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End of mission statement by the Special Rapporteur on the situation of human rights in Myanmar

Dhaka, 25 January 2019

Ladies and Gentlemen,

Over the last ten days, I have visited Thailand and Bangladesh, I have spoken to a range of people from Myanmar, as well as authorities, UN agencies, international experts and members of the international community. I extend my thanks to the governments of Thailand and Bangladesh, the UN Resident Coordinators in Thailand, Bangladesh and Myanmar and their staff, and the Senior Coordinator of the Inter-Sector Coordination Group in Cox’s Bazar and his team. I also thank Prime Minister Sheikh Hasina of Bangladesh for allowing me to visit Bhashan Char and generously providing the logistics for me to travel there with my team.

The observations I give here – which are based on the information gathered in the last ten days – will be elaborated upon in my next Human Rights Council report. Though the government of Myanmar is maintaining its position not to allow me access to the country, I again emphasise my willingness to work with it in the spirit of cooperation. The government says that I am biased, however I stated from the outset that I will execute my mandate objectively and independently and not shy away from calling a spade a spade. The government took issue with my end of mission statement in July 2017; these statements are short and can only present what was observed during the mission. It is the Human Rights Council report that will elaborate on my full analysis of positive and negative developments in Myanmar.

I have spoken several times now about how the human rights situation in Myanmar continues to deteriorate and how many parts of the repressive architecture that existed under successive military governments remain. It saddens me greatly today to tell you that I believe that instead of bringing about the democratic reforms that were promised, the civilian government is consolidating what military governments worked towards for many years.

Democratic space, including the freedoms of speech and association, is ever fragile. Communities across the country remain divided along religious and ethnic lines, and members of minorities face marginalization and discrimination. Ethnic nationalities around the country continue to be subject to domination by the central government and the military, despite the official stance that they are working towards peace.

Justice and accountability is urgently needed in Myanmar, and we must begin transitional justice initiatives throughout the country. There are lessons to be learned from the Asian region and countries further afield that have pursued innovative and dynamic judicial and non-judicial measures to ensure justice for human rights violations. I believe that Myanmar would be greatly assisted by exploring the transitional justice pillars of truth, justice, reparations and guarantees of non-recurrence.

It is clear to me that under the 2008 Constitution, Myanmar cannot be called a democracy, and until the constitution is reformed, the transition to democracy will not be achieved. I am greatly concerned that the enduring repressive environment is discouraging people from speaking out freely about human rights violations and injustices. Disagreements, criticism and debate are healthy and necessary in any functioning democracy. Journalists and human rights defenders continue to be targeted for exercising their right to freedom of expression: Zau Jat, Nang Pu and Lum Zawng, the Kachin peace activists, and Wa Lone and Kyaw Soe Oo, the two Reuters journalists, languish in jail for their work. Journalist Swe Win has been subjected to judicial harassment for his criticism of the Buddhist extremist group, Ma Ba Tha. I must also draw attention to the situation of Nang Pu, one of the jailed Kachin activists, who has serious health conditions and is not receiving appropriate medical treatment while in jail. I call on the authorities to end this mistreatment and immediately release all those unjustly imprisoned. 

During 2018, there was recurrence of fighting in Kayin State despite the Karen National Liberation Army being a signatory to the Nationwide Ceasefire Agreement. This trend has continued into this year, with several clashes already taking place in Mutraw District in close proximity to civilians, who see troops moving through their villages and forests, and hear gunfire nearby. I have been told that the military is constructing new bases in Kayah State, and am concerned that fighting may soon break out there too. There are around 162,000 IDPs in the Southeast States and Regions, living in camps or scattered throughout rural communities. They need humanitarian assistance as they have little access to adequate food, healthcare and education, and few choices for earning a living. The insecurity in Southeast Myanmar undermines their prospects for sustainable return, as it also does for those living in the Thai border refugee camps.

I welcome the unilateral ceasefire in Kachin and Shan announced by the Tatmadaw in December, as well as the statements issued by the Arakan Army, Ta’ang National Liberation Army and Myanmar National Democratic Alliance Army that they were willing to stop fighting and enter formal negotiations. However, I am seriously concerned about the fighting between ethnic armed organizations in Shan. This largely takes place in civilian areas and has contributed to further instability and insecurity for villagers, and temporarily displaced 6,000 people between October and December. I am concerned that this fighting will lead to divisions between communities in Shan, and further hamper efforts at achieving peace.

I heard from many worried members of civil society who are concerned that the situation of the people in IDP camps in Kachin, Shan and Rakhine. Under the government’s plans to close these camps, the government would relocate people to remote areas, far from their places of origin and removed from economic opportunities and humanitarian support. While the government’s consultation with the UN on camp closures is welcome, it has failed to consult the IDPs and national and international organizations who are working with the displaced populations. Returns to the IDPs’ places of origin are needed but such plans must be in accord with the international standards of safety, voluntariness, dignity and sustainability.

