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Statement by Mr. Marzuki DARUSMAN, Chairperson of the Independent International Fact-Finding Mission on Myanmar, at the 39th session of the Human Rights Council

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18 September 2018

Agenda Item 4
Geneva, 18 September 2018

Mr. President, Distinguished Delegates, Ladies and Gentlemen,

In March 2017, the Human Rights Council decided that “the facts and circumstances of recent allegations of human rights violations and abuses in Myanmar, in particular in Rakhine State...” must be established. It entrusted Ms. Radhika Coomaraswamy, Mr. Christopher Sidoti and myself with this task. Focusing on the States of Kachin, Rakhine and Shan, where reports of serious human rights violations indicated that special attention was warranted, we chose 2011 as our starting point. At our first update to this Council, we pledged to you that we would go where the evidence leads us, and that is what we have done.

As soon as the Mission was constituted and met for the first time, the west of Myanmar literally went up in flames. It is difficult to convey the horrific attacks launched on 25 August 2017 against the Rohingya people in Rakhine State, leading to a mass exodus of three-quarters of a million people to neighbouring Bangladesh, deaths of at least 10,000 people, and the destruction of over 37,000 Rohingya homes and structures. We visited Cox’s Bazar at the start of our work, just after the exodus began, and again last July to bring you today the most updated information we could.

Our team met with hundreds of refugees. We also met with many who had fled previous rounds of violence from Rakhine and elsewhere. We reached out to them in Bangladesh, Indonesia, Malaysia, Thailand and the United Kingdom. We consulted independent researchers and experts from inter-governmental and non-governmental organizations. We invited the public to share information with us through a call for submissions. We checked our information against authenticated satellite images, photos and videos. Following established methodologies and United Nations best practices for human rights fact-finding missions, we amassed and analysed a huge volume of information. It soon became apparent that we were facing a human rights catastrophe.

With a heavy heart and deep sadness we have drawn conclusions, on the basis of the facts, that we never expected would be as grave as they are. What we have found are not only the most serious human rights violations, but crimes of the highest order under international law.

We present to you today our official report (A/HRC/39/64), along with our full detailed report (A/HRC/39/CRP.2) that together set out how we arrived at our conclusions.

Mr. President,

At the core of every incident and every human rights violation we examined was the extreme brutality of the Myanmar military (known as the Tatmadaw). The facts indicate that its operations are consistently and grossly disproportionate to any discernible military objective. It enforces a vision of a Bamar-Buddhist nation that dominates the other 135 officially recognized ethnic minority groups, in which the Rohingya have no place. Moreover, it has no incentives to work towards peace or to respect human rights. This lies at the root of Myanmar’s human rights problems, which have been documented for decades.

We have verified the destruction resulting from Tatmadaw operations in numerous sites across the three States. From that, we reconstructed in detail the unfolding of events in nine specific incidents in Rakhine State in the weeks after 25 August last. We have also looked in detail at emblematic events in Kachin and Shan States. Analyzing this vast information allowed us to examine the human rights consequences of Tatmadaw operations.

Mr. President,

It is hard to fathom the level of brutality of Tatmadaw operations, its total disregard for civilian life. As I do not have the words to explain it, I invite everyone here to judge for yourself.

The village Min Gyi (also known by its Rohingya name of Tula Toli) is etched in my mind. On the morning of 30 August 2017, Tatmadaw soldiers, including the 99th Light Infantry Division, accompanied by armed ethnic Rakhine and other ethnic minorities, descended on this Rohingya village, which is bordered on three sides by a river. Without notice, Tatmadaw soldiers entered by land, opening fire and burning houses.

As villagers fled in the opposite direction, soldiers fired directly on people trapped between themselves and the riverbank. Many people were shot and killed then and there, including many who attempted to swim across the river. Those who could not escape were rounded up and separated by sex. The men were systematically killed. Children were shot, thrown into the river or onto a fire.

The women and girls were taken in groups of five to seven to the larger houses in the village, where their jewellery was taken from them, beaten, and viciously raped. Many were stabbed and killed, along with the small children who were with them. The houses were then locked and set on fire with petrol brought by Tatmadaw helicopters

The destruction was complete. All the Rohingya houses and structures in Min Gyi were burned to ashes. All its inhabitants fled or were killed. Lists carefully compiled by Rohingya community volunteers in the refugee camps suggests that approximately 750 men, women and children died that day. This included people from our villages who had sought sanctuary in Min Gyi.

These facts were recounted to us by dozens of survivors, verified through satellite imagery and corroborated with experts and other investigators. They are supported by the scars, injuries and profound trauma of the victims. All the interviewees identified Tatmadaw soldiers as the main perpetrators.

This was not an incident of spontaneous inter-communal violence. The killing of civilians of all ages, including babies, cannot be argued to be a counter-terrorism measure. There can be no military imperative to rape women and girls or to burn people alive. It was a well planned, deliberate attack on a specific civilian population.

