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Statement by Ms. Yanghee Lee, Special Rapporteur on the situation of human rights in Myanmar at the 73rd session of the General Assembly

New York, 23 October 2018

Mr. Chair,
Excellencies,
Distinguished Delegates,
Ladies and Gentlemen,

I am pleased that as I address you today, there is a glimmer of hope on the horizon for justice for the people of Myanmar. In September, following the submission of my concept note and supplementary note, supported by strong calls by civil society and the Fact Finding Mission, the Human Rights Council passed a resolution that establishes a new Independent Mechanism to collect, consolidate, preserve and analyse evidence of the most serious international crimes and violations of international law committed in Myanmar since 2011 and to prepare files in order to facilitate and expedite fair and independent criminal proceedings, in accordance with international law standards. The resolution calls for a trust fund to support victims, which in itself is not sufficient unless it is directed to address the longstanding trauma that victims have suffered, ensuring their livelihood and supporting their pursuance of justice.

As the distinguished delegates already know, the Government of Myanmar continues to deny my access, creating difficulties for my ability to assess the human rights situation in Myanmar. I hope the Government of Myanmar will change its stance and restore it as I believe the repeated denial of access to me and the Fact Finding Mission is contrary to its pledges to undertake democratic transition, achieve the rule of law and uphold human rights.

Mr. Chair,

I have enormous respect for the people of Myanmar and the State Counsellor. I had every hope and expectation that the situation in the country under the Aung San Suu Kyi-led Government would be vastly different to the reality that I currently see. However, as I speak to you today, I could not be more dismayed.

What I see is a Government that is increasingly demonstrating that it has no real interest and capacity in establishing a fully-functioning democracy where all its people equally enjoy all their rights and freedoms. It is not doing what is necessary to bring about true peace and reconciliation. It is not upholding justice and the rule of law. And, despite the repeated refrain that if presented with evidence, the Government will investigate allegations of human rights violations, it is clear to me that that is not the case.

Excellencies,

I will now describe to you the deplorable situation that exists in Myanmar, demonstrating that the Government fails to live up to its international law obligations. The much used defence of Government officials is that the civilian branch of the Government does not have control over the military branch. While that is true, as the Constitution vests significant power in the military, there are many things over which the civilian branches do have power. However they are either tacitly or explicitly choosing not to use that power. The State Counsellor must remember her long fight for democracy– I urge her to use all her moral and political power to put an end to the atrocities, violations and abuses being committed in Myanmar.

The Government could choose to undertake reforms to end the ever-shrinking of the democratic space. Instead, its very actions and inactions are causing the situation to decline. For years, I have repeatedly flagged repressive laws that are in need of amendment or repeal, but continue to remain. New laws have been enacted which are also repressive in nature and do not accord with international human rights norms and standards. Quite disturbingly, draconian colonial laws continue to be wielded as weapons against those who speak out in favour of human rights and against injustices. The result is an enveloping culture of silence and self-censorship.

On a regular basis, I receive reports of new charges lodged against lawyers, journalists and activists while exercising their legitimate rights and freedoms. The farcical trial of two Reuters journalists – Wa Lone and Kyaw Soe Oo – received significant international attention. Since their conviction, a lawyer Khin Khin Kyaw who defended students that participated in protests against discriminatory education policy in 2015 was convicted and sentenced to six months’ imprisonment for doing her duty as a lawyer. Three journalists from Eleven Media, Nayi Min, Kyaw Zaw Linn and Phyo Wai Win, have recently been charged in relation to their publishing an article that was critical of the Yangon Regional Government. The criminalisation of carrying out professional duties is unacceptable in democratic society.

Distinguished Delegates,

The Government is engaged in large-scale development efforts around the country. However, many projects that it undertakes, including those that involve foreign investment, result in serious negative impacts on local communities and the environment. The Government could rectify this situation by engaging in meaningful community consultations, enacting environmental safeguards, adhering to the Guiding Principles on Business and Human Rights, investigating cases of land expropriation and providing adequate remedies to the victims, and undertaking land law reform in accordance with internationals standards.

Ladies and Gentlemen,

In Kachin and Shan, there are over 100,000 people who remain displaced since 2011. Humanitarian access is severely low and continues to lessen, even for national humanitarian organisations. People who have been recently displaced reportedly have not been allowed to build shelters in camps and the Government has not recognized them as IDPs.

