34/67 Report of the Special Rapporteur on the situation of human rights in Myanmar

GE.17-04106(E)



Human Rights Council Thirty-fourth session

27 February-24 March 2017

Agenda item 4

Human rights situations that require the Council’s attention

Report of the Special Rapporteur on the situation of human rights in Myanmar*, **

Note by the Secretariat

The Secretariat has the honour to transmit to the Human Rights Council the report of

the Special Rapporteur on the situation of human rights in Myanmar, prepared pursuant to

Council resolution 31/24. Almost one year since the new Government assumed office, it

continues to face formidable human rights challenges. In the report, the Special Rapporteur

builds on previous reports to identify some of those challenges and makes relevant

recommendations.

* The present report was submitted after the deadline in order to reflect the most recent developments. ** The annex to the present report is reproduced as received, in the language of submission only.

United Nations A/HRC/34/67

I. Introduction

1. The present report is submitted by the Special Rapporteur on the situation of human

rights in Myanmar, Yanghee Lee, to the Human Rights Council pursuant to its resolution

31/24, further to her reports to the Council in March 2016 (A/HRC/31/71) and to the

General Assembly in August 2016 (A/71/361). In the present report, the Special Rapporteur

addresses the human rights challenges facing the new Government, which assumed power

in March 2016, and acknowledges the progress it has made.

2. The Special Rapporteur conducted her fifth official visit to Myanmar from 9 to 20

January 2017.1 While she requested 14 days, the Government allowed for only a 12-day

visit, during which she travelled to parts of Kachin, Mon and Rakhine States, as well as to

Yangon and Nay Pyi Taw. The Special Rapporteur expresses appreciation for the

Government’s cooperation, particularly in respecting her request to meet community

members in villages and in camps for internally displaced persons in Rakhine State without

close monitoring of state government officials and security personnel. However, she regrets

the repeated short-notice responses to her requests to visit specific locations. That was a

recurring pattern, with last-minute denials resulting in rearrangement of her programme

also at the last minute, thus preventing full optimization of the limited time.

3. From the meetings and conversations held by the Special Rapporteur with the State

Counsellor, various government officials and parliamentarians, she acknowledges the

genuine commitment and dedication of the Government in its efforts to improve the lives of

all in Myanmar. However, that commitment has yet to be fully translated into real actions

that are felt on the ground, as evidenced by the feelings of hopelessness that ordinary

people have begun to express.

Development of joint benchmarks

4. As mandated by the Human Rights Council in its resolution 31/24, the Special

Rapporteur has drafted proposed joint benchmarks for progress (see annex). The draft joint

benchmarks were sent to the Government three weeks before her January 2017 visit and

were also attached to discussion points sent in advance of her meetings in Nay Pyi Taw.

She notes that only two ministries chose to discuss the proposals substantively. She hopes

to discuss the proposed benchmarks, and those that may arise from the present report, ahead

of her forthcoming country visit in order to agree on joint benchmarks upon which progress

can be measured. Also in line with the resolution, the Special Rapporteur sought to identify

priority areas for technical assistance and capacity-building; a non-exhaustive list of some

areas suggested by interlocutors is included in the recommendations in the present report.

II. Situation of human rights

A. Rule of law

1. Legislative and constitutional reform

5. The Special Rapporteur welcomes the efforts that have been made to repeal or

amend legislation that contains provisions that are incompatible with fundamental rights,

recalling that she listed many such laws previously (see A/HRC/31/71, annex). She

particularly welcomes the repeal in May 2016 of the State Protection Act (1975) and in

October 2016 of the Emergency Provisions Act (1950) and the amendments in November

2016 to the Ward or Village Tract Administration Law (2012), removing the compulsory

reporting requirement for overnight guests. She also welcomes the removal of the

requirement to seek permission for demonstrations, and several other problematic

provisions following amendments to the Peaceful Assembly and Peaceful Procession Law

1 The list of meetings is contained in the annex to the Special Rapporteur’s end-of-mission statement.

Available at www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=21107&LangID=E.

(2011), but notes that criminal sanctions have been retained. She hopes those shortcomings

can be addressed.

6. The Special Rapporteur notes the decision to draft a citizens private security and

protection law. Potential issues include vague provisions on defamation. While the current

draft provides for surveillance with a “warrant in accordance with law”, there is currently

no such law. She recommends that a legal framework for surveillance be drawn up, in

accordance with international standards and in consultation with experts.

7. As the Special Rapporteur has previously highlighted, a strong law on violence

against women is urgently needed to address weaknesses in the existing legislative

framework. She is concerned by information that the most recent draft of the law on

prevention and protection of violence against women has removed key provisions,

including those relating to the definition of rape, a special court for gender-based violence,

sexual violence in conflict, violence by public officials, and capacity-building for the

Attorney-General’s Office and the Supreme Court. She calls for those provisions to be

reinstated and the law passed immediately.

8. The Special Rapporteur welcomes the provisions in the draft child rights law that

increase the compliance of Myanmar with its international obligations. She understands the

draft law is likely to be submitted to the parliament in the near future and underlines the

importance of retaining key provisions on preventing child recruitment into the armed

forces and the minimum age of criminal responsibility.

9. The Special Rapporteur welcomes the decision taken by the Ministry of Home

Affairs to begin working on an entirely new text of the draft prison law and hopes it will be

in line with relevant international standards and drafted in cooperation with stakeholders.

She encourages the Ministry to seek technical assistance in that area.

10. The Special Rapporteur remains concerned about the four laws of the so-called

protection of race and religion package adopted in 2015 (see A/HRC/28/72, paras. 28-29).

She therefore welcomes comments from parliamentarian Mya Thaung, recognizing that

those laws need to be reconciled with the draft law on prevention and protection of violence

against women. The Special Rapporteur reiterates that those laws are not in accordance

with the international obligations of Myanmar and urges it to rectify their shortcomings.

11. The Special Rapporteur acknowledges the Government’s decision to draft a hate

speech law that should address incitement to discrimination and violence, while protecting

freedom of speech. However, she is concerned that the draft has not yet been open for

public consultation, and that several proposed provisions are not in accordance with

international standards. She calls for meaningful consultations and revisions to the text to

address that, reiterating as a helpful reference the Rabat Plan of Action on the prohibition of

advocacy of national, racial or religious hatred that constitutes incitement to discrimination,

hostility or violence.

12. The Special Rapporteur and her predecessors have previously highlighted that the

Citizenship Law (1982) is not in line with international standards (see A/69/398, paras. 12

and 53, and A/HRC/25/64, paras. 49 and 83 (f)), particularly regarding discriminatory

provisions for granting of citizenship on the basis of ethnicity or race. On 27 December

2016, the State Counsellor’s Office issued a notification detailing the legal basis for, and

objective of, the identity card for national verification, a document that is a prerequisite for

applying for citizenship if the applicant no longer holds an identity card. While the identity

cards for national verification are issued in accordance with the 1949 Registration of

Residents Act (and related 1951 rules), the rights accorded to identity card-holders differ

from those for persons holding National Registration Cards (three-folded cards) issued

under the same Act.

13. In addition to clearly articulating that the identity card for national verification is

issued only for the purposes of scrutinizing the eligibility of the holder for citizenship (in

accordance with the 1982 Citizenship Law), the notification specifically stated that: (a)

card-holders can travel anywhere inside the country in accordance with the regional laws,

orders and instructions of their respective state government; (b) card-holders from Rakhine

State can travel freely in their resident township and inside Rakhine State in accordance

with regional laws, orders and instructions enacted by the state government; and (c) card-

holders from Rakhine State can go to Bangladesh legally with border passes.

14. It should be recalled that following the announcement that all Temporary

Registration Cards (White Cards) would expire on 31 March 2015, about 470,000 such

cards were surrendered (of about 760,000 originally disbursed). While the highest number

surrendered came from Rakhine (almost 400,000), the rest mostly came from Shan, Kayin

and Mon States as well as Tanintharyi, Bago and Ayeyarwaddy Divisions. The specificities

relating to card-holders residing in Rakhine State are notable, especially their seeming right

to cross into Bangladesh but not to freely move within Rakhine State and the rest of

Myanmar.

15. The Special Rapporteur has already noted that many are sceptical of the citizenship

verification exercise. Between June 2015 and December 2016, just over 600 identity cards

for national verification were issued in Rakhine State compared to almost 26,000

elsewhere. Reasons for that include the lack of consultation with affected communities

resulting in their lack of understanding of the process and the continued limitations on the

exercise of rights by citizens recognized through the process. Consequently, most Rohingya

and other non-citizen minorities rely on the compulsory household list as the only current

evidence of legal residence in Myanmar.

