva Director of Human Rights Watch, in a statement.

Fisher added: "The joint sponsorship of this resolution by both the European Union and the Organisation of Islamic Cooperation sends a powerful message: evidence is being preserved and those in Myanmar responsible for ethnic cleansing and crimes against humanity will be held to account".

In its resolution on Myanmar, the Human Rights Council also decided to extend the mandate of the Special Rapporteur on the situation of human rights in Myanmar for a further period of one year.

It requested the Special Rapporteur to present an oral progress report to the Human Rights Council at its thirty- eighth session (this coming June) and to submit a report to the Third Committee at the seventy-third session of the General Assembly and to the Council at its fortieth session, in accordance with its annual programme of work.

The Council invited the Special Rapporteur to continue to monitor the situation of human rights and to measure progress in the implementation of the recommendations made by the Special Rapporteur.

In the resolution on Myanmar comprising 36 operative paragraphs and some 12 preambular paragraphs, the Council acknowledged with grave concern the statements made by the Secretary-General, on 26 February 2018, the High Commissioner (for Human Rights), on 7 March 2018, and the Assistant Secretary-General for Human Rights, on 6 March 2018, on the situation of human rights in Rakhine State, in which they referred to ethnic cleansing in Myanmar.

The Council welcomed the positive developments in Myanmar towards political and economic reform, and called upon the Government of Myanmar, including the security forces, to ensure that democratization, national reconciliation, good governance and the rule of law prevail.

It urged the Government to take further steps to promote and protect human rights and combat corruption, and to address outstanding concerns.

The Council also called upon all actors to consolidate the democratic transition with full respect for the rule of law and human rights by bringing all national institutions, including the military, under civilian control, and to ensure the recognition of all ethnic and religious minorities and their equitable inclusion in the political process.

It recognized the first steps taken by the Government of Myanmar to address the underlying causes of the situation in Rakhine State, including by setting up the Central Committee for the Implementation of Peace, Stability and Development in Rakhine State and the Advisory Commission on Rakhine State, established on 5 September 2016 at the behest of the State Counsellor of Myanmar, Daw Aung San Suu Kyi, and chaired by former Secretary-General Kofi Annan.

The Council welcomed the announcement by the Government of Myanmar that it would fully implement the recommendations of the final report of the Advisory Commission and the setting up of an implementation committee and an advisory board to that end.

It urged the Government to implement the recommendations of the Advisory Commission without delay and with determination, in full consultation with all the communities concerned.

It called upon the international community and regional organizations to provide support, including humanitarian and development assistance, to the Government of Myanmar for the implementation of the recommendations of the Advisory Commission on Rakhine State, including the recommendations on an inclusive, transparent and efficient citizenship verification process that provides participants with all benefits, rights and freedoms associated with citizenship, ensuring equal access to essential social services for all Myanmar residents, including education and health care, and providing freedom of movement for them, and on finding sustainable solutions in building inter-communal harmony towards lasting peace, stability and prosperity for the benefit of the whole population.

It called upon the Government of Myanmar to eliminate statelessness and systematic and institutionalized discrimination against members of ethnic and religious minorities, including by addressing the root causes of discrimination, in particular relating to the Rohingya minority, inter alia, by reviewing the 1982 Citizenship Law, which has led to deprivation of human rights, by ensuring equal access to full citizenship through a transparent, voluntary and accessible procedure and to all civil and political rights by allowing for self-identification, by amending or repealing all discriminatory legislation and policies, including discriminatory provisions of the set of "protection of race and religion laws" enacted in 2015 covering religious conversion, interfaith marriage, monogamy and population control, by lifting local orders restricting the right to freedom of movement and restricting access to civil registration, health services and education services, and by facilitating durable solutions that allow internally displaced persons, refugees and camp populations to voluntarily return to their places of origin in safety, security and dignity, and to ensure non-discriminatory access to basic social services in accordance with international law.

It called for a full and independent investigation of the reports of systematic human rights violations and abuses committed, as reported by various United Nations bodies, including the Human Rights Council independent international fact-finding mission.

The Council expressed the urgent need to ensure that all those responsible for crimes related to violations and abuses of international human rights law are held to account through credible and independent national or international criminal justice mechanisms.