Furthermore, I am deeply concerned refugees and those who are internally displaced have been made particularly vulnerable to losing their rights to their homelands by the recent amendments to the 2012 Vacant, Fallow and Virgin Lands Management Law. This law will also permit the government to appropriate land from people who live there on the basis of customary practices. This is commonplace in ethnic areas, including Rakhine, Kachin, Shan and Kayin State where communities have depended on this land for their livelihoods, traditions and culture for generations.

Vast areas of land have already been seized from people to make way for hydro-power dams and I have spoken with many who fear losing their lands and livelihoods should planned dams such as Myitsone, Upper Kengtawn, Upper Yeywa and Hatgyi go ahead. There is no transparency surrounding these plans and the government has failed to consult those affected, causing further concern and uncertainty for millions. As with hydro-power projects, the extraction of natural resources, including gems and timber, continue to be inextricably linked to the cycle of armed conflict and human rights violations in Myanmar. It has been reported to me that in the vast jade mining regions of Kachin State, displacement, the sale of drugs, environmental destruction and widespread corruption at the hands of the military, militias, ethnic armed organisations and private actors is rife. I have heard reports of similar abuses at other sites such as the gold mines in Tanai. With the extraction of natural resources and distribution of the revenues so fundamental to the peace process and transition to federal democracy, this is a critical time for the Government to demonstrate a genuine commitment to addressing these serious social and environmental impacts and establishing a legal framework that demands transparency and accountability.

In Rakhine State, I am disturbed by recent clashes between the Tatmadaw and the Arakan Army which reportedly resulted in the deaths of members of security forces and civilians, and which has displaced some 6,000 civilians. The order by the State Government to refuse access to humanitarian organisations with the exception of the ICRC and WFP is entirely unacceptable and a violation of Myanmar’s international humanitarian law obligation to allow humanitarian aid. Government rhetoric characterizing the Rakhine community as sympathisers, collaborators and associates of the AA threatens only to increase tensions in the region and divisions between ethnic communities. Similarly, comments by the government linking AA with ARSA are deeply irresponsible, and point to the disturbing prospect of further attacks on the Rohingya population that remain in Rakhine State

From the discussions I had with Rohingya this week in Bangladesh, it is evident that Myanmar is not working to create conditions for return for the Rohingya but is engaging in a sustained campaign of violence, intimidation and harassment. I spoke to one woman who arrived in Cox’s Bazar a matter of days ago after her father was stabbed to death by Myanmar security forces. A man I spoke to told me that he and his entire family fled recently after his mother and sister were abducted and raped. During my visit, I received videos of houses burning in Maungdaw township, the second such incident to occur in Maungdaw in 2019 alone. According to information gathered by my team, the houses were burned by Myanmar security forces working in concert with Rakhine extremists. The campaign of violence against the Rohingya continues, with the security forces slowly bleeding the remaining Rohingya population and continuing to force them to flee to Bangladesh.

I visited the so-called Zero Line, the area along the border where more than 4,000 Rohingya refugees live within walking distance of their houses a few miles away. A visit to this area is a lesson in Myanmar recalcitrance and highlights that authorities there are not sincere in their discussions of repatriation. Security forces on the Myanmar side of the border are engaging in an intimidation campaign, in the apparent hope of driving this group out of the Zero Line and into Bangladesh territory. This includes shooting into the air to scare the community and blaring broadcasts which state that they are not Myanmar citizens and that they should leave Myanmar territory.

It is clear that Rohingya refugees in Bangladesh cannot return to Myanmar in the near future. Now that the election in Bangladesh has concluded, I encourage the government to begin to engage in longer-term planning and prepare the local population for this reality. A failure to do so will not only have negative consequences for the refugee population but also for Bangladesh, including most significantly, the host community, who have already given so much to accommodate the refugees.

I do not underestimate the burden that housing so many refugees is for Bangladesh. However, this burden will not be lessened by excluding Rohingya children from formal education. Equally, access to livelihood opportunities must also be ensured. This is not only vital for the physical and mental well-being of the refugees but it will also provide an outlet through which the refugee population can have some positive impact on the local economy and positive engagement with the host community.   

Recent developments highlight that the internationalization of the Rohingya issue. I am dismayed by Saudi Arabia’s recent deportation of 13 Rohingya to Bangladesh, where they have been arrested and charged with forging the passports that they used to travel to Saudi. The fair trial rights of these men should be fully upheld and authorities here must recall that this group also fled persecution in Myanmar.

I am disturbed to see that Rohingya are now arriving in Bangladesh from India, following the deportation of two groups of Rohingya by the Indian authorities to Myanmar. The 1,300 people who are reported to have already arrived in Bangladesh from India state that they fled due to fears of refoulement and heightened anti-Rohingya rhetoric from the Indian authorities.