16. The Special Rapporteur is particularly concerned by reports of Rohingya and others

being coerced into applying for identity cards for national verification. For example, one

must now have the card to apply for a fishing license and travel authorizations. She

reiterates her previous call to reform the Citizenship Law and related processes.

17. The Special Rapporteur remains concerned about the opaqueness of the law-making

process and reiterates her previous recommendations (see A/71/361, paras. 22 and 98 (b)).

A law on law-making, clearly setting out a consistent process including systematic and

meaningful consultation, could be considered.

18. The Constitution remains an impediment to the achievement of full democracy.

Particularly concerning are provisions that effectively lead to no civilian oversight of the

military and that retain significant military influence and involvement in the parliament and

the Executive. As such, the Special Rapporteur firmly believes that Myanmar is not yet a

country with a truly civilian Government. While understanding that discussions on

constitutional amendment remain politically sensitive, she underlines its importance to the

reform process. She notes that any revision process will require time and significant effort

to seek input from all stakeholders. She therefore suggests that consideration be given to

establishing a preparatory committee to study possible revision processes.

2. Administration of justice

19. A strong judiciary and independent lawyers are crucial for the rule of law. Lawyers

continue to face difficulties bringing cases against powerful interests, with some reporting

intimidation or being subject to legal proceedings. 2 The Special Rapporteur encourages

reform of the Bar Council Act (1989) to bring it into line with the Basic Principles on the

Role of Lawyers.

20. There is also a need for continued strengthening of the judiciary. The Special

Rapporteur encourages continued action to implement the Strategic Plan (2015-2017) of the

Supreme Court and to bring the judicial appointments system into line with the Basic

Principles on the Independence of the Judiciary. She notes that judicial corruption remains

a problem and reiterates her call for steps to address that (see A/HRC/31/71, para. 16).

21. During her recent visit to Myanmar, the Special Rapporteur visited a hard labour

camp in Mon State. She was concerned by the use of shackles as a form of additional

punishment, including during quarry work, and the lack of transparency on how prisoners

are selected for transfer to the camp. She noted the lack of an independent complaints

system for prisoners in that camp and prisons across Myanmar. She also notes the reported

2 Lawyer Khin Khin Kyaw is still facing charges under the Penal Code. See A/71/361, para. 24.

practice of prison labour to benefit private enterprises, which would fall into the definition

of forced labour under the International Labour Organization (ILO) Forced Labour

Convention, 1930 (No. 29). She hopes that the new prison law will address those issues,

particularly by taking into account the Standard Minimum Rules for the Treatment of

Prisoners (the Mandela Rules).

22. The administration of justice requires investigations into human rights violations and

the Special Rapporteur reminds Myanmar of its obligation to consistently investigate all

allegations. She notes that, while a determination of guilt is a matter for the judicial branch,

the Government has a prior obligation to conduct credible “prompt, thorough, independent

and impartial investigations”.3 The Special Rapporteur notes that Myanmar has established

some investigative bodies that do not comply with those requirements. She also notes that

in the case of unlawful killings, principle 11 of the Principles on the Effective Prevention

and Investigation of Extra-legal, Arbitrary and Summary Executions requires that if initial

investigations are inadequate, “Governments shall pursue investigations through an

independent commission of inquiry or similar procedure”.

B. Democratic space

23. The Special Rapporteur acknowledges the strides that Myanmar has made in

opening up democratic space in recent years. However, she remains concerned about the

continuing application of problematic legal provisions, particularly in politically sensitive

cases, to intimidate and silence human rights defenders, lawyers, journalists and members

of civil society, including through heavy surveillance, arrest and prosecution. The killing of

constitutional legal expert Ko Ni on 29 January 2017 sends a particularly chilling message

to those who fight for, and are vocal on behalf of, the rights of others.

24. As previously highlighted, a number of cases have yet to be conclusively resolved

several years on, such as the killing of reporter Ko Par Gyi in October 2014. There is also

increasing risk to those active in raising environmental and land rights issues with activist

Naw Chit Pan Daing and journalist Soe Moe Tun killed in November and December 2016

respectively.

25. The Special Rapporteur expressed concerns during her meetings regarding the

termination of Fiona MacGregor’s contract with the Myanmar Times reportedly for having

written about alleged violations relating to the security operations in Rakhine State.

Apparently, she had been particularly targeted for actively reporting on sexual violence

cases allegedly implicating security forces.

26. The Special Rapporteur has been informed of approximately 170 individuals

imprisoned for peacefully exercising their rights to freedom of opinion and expression, and

of association and assembly. 4 She finds the increasing use of section 66 (d) of the

Telecommunications Act (2013) particularly worrying, with more than 45 cases reported,

most of them in the past year.

27. The Special Rapporteur met individuals during her January 2017 visit who had been

detained under that provision for expressing opinions against the military, including Hla

Phone (Kyat Pha Gyi) who has been sentenced to two years’ imprisonment,5 and Myo Yan

Naung Thein, whose case is still being heard. On 6 January 2017, two days before the

Special Rapporteur arrived in Myanmar, the Chief Executive Officer of the Eleven Media

Group, Than Htut Aung, and Chief Editor of the Daily Eleven newspaper, Wai Phyo, were

granted bail following charges under section 66 (d) over an editorial accusing the Yangon

Chief Minister of bribery, after having three previous bail applications denied. She was

3 See the updated set of principles for the protection and promotion of human rights through action to

combat impunity (E/CN.4/2005/102/Add.1), principle 19.

4 See Assistance Association for Political Prisoners (Burma), “January Chronology 2017”. Available at

http://aappb.org/2017/02/aapp-b-monthly-chronology-of-jan-2017-and-current-political-prisoners-

list/.

5 Hla Phone was charged under that provision and two others.

informed of additional cases involving comments against President Htin Kyaw and State

Counsellor Aung San Suu Kyi, but due to time constraints was unable to visit the relevant

detention facilities.

28. The Special Rapporteur also met Htin Kyaw and Khaing Myo Tun, who were

charged under section 505 (a) and (b) of the Penal Code respectively, concerning

allegations made against the military. In the case of Htin Kyaw, he was also charged under

the 2011 Peaceful Assembly and Peaceful Procession Law and sentenced to two months’

imprisonment in February 2017.

29. The Special Rapporteur has already expressed concern that the 2011 Peaceful

Assembly and Peaceful Procession Law does not allow for spontaneous gatherings.

Nonetheless, it is puzzling that a lone medical student was reportedly arrested on 4

February 2017 and charged under that law for expressing his support for peace as the law

defines an assembly as a gathering of “more than one person”.

C. Development and economic, social and cultural rights

1. Economic, social and cultural rights and rights relating to land

30. The Special Rapporteur believes that improving the realization of economic, social

and cultural rights is vital to ensuring that no one is left behind in the development process.

She calls on the Government to ratify the International Covenant on Economic, Social and

Cultural Rights which, together with the Sustainable Development Goals, can constitute a

comprehensive framework for efforts in that area.

31. Child labour remains widespread in Myanmar with 1.1 million children affected by

it. The Special Rapporteur was particularly concerned by the recent case of two girls who

were forced to work and subjected to abuse in a tailoring shop in Yangon. She raised with

the Myanmar National Human Rights Commission its role in that specific case and recalls

that the abuses committed against those children should have been addressed as a priority

rather than mediating their back pay.

32. She welcomes the Government’s efforts, in collaboration with ILO, to develop a

national action plan on child labour, and a list of hazardous forms of work prohibited for

children. She reiterates her call for the age of compulsory education, as well as other forms

of technical vocational education, to be raised incrementally to match the employment age,

and for the ratification of the ILO Minimum Age Convention, 1973 (No. 138). While

welcoming the extension of a forced labour complaints mechanism with ILO for 2017, and

noting the reactivation of the high-level and technical working groups, it is important that

initiatives are taken to localize the mechanism.

33. Birth registration is important for combating child labour and to ensure access to

vital services. The Special Rapporteur welcomes the first electronic platform for birth

registration and efforts to expand registration. However, she notes that registration is

alarmingly low for Muslims in Rakhine State and in some conflict-affected areas of Kachin

and Shan States. She encourages increased efforts to improve birth registration in those

areas, especially given the additional vulnerabilities frequently faced by children there. In

non-government controlled areas in Kachin, civil documentation issued by ethnic armed

groups is not officially recognized, causing difficulty for children with such documents to

enrol in government schools.