Disturbing information I have received about the Government’s camp closure plan demonstrates that it is not in accordance with international standards. People in Kachin have been relocated under duress to places not of their choosing and with little support. In Rakhine, some people who have been living in camps since 2012 were reportedly recently moved to newly built houses in the camp vicinity despite their wish to return to their former homes. In Rakhine State, the moves to newly built housing areas appear to be cementing Muslim segregation from other communities as permanent, as the camp populations are entirely Kaman and Rohingya Muslims. This appears to be an apartheid-like situation.

Mr Chair,

I continue to receive information from sources on the ground in Rakhine. Reports indicate that life for all people is extremely difficult and is particularly precarious for the remaining Rohingya. I have received reports of harassment and extortion, and of forced labour. It appears the Government’s campaign to force all Rohingya to take National Verification Cards (NVC) has reached a new low; people are unable to drive, use electricity, conduct business and trade, fish or travel without an NVC. Prisoners who are released from prison are forced to take an NVC and any refugee who returns, including those deported from India recently, is issued one.

There are over a million Myanmar refugees of differing ethnicities and religions living in precarious situations in Bangladesh, India and Thailand as a result of persecution by the Government and military. While there are plans ongoing for repatriation of refugees in each location, I am not convinced that the areas they would return to are safe. In Chin State, bordering India, clashes continue to erupt between the Arakan Army and the Tatmadaw, and I am informed that the Chin continue to face longstanding discrimination based on their Christianity. In South-Eastern Myanmar, bordering Thailand, militarisation is unabated, demining has not occurred, and clashes have flared between the Karen National Liberation Army and the Tatmadaw in recent months. And in northern Rakhine State, bordering Bangladesh, development and rehabilitation works are ostensibly ongoing, however there have been no discernible efforts to address the underlying denial of human rights that is the primary root cause of the mass atrocities that were perpetrated there against the Rohingya last year.

I visited the Rohingya refugees in Cox’s Bazar in July; they live with insecurity, severe and inhumane overcrowding, extreme vulnerability to flooding and landslides . Additionally, I have serious misgivings about the Bangladesh Government’s plan to relocate some of them to Bashan Char, an island that has recently appeared in the Bay of Bengal. Though I understand that Government officials along with some UN agencies recently visited the island, I have not received any information about whether a technical or humanitarian assessment of whether the island is habitable has been undertaken.

Distinguished delegates,

I welcome the recent decision of the Pre-Trial Chamber of the International Criminal Court (ICC) in which the Court decided that it may exercise jurisdiction over the alleged deportation of the Rohingya from Myanmar to Bangladesh. However, though serious crimes under international law have been alleged; including the crimes of genocide and crimes against humanity in Rakhine State, and war crimes and crimes against humanity in Shan and Kachin States, there is continued denial of any wrongdoing by the Government of Myanmar. The current developments towards accountability through the ICC and the Human Rights Council are important, however, may not be sufficient to address longstanding impunity for crimes committed across Myanmar. Such grave allegations of serious crimes should not go unpunished but the Myanmar Government has shown that it is unable to fulfil its international obligations to impartially and effectively investigate the allegations, and prosecute perpetrators.

The establishment of the Independent Mechanism is an interim step. The international community must continue to work to ensure that individuals who have been identified as being responsible for serious crimes are prosecuted by the International Criminal Court or by a credible judicial body. I repeat once again that the Security Council must come together and refer the situation of Myanmar to the ICC without any delay. I also call on the General Assembly to be united and support the implementation of the Human Rights Council resolutions on Myanmar. The international community should also consider commencing cases under universal jurisdiction and consider establishing an ad hoc tribunal should the Security Council fail to reach consensus.  Alternative options to the ICC include the establishment of an international ad hoc tribunal or other credible international judicial mechanism.

I urge Member States to provide the Mechanism with adequate resources and to ensure it is fully operational as soon as possible as any delays will only contribute to the lapse of time in which information will become unavailable.

I conclude by repeating that allegations of senior Government officials committing acts of genocide against its own people is most serious, and if established would amount to a violation of peremptory norms of international law. Myanmar’s lack of compliance with the Genocide Convention as a state party, and lack of adherence to obligations arising from international treaties and customary international law to investigate and prosecute allegations of crimes against humanity and war crimes must not be tolerated.

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Ladies and Gentlemen,

Throughout the duration of my work on Myanmar, I have had the privilege to work with brave women human rights defenders of Myanmar, some of whom have spent decades fighting the cause of their people. They have done so at great personal cost; they have faced targeted violent personal threats, endured serious hardship, and some of them are forced to live outside Myanmar, unable to return because of serious personal security risks or because they remain blacklisted by the Government. These women work tirelessly to advocate for accountability for human rights violations in Myanmar; we owe it to them to ensure that their work has not been in vain.

Thank you for your attention.