I have on many occasions already commended Bangladesh for the welcome it has extended to the Rohingya of Myanmar. I repeat this again and at the same time call for an international response to what is fast becoming a regional problem with global consequences. India and Saudi Arabia must ensure that Rohingya within their borders are protected and that their status as refugees, unable to return to Myanmar, is recognized.

This brings me to Bhashan Char. As many of you already know, yesterday my team and I undertook a visit to the island in the Bay of Bengal where Bangladesh plans to relocate a large number of the refugees from Cox’s Bazar. I am told there are 450 Chars in Bangladesh, most of which are inhabitable.

At the outset, I must express my thanks and appreciation to the government of the Bangladesh for accepting my request to visit the island. I traveled by helicopter, and had an aerial view of the development, the island and its surrounds. It was clear to me that the government has put tremendous effort and resources into the construction of the buildings and embankment.

I am not a technical expert on construction or housing so will not make any comments about the buildings or physical infrastructure. However, I call on the government to share feasibility studies it has undertaken and to allow the UN to carry out a full technical and humanitarian assessment, including a security assessment, before making any further plans for the housing of people on the island. To date, there have been no discussions with the humanitarian community on the protection framework for the island. It goes without saying that no relocation should even be contemplated until the protection framework for any refugees who do relocate is agreed upon.

The government has told me that any refugees who choose to live on Bhashan Char would essentially have access to the same basic rights as those who live in Cox’s Bazar. Children will be able to have primary level education, there will be health facilities, livelihood opportunities including fishing and farming, and freedom of movement on the island. I was told that refugees would be allowed to visit family and friends in the Cox’s Bazar camps, but that they would not be able to travel to other parts of Bangladesh. Similarly to my concerns about the situation in the Cox’s Bazar camps, I am anxious about whether these conditions are adequate to fulfil the needs and rights of Rohingya refugees, particularly in the medium and longer term. The island’s isolation does particularly trouble me, especially in the event of cyclones or other natural disasters.

If any plans are made about refugee relocation to Bhashan Char in the future, refugees must be fully engaged and participate in the process, including through meaningful consultation which should involve go and see visits for refugees so that they can determine for themselves whether they wish to move. Without individual fully informed consent, the plans cannot move forward. It is imperative that any measures to relocate the refugees enhance their enjoyment of rights and do not create a new crisis. In this regard, I urge caution and patience by the Bangladesh government and full cooperation with the UN and the international community. There should be no rush to relocate refugees, such as before the monsoon season which is one of the possibilities that has been outlined to me.

The causes of the current Rohingya situation lie in Myanmar and it is to Myanmar that we must look for the solution. Its campaign of violence against ethnic minorities, including the Rohingya, the Kayin, the Kachin and the Shan, must end. Real steps must be taken to implement the recommendations of the UN and the Kofi Annan Commission, including by ensuring that the citizenship of the Rohingya is realized. There must be accountability for the campaign of ethnic cleansing and possible genocide against the Rohingya, as well as the war crimes and crimes against humanity perpetrated against ethnic minorities around the country.

It is clear that the Independent Commission of Enquiry established by the government will not achieve these ends. While it has issued a call for submissions of evidence, it made no offer of protection to anyone willing to provide testimony to them. I must draw your attention to the notice that issued the call, which in the Myanmar language version required people to list their citizenship scrutiny card number, while in the English language version did not. While the Commission issued information about its mandate and methodology, it has failed to make clear what its objectives are and whether it has the technical capacity to carry them out. While its name states that it is independent, I share the concerns voiced by a range of stakeholders about its members, their close relations with the Myanmar authorities and their total acceptance of the government narrative of violence in Rakhine State.

The Independent Mechanism that I recommended be established last year has been formally established and funded, and recruitment has started. Justice for victims is its aim. It will seek to achieve this through the collection of evidence of crimes committed and the creation of case files against alleged perpetrators. These cases will be ready for prosecution in a credible international or national court.

Part of the concept that I presented to the international community last year was support for victims. This has not been fully brought out yet, and I urge the international community to do so. The people of Myanmar have suffered countless violations for which they are entitled to redress. Criminal justice is not enough; there must also be truth, reparation and guarantees of non-recurrence. Transitional justice is integral to Myanmar addressing what happened in the past in order to move forward to a peaceful, democratic, prosperous future.

During my mission, a number of people raised concerns about the level of support they, their organisations or the communities they work with are receiving from donors. I implore you to continue to support the people, both in and out of the country, who need it with humanitarian assistance, civil society and human rights defenders who depend on you to fund their activities, and the government as well as engaging with ethnic governance structures so that Myanmar can move towards the federal democracy sought.

I address these comments to the people of Myanmar, to whom I offer my friendship and support, the Myanmar government, to whom I reiterate previous offers of support and assistance, and to the international community, who I ask to stand with me, united, in the cause of human rights for all the Myanmar people.