34. The Special Rapporteur welcomes the budget increase of the Ministries of Education

and of Social Welfare, Resettlement and Relief and also welcomes the extension of free

education to high school level. However, continued efforts are needed to ensure access to

education for all, particularly minority groups. She is concerned that the qualifications of

those who have studied in schools administered by ethnic-based organizations are not

recognized, making it harder for them to access jobs and other opportunities in government-

controlled areas.

35. In Rakhine State, the socioeconomic situation is reported to have remained relatively

static, with Muslims not having benefited from any improvements in the past year. While

health-care facilities and infrastructure have improved to an extent, skilled and trained

health professionals remain acutely insufficient,6 and Muslims are still being prevented by

the authorities from accessing many township hospitals, even during emergencies. She

reiterates calls to ensure that all people, without discrimination, have safe access to

township hospitals. Regarding access to education, she understands there is only one high

school in Sittwe rural area, which currently serves the school-aged children of families

driven out from nine townships following the 2012 violence. Temporary learning spaces,

providing only basic primary education, are usually crowded and run at double shifts.

Furthermore, in the northern part of Rakhine State, many Rakhine teachers are reportedly

unwilling to return after being evacuated following the 9 October 2016 attacks.

36. Four years on, there appears to be no progress in finding durable solutions for the

120,000 Muslim internally displaced persons who remain in camps in central Rakhine, or

for the 1,400 internally displaced persons within Maungdaw township since 2012.

Decision-making about resource allocation and service expansion by international

humanitarian organizations has been hampered by the lack of information on time frames

and visions for the return or relocation of internally displaced persons. The Special

Rapporteur calls for development, humanitarian and peacebuilding activities to be

addressed in an inclusive, timely and sensitive manner with full regard for the human rights

perspective to ensure a smoother transition towards long-term solutions, peace and

reconciliation.

37. The right to adequate housing is also key and includes protection from forced

evictions. Reportedly in September 2016, Rakhine State government moved to identify

buildings allegedly constructed without permission and have them dismantled. Over 2,200

such buildings in Maungdaw were apparently identified, including mosques and madrasas,

over 400 shop stalls and over 1,600 residential homes. In Buthidaung, over 1,000 “illegal”

buildings were identified, including mosques, madrasas, shops stalls and over 800 homes.

Demolition of those buildings reportedly began in November 2016. Of almost 1,000

structures allegedly dismantled from almost 2,000 identified buildings in Maungdaw south,

80 per cent were houses. Some 89 houses of 285 identified in Rathedaung Township have

also been dismantled. In some cases, individuals were reportedly made to dismantle their

own homes or were extorted by security personnel to avoid demolition.

38. In all those cases, the owners and residents affected did not appear to have been

provided with alternative housing that satisfied the criteria for adequacy,7 nor the right to

adequate and effective legal or other appropriate remedies, which are required to be made

available to those claiming that their right to protection against forced eviction has been

violated or is under threat of violation. The Special Rapporteur is therefore concerned that

the dismantling of those structures is part of the Government’s apparent wider systematic

and institutionalized discriminatory policy against the Rohingya and Muslim populations in

Rakhine State.

39. With an estimated 70 per cent of the population of Myanmar in rural areas, land is

central to people’s livelihoods; addressing historic and continuing land confiscation

remains a challenge. The Special Rapporteur welcomes the continuing return of land by the

Central Review Committee on Confiscated Farmlands and Other Lands. However, over

8,000 cases remain pending. She is concerned by prosecutions of those fighting land

confiscations. For example, in Shan State, 72 people were sentenced to a month’s

imprisonment for trespass after working land they used to own but which was allegedly

confiscated by the military.

40. The National Land Use Policy, adopted in 2016 after extensive consultation,

contains important guarantees, including on recognizing customary land use, and

community consultations. The Special Rapporteur is therefore concerned by its possible

revision, potentially removing such key provisions. She calls for those protections to be

6 See Center for Diversity and National Harmony, Rakhine State Needs Assessment II (Yangon, 2016).

7 The criteria include accessibility, affordability, habitability, security of tenure, cultural adequacy,

suitability of location and access to essential services such as health and education. See

www.ohchr.org/Documents/Issues/Housing/Guidelines_en.pdf.

retained and for the drafting of an overarching land law in line with the policy and with

human rights standards.

2. Sustainable development, and business and human rights

41. As Myanmar continues to reform, it is important that the ensuing benefits are not

concentrated among small sections of the population. That is likely to require policy

development addressing difficult questions on resource-sharing, decision-making processes

for approving development projects and strategies to combat increasing inequality. The

Special Rapporteur recalls the importance of a people-centred form of sustainable

development, which protects the rights of local populations.

42. The Special Rapporteur has been following developments regarding the Letpadaung

copper mine project. She is concerned that there is still no accountability for the killing of

Khin Win in 2014. She notes concerning information of a potentially hazardous waste

overflow in November 2015, continued prosecutions of protestors, including two who were

charged in June 2016, and that an additional 141 households are facing eviction after a

mine expansion plan was announced without due consultation.8 She calls for the plan to be

halted until genuine consultations are held with communities, for environmental safeguards

to be strengthened and for further investigations into the death of Khin Win.

43. The Special Rapporteur has already welcomed the adoption of environmental impact

assessment procedures (see A/HRC/31/71, para. 67), but notes reports they are not being

consistently implemented and that there is limited understanding of consultation

requirements. She was informed by the Ministry of Natural Resources and Environmental

Conservation that it is in the process of drafting public consultation guidelines, which she

hopes will ensure consistent and meaningful consultations.

44. Mining projects continue to have a severe impact on the lives of communities. The

Special Rapporteur had hoped to travel to Hpakant to visit communities affected by mining,

but her request was denied. She was fortunate to meet affected individuals who had

travelled from there to meet her in Myitkyina. They painted a grim picture, detailing

extensive environmental destruction, children suffering from breathing difficulties due to

mining dust, and allegedly over 100 people killed by traffic accidents involving mining

vehicles.

45. The Special Rapporteur welcomes the fact that the Ministry of Natural Resources

and Environmental Conservation recognizes key challenges in the sector and its clear desire

to tackle them. The decision to suspend the issuance and renewal of licences for jade

extraction until the legal framework is reformed is particularly welcomed. She notes that, in

order to fully capitalize on that opportunity, it will be important to ensure revision of the

legal and policy framework following a consultative process, and inclusion of strong

protections against environmental and human rights abuses and against corruption. She

encourages increased transparency across the mining industry with systematic publication

of up-to-date information on permit holders and licencing terms. She encourages the

Government to take appropriate steps to investigate, punish and redress any human rights

abuse relating to business activities in all sectors and ensure victims’ access to an effective

remedy in accordance with international standards.

46. The Special Rapporteur notes that the second report of Myanmar under the

Extractive Industries Transparency Initiative is scheduled for submission in March, but

understands that an extension of that deadline is being sought. She welcomes the formation

of a leading committee, and the steering committee’s first meeting in December. She

encourages the Government to quickly form the national level multi-stakeholder group and

underlines the need for work on the second report to begin forthwith, in collaboration with

civil society. She also calls for the jade sector to be fully included in that report.

8 See Amnesty International, Mountain of Trouble: Human Rights Abuses continue Myanmar’s

Letpadaung Mine (Index: ASA 16/5564/2017), available at

www.amnesty.org/en/documents/asa16/5564/2017/en/.

47. Currently the Myanmar garment industry employs around 350,000 workers, most of

whom are women. The Special Rapporteur is disturbed to learn that some factories are

breaching labour standards, including by forcing workers to work overtime and withholding

salaries for periods of illness. 9 The Special Rapporteur recalls that companies have a

responsibility not to cause, contribute or be directly linked to human rights abuses. She

calls on all investors and business in Myanmar to proactively ensure that they abide by the

Guiding Principles on Business and Human Rights: Implementing the United Nations

“Protect, Respect and Remedy” Framework and other relevant standards, ensure respect for

human rights through relevant policies and processes, and address any adverse rights

impacts with which they are involved. She encourages application of the principles for

responsible contracts to ensure that human rights are addressed in negotiations on

investment projects between Myanmar and foreign business investors. Ensuring genuine

public consultation on bilateral investment treaties being developed and that such treaties

protect the ability of Myanmar to regulate to protect human rights is also important.

D. Conflict and the peace process

48. The Special Rapporteur is extremely concerned by continued and escalating

violence in Kachin, Shan and other states and the increasing impact on civilian populations.

The situation has significantly deteriorated in recent months and she is informed that it is

currently worse than at any point in the past few years, with fighting increasingly

approaching urban centres and populated areas.