By examining such incidents in a number of villages, we traced remarkably consistent practices, to the point where we can confidently state that they are central to Tatmadaw operations. In every incident we examined, we observed a total disregard for civilian life and property or, even worse, the specific targeting of civilians. In the northern Myanmar States of Shan and Kachin, civilian populations that share the same ethnicity as an armed group are often targeted for that reason alone.

Another feature of Tatmadaw operations is sexual violence. Its scale, cruelty and systematic nature reveal beyond doubt that rape is used as a tactic of war. During the 2016 and 2017 clearance operations, 80% of rape survivors who were interviewed by the Fact-Finding Mission said they had been gang raped, and of those, over 40% were subjected to mass gang rape.  Many women and girls were physically and mentally tortured while being raped - including being so severely bitten that it left permanent scars - it is difficult to believe that this was not an intentional act and akin to a form of branding.  Women and girls were also systematically abducted, detained and raped in military compounds frequently amounting to sexual slavery. Many were killed after being raped. In Kachin and Shan state, women and girls, are commonly abducted for forced labour and raped while detained.

Underlying such atrocities is the pervasive exclusionary and discriminatory rhetoric – and actions – targeting ethnic and religious minorities. For instance, we have received credible accounts that over 200 churches have been attacked, ransacked or destroyed since June 2011 in Kachin and Shan States.

In the case of the Rohingya, much of the animosity is attributed to historical reasons. The facts, however, indicate that there is more at play. Historical animosities do not explain the generally amicable relations prior to 2012 between ordinary Rohingya and ethnic Rakhine, who together comprise the majority of the population of Rakhine State. Relations deteriorated quickly that year, after hate speech against the Rohingya became more threatening, more vulgar and more pervasive. It was encouraged by the authorities, both civilian and military. It has only become worse since then, particularly since social media began to take root in Myanmar in 2015.

A particular dimension of hate speech specific to the Rohingya is the emphasis on their not belonging in Myanmar. They are commonly denigrated as “illegal immigrants”, “Bengalis”, and “kalar”, which means “dark” or “dark-skinned”, another term that denotes foreignness. Arbitrarily deprived of their citizenship, the Rohingya are now de facto stateless. Soon after the attacks of 2017, soldiers were boasting on Facebook of having finally had the chance to kill “kalar”.

The general public is relentlessly exposed to such hate speech, as well as misinformation from the authorities. It is alarming. Such hateful messages are taught in the religious schools and the military academy, and are transmitted through traditional media and, particularly, social media. Thus, if the reality is perceived differently inside Myanmar than outside, there is good reason for it.

This poisonous environment allows the Tatmadaw to maintain its self-proclaimed role as the “protector of the nation”. Particularly during the last few years when it appeared that the process of democratization could have diminished its role, the Tatmadaw actively shored up its dominance by promoting the vision of a Bamar-Buddhist identity of the nation, unilaterally breaking ceasefires, and portraying the Rohingya as an existential threat.

The result for the Rohingya is that they are persecuted, from birth to death. Restrictions severely curtail their ability to earn a livelihood, to access health care and education, and to marry and have children, to take but a few examples. In addition, the authorities impose severe movement and other restrictions on all manner of daily life activities by the Rohingya, so that simply feeding one’s family is immensely difficult. These restrictions have intensified since last year, and are the reasons behind the continuing flow of people to Bangladesh today.

These are the situation in which the remaining Rohingya are living. We take the occasion to emphasize that the same system of persecution would await any Rohingya who return. As in Min Gyi, all villages that were cleared this way have been completely destroyed. They were burned to the ground, then bulldozed and appropriated. Neither the state of the physical environment nor discriminatory system allow for safe, dignified and voluntary repatriation of Rohingya to Myanmar at this time. There must be no repatriation without concrete human rights guarantees, including citizenship. In the meantime unimpeded international humanitarian access must be ensured for the remaining Rohingya community in Myanmar and other repressed ethnic groups such as the Kachin and Shan.

Mr. President,

The reality is that there is no law and no institution in Myanmar that is above the Tatmadaw. Its supremacy is guaranteed in the Constitution. As such, it enjoys complete impunity for its actions. This must change.

Along with a detailed presentation of its command structure, our report demonstrates that the Tatmadaw exercises effective control over its troops, as well as over other security forces deployed in military operations, such as the Myanmar Police Force and the Border Guard Police. In Rakhine, it also mobilised and armed “civilian” militia that acted under its authority. In some places, the operations involved coordinated actions by the Army, Navy and Air Force, which could not have been possible without the explicit orders from the highest level of Tatmadaw command.

Our analysis leads us to conclude, on reasonable grounds, that in Kachin, Rakhine and Shan States, the underlying acts of crimes against humanity have been committed, including: murder; enslavement; forcible transfer of a population; rape, sexual slavery and sexual violence; imprisonment, torture and enforced disappearance; and persecution. These acts were committed as part of a widespread or systematic attack directed at civilian populations.

In Rakhine State, we have reasonable grounds to conclude that, in addition to all this, the Rohingya may also be victims of the crime of apartheid. Ethnic Rakhine also suffered grave human rights violations. They may cross the threshold of crimes against humanity, but this requires further investigation.