It stressed the need to pursue practical steps towards this goal while acknowledging the authority of the Security Council under the Charter of the United Nations, including the authority to refer the situation in Myanmar to the International Criminal Court.

The Council strongly urged the Government of Myanmar to lift the curfew order in Rakhine State, to ensure freedom of movement and the safety and security of all persons without discrimination, to grant and facilitate immediate, safe and unhindered and sustained humanitarian access to United Nations agencies and their partners, and other domestic and international non-governmental organizations, to provide gender-responsive humanitarian assistance to all people in need of assistance in order to save lives and preserve human dignity throughout the country, to grant cooperation partners access without delay to permit the full resumption of aid programmes, to grant access to independent observers and representatives of the media, without fear of reprisals, and to safeguard those who report abuses.

It welcomed the signing by the Governments of Myanmar and Bangladesh of an "arrangement on the return of displaced persons from Rakhine" on 23 November 2017 and of a "physical arrangement for the repatriation of displaced Myanmar residents from Bangladesh" on 16 January 2018 as important first steps towards the safe, voluntary, dignified and sustainable return and repatriation of Rohingya refugees.

It acknowledged the cooperation of Bangladesh with the Office of the United Nations High Commissioner for Refugees, while urging all parties to invite the Office of the High Commissioner, the International Organization for Migration and other relevant international organizations to fulfil their mandates and to participate fully in the Joint Working Group on the Repatriation of Displaced Myanmar Residents from Bangladesh and in the implementation of the returns process to ensure effective and sustainable implementation, in accordance with international law.

The Council acknowledged the measures taken by the Government of Myanmar to prepare for the voluntary return of Rohingya refugees from Bangladesh, including through the Union Enterprise for Humanitarian Assistance, Resettlement and Development in Rakhine.

It stressed the need for the creation of the conditions for safe, voluntary, dignified and sustainable return, with international oversight preferably to their places of origin, providing returnees with freedom of movement, unimpeded access to livelihoods, social services, including health services, education and shelter, and compensating them for all losses.

Acknowledging also the importance of international oversight and monitoring of these processes, it noted with concern the continued departure of members of the remaining Rohingya population for Bangladesh, and called for an end to the intimidation of those displaced and taking shelter in no man's land on the Myanmar-Bangladesh border.

The Council strongly called upon the Government of Myanmar to expedite the safe, voluntary, dignified and sustainable return of all internally displaced persons in conditions of safety and dignity to their homes in Myanmar, including the approximately 120,000 Rohingya internally displaced persons currently in camps near Sittwe, in central Rakhine.

It recognized the admission by the Myanmar military for the first time of the extrajudicial killing of 10 Rohingya villagers in Inn Din village, northern Rakhine State, and expressed concern that the Government of Myanmar has rejected credible reports of atrocities.

It reiterated grave concerns that reporters investigating the Inn Dinn killings have been jailed. It also reiterated its calls upon the Myanmar authorities to cooperate with independent, credible, and effective investigations into all allegations of human rights abuses and violations, including the gender dimension of such abuses and violations.

It deeply regretted that the Government of Myanmar has to date refused to cooperate with the independent international fact-finding mission appointed by the President of the Human Rights Council to establish the facts and circumstances of the alleged recent human rights violations by military and security forces and human rights violations and abuses in Myanmar, in particular in Rakhine State, including but not limited to arbitrary detention, torture and inhuman treatment, rape and other forms of sexual and gender-based violence, extrajudicial, summary or arbitrary killings, enforced disappearances, forced displacement and unlawful destruction of property, with a view to ensuring full accountability for perpetrators and justice for victims.

[In an interim oral report to the thirty-seventh session of the Council on 12 March, the UN-mandated Independent International Fact-Finding Mission on Myanmar had said that the body of information and materials it is collecting is "concrete and overwhelming" and points to "human rights violations of the most serious kind" being committed in Kachin, Shan and Rakhine states, and that these violations in all likelihood amount to "crimes under international law." (See SUNS #8641 dated 14 March 2018.)]

In its resolution, the Council called upon the Government of Myanmar to cooperate fully with the fact-finding mission, including by making available information on the terms of reference and the findings of domestic investigations and other relevant information. It stressed the need for the fact-finding mission to be granted full, unrestricted and unmonitored access to all areas and interlocutors.