1. Displacement and access

49. In northern Shan State, approximately 15,000 persons, almost the entire population

of the Mongkoe area, were temporarily displaced. Many have now returned, but the Special

Rapporteur was informed that movement in and out of the town remains restricted. In

January 2017, an additional 4,000 individuals reportedly remained displaced in northern

Shan following the escalation of fighting in November 2016. There were also clashes

between the Arakan Army and the Tatmadaw (Army of Myanmar) in Chin State in

December 2016, displacing 200 people; and 2,000 people remain displaced following

clashes in central Rakhine in April 2016. Around 5,500 persons also remain displaced in

Kayin State following violence in September 2016.

50. In Kachin State, an estimated 7,000 individuals have been newly displaced,

including nearly the entire population of three camps for internally displaced persons

located in non-government controlled areas after shells landed near the camps. Those

individuals, who have already been displaced once, were forced to flee for a second and in

some cases a third time, often leaving everything behind in the rush to seek safety. Some of

them unsuccessfully attempted to cross the Chinese border. Many are still stranded in the

border area without proper shelter. Others have arrived in government-controlled areas. The

Special Rapporteur met with some of those individuals and one family, with four young

children, told her that they were forced to dig a hole in the forest and stay there overnight

for six days while trying to find the finances needed to leave the area.

51. The dire situation of civilians in Shan and Kachin States is compounded by the

increasing limits on humanitarian access. For over eight months, the United Nations and

other international organizations have been systematically denied authorization to travel

from government-controlled areas to non-government controlled areas to deliver vital and

in some cases lifesaving assistance to over 40,000 internally displaced persons. Access to

government-controlled areas is also becoming more restricted, with additional layers of

approval needed, including from the Military Northern Command. Where permission is

granted it is frequently limited to national staff. Local organizations, often with limited

capacity, continue to provide much-needed assistance but also face increasing restrictions.

9 See Martje Theuws and Pauline Overeem, The Myanmar Dilemma: Can the garment industry deliver

decent jobs for workers in Myanmar? (Amsterdam, Centre for Research on Multinational

Corporations, Action Labor Rights and Labour Rights Defenders and Promoters, 2017).

The Special Rapporteur’s request to visit Laiza and meet those affected was denied for

security reasons. She then requested to visit Mongkoe and other locations in Shan State as

an alternative, but that was also denied.

52. The Special Rapporteur emphasizes that the United Nations and its partners should

have regular, independent and predictable access to all those in need of humanitarian

assistance wherever they are located. She reminds the Government of its commitment to

“leave no one behind”,10 and calls on it and all other parties to grant immediate, unfettered

access to all sites hosting internally displaced persons. She also calls on the Government to

officially withdraw the unacceptable proposal that internally displaced persons should

travel extensive distances and cross conflict lines to receive assistance.

53. The Special Rapporteur welcomes the first pilot of voluntary returns of refugees

from Thailand in October 2016 involving 71 individuals. She underlines that all returns

must be in compliance with international standards. She also notes that clear policies will

be needed to address issues likely to hamper returns including security and safety, landmine

clearance, adequate housing, where applicable restitution of land for returnees,

reacquisition of vital legal documents and equal access to public services and livelihoods.

2. Conflict-related violations

54. The Special Rapporteur is concerned by the continuing reports of conflict-related

violations committed by all parties, including torture, inhuman and degrading treatment,

sexual and gender-based violence, arbitrary killings, abductions, including for forced labour

and use as human shields, looting and property confiscation.

55. There has also been a worrying trend of reportedly indiscriminate attacks in or near

civilian areas, including displacement sites, schools and in some cases, areas where there

are no known legitimate military targets. In one incident on 12 January 2017, two civilians,

including a 6-year-old boy, were reportedly killed when artillery shells landed in a village

in northern Shan State.

56. Sexual and gender-based violence, including intimate partner violence, remains a

problem across the country but is particularly prevalent in conflict areas and areas of

increased militarization. Survivors have limited access to life-saving services due to the

limited capacity of providers and specialists, and restrictions upon women’s freedom of

movement due to increased militarization. There have been numerous allegations of rapes

carried out by members of the security forces in Rakhine State following the 9 October

2016 attacks. Few survivors are able to reach the necessary medical care. Underreporting is

widespread; only 50 per cent of women in Rakhine State and 18 per cent of women in

Kachin State accepted referral to health-care providers in 2016. Those figures are drawn

from programming data that represent a fraction of the incidents; the vast majority remain

unreported. Survivors are allegedly asked not to report sexual and gender-based violence to

humanitarian organizations and sometimes face repercussions if they do so. Where cases

are reported, there is still widespread impunity. Two years after the rape and murder in

2015 of two Kachin schoolteachers, Maran Lu Ra and Tangbau Hkwan Nan Tsin, the

perpetrators remain at large. The previously highlighted cases of Sumlut Roi Ja and Ja Seng

Ing have not yet been solved.

57. While noting information from the Government that nine members of the military

who were accused of rape were tried in civilian courts in 2015 and 2016, many cases

involving Tatmadaw personnel are still tried under court martial rather than being

transferred to civilian courts. Seven soldiers were court-martialled for the killing of five

civilians in June 2016 and sentenced to five years’ imprisonment. The deaths of two other

civilians killed on the same day in the same location remain unexplained.

10 See Htin Lynn, Director-General, International Organizations and Economic Department, Ministry of

Foreign Affairs, Myanmar, statement delivered at the World Humanitarian Summit, Istanbul, Turkey,

24 May 2016. Available from https://consultations.worldhumanitariansummit.org/bitcache/f6e4658

e546e2b02b37aaa9f839c9f7641c69aca?vid=581020&disposition=inline&op=view.

58. In Rakhine State, the Special Rapporteur met individuals detained under section 17

(1) of the Unlawful Associations Act (1908), which is not in accordance with international

standards. She reiterates her concern that some individuals detained under that Act have

allegedly been tortured during interrogations. She is also concerned by the case of two

Kachin pastors, Langjaw Gam Seng and Dumdaw Nawng Lat, who spoke to journalists

following the bombing of their church in Mongkoe. The Government had initially denied

involvement in their disappearance but the Tatmadaw later admitted to detaining them. She

understands that they have been transferred to a police station and charged under the Act.

She questions whether that may be a case of reprisal for speaking out, and calls for a

thorough and impartial investigation, as well as respect for due process.

59. Eight parties to the conflict in Myanmar remain listed in the report of the Secretary-

General on children and armed conflict (see A/70/836-S/2016/360, annex 1). The Special

Rapporteur welcomes the release of over 800 children from the armed forces since 2012, as

well as the improvement of age verification procedures. She reiterates her calls for the

Government to ratify the Optional Protocol to the Convention on the Rights of the Child on

the involvement of children in armed conflict, and for ethnic armed groups to develop

action plans, including against underage recruitment.

60. The Special Rapporteur condemns in the strongest terms the apparent total disregard

for civilian lives and underlines the need for all parties to take immediate steps to protect

civilians, respect international human rights and humanitarian law and end the violence.

She particularly recalls common article 3 of the Geneva Conventions, which provides for

the protection of civilians from inhumane treatment and violence to life and person in non-

international armed conflicts. Urgent steps should be taken to ensure independent and

impartial investigations into all violations. Training and awareness-raising in the military

and armed groups should also be provided and expanded.

3. Peace process

61. Against that concerning context, the peace process is continuing. The Special

Rapporteur welcomes efforts by the Government to engage in dialogue with all groups. The

Twenty-first Century Panglong Conference took place from 31 August to 3 September

2016 and was attended by representatives of the Government, the parliament, the

Tatmadaw and 18 armed groups, while 3 other armed groups were excluded. During her

recent visit, she was informed that national-level dialogues had been held in three regions

(Kayin State, Tanintharyi Region and Nay Pyi Taw) as part of the consultative process. The

next Union-level peace conference will be held soon; it is currently unclear whether all

groups can participate. She welcomes assurances that human rights will be mainstreamed

across discussions and underlines the need for the inclusion of commitments to, and

mechanisms for, accountability and non-discrimination, as well as issues relating to land

and natural resource sharing and entrenched inequalities. The Special Rapporteur notes that

a parallel civil society organization forum is due to be held and reiterates the vital role of

civil society in the peace process.

