39/64 Report of the independent international fact-finding mission on Myanmar

GE.18-15138(E)



Human Rights Council Thirty-ninth session

10–28 September 2018 Agenda item 4

Human rights situations that require the Council’s attention

Report of the independent international fact-finding mission on Myanmar*

Summary

The Human Rights Council established the independent international fact-finding

mission on Myanmar in its resolution 34/22. In accordance with its mandate, the mission

focused on the situation in Kachin, Rakhine and Shan States since 2011. It also

examined the infringement of fundamental freedoms, including the rights to freedom of

expression, assembly and peaceful association, and the question of hate speech.

The mission established consistent patterns of serious human rights violations and

abuses in Kachin, Rakhine and Shan States, in addition to serious violations of

international humanitarian law. These are principally committed by the Myanmar

security forces, particularly the military. Their operations are based on policies, tactics

and conduct that consistently fail to respect international law, including by deliberately

targeting civilians. Many violations amount to the gravest crimes under international

law. In the light of the pervasive culture of impunity at the domestic level, the mission

finds that the impetus for accountability must come from the international community. It

makes concrete recommendations to that end, including that named senior generals of

the Myanmar military should be investigated and prosecuted in an international criminal

tribunal for genocide, crimes against humanity and war crimes.

* The present report was submitted after the deadline in order to reflect the most recent developments.

United Nations A/HRC/39/64

Contents

Page

I. Introduction ................................................................................................................................... 3

II. Mandate and methodology ............................................................................................................ 3

A. Mandate ................................................................................................................................ 3

B. Methodology ......................................................................................................................... 3

C. Legal framework ................................................................................................................... 4

III. Context .......................................................................................................................................... 4

IV. Emblematic situations ................................................................................................................... 5

A. Rakhine State ........................................................................................................................ 5

B. Kachin and Shan States......................................................................................................... 11

C. Fundamental freedoms .......................................................................................................... 14

V. Hallmarks of Tatmadaw operations .............................................................................................. 14

A. Targeting of civilians ............................................................................................................ 15

B. Sexual violence ..................................................................................................................... 15

C. Exclusionary rhetoric ............................................................................................................ 15

D. Impunity................................................................................................................................ 15

VI. Crimes under international law ..................................................................................................... 16

A. Genocide ............................................................................................................................... 16

B. Crimes against humanity ...................................................................................................... 16

C. War crimes ............................................................................................................................ 17

VII. Responsibility ................................................................................................................................ 17

VIII. Accountability ............................................................................................................................... 18

IX. Conclusions and recommendations ............................................................................................... 19

I. Introduction

1. In its resolution 34/22, the Human Rights Council established the independent

international fact-finding mission on Myanmar. The President of the Council appointed

Marzuki Darusman (Indonesia) as chair, and Radhika Coomaraswamy (Sri Lanka) and

Christopher Sidoti (Australia) as members. A secretariat was recruited by the Office of the

United Nations High Commissioner for Human Rights (OHCHR).

2. The mission presented an oral update to the Human Rights Council at its thirty-sixth

session, and an oral interim report at its thirty-seventh session; it also delivered a video

statement to the Council at its twenty-seventh special session, on 5 December 2017. The

mission submits the present report to the Council pursuant to its decision 36/115.1

3. The mission regrets the lack of cooperation from the Government of Myanmar,

despite the appeals made by the Human Rights Council and the mission. The mission

addressed a letter to the Government on 4 September and 17 November 2017 and 29

January 2018 to request in-country access. It forwarded a detailed list of questions on 27

March 2018. Although the mission had limited informal contact with government

representatives, it received no official response to its letters. The mission shared the present

report with the Government prior to its public release. No response was received.

II. Mandate and methodology

A. Mandate

4. In its resolution 34/22, the Human Rights Council mandated the mission to establish

the facts and circumstances of the alleged recent human rights violations by military and

security forces, and abuses, in Myanmar, in particular in Rakhine State, with a view to

ensuring full accountability for perpetrators and justice for victims.

5. The mission focused on the situation in Kachin, Rakhine and Shan States since 2011,

namely, since the resumption of hostilities in Kachin State and escalation in Shan State in

2011, and the outbreak of major violence in Rakhine State in 2012. These events were

turning points, generating renewed allegations of serious human rights violations and

abuses. The mission selected several significant incidents for in-depth fact-finding,

allowing detailed findings on specific allegations of violations and abuses, while revealing

broader patterns of conduct. Serious allegations have also arisen in other contexts, meriting

further investigation.