It reiterated the need for the fact-finding mission to be provided with all the resources and expertise necessary to carry out its mandate, including forensic science expertise and expertise on sexual and gender-based violence, to continue to fulfil its mandate until it presents its final report to the Human Rights Council at its thirty-ninth session, to be followed by an interactive dialogue.

It requested the presentation of that report to the General Assembly at its seventy-third session, to be followed by an interactive dialogue with the fact-finding mission.

The Council decided that the fact-finding mission must ensure that the large and continually increasing amount of evidence of human rights violations and abuses it has collected is fully documented, verified, consolidated and preserved in order for the material to be effectively shared, accessed and used by credible justice mechanisms.

It requested the Secretary-General to allocate the resources necessary for this to be done.

It strongly encouraged the Government of Myanmar to take the measures necessary to address discrimination and prejudice against women, children and members of ethnic, religious and linguistic minorities across the country, and to take further action to publicly condemn and speak out against national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.

And to adopt measures against incitement to imminent violence based on nationality, race or religion or belief, while upholding freedom of expression, and to increase efforts further to promote inclusion, respect for diversity and peaceful coexistence in all sectors of society, in accordance with Human Rights Council resolution 16/18 of 24 March 2011 and the Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence by, inter alia, further facilitating inter-faith and inter-communal dialogue.

The Council noted with deep concern that charges for criminal defamation and other offences have increasingly been used to target journalists, politicians, students and social media users for their peaceful expression, online as well as offline, in particular under section 66 (d) of the Telecommunications Act, the Electronic Transactions Law and provisions of the Penal Code, including section 505 (b), and that the Official Secrets Act, Unlawful Associations Act and the Peaceful Assembly and Peaceful Procession Law continue to be abused to arbitrarily arrest and detain individuals for exercising their rights to freedom of religion or belief, freedom of expression, and peaceful assembly and association, including on the basis of their ethnicity or political beliefs.

The Council called for open and participatory legislative processes to repeal or reform those laws in line with the international human rights law obligations of the Government of Myanmar.

The Council welcomed the release of political prisoners in accordance with the obligation of the Government of Myanmar, and called upon the Government to ensure that no one remains in prison because of his or her political or religious beliefs, including those recently detained or convicted, human rights defenders and students.

It further called upon the Government to fulfil its commitment to release unconditionally all remaining political prisoners and to provide for the full rehabilitation of former political prisoners, and to amend restrictive laws and to end remaining curbs on exercising the rights to the freedoms of religion or belief, expression, association and peaceful assembly, which are essential to ensure a safe and enabling environment, notably for civil society, journalists, human rights defenders, lawyers, environmental and land rights activists and civilians.

It expressed concern at reports of the arrest of individuals in relation to the exercise of those rights.

It also expressed serious concern about cases of reprisal as reported in relation to cooperation with the Special Rapporteur on the situation of human rights in Myanmar.

The Council emphasized that no one should face reprisals, monitoring, surveillance, threats, harassment or intimidation for cooperating or speaking with the special procedures of the Human Rights Council, including the Special Rapporteur on the situation of human rights in Myanmar, the independent international fact-finding mission or the United Nations.

It called upon the Government of Myanmar to take appropriate measures to prevent such acts and to combat impunity by investigating promptly and effectively all allegations of intimidation and reprisal in order to bring perpetrators to justice and to provide victims with appropriate remedies.

It also noted with concern ongoing reports of land confiscation and clearance, and urged the Government of Myanmar to resolve issues of land tenure in full consultation with the affected populations.

The Council further called upon the Government of Myanmar, including its military and security forces, to take further steps to reform the Constitution and to strengthen democratic institutions, good governance and the rule of law to ensure respect for and to promote universal human rights and fundamental freedoms in accordance with international norms and standards.

It stressed the need for an independent, impartial and effective judiciary and an independent and self-governing legal profession, and called upon the Government to ensure full compliance with its obligations under international human rights law and international humanitarian law, as applicable.