62. The Special Rapporteur welcomes the increased female representation in the

Twenty-first Century Panglong Conference, at which women represented 13 per cent of all

participants, while noting that that still falls short of the previously agreed minimum of 30

per cent. She has received assurances that efforts will be made to increase representation

further at the next conference and hopes that the minimum level will be reached. She

highlights the fact that, in line with Security Council resolutions 1325 (2000) and 1889

(2009), women should be represented at all levels, including in decision-making and

leadership positions and implementation mechanisms. She notes with concern that gender

equality and women’s rights have not been recognized as a priority area, failing to qualify

as one of the 20 sub-themes drawn up during the peace process. She recommends that

consideration be given to establishing a gender advisory group at the national level.

63. Myanmar remains one of the most mined countries in the world, with 159 casualties

reported in 2015,11 and numerous others in 2016. The Special Rapporteur is particularly

concerned by the risk that landmines and other explosive remnants of war pose to the

increasing numbers of civilians being displaced, as well as to future resettlement efforts.

She again calls on all parties to immediately cease using landmines and for the Government

to ratify the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer

of Anti-personnel Mines and on Their Destruction. She calls for removal, mapping,

clearance and fencing activities to be prioritized and expanded.

E. Attacks against Myanmar Border Guard Police facilities on 9 October

2016 and the aftermath

64. On 9 October 2016, three Myanmar Border Guard Police facilities in Rakhine State

(in Kyee Kan Pyin and Nga Khu Ya in Maungdaw township and Koe Tan Kauk in

Rathedaung township) were reportedly attacked by groups of armed men in a coordinated

manner. In addition to the nine members of the Myanmar Police Force who were reportedly

killed, the armed attackers appeared to have seized arms, weaponry and ammunitions. The

security forces (the Tatmadaw, the Myanmar Police Force and the Border Guard Police)

immediately responded with a counter-operation to pursue the attackers and recover the

stolen items. The Ministry of Defence issued a statement on 14 October announcing that the

initial operation would last three months and that that period was extendable.

65. During the subsequent counter-operations, further clashes reportedly occurred, the

most serious of which took place on 12 and 13 November. The Government reports that

there were more than 20 attacks and ambushes during the “clearance operations” with seven

soldiers, including one column commander, and one police officer killed and many others

injured. The Government of Bangladesh reportedly arrested and returned to the

Government of Myanmar two suspected attackers who had crossed the border. Early

information regarding the attackers’ origins, motives and other details were apparently

obtained from the interrogation of those two as well as two other suspects arrested by the

authorities of Myanmar.

1. Lack of access to information and the affected population

66. In the immediate aftermath, the Government extended an existing curfew from 7

p.m. to 6 a.m. in Maungdaw and two other townships. In respect of the “clearance

operations”, Maungdaw, Buthidaung and Rathedaung townships were officially declared

affected and closed off for security reasons. All humanitarian operations and activities

normally undertaken in those areas were suspended. Teachers, health workers and other

service providers left those areas, with reports that military helicopters were used in some

cases to evacuate Rakhine civil servants from remote areas.

67. As at 21 October 2016, it was estimated that about 3,000 Rakhine community

members had been displaced. Some were reportedly transported by boat out of Maungdaw

and many were provided with temporary shelter in Buthidaung, Maungdaw and Sittwe

towns. Their needs were attended to by the State Government, local non-governmental

organizations and religious organizations, with offers of international assistance from the

United Nations and other international organizations mostly declined. In contrast, the

estimated 10,000 to 15,000 Rohingya community members displaced as of 21 October had

apparently not received any government assistance and had been given shelter by host

communities in villages affected by security operations. Humanitarian organizations,

despite being ready to undertake assessment and respond to the population in need, were

not permitted to do so. Due to the lack of humanitarian access, it was extremely difficult for

the actual number of those displaced and their needs to be to accurately ascertained.

11 See International Campaign to Ban Landmines and Cluster Munition Coalition, Cluster Munition

Monitor 2016 (August 2016). Available from www.the-monitor.org/media/2394895/Cluster-

Munition-Monitor-2016-Web.pdf.

68. As of 4 November, due to pre-existing humanitarian services having been suspended

in most parts of northern Rakhine, more than 150,000 people went without their normal

cash and food and nutrition assistance; 3,400 children already diagnosed with severe acute

malnutrition did not have access to their usual life-saving treatment; over 2,900 children

who have been cured of severe acute malnutrition could not obtain their follow-up

treatment and faced a high risk of relapsing; and the cases of 42,000 people, including

37,000 children with moderate acute malnutrition, were at high risk of deteriorating into

severe acute malnutrition cases.12 An estimated 7,600 pregnant women were also unable to

access continuing medical care.13 Reportedly, Hindu community members in Maungdaw

also suffered from food shortages, lack of medical services and other challenges as a result

of movement restrictions and security operations. As of 13 February 2017, some 69,000

people were estimated by the United Nations and humanitarian organizations in Bangladesh

to have crossed into Bangladesh following the 9 October attacks. The World Food

Programme (WFP) estimated that an additional 24,000 Rohingya people were internally

displaced in Maungdaw north. By the end of January 2017, the majority of the ethnic

Rakhine and Mro who had been displaced from their homes had returned, although around

272 Rakhine and Mro people remained displaced in Maungdaw and Buthidaung.

69. Humanitarian access was eventually incrementally allowed, at times in an almost ad

hoc way. For example, following the Government-led diplomatic mission comprising the

United Nations Resident and Humanitarian Coordinator and the ambassadors or heads of

missions from nine embassies to visit selected northern Rakhine villages on 2 and 3

November 2016, a commitment was made for the resumption of humanitarian activities.

However, WFP was able to deliver two-weeks’ worth of food rations to only four villages

between 8 and 10 November subsequent to that commitment. Furthermore, those were one-

off deliveries permitted to be conducted by national staff only.

70. Just prior to the Special Rapporteur’s visit, it was announced that WFP had been

given access to 43 village tracts (containing 151 villages) in Maungdaw north with regular

operations resuming in that area, although the restriction against international staff stood at

the time of writing of the present report. As of 2 February 2017, while health clinics and

nutrition centres had reopened in some areas, it appeared that fewer people had been

accessing them, as the situation remained tense and movement confined through a strict

travel authorization regime.

71. In the immediate aftermath of the 9 October attacks and subsequent security

operations, information was difficult to obtain regarding the situation in northern Rakhine.

Independent media were not allowed in, and while an “Information Committee” was

formed under the State Counsellor’s Office, much of the information being released

appeared similar to that released by the Ministry of Defence. Following further

international pressure, a government-managed visit by a group of journalists was allowed to

northern Rakhine from 20 to 22 December 2016, accessing almost the same areas as the

earlier diplomatic mission. No explanation was given on how participants were selected and

there appeared to be little reporting following the visit. One tragic outcome was the

reported beheading of a villager in an apparent act of retaliation for having spoken to the

journalists. The circumstances surrounding that killing remain unclear although the

Government has reported that the group responsible for the 9 October attacks was behind

that, as well as 13 other reported killings. To date, that remains unconfirmed and

independent media and human rights monitors still have no access to the north of Rakhine.

2. Allegations of human rights violations

72. Following the 9 October attacks and the launch of the security operations, reports

began surfacing, increasingly and persistently, regarding serious human rights violations

12 See Office for the Coordination of Humanitarian Affairs (OCHA), “Update on the situation in

Rakhine State – 4 November 2016”, e-mail to OHCHR, 4 Nov. 2016.

13 See OCHA, “OCHA Update — Humanitarian situation in the northern part of Rakhine State,

Myanmar — 13 December 2016”. Available at http://reliefweb.int/report/myanmar/ocha-update-

humanitarian-situation-northern-part-rakhine-state-myanmar-13-december.

against the Rohingya. On 24 October, the Special Rapporteur and several United Nations

experts publicly expressed their concerns regarding allegations of summary executions,

including of children, and arbitrary arrests, as well as burning down of houses and mosques

as part of the security operations. The experts called for thorough and impartial

investigations of all suspected cases of extra-legal, arbitrary and summary executions and

for access for humanitarian organizations to undertake a needs assessment, continue

delivering assistance and ensure that the protection, needs and well-being of affected

populations were urgently and properly addressed.14

73. Despite the lack of access to the affected areas, reports continue to be released,

including by international non-governmental organizations and media, based on satellite

imagery and analysis, as well as from interviews with individuals who have fled Rakhine

State. 15 The Government’s consistent response to those allegations was denial and

dismissal. While the Government declined the request from the United Nations High

Commissioner for Human Rights for a team to access northern Rakhine,16 the Government

of Bangladesh allowed access to a four-member team from the Office of the United Nations

High Commissioner for Human Rights (OHCHR) to meet in Cox’s Bazar with members of

the Rohingya population who had fled from northern Rakhine in the wake of the events of 9

October. The flash report issued on 3 February documented a horrifying number of serious

human rights violations that appeared to have taken place in a widespread and systematic

manner “indicating the very likely commission of crimes against humanity”.17 The alleged

violations recorded from testimonies of over 200 Rohingyas include extra-judicial killings,

enforced disappearances, torture and inhuman treatment, rape and other forms of sexual and

gender-based violence, arbitrary arrest and detention, deportation and forced transfer as a

result of violence and persecution. The testimonies indicate that the attacks against

Rohingya villages, including the deliberate destruction of houses and food stocks, made it

impossible for Rohingya people to continue living in their villages, “thereby creating a

coercive environment amounting to forced displacement”. In that regard, the High

Commissioner urged Myanmar to bring the military operations to an end and conduct an

independent investigation.

