Detailed findings of the Independent International Fact-Finding Mission on Myanmar

Detailed findings of the Independent International Fact-Finding Mission on Myanmar

Report Sub mitted by Human Rights Council, Geneva.

1. This report provides an update on conflict-related and other human rights violations and abuses in Myanmar since the Mission’s last report to the Human Rights Council in September 2018. The report focusses on the situation of ethnic minorities in Myanmar’s Rakhine, Chin, Kachin and Shan States. More specifically, the report highlights the situation of the Rohingya, the armed conflict between the Arakan Army and the Tatmadaw, and the situation in northern Myanmar. The report documents violations and abuses under international human rights law and violations of international humanitarian law, principally by the Myanmar military, known as the Tatmadaw, and also by ethnic armed organizations (EAOs). The report also provides a brief overview of the situation of the Karen in Kayin State and the Kokang Self-Administrative Zone in northern Shan State.

The situation of the Rohingya

2. The situation of the Rohingya continues to be of grave concern to the Mission. The Mission did not document in relation to the last year violations of a similar gravity to the Tatmadaw’s “clearance operations” after attacks on police and military posts on 25 August 2017, described in its last report. However, it confirmed that the Rohingya remain the target of a Government attack aimed at erasing the identity and removing them from Myanmar, and that this has caused them great suffering. Additionally, many of the factors that contributed to the killings, rapes and gang rapes, torture, forced displacement and other grave human rights violations by the Tatmadaw and other government authorities that the Mission documented in its 2018 report are still present. This has led to the conclusion that the situation of the Rohingya in Rakhine State has remained largely unchanged since last year. The laws, policies and practices that formed the basis of the Government’s persecution against the Rohingya have been maintained. With another year having passed without improvements to their dire living conditions, prospects for accountability or legal recognition as citizens of Myanmar, their plight can only be considered as having deteriorated.
3. The Government of Myanmar has made no progress towards addressing the underlying structural discrimination against the Rohingya by amending the discriminatory laws, including the 1982 Citizenship Law. State policies that impose and force Rohingya to accept national verification cards (NVCs) have intensified. The Rohingya continue to perceive the NVCs with scepticism due to their history as a tool of persecution, having been used to disenfranchise and “other” them from the rest of the population.
4. The Mission found that movement restrictions, applied to the Rohingya in a discriminatory and arbitrary manner, touch almost every aspect of the lives of the 600,000 Rohingya remaining in Rakhine State, affecting basic economic, social and cultural rights, including their ability to sustain themselves, obtain an education, seek medical assistance or even pray and congregate.
5. The lack of safe and viable homes and land for Rohingya to return to is further exacerbating their situation. The Mission found that Rohingya villages continue to be bulldozed and razed. An estimated 40,600 structures were destroyed between August 2017 and April 2019, with over 200 settlements almost completely wiped out. Instead, new structures are being built on land that used to be cultivated and lived on by those who fled. Paradoxically, the Mission found that Rohingya have been forced to work in constructing new housing developments, in conditions that amount to forced labour.
6. Against the backdrop of these unbearable conditions, insecurity has been heightened as a result of the conflict between the Arakan Army and the Tatmadaw in northern Rakhine, in areas from which Rohingya were expelled. This has been an additional contributing factor to making a safe, dignified and sustainable return of the Rohingya population impossible at this time.
7. Justice remains elusive for the victims of grave crimes under international law that the Mission documented in its last report, in particular those perpetrated during the 2016 and 2017 “clearance operations”. The Government of Myanmar has not taken the necessary measures to effectively investigate or prosecute those responsible.
8. The cumulative effect of these factors has led the Mission to conclude on reasonable grounds that the Government’s acts continue to be part of a widespread and systematic attack against the remaining Rohingya in Rakhine State, amounting to the crimes against humanity of inhumane acts and persecution.
9. Furthermore, having considered the Government’s hostile policies towards the Rohingya, including its continued denial of their citizenship and ethnic identity, the living conditions to which it subjects them, its failure to reform laws that subjugate the Rohingya people, the continuation of hate speech directed at the Rohingya, its prior commission of genocide and its disregard for accountability in relation to the “clearances operations” of 2016 and 2017, the Mission also has reasonable grounds to conclude that the evidence that infers genocidal intent on the part of the State, identified in its last report, has strengthened, that there is a serious risk that genocidal actions may occur or recur, and that Myanmar is failing in its obligation to prevent genocide, to investigate genocide and to enact effective legislation criminalizing and punishing genocide. Against this background, the Mission deems that the conditions enabling the safe, voluntary, dignified and sustainable return of close to one million Rohingya refugees from Bangladesh do not yet exist. The current conditions makes their return impossible at this time. Because of the absence of positive change over the past two years, the Mission cannot foresee when repatriation will be feasible.
10. The Mission comprised three experts: Marzuki Darusman (Indonesia, chair), Radhika Coomaraswamy (Sri Lanka) and Christopher Sidoti (Australia).
11. This report complements the Mission’s report submitted to the Human Rights Council pursuant to resolution 39/2,2 by which the Council extended the mandate of the Independent International Fact-Finding Mission on Myanmar (“the Mission”). The Council requested the Mission to present a final report on its activities to the Council at its forty-second session.
12. This report focuses on human rights developments since September 2018. It highlights the situation of ethnic groups in Rakhine, Chin, Kayin, Kachin and Shan States, focussing on conflict-related human rights violations and abuses and violations of international humanitarian law. It also provides a legal analysis of the situation of the Rohingya under the rules of State responsibility and the 1948 Genocide Convention, to which Myanmar is a party. The Mission further presents its findings on the situation of the conflict between the Tatmadaw and the Arakan Army since the beginning of 2019 and the latest developments in northern Myanmar.
13. The Mission regrets the continuing lack of cooperation from the Government of Myanmar, despite the numerous appeals made by the Human Rights Council and the Mission. During the reporting period, the Mission requested to meet with the Permanent Representative of Myanmar in Geneva on two occasions and requested country access on 12 February 2019. It sent a detailed list of questions pertaining to the mandate of the Mission on 28 March 2019. The Mission received no official response to any of its communications. The Mission’s draft main findings were shared with the Government prior to its public release, providing an opportunity to comment or make factual corrections. No response was received. This conference room paper, containing the detailed findings of the Mission in relation to conflict-related and other human rights violations, was also shared with the Government on 11 September 2019. No response was received. The Mission’s letters are in annex 2.

