Report of the detailed findings of the Independent International Fact-Finding Mission on Myanmar

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Report of the detailed findings of the Independent International Fact-Finding Mission on Myanmar
The report of the Independent International Fact-Finding Mission on Myanmar (A/HRC/39/64).

17 September 2018 in English.

The Human Rights Council established the Independent International Fact-Finding Mission on Myanmar in its resolution 34/22. In accordance with its mandate, the Mission focused on the situation in Kachin, Rakhine and Shan States since 2011. It also examined the infringement of fundamental freedoms, including the rights to freedom of expression, assembly and peaceful association, and the question of hate speech.

The Mission established consistent patterns of serious human rights violations and abuses in Kachin, Rakhine and Shan States, in addition to serious violations of international humanitarian law. These are principally committed by the Myanmar security forces, particularly the military. Their operations are based on policies, tactics and conduct that consistently fail to respect international law, including by deliberately targeting civilians. Many violations amount to the gravest crimes under international law. In the light of the pervasive culture of impunity at the domestic level, the mission finds that the impetus for accountability must come from the international community. It makes concrete recommendations to that end, including that named senior generals of the Myanmar military should be investigated and prosecuted in an international criminal tribunal for genocide, crimes against humanity and war crimes. The present document contains the detailed findings of the Mission. Its principal findings and recommendations are provided in document A/HRC/39/64.

 The Independent International Fact-Finding Mission on Myanmar (hereinafter “the Mission”) was established by Human Rights Council resolution 34/22, adopted on 24 March 2017. The President of the Council appointed Marzuki Darusman (Indonesia) as chairperson and Radhika Coomaraswamy (Sri Lanka) and Christopher Sidoti (Australia) as members. A secretariat was recruited by the Office of the United Nations High Commissioner for Human Rights (OHCHR). The core team was composed of a coordinator, fact-finding team leader and five human rights officers, legal adviser/reporting officer, military adviser, sexual and gender-based violence adviser, security officer, two language assistants and administrative support.

 The Mission presented an oral update at the Human Rights Council’s thirty-sixth session (19 September 2017) and an oral interim report at the thirty-seventh session (12 March 2018), and delivered a video statement at the twenty-seventh special session of the Council (5 December 2017). In its decision 36/115, the Council requested the Mission to submit its final report at its thirty-ninth session. The main findings and recommendations of the Mission are contained in document A/HRC/39/64. A/HRC/39/CRP.2 contains the full factual and legal analysis, with supporting information, underpinning document A/HRC/39/64. It also includes recommendations directed more broadly than the accountability recommendations in that document.

Kachin and Shan States

The Mission is satisfied that these two criteria are fulfilled for the conflicts between the Government forces, on the one hand, and the Kachin Independence Army (KIA), the Shan State Army – South (SSA-S), the Shan State Army – North (SSA-N), the Ta’ang National Liberation Army (TNLA), the Arakan Army (AA), and the Myanmar National Democratic Alliance Army (MNDAA), on the other hand. This was the case for the period under review in this report.

These non-State armed groups, in Myanmar referred to as “ethnic armed organizations”, are long-established and, although they each have their own characteristics, they all have a clear leadership and command structure; headquarters; regular recruitment efforts and training; uniforms; a demonstrated ability to procure arms; an ability to plan, coordinate and carry out military operations (jointly or separately); and an ability to exercise some level of territorial control in their respective operational areas. These elements all confirm a level of organization sufficient to consider them party to an armed conflict. The hostilities between each of these groups and the Government forces have also reached the required level of intensity: clashes have occurred at regular intervals over a long period of time; have involved the use of heavy weaponry and landmines, as well as military aircraft, attack helicopters and heavy artillery; are often marked by extensive destruction of property and displacement, resulting in casualties; and lead to shifting frontlines and control over territory.

Rakhine State

A more difficult question was whether the violence in Rakhine State, involving the Arakan Rohingya Salvation Army (ARSA)55 and the Myanmar government forces, amounted to a non-international armed conflict at any point in time. ARSA is commonly regarded as a poorly armed and poorly trained group, with a small number of partly trained members but principally relying on untrained villagers to conduct attacks with sticks and knives. In comparison with the long-standing and well-armed non-State armed groups active in northern Myanmar, ARSA’s level of organization and military capacity appears more limited.

However, the situation must be assessed on the facts, based on the information that emerged during the Mission’s fact-finding work. The Mission considered the following elements as pointing at a certain level of organization within ARSA: a command structure allowing instructions to pass from decision makers to members and supporters at ground level, who complied with them; an ability to coordinate between an operational group in Rakhine State and groups based abroad; an ability to stage coordinated or simultaneous attacks across different locations in a tightly-controlled environment; an ability to mobilise widely among the Rohingya community at the time of attacks; the organization of village cells according to different roles and responsibilities; an ability to provide at least a core group of members with some military training and others with basic defence training, albeit limited; an ability to obtain some firearms and produce some improvised explosive devices and other hand-made weapons; an ability to articulate and communicate its positions and demands in a seemingly unified manner; and at least a stated willingness to abide by international law. On the other hand, the Mission also found elements that point towards the opposite view, chiefly ARSA’s apparent inability to raise significant funds and to procure and distribute firearms or other weaponry, and an overwhelming majority of those who participated in the attacks not having had any meaningful military training.

On balance, considering that international jurisprudence and legal scholarship emphasize that “some degree of organization will suffice” and that the requisite level of organization “should not be exaggerated”, the Mission considered that ARSA meets the requisite threshold of organization. The main factor that swayed the Mission was ARSA’s ability to stage up to 30 coordinated attacks on Government security posts in August 2017 (although some of these attacks were very limited in scale) in a tightly controlled environment and despite the earlier “clearance operations” of the Myanmar security operations following the October 2016 ARSA attacks.

 The second criterion, the intensity of the violence, cannot be in doubt, especially since August 2017. The number of incidents, the geographic spread of the violence, the military equipment and weaponry brought in and used during the operations, the duration of the security operations, the number of casualties and injuries, and the extent of the destruction caused, are of a nature and scale that cannot be regarded as a mere internal disturbance. The question of whether the use of such tactics by the Myanmar security forces was warranted, appropriate and commensurate with the threat faced is valid, and will be discussed in this report, but has no bearing on the factual determination of the intensity of the violence itself. In this regard, the Mission also notes that ARSA was involved in multiple attacks on Myanmar security posts, as well as in the killing of informants and the burning of at least one village.

The Mission therefore has reasonable grounds to consider that the conflict between the Myanmar government forces and ARSA amounts to a non-international armed conflict at least since 25 August 2017. The Mission consequently examined the use of force in the context of the August 2017 attacks and the resulting allegations of human rights violations and abuses in light not only of the relevant rules of international human rights law but also of international humanitarian law.

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