B. Methodology

6. Factual findings are based on the “reasonable grounds” standard of proof. This

standard was met when a sufficient and reliable body of primary information, consistent

with other information, would allow an ordinarily prudent person to reasonably conclude

that an incident or pattern of conduct occurred.

7. The mission amassed a vast amount of primary information. It conducted 875 in-

depth interviews with victims and eyewitnesses, both targeted and randomly selected. It

obtained satellite imagery and authenticated a range of documents, photographs and videos.

It checked this information against secondary information assessed as credible and reliable,

including the raw data or notes of organizations, expert interviews, submissions and open-

source material. Specialized advice was sought on sexual and gender-based violence, child

psychology, military affairs and forensics. The mission relied only on verified and

corroborated information.

1 The findings and recommendations of the mission are detailed in document A/HRC/39/CRP.2.

8. To collect information, the members of the mission travelled to Bangladesh,

Indonesia, Malaysia, Thailand and the United Kingdom of Great Britain and Northern

Ireland. The secretariat undertook numerous additional field missions between September

2017 and July 2018. The mission also held over 250 consultations with other stakeholders,

including intergovernmental and non-governmental organizations, researchers and

diplomats, either in person and remotely. It received written submissions, including some in

response to a public call.

9. The mission strictly adhered to the principles of independence, impartiality and

objectivity. It sought consent from sources on the use of information, ensuring

confidentiality as appropriate. Specific attention was paid to the protection of victims and

witnesses, considering their well-founded fear of reprisals. The mission expresses its grave

concern at the intimidation and threats faced by persons cooperating with the mechanisms

of the Human Rights Council examining the situation in Myanmar. It urges Myanmar to

protect human rights defenders.

C. Legal framework

10. The mission assessed facts in the light of international human rights law,

international humanitarian law and international criminal law, as applicable in Myanmar. In

addition to non-international armed conflicts in Kachin and Shan States, the mission

considered that the violence in Rakhine State between the Arakan Rohingya Salvation

Army (ARSA) and the Myanmar security forces constituted a non-international armed

conflict, at least since 25 August 2017.2

III. Context

11. A succession of military regimes have ruled Myanmar since 1962. In 2008, a new

Constitution was adopted, designed by the military to retain its dominant role in politics

and governance. It instituted a system of government with military and civilian components.

The Tatmadaw (armed forces) appoints 25 per cent of seats in both legislative bodies, and

selects candidates for three key ministerial posts (Defence, Border Affairs and Home

Affairs), and at least one of two Vice-Presidents. This is sufficient to control the National

Defence and Security Council and the entire security apparatus, and to block constitutional

amendments. The Tatmadaw has the right to administer and adjudicate its affairs

independently, without civilian oversight. Current or former military officers occupy

positions of authority across all branches of government, within the civil service and the

judiciary, and in many State-owned enterprises. In 2010, the Government led by Thein Sein

embarked on wide-ranging reforms towards political and economic liberalization, without

amending the Constitution. The National League for Democracy won the election held in

November 2015, and a Government led by that party took office on 31 March 2016.

Sanctions were lifted and foreign investment welcomed.

12. In addition to the Bamar, Myanmar includes other ethnic groups that constitute 32

per cent of the estimated population.3 Since independence, the numerous ethnically-based

armed conflicts have been used by the Tatmadaw to justify its power, presenting itself as

the guarantor of national unity. Several groups hold deep-rooted grievances, struggling for

greater autonomy and an equitable sharing of natural resources. While Governments have

made overtures towards negotiated peace agreements, hostilities have continued. These

conflicts indicate that the nation-building efforts of the military have failed: there is no

unifying “Myanmar” national identity, and resentment against Bamar-Buddhist domination

has only grown. Notably, under military rule, the concept of “national races” has gradually

2 Assessment in line with that of the International Committee of the Red Cross (ICRC). See for

example, ICRC, “Rakhine: Returns must be safe, dignified and voluntary”, speech by the ICRC

President at the Shangri-La Dialogue, Singapore, 2 June 2018.