With respect to war crimes, we consider that non-international armed conflicts existed in Kachin and Shan States for the entire period under review and in Rakhine State since August 2017. As such, much of the conduct that amounts to crimes against humanity on the part of the Tatmadaw and other security forces will also satisfy the criteria for war crimes. Certain acts committed by ethnic armed organizations may also constitute war crimes.

In the case of the Rohingya, we have considered the facts as we have found them in the light of the definition of genocide in international law. We have concluded that the Rohingya constitute a protected group, that the acts of the Tatmadaw and other security forces fall within four of the five categories of genocidal acts and, finally, that all the circumstances are such as to warrant an inference of genocidal intent. I refer you to our full report for the extensive analysis that led us to these conclusions.

In our report, we name six individuals with control over the operations during which these acts have been committed. The list is headed by Tatmadaw Commander-in-Chief, Senior-General Min Aung Hlaing, who has been at the helm of the Tatmadaw since 2011, throughout our reporting period. He and the others we identified must be investigated and prosecuted.

Other alleged perpetrators are named in a longer, non-exhaustive list that the Fact-Finding Mission will store in our archives. That list will be kept in the custody of the High Commissioner for Human Rights, to be shared with any competent and credible body pursuing accountability in line with international standards.

Normally, one would turn to one’s national justice system for remedy. Let us be clear here: any hope that Myanmar’s national justice system will provide justice and truth for human rights violations committed by the military would be unfounded. The provisions of Myanmar law, the structure of the legal system and the judiciary’s lack of independence and legal competence make that impossible. Far from uncovering the truth, Myanmar’s domestic justice system will, on the contrary, punish those who seek it.

Similarly, the many domestic investigations undertaken into allegations of the most serious human rights violations have lacked independence, impartiality and rigour, without exception. There have already been eight ineffective inquiries into the situation in Rakhine State alone since 2012 and now the Government has appointed a ninth. The members of the new Commission of Enquiry said that its purpose is to combat the “false narratives of the international community”. Currently, the civilian government and the Tatmadaw are allegedly pressuring Karen leaders and people to denounce our report. It is simply not the truth that the authorities seek

The impetus for accountability must therefore come from the international community. The Fact-Finding Mission recommends a five-point framework for accountability.

First, there should be an international judicial mechanism to try Myanmar’s top generals, and others who bear the greatest responsibility, for genocide, crimes against humanity and war crimes. The Security Council should refer Myanmar to the International Criminal Court or establish a special ad hoc tribunal on Myanmar. In this regard, we welcome the decision of the Pre-Trial Chamber of the International Criminal Court that the Court has jurisdiction over the crime of the forced deportation of the Rohingya to Bangladesh. We stress, however, that this decision allows for only a limited set of crimes relating to only one small part of the country to be tried by the Court. It makes little sense to deal with Myanmar on such a very limited basis when the situation in the whole country cries out for justice. The Security Council can remedy that deficiency. Indeed, it has the responsibility to do so.

Second, there should be an independent mechanism to conduct criminal investigations and prepare for prosecutions, until a judicial tribunal has jurisdiction. Such a mechanism should be established by the General Assembly or the Human Rights Council.

Third, there should be a properly resourced office within OHCHR to support the work of the High Commissioner and the Special Rapporteur in monitoring and reporting on human rights in Myanmar. OHCHR should also provide technical assistance.

Fourth, we recommend the establishment of a trust fund to address the needs of victims, including through psychosocial support, livelihood support, legal aid and other services.

Fifth, there should be a short-term mechanism, until the preparatory mechanism and the OHCHR office are operational, to ensure that there is no gap between the completion of our work and commencement of theirs. We stress that the Tatmadaw today continues to employ the terror tactics that we have presented and thus the need for fact-finding continues.

Mr. President,

Democracy requires a government that accepts scrutiny. It depends on leadership that actively combats hate speech and harmful misinformation. It requires a legal framework that guarantees these rights for all, without discrimination.

In this regard, the democratic transition in Myanmar had barely begun and now it has come to a standstill. Repressive laws are being used to silence those that seek to scrutinize. We have verified instances of reprisals against individuals for sharing information with the United Nations. Peaceful protests are blocked, sometimes violently, as occurred in the village of Mrauk-U. While voices critical of the Government are muted by threats and arrest, hate speech is thriving, particularly against the Rohingya. Patience will not help Myanmar’s democratization, it will only help those that seek to derail it, as it has for over 70 years.

This is the context in which we have undertaken our work. We have invested our deep, personal dedication, because we believe that Myanmar can change course and that establishing the facts is the first step. The victims have the right to the truth, and so do the people of Myanmar as a whole.

We would have wished to discuss our work with the authorities. We regret that the Government of Myanmar chose not to cooperate with us.

However, we have full confidence in our findings, which are based on a solid body of credible information gathered over an intensive year of work. What we found are crimes that shock the human conscience. We now turn to you, the distinguished members of the Council, to take actions commensurate with the gravity of the facts that we have presented.

Thank you for your attention.


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