The Council called upon the Government of Myanmar and its institutions to step up efforts to strengthen the protection and promotion of human rights and the rule of law and to advance democratization and inclusive economic and social development towards the achievement of Sustainable Development Goals, including by reforming the Myanmar National Human Rights Commission in accordance with the principles relating to the status of national institutions for the promotion and protection of human rights (the Paris Principles).

It called upon the international community to support Myanmar in this regard, including through technical assistance and capacity-building programmes.

It encouraged all business enterprises, including transnational corporations and domestic enterprises, to respect human rights in accordance with the Guiding Principles on Business and Human Rights, and called upon the Government of Myanmar to meet its duty to protect human rights.

It also called upon home States of business companies operating in Myanmar to set out clearly the expectation that all business enterprises domiciled in their territory and/or jurisdiction are to respect human rights throughout their operations.

ACTION BY COUNCIL ON SOUTH SUDAN

In its resolution on the human rights situation in South Sudan (A/HRC/37/L.40), adopted without a vote, the Council condemned in the strongest possible terms the ongoing violations and abuses of human rights and violations of international humanitarian law in South Sudan, including those involving targeted killings of civilians, ethnically targeted violence, widespread sexual and gender-based violence, including rape and gang rape, which can be used as a weapon of war, the recurring recruitment and use of children, arbitrary arrests and detention, torture, arbitrary denial of humanitarian access and attacks on schools, places of worship, hospitals and United Nations and associated peacekeeping personnel by all parties, and the impunity for such violence by all armed groups.

It condemned the harassment and violence directed at civil society, human rights defenders, humanitarian personnel and journalists, and emphasized that those responsible for violations and abuses of human rights and violations of international humanitarian law must be held accountable.

It stressed that those responsible for violations of international humanitarian law and violations and abuses of human rights, including any that amount to war crimes or crimes against humanity, should be held accountable.

It supported the establishment of transitional justice institutions, and urged the Government of South Sudan to sign the memorandum of understanding with the African Union to establish the hybrid court for South Sudan to investigate and prosecute those responsible for violations or abuses of international human rights and international humanitarian law, where applicable, and/or applicable South Sudanese law.

The Council decided to extend the mandate of the Commission on Human Rights in South Sudan, composed of three members, for a period of one year, renewable as authorized by the Human Rights Council, with the following mandate:

(a) To monitor and report on the situation of human rights in South Sudan, and to make recommendations to prevent further deterioration of the situation with a view to its improvement;

(b) To determine and report the facts and circumstances of, collect and preserve evidence of, and clarify responsibility for alleged gross violations and abuses of human rights and related crimes, including sexual and gender-based violence and ethnic violence, with a view to ending impunity and providing accountability, and to make such information available also to all transitional justice mechanisms, including those to be established pursuant to chapter V of the Agreement on the Resolution of the Conflict in the Republic of South Sudan, including the hybrid court for South Sudan, once established in cooperation with the African Union;

(c) To report on the factual basis for transitional justice and reconciliation;

(d) To provide guidance on transitional justice, including accountability and reconciliation and healing, as appropriate, and - once the Government of South Sudan commits to cooperating with the African Union on establishing the hybrid court for South Sudan - to make recommendations on technical assistance to the Government to support accountability, reconciliation and healing;

(e) To engage with the Government of South Sudan, international and regional mechanisms, including the United Nations, the United Nations Mission in South Sudan, the African Union, including by building upon the work of its Commission of Inquiry on South Sudan and its African Commission on Human and Peoples' Rights, the Intergovernmental Authority on Development, including the Partners Forum, the Chair of the Joint Monitoring and Evaluation Commission and civil society, with a view to providing support to national, regional and international efforts to promote accountability for human rights violations and abuses;

(f) To make recommendations on technical assistance and capacity-building, as appropriate, including to law enforcement institutions, on the promotion and protection of human rights and fundamental freedoms, including on addressing sexual and gender-based violence.

In a statement, Laila Matar, Deputy UN Director at Human Rights Watch, said: "The Council made the right decision to extend the mandate of the Commission on South Sudan for another year to continue investigating violations of human rights and identifying individual perpetrators. The Commission's work is an important first step towards accountability. Now South Sudan needs to establish the long-promised Hybrid Court so that it can receive information from the Commission."