Evidence of past and ongoing mass atrocities against the Rohingya in Myanmar took central focus in two significant developments last week, as the International Court of Justice (ICJ) ordered the government to act to prevent genocide and the United Nations Special Rapporteur on Myanmar issued her final end-of-mission statement. [UN News: ICJ; OHCHR Press Release: Statement] Also last week, the controversial government-created Independent Commission of Enquiry (ICOE) released the executive summary of its final report, in which it found evidence of possible war crimes but not genocide against the Rohingya. [Al Jazeera] Meanwhile, the International Criminal Court (ICC) is proceeding with an investigation into the situation in Myanmar, authorized in November 2019; and, the UN Independent Investigative Mechanism for Myanmar (IIMM) has begun collecting evidence of the most serious violations of international law, since becoming operational in August 2019.
UN Special Rapporteur Visit
The United Nations Special Rapporteur on the situation of human rights in Myanmar, who has been banned from Myanmar since December 2017, visited neighboring Thailand and Bangladesh from January 15 to 23, 2020 to assess the current human rights situation in Myanmar. [OHCHR Press Release: Statement] The visit will apparently be her last fact-finding mission as Special Rapporteur. In her end-of-mission statement, UN Special Rapporteur Yanghee Lee repeatedly referred to the “ongoing” nature of the crisis, described credible allegations of international crimes in the region, and expressed disappointment over the lack of progress in the country’s democratic transition. [OHCHR Press Release: Statement] Among several recommendations, the UN Special Rapporteur called on the Myanmar government to respect the right to freedom of association and to ensure that the upcoming national elections are “credible, free and fair.” To the international community, the UN expert recommended that it continue to monitor the allegations of crimes against humanity, war crimes, and genocide. [OHCHR Press Release: Statement]
During the January 2020 visit to Bangladesh and Thailand, the UN Special Rapporteur met with civil society organizations, victims and refugees currently residing in Bangladesh and Thailand, and public authorities in Bangladesh, among others. [OHCHR Press Release: Statement] The UN expert described meeting with sexual violence survivors, including men and women who had been raped by the Myanmar military and security forces. [OHCHR Press Release: Statement] Moreover, the UN Special Rapporteur highlighted that Christian refugees are in a challenging position given that they “face hostility and violence” at the camps and the Myanmar government has also persecuted them because of their religion. [OHCHR Press Release: Statement] In particular, the UN expert noted the stagnant situation of refugees currently living in the Cox’s Bazar camps, but acknowledged that the ongoing violence in Rakhine make conditions “unsuitable for their return.” [OHCHR Press Release: Statement]
The UN expert reported on the “intensifying conflict” between the Arakan Army (a Rakhine armed group in Myanmar) and the Tatmadaw (the Myanmar military), characterized by tactics such as internet shutdowns, abductions, and mass arrests, and resulting in more people being displaced as well as limited food supplies for those who are already displaced. [OHCHR Press Release: Statement] The UN expert called on both sides to comply with their international humanitarian and human rights law obligations. [OHCHR Press Release: Statement] Considering the state of this conflict and the ongoing armed conflict in Shan, part of northern Myanmar, the UN Special Rapporteur stated concerns over the government’s implementation of the National Camp Closure Strategy, calling it “premature” and insisting that “transparent consultations” are necessary to understand the wishes of the internally displaced persons who will be relocated. [OHCHR Press Release: Statement]
With respect to the upcoming elections, the UN Special Rapporteur stressed that to advance the democratic transition and peace process, the government must ensure and welcome open political debate. [OHCHR Press Release: Statement] The UN expert warned that debate should not be “repressed by nationalist vitriol or draconian laws that infringe on the right to freedom of expression and freedom of association.” [OHCHR Press Release: Statement] Further, the UN expert stated her disappointment with the lack of transparency and inclusivity in the selection of members to the Myanmar National Human Rights Commission, limiting its credibility and ability to “independently promote and protect the human rights.” [OHCHR Press Release: Statement]
Separate from the ongoing conflict in the region and Myanmar’s democratic transition, the UN Special Rapporteur noted that the situation of garment workers in the country is marred by reports of failure to pay minimum wage, sexual harassment by employers, violations of the right to freedom of association, and other workplace abuses. [OHCHR Press Release: Statement] The UN Special Rapporteur reminded the Myanmar government of its obligation to improve working conditions in line with its international human rights obligations, and the “global fashion brands and buyers” of their responsibility to abide by the UN Guiding Principles on Business and Human Rights. [OHCHR Press Release: Statement]
Yanghee Lee’s mandate began in 2014 and will conclude this year. [OHCHR Press Release: Myanmar] The Myanmar government has denied all requests to return to the country since December 2017, following an end-of-mission statement that the government considered to be biased after her visit to the Rakhine and Shan sates in July 2017. [OHCHR Press Release: Statement] Prior to December 2017, she had conducted biannual visits to the country since 2014. [UN News] She will deliver her final report as UN Special Rapporteur on Myanmar in March 2020. [UN News]
International Court of Justice Ruling
Last week, the International Court of Justice released its ruling on provisional measures in the ongoing legal dispute between Gambia and Myanmar, in which Gambia has accused Myanmar of violating the Genocide Convention. In November 2019, Gambia brought the case to the ICJ, accusing Myanmar of trying to “destroy the Rohingya as a group, in whole or in part, by the use of mass murder, rape and other forms of sexual violence.” [ICJ Press Release] Following testimony by Aung San Suu Kyi, Myanmar’s de facto leader, the ICJ issued a unanimous order on January 23, 2020, granting provisional measures that require Myanmar to “prevent the commission of all acts” prohibited under the 1948 Genocide Convention and to preserve “any evidence related to allegations of acts within the scope of…the Genocide Convention.” [ICJ Press Release] The ICJ also ordered Myanmar to submit a report within four months on its efforts to comply with the order, and then every six months thereafter until a final ruling on the case. [ICJ Press Release]
International Criminal Court
In addition to the procedure before the ICJ, the Office of the Prosecutor of the ICC requested authorization from the ICC judges to open an investigation into the Bangladesh/Myanmar situation in July 2019. [IJRC; UN News: ICC] In November 2019, the judges of the ICC Pre-Trial Chamber III authorized an investigation into possible crimes against humanity committed against the Rohingya people. [IJRC] To date, the ICC has only issued an Order on Information and Outreach for the Victims of the Situation. The ICC judges have not summoned anyone to appear in court or issued arrest warrants. See ICC, Bangladesh/Myanmar.
Independent Investigative Mechanism for Myanmar
In response to pressure from the UN Special Rapporteur on Myanmar and others, the UN Human Rights Council created the Independent Investigative Mechanism for Myanmar in September 2018. [OHCHR Press Release: Statement] Its mandate is to collect and analyze evidence of the most serious international crimes and violations of international law in the country since 2011, verify information, support relevant criminal proceedings, and report to the Human Rights Council and General Assembly. See OHCHR, Independent Investigative Mechanism for Myanmar. The IIMM became operational in August 2018, and picks up on the work of the previously-established Independent International Fact-Finding Mission in Myanmar, which was charged with documenting relevant human rights violations in a 2019 report to the Human Rights Council.
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