74. While the Special Rapporteur did have access to five Rohingya villages in

Maungdaw from where many reports of alleged violations had emanated and spoke to

villagers, the visits were conducted in a brief period of time conducted over one day,

making it difficult to ascertain the full scale and reliability of allegations conveyed.

Furthermore, while government officials and security personnel did not closely monitor the

Special Rapporteur while she was talking to community members, she still noted the

extreme state of fear and anxiety on the part of those who spoke with her and recognizes the

possibility that informants from within the community might later report to others on those

conversations. The Special Rapporteur also visited Rakhine communities, including one

displaced Mro community, and one Hindu community during her visit to Rakhine State.

She notes that all communities reported increased livelihood difficulties following the 9

October attacks, as well as anxiety and fear.

75. One of the more remarkable observations made during the visit to Maungdaw was of

“hanging doors”. It had been reported previously that during the security operations,

villagers were ordered to remove fencing around their houses, yards, ablution blocks and

water ponds (allegedly accompanied by harassment, arrest and extortion of villagers). The

observation of doors standing alone without fencing appears to corroborate those orders,

which have made women feel particularly vulnerable and insecure as bathing and toilet

facilities are normally enclosed within those fences. The Special Rapporteur noted that

earlier in June, an instruction was apparently issued by the Maungdaw authorities to ban

zinc fencing around “Bengali” houses and its implementation was reportedly accelerated

following the 9 October attacks. While the justification given for those instructions was

14 See www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=20742&LangID=E#sthash.

15 See Human Rights Watch, “Burma: military burned villages in Rakhine State”, 13 December 2016.

Available from www.hrw.org/news/2016/12/13/burma-military-burned-villages-rakhine-state.

16 See www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=21042&LangID=E.

17 See www.ohchr.org/Documents/Countries/MM/FlashReport3Feb2017.pdf. See also A/HRC/32/18.

security considerations, they appear to be further forms of intimidation, harassment and

ultimately discrimination against the Rohingya population to make their living conditions

unbearable.

76. The Special Rapporteur was further alarmed to hear that an annual household list

update that is normally conducted in January had been brought forward in some areas.

Reportedly, the exercise was under way from early November 2016 in the three northern

Rakhine townships. For many Rohingya and Muslim villagers, being on the compulsory

household list is the only current evidence of their legal status in Myanmar. With thousands

displaced and many more having fled from their homes following the security operations,

they risk being unable to prove that they are legal residents of Myanmar upon their return if

their names are removed during the updating exercise.

3. Accountability mechanisms

77. Despite early calls for thorough and impartial investigations into the allegations of

human rights violations in the wake of the 9 October attacks, it was announced only on 16

November that a Presidential investigation commission into events in Maungdaw would be

established. An informal briefing of the United Nations Security Council on the situation in

Rakhine appeared to have taken place around the same date.18 The Government-appointed

Rakhine Advisory Commission, established in August 2016, had already clarified that its

mandate did not include human rights investigations.

78. The Special Rapporteur noted that the Presidential Maungdaw Investigation

Commission is headed by Vice-President I, who is a former military commander, and its

members include other former military members, as well as the Chief of the Myanmar

Police Force. There appears to be no one from the Rohingya community represented

although there is one Muslim member, an elderly former Ambassador of Myanmar. Other

members include a representative from the Attorney-General’s Office, former high-ranking

United Nations officials, a member of the Myanmar National Human Rights Commission

(formerly of the foreign service), female members with women’s rights backgrounds, as

well as those of other faiths and ethnic minorities. In addition to the inclusion of some

members that calls into question the Commission’s impartiality, its mandate does not

appear to necessarily encompass investigations into allegations of human rights violations.

Its interim report appears to contain blanket statements that do not seem to have been based

on assessing available information and evidence, raising serious doubts about its credibility.

79. The Special Rapporteur has already expressed concerns regarding the Commission’s

methods of work. She notes that the shortcomings mean that Myanmar has yet to properly

discharge its obligation to conduct credible “prompt, thorough, independent and impartial

investigations” into alleged human rights violations (see para. 22 above). She also notes

that two mechanisms, a military investigation commission and a police investigation, were

set up in early February. They seem to be purely internal mechanisms and do not diminish

the need for independent mechanisms.

80. During her recent visit, the Special Rapporteur raised with the authorities reports of

custodial deaths among those arrested during security operations, including a former United

Nations employee. She was told that those deaths had resulted from pre-existing health

conditions. While the Special Rapporteur did not obtain access to the post-mortem reports

of those cases, concern is raised regarding treatment in detention, including during

interrogations, and access to immediate and proper medical treatment. In many cases, it

would appear that suspects did not have legal representation. Additionally, many detainees’

families were not informed of their arrests, with many believing their family members had

been killed. She calls for the families of detained individuals to be immediately informed of

their whereabouts and due process guarantees respected.

81. Undoubtedly, the situation in Rakhine is complex. The Special Rapporteur reiterates

that the long-standing grievances from the Rakhine Buddhist community must be urgently

addressed, noting that Rakhine State is now the poorest state in Myanmar. Access to

18 See www.nytimes.com/2016/11/19/world/asia/myanmar-rakhine-rohingya-muslim.html?_r=0.

education, health care and livelihoods must be prioritized and guaranteed to all

communities, including the Rohingya community. The recent developments add to the

already complex nature of the situation. The entrenched fear, hostility and lack of empathy

toward the Rohingya people are pervasive throughout the whole of Myanmar. As such, the

Special Rapporteur is heartened to see that more than 40 local civil society organizations

have recently signed a statement calling for an independent investigation into the aftermath

of the 9 October attacks. She encourages all Myanmar human rights defenders to speak up

and act for the human rights of all, including the Rohingya people.

III. Conclusions

82. It has been almost one year since the new Government came to power. The

Special Rapporteur has already noted in her previous report the formidable human

rights challenges it faces while simultaneously having to navigate and direct a

bureaucracy carried over from the previous Government, as well as govern within the

constraints of a Constitutional framework which gives precedence to military

prominence over civilian authority. She recalls that the consolidation of democracy

and the creation of a culture of respect for human rights is a complex undertaking

that requires political will and sustained investment in not just enhancing the

functioning and integrity of State institutions but also their accountability.

83. While improvements have been seen in some areas and some are making clear

efforts, as the Special Rapporteur reflected after her recent visit, many ordinary

people in Myanmar have unfortunately begun to lose hope that the new Government

will address their needs and concerns. That is undoubtedly at least partially due to the

continued impunity enjoyed by the military and other security forces and their

dominant position in the Government. Trust that was placed in the new civilian

leadership has started to wane with repeated incidents that carry the hallmarks of the

previous Government. Where abuses and violations are suspected, the Government

appears quick to resort to its standard position of “defend, deny and dismiss”.

84. Addressing the apparent climate of impunity will be vital for the new

Government moving forward. Impunity arises from a failure by States to meet related

obligations, including to investigate violations; take appropriate measures in respect

of the perpetrators by ensuring that those suspected of criminal responsibility are

prosecuted, tried and duly punished; provide victims with effective remedies; and take

other necessary steps to prevent the recurrence of violations.19 Pervasive impunity also

emboldens acts of retaliation and reprisals by those implicated in alleged abuses and

violations.

85. Currently, existing policies, laws and avenues for redress appear to favour

those in positions of power rather than ensure that everyone is equal before the law

and has an equal opportunity to have legitimate grievances addressed. Laws continue

to be misused to stifle freedom of association and assembly, and to subvert freedom of

opinion and expression. Individuals who have lived on land for generations continue

to face eviction without proper safeguards for projects that bring them little or no

benefits. Conflict, which continues to have a devastating effect on civilians, sometimes

appears to be focused around resource-rich areas or near lucrative projects.

