Detailed findings of the Independent International Fact-Finding Mission on Myanmar (A/HRC/42/CRP.5) [EN/MY]

Human Rights Council
Forty-second session
9-27 September 2019
Agenda item 2
Human rights situation that require the Council’s attention

I. Executive summary

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 1 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

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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 15. Notably, however, the Mission did not find evidence of the Tatmadaw engaging in widespread mass sexual violence against ethnic Rakhine women as a part of its military strategy to combat the AA. This is in striking contrast to the widespread and systematic use of sexual violence against the Rohingya during the 2017 “clearance operations”. It indicates that the highest levels of command appear to be able to control when their troops do or do not use sexual violence during attacks on civilians and civilian populations.

7. Although to a much lesser extent than the Tatmadaw, the Mission found that the Arakan Army has also been responsible for human rights abuses and violations of international humanitarian law, including forced labour and abductions of civilians. The Mission finds that these violations require effective investigation.

Northern Myanmar

1. The Mission found that many of the patterns of violations in northern Myanmar, documented in its last report, have continued despite the Tatmadaw’s unilateral ceasefire since December 2018. While fighting has decreased in Kachin State, it has continued and recently increased in northern Shan State, resulting in the death and injury of civilians.
   Casualties may have been the result of indiscriminate attacks by the parties to the conflict in violation of international humanitarian law and warrant further investigation.

2. The Mission found that torture by Tatmadaw and Tatmadaw-supported militia of suspected members of EAOs have continued throughout the last twelve months. The Mission also found that, while sexual and gender-based violence was not prevalent in some other ethnic conflicts, it remains a prominent feature of the conflicts in Shan and Kachin States, although not on the scale or with the extremity as against the Rohingya in 2017.

3. The humanitarian situation in northern Myanmar continues to be of grave concern, with another year passing without UN access to non-government controlled areas and with IDPs unable to return to their lands, due to the prevailing insecurity in the region. The amendment of the Vacant, Fallow and Virgin Land Management Act has further exacerbated the situation. It has created uncertainty over land titles and communal usage of land, indispensable for the many ethnic populations in northern Myanmar dependent on land for their livelihoods.

4. The Mission also found that EAOs have been involved in human rights abuses and violations of international humanitarian law in the context of the armed conflicts in northern Myanmar. Abuses have included arbitrary detention and cruel treatment. The Mission also documented or received information on alleged cases of EAOs forcibly recruiting adults, recruiting and using children, using landmines and exposing civilians under their control to the effects of attacks. The Mission also collected information about allegation of the persecution of the Christian minorities that warrants further investigation. The Mission also concludes that further investigation is requird into reports of sexual and gender-based violence by EAOs in Kachin and Shan States.

5. The Mission gathered limited information on the situation of the Karen ethnic group in Kayin State and the ethnic groups of the Kokang Self-Administrative Zone from northern Shan State, with a view to drawing attention to these situations and the need for further investigations.

6. With respect to the Karen, the Mission found that further investigations into allegations that the Tatmadaw continues to violate their rights in the context of longstanding armed hostilities that date back to 1949 are warranted. The Tatmadaw’s construction of a road has been the cause of renewed fighting between the Tatmadaw and the Karen National Liberation Army (KNLA). That has triggered credible reports of new human rights violations, with significant displacements. The hostilities stand in the way of a potential return of the Karen refugees who have settled in refugee camps along the Myanmar-Thai border.

7. The situation in the Kokang Self-Administrative Zone also requires further investigation. Cyclical bouts of hostilities in this region of northern Shan State appear to bear some of the hallmarks of Tatmadaw’s operations, including the killing of civilians and displacement of the civilian population.

8. While each of the situations of the ethnic minorities in Myanmar is distinct with its own facts and dimensions, a common thread underlies the situation of each of the ethnic groups. All ethnic groups highlighted in this report have suffered human rights violations and violations of international humanitarian law at the hands of the Tatmadaw. They have experienced the insecurity and hardship that prevail wherever the Tatmadaw operates. They have all been driven off their traditional lands and subjected to forms of marginalisation as a result of the Tatmadaw’s policies.

9. All the ethnic minority communities that the Mission investigated have been deprived of justice for the serious human rights violations perpetrated against them. For this reason, the Mission found it necessary to highlight once again the situation of ethnic minorities in Myanmar, to provide an independent and impartial assessment of the violations committed against them, and to call on the Government of Myanmar and the international community to put a halt to these violations by finally breaking the cycle of impunity that protects the Tatmadaw and leads to further violence in the future.