Rules of State responsibility

14. Based on the Mission’s past and present findings, the Mission has considered Myanmar’s obligations under the rules of State responsibility, under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, to which Myanmar is a party. Relatedly, the Mission welcomes the efforts of States, in particular The Gambia and Bangladesh, and the Organisation of Islamic Cooperation to encourage and pursue a case against Myanmar before the International Court of Justice (ICJ) under the Genocide Convention. Elected officials in The Netherlands and Canada have also called on their governments to pursue such a case.

(a) Prohibition on committing genocide

15. Under the Genocide Convention, States parties have an implicit obligation not to commit genocide26 and express obligations to prevent and punish genocide crimes.27 For a State to be in breach of the genocide prohibition, it must be shown that State organs, or persons or groups whose acts are attributable to the State,28 committed one or more specific acts “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”. Those acts, referred to as “underlying acts”, are (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; and (e) forcibly transferring children of the group to another group.30 The Mission’s 2018 report provides the Mission’s assessment that the Rohingya constituted a protected group under the terms of the Genocide Convention and that the violence directed at them constituted underlying acts (a), (b), (c) and possibly (d).
16. To establish that a State had the intent to destroy, in whole or in part, a protected group, an investigator must be able to establish either that a State had a plan expressing the intent to commit genocide or that a pattern of conduct reveals such intent. To make a finding of genocide under the rules of State responsibility it is sufficient to demonstrate that genocide is attributable to a State organ, such as a ministry or security force, without identifying specific individuals who are responsible for the genocide. In the case of Myanmar, the Mission has concluded on reasonable grounds that the Tatmadaw is the most notable, but not the only, State organ that engaged in underlying genocidal acts with the inference of genocidal intent. In sum, State involvement through military and civilian acts, organs and persons was extensive.