86. The Special Rapporteur reminds the Government of the distinction between

rule of law and rule by law, as far too often issues of concern are explained away as

having been dealt with “according to the law”. Too often also cases of abuses and

serious, even grave, human rights violations that potentially involve the State as the

perpetrators, are closed with no explanation or dealt with in secrecy under the pretext

of national security. Alternatively, a plethora of committees or commissions are set up

to tackle the same issue with duplicative mandates, insufficient guarantees of

19 See the updated set of principles for the protection and promotion of human rights through action to

combat impunity (E/CN.4/2005/102/Add.1), principle 1.

independence and impartiality, and confusing, inconclusive and delayed outcomes.

Where the State is unable to discharge its primary duty of investigating violations,

taking appropriate measures against perpetrators and providing victims with effective

remedies, it must seek assistance to do so. When it is unwilling to do so, the

international community must step in and step up.

IV. Recommendations

87. The United Nations should, under the leadership of the new Secretary-General,

arrive at a more comprehensive and coordinated approach to United Nations action in

Myanmar, including peacebuilding, development and humanitarian assistance, with

human rights principles at their core.

88. The international community should:

(a) Establish a commission of inquiry to investigate the systematic,

structural and institutional discrimination in policy, law and practice and the long-

standing persecution against the Rohingya and other minorities in Rakhine State with

a focus on the incidents of violence in 2012 and 2014, and the security operations

following the attacks on 9 October 2016, which may amount to crimes against

humanity;

(b) Hold a dedicated and urgent discussion on Myanmar in the appropriate

format at the Human Rights Council to address the human rights violations occurring

in other parts of the country, including the escalating conflict in Kachin, northern

Shan, as well as increasing militarization in areas such as Kayin State;

(c) Call on the Government of Myanmar to implement its commitment to

open an OHCHR country office with a full mandate;

(d) Remain seized of the human rights situation in Myanmar in all relevant

intergovernmental forums;

(e) Put human rights at the forefront of all bilateral cooperation with, and

investments in, Myanmar and proactively adhere to the Guiding Principles on

Business and Human Rights;

(f) Ensure that all investors and businesses, domestic and international,

abide by the Guiding Principles on Business and Human Rights and other relevant

standards in their investments and operations in Myanmar;

(g) Ensure that the home States of companies operating in Myanmar fulfil

their duties to protect human rights as called for by the Human Rights Council in its

resolution 31/24.

89. The Special Rapporteur reiterates all of her previous recommendations

addressed to the Government of Myanmar that have not yet been implemented. In

particular, she reiterates the recommendations listed below.

90. Regarding the rule of law and democratic space, the Government should:

(a) Amend or repeal legislation and legal provisions that limit fundamental

freedoms and contravene international standards, including those previously

identified by the Special Rapporteur and the previous mandate holders (see

A/HRC/31/71, annex), to bring them into line with international human rights

standards;

(b) Remove criminal sanctions from the Peaceful Assembly and Peaceful

Procession Law and amend or repeal section 505 (b) of the Penal Code;

(c) Review and amend the Citizenship Law (1982) to bring it into line with

international standards. In particular, remove provisions that provide for the

granting of citizenship on the basis of ethnicity or race;

(d) Resolve the legal status of habitual residents of Myanmar, including

former holders of the temporary registration card, and ensure that they have equal

access to citizenship through a non-discriminatory and voluntary process;

(e) Enact laws on the prevention of violence against women and on the

rights of children that are compliant with the international obligations of Myanmar;

(f) Initiate a process of consultation with all stakeholders, possibly through

the establishment of a preparatory committee focusing on the review and amendment

of the Constitution, to bring it into line with international standards;

(g) Cease immediately the arbitrary arrest and prosecution of those

exercising their fundamental rights, including their rights to freedom of assembly,

association and expression, and release all those arrested for exercising those rights;

(h) Conduct prompt, thorough, independent and impartial investigations

and systematically ensure redress for any violence, threats, acts of intimidation or

harassment against members of the media and of civil society;

(i) Publicly condemn all acts of incitement to discrimination, hostility and

violence against minorities, while upholding freedom of expression.

91. Regarding conflict and the peace process, the Government should:

(a) Immediately ensure prompt, thorough, independent and impartial

investigations into allegations of violations committed in conflict areas, and the

prosecution and punishment of all perpetrators;

(b) Immediately ensure that the United Nations and its partners have

regular, independent and predictable access to all those in need of humanitarian

assistance, wherever they are located;

(c) Ensure greater participation of women in the peace process, particularly

in leadership roles including in the forthcoming Union Peace Conference, with a

minimum quota of 30 per cent and integration of a gender perspective into political

dialogues;

(d) Take specific steps to develop a comprehensive support programme for

victims and survivors of sexual and gender-based violence, including access to justice,

health and psychosocial care, and socioeconomic support, and take the necessary steps

to ensure that perpetrators are prosecuted and convicted;

(e) Cease immediately the use of landmines, ratify the Convention on the

Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines

and on Their Destruction, and scale up the clearance of mines and unexploded

ordnance, marking and fencing activities. Institute systematic mine risk and education

activities;

(f) Ratify the Optional Protocol to the Convention on the Rights of the

Child on the involvement of children in armed conflict;

(g) Ensure the involvement and integration of civil society organizations in

the peace process.

92. Regarding development and economic, social and cultural rights, the

Government should:

(a) Ensure access to adequate health, education and other basic services for

all, particularly in Rakhine State, without discrimination;

(b) Ensure consistent participatory, inclusive and meaningful consultations

with the communities on all development projects and the proper consideration of all

comments received;

(c) Ensure careful drafting of any changes to existing or new legislation,

rules, regulations and agreements governing extractive industries and major

development projects to ensure that they include transparency requirements and

environmental, social and human rights protection;

(d) Ensure the full implementation of the Guiding Principles on Business

and Human Rights and protect against any human rights abuse within the territory of

Myanmar by third parties, including business enterprises, through adequate policies

and laws;

(e) Ratify the International Covenant on Economic, Social and Cultural

Rights.

93. The authorities of Rakhine State should:

(a) Conduct prompt, thorough, independent and impartial investigations

into all alleged violations of international human rights law, and hold perpetrators to

account;

(b) Lift the curfew order and restrictions on freedom of movement in

Rakhine State;

(c) Review and revise all local orders, instructions and other policies and

practices that are discriminatory in law and in practice;

(d) Take concrete steps to address long-standing challenges to social and

economic development through a human rights-based approach, while ensuring the

participation of affected communities and fostering reconciliation and greater

integration between communities;

(e) Immediately provide durable solutions for the persons who have been

internally displaced since 2012.

94. In addition, the Special Rapporteur makes the following new recommendations

to the Government of Myanmar:

(a) Cooperate to agree on joint benchmarks that are specific and time-

bound;

(b) Conduct a conclusive independent and impartial investigation into the

assassination of Ko Ni, with international assistance.

95. Regarding the rule of law and democratic space, the Government should:

(a) Establish an appropriate, systematic consultation process for the

drafting and review of amendments to existing legislation or new draft laws to ensure

transparency, vetting for compliance with international standards and adequate

engagement with civil society organizations and members of the public, possibly

through a law on law-making;

(b) Ensure that draft laws, including the hate speech law and the citizens

private security and protection law, are in line with international standards;

(c) Create a legal framework for surveillance in line with international

human rights standards and in consultation with experts;

(d) Continue the moratorium on the death penalty with a view to its

abolition.

96. Regarding development and economic, social and cultural rights, the

Government should ensure that the protections provided in the National Land Use

Policy are retained and draft, following consultations, an overarching land law that is

in accordance with international human rights standards.

97. The authorities of Rakhine State should:

(a) Uphold the rights of accused persons by ensuring all due process

guarantees are respected and fulfilled, and by keeping their families informed of their

arrest or detention and location;

(b) Refrain from issuing and implementing new orders and instructions that

are discriminatory in law and in practice or that have a disproportionate impact on

Muslim and Rohingya communities resulting in the deterioration of their living

conditions and legal status;

(c) Grant regular, independent and predictable access for humanitarian

actors to northern Rakhine to undertake needs assessments and continue delivering

assistance, as well as ensure that the protection, needs and well-being of affected

populations are urgently and properly addressed.

98. The Special Rapporteur recommends that the Government consider requesting

that relevant international organizations, particularly OHCHR, through the

establishment of a fully mandated country office, provide technical assistance,

capacity-building and support in the following areas and to the following bodies:

(a) Administration of justice, including upholding safety standards in prison

administration and instituting an appropriate complaints mechanism;

(b) Administrative reform and governance standards;

(c) Human rights in the peace process;

(d) The mining department, including in specialized areas such as geology;

(e) Members of Parliament, including on business and human rights.

Annex

Proposed joint SR-Government benchmarks

Constitutional, legislative and judicial reform

(i) Initiate, by March 2018, a process of consultation with all stakeholders on the

review and amendment of the Constitution, to bring it into line with international

standards.

(ii) Undertake, by October 2017, a comprehensive review of legislation and legal

provisions that limit fundamental freedoms and contravene international standards

including those previously identified by the Special Rapporteur and the previous

mandate holders (see Annex A/HRC/31/71), with clear target dates for the

conclusion of the review.

(iii) Establish, by October 2017, a legislative reform process with clear timelines

on the drafting and review of amendments to existing legislation or new draft bills

by October 2017. The timeline should allow for the full consideration of the

proposed laws.

(iv) Establish, by October 2017, an appropriate systematic consultation process

on drafting and review of amendments to existing legislation or new draft bills to

ensure transparency and adequate engagement by civil society organizations and

members of the public.

(v) Establish a vetting mechanism to ensure amendments to existing legislation

or new draft bills comply with international standards by October 2017.

(vi) Amend or repeal, by October 2017, section 18 of the Peaceful Assembly and

Peaceful Procession Law and section 505 (b) of the Penal Code, drop all charges

currently being brought against individuals under these provisions; and ensure that

multiple charges are not brought against individuals for the same offence.

(vii) Amend or repeal the four “protection of race and religion” laws by October

2017.

(viii) Review and amend, by March 2018, the Citizenship Law (1982) to bring it

into line with international standards; and, in particular, remove any provisions that

provide for the granting of citizenship on the basis of ethnicity or race.

(ix) Resolve, by March 2018, the legal status of habitual residents of Myanmar,

including former holders of the temporary registration card, and ensure that they

have equal access to citizenship through a non-discriminatory process.

(x) Take concrete steps, by March 2018, to continue judicial reform and the

capacity-building and training of judges and lawyers to strengthen the independence

and effectiveness of the judiciary.

(xi) Enact, by March 2018, an overarching prison law which is in line with

international standards, particularly in relation to the minimum standards of

accommodation and access to health facilities.

Political Prisoners and Human Rights Defenders

(i) Cease immediately the arbitrary arrest and prosecution of those exercising

their fundamental rights including their rights to freedom of assembly, association

and expression.

(ii) Release all remaining political prisoners by October 2017.

(iii) Undertake, by October 2017, a comprehensive review of all cases, based on

broad and public consultations with all relevant stakeholders in view of the

discrepancies in the numbers of remaining political prisoners.

(iv) Develop, in consultation with all relevant stakeholders, including

representatives of civil society, former political prisoners, representatives of the

Ministry of Home Affairs, other relevant ministries and the National Human Rights

Commission and parliamentarians, a formal definition of the term “political

prisoner”.

(v) Take concrete steps to provide adequate compensation and support, including

psychological support and employment training, for released political prisoners by

October 2017.

(vi) Establish, by October 2017, a system to prevent the surveillance and

monitoring of civil society and human rights defenders.

(vii) Investigate and redress systematically any threats, acts of intimidation or

harassment against media and civil society actors.

Rights of minorities, women and children

(i) Publicly condemn all acts of incitement to discrimination, hostility and

violence against minorities, while upholding freedom of expression.

(ii) Take concrete steps to implement, by October 2017, a comprehensive set of

measures to combat and prevent acts of incitement to discrimination, hostility and

violence against minorities, including an anti-discrimination law or policy, while

upholding internationally recognized human rights standards.

(iii) Undertake, by March 2018, holistic prevention, education and awareness-

raising measures addressing the root causes of discrimination, and promote interfaith

and intercommunal dialogue.

(iv) Enact, by October 2017, a law on the prevention of violence against women

that is compliant with international law.

(v) Take more effective measures to prevent and respond to all forms of sexual

and gender-based violence, including in conflict.

(vi) Take concrete steps to develop, by March 2018, a programme of

comprehensive support for victims and survivors of sexual and gender-based

violence in conflict, including access to justice, health and psychosocial care, and

socioeconomic support, and take the necessary steps to ensure that perpetrators are

prosecuted and convicted.

(vii) Take concrete steps to create, by March 2018, a system for the collection of

disaggregated data on all forms of gender-based violence in order to measure the

scope and scale of the problem.

(viii) Ratify, by October 2017, the ILO Convention 138 on the Minimum Age of

Employment.

(ix) Incrementally increase the age of compulsory education from 10 to at least 14

years.

Peace process and conflict-related issues

(i) Ensure greater participation of women in the peace process, including in

delegations, particularly in leadership roles, with a minimum quota of 30 per cent

going forward and integration of a gender perspective into political dialogues.

(ii) Ensure the full participation of local and affected communities, civil society

organizations and women in the peace process, including at the State level and in

implementation and monitoring mechanisms.

(iii) Ensure prompt, independent and impartial investigations into allegations of

violations committed in conflict areas, and the prosecution and punishment of all

perpetrators.

(iv) Ensure, by March 2018, the cases of members of the military who perpetrate

serious crimes against civilians are systematically transferred to civilian courts.

(v) Ensure that complainants are not penalized or threatened with legal action for

bringing complaints and seeking redress against violations committed by the

military.

(vi) Immediately ensure that the United Nations and its partners have regular,

independent and predictable access to all those in need of humanitarian assistance,

wherever they are located.

(vii) Conduct, by October 2017, a full verification count of all underage soldiers

and ensure their release.

(viii) Take concrete steps to end child recruitment in the armed forces, by March

2018, through strengthened age determination process in recruitment procedures, the

improved enforcement of existing accountability, unhindered access and

independent monitoring and oversight of all armed forces.

(ix) Cease immediately the use of landmines and scale up the clearance of mines

and unexploded ordnance, marking and fencing activities.

(x) Develop, by March 2018, a strategy and timeline for comprehensive mine

mapping and removal.

(xi) Institute, by March 2018, systematic mine risk and education activities for

communities in affected areas.

(xii) Ratify, by October 2017, the Convention on the Prohibition of the Use,

Stockpiling, Production and Transfer of Anti-personnel Mines and on Their

Destruction; prioritize the clearance of landmines and unexploded ordnance.

Rakhine

(i) Grant immediate access for humanitarian actors to northern Rakhine State, to

undertake a needs assessment and continue delivering assistance and aid, as well as

ensure that the protection, needs and well-being of affected populations are urgently

and properly addressed.

(ii) Conduct a full, independent and impartial investigation to address allegations

of serious human rights violations in Rakhine and hold perpetrators to account.

(iii) Lift, by October 2017, the curfew order and restrictions on freedom of

movement in Rakhine State.

(iv) Review and revise, by March 2018, all local orders, instructions and other

policies and practices that are discriminatory in law and in practice.

(v) Take concrete steps, by March 2018, to address long-standing challenges to

social and economic development through a human rights-based approach, while

ensuring the participation of the communities affected, and fostering reconciliation

and greater integration between communities.

ESCR and rights related to land

(i) Ensure, by October 2017, that environmental impact assessment procedures

are consistently implemented and enforced, and ensure that all relevant information

is freely and easily accessible.

(ii) Put in place, by October 2017, a mechanism for participatory, inclusive and

meaningful consultations with the communities on all development projects and the

proper consideration of all comments received.

(iii) Take concrete steps to review, by March 2018, legislation, regulations and

agreements governing extractive industries and major development projects to

ensure they include transparency requirements and environmental, social and human

rights protection.

(iv) Draft, by March 2018, following consultations with civil society and affected

populations, an overarching land law which complies with international standards.

(v) Streamline, by October 2017, the complaints procedure regarding land

disputes and ensure information on the process is widely disseminated to guarantee

non-duplication and prevent gaps.

(vi) Ensure, by October 2017, access to adequate health, education and other

basic services for all, particularly in Rakhine State, without discrimination.

Engagement with international human rights mechanisms

(i) Expedite the establishment of an OHCHR country office in Myanmar with a

full mandate.

(ii) Ratify, by October 2017, the International Covenant on Economic, Social and

Cultural Rights.

(iii) Ratify, by October 2017, the Optional Protocol to the Convention on the

Rights of the Child on the involvement of children in armed conflict.

(iv) Ratify, by March 2018, the International Covenant on Civil and Political

Rights, and all other core international human rights instruments.