3 See 2014 Population and Housing Census of Myanmar (available from

http://myanmar.unfpa.org/en/publications/2014-population-and-housing-census-myanmar-data-sheet).

become the key criterion for membership in the country’s political community, creating a

common “other”. The military regime has constructed eight major ethnic groups, broken

down further into 135 “national races”. The list defines those who “belong” in Myanmar;

all others, regardless of how many generations they have lived in Myanmar, are considered

outsiders or immigrants. This includes the Rohingya. 4 According to the Tatmadaw,

“Despite living among peacocks, crows cannot become peacocks.”5

13. According to the 2014 census, 87.9 per cent of the population of Myanmar is

Buddhist, 6.2 per cent Christian, and 4.3 per cent Muslim. While the Bamar are

predominantly Buddhist, many other ethnic groups contain large numbers of non-Buddhists.

Attempts in the 1960s to designate Buddhism as the State religion were divisive. The

Constitution adopted in 2008 recognizes the “special position” of Buddhism, while

acknowledging other religions. Since reforms began in 2011, Myanmar has seen an

increase in Buddhist nationalism, virulent anti-Muslim rhetoric and violence between

Buddhists and Muslims. Among the largest Buddhist nationalist organizations is the

Association for the Protection of Race and Religion (known also as “MaBaTha”), which

cast itself as the protector of Buddhism. While MaBaTha was nominally disbanded, its

successors are still widely supported.

14. Today, the Tatmadaw enjoys greater popularity among the Bamar-Buddhist majority.

The violence, particularly the “Rohingya crisis”, has been used by the military to reaffirm

itself as the protector of a nation under threat and to cement its political role further. This is

remarkable considering its appalling human rights record and the long struggle of the

democracy movement against its rule. Myanmar has been a country of concern for the

United Nations for 30 years, with resolutions condemning its human rights situation since

1991. For three decades, successive special rapporteurs on the situation of human rights in

Myanmar concluded that patterns of human rights violations were widespread and

systematic, linked to State and military policy. Allegations of gross human rights violations

have continued since 2011 and were the focus of the mission.

IV. Emblematic situations

15. The mission focused on three emblematic situations: the crisis in Rakhine State; the

hostilities in Kachin and Shan States; and the infringement on the exercise of fundamental

freedoms and the issue of hate speech.

A. Rakhine State

16. Rakhine State has a poverty rate nearly twice the national average. All communities

in Rakhine suffer from poor social services and a scarcity of livelihood opportunities. The

State’s two largest groups are the Rakhine Buddhists and the Rohingya Muslims; the

former constitutes the majority; the latter, the majority in the north. There are several other

ethnic minorities, including the Kaman Muslims. The problems in Rakhine State are often

ascribed to poor relations between the Rohingya and the Rakhine, reflective of deeply-

rooted grievances and prejudices. Nonetheless, the majority of Rohingya and Rakhine

interviewed by the mission indicated that relationships with the other community had been

good prior to 2012, citing examples of business dealings and friendships.

4 The mission is conscious of the sensitivity concerning the term “Rohingya” in Myanmar, where the

group is generally referred to as “Bengali”. The term is used in the present report in accordance with

the right to self-identify.

5 “Myanmar Politics and the Tatmadaw”, Tatmadaw, Directorate of the Public Relations and

Psychological Warfare, 2018, p. 115.

1. Violations against ethnic Rakhine

I want to share my story with the whole world because the world does not know

what is happening in our place.6

17. The members of the mission spoke with many ethnic Rakhine, who highlighted

serious human rights violations perpetrated by the Myanmar security forces against them.

These violations are similar to those experienced by other ethnic groups in Myanmar.

18. The Tatmadaw used Rakhine men, women and children for forced or compulsory

labour, mostly for “portering”. Other violations included forced evictions through land

confiscation, arbitrary arrest and detention, and violations of the rights to life, to physical

and mental integrity, and to property. Tatmadaw soldiers also subjected Rakhine women to

sexual violence, often in the context of forced labour; for example, one victim explained

how, in 2017, she was taken to a military base, beaten and raped by a Tatmadaw captain.

19. The mission also received reports of repressive action against the assertion of

Rakhine identity. For example, in January 2018, the police used excessive force in

dispersing a demonstration in Mrauk-U against the cancellation of an annual ethnic

Rakhine event, killing seven protestors.

2. Systemic oppression and persecution of the Rohingya

In Rakhine State, Muslims are like in a cage, they cannot travel outside. There are

no human rights for the Muslims of Rakhine. I don’t know why God sent us there.

20. The process of “othering” the Rohingya and their discriminatory treatment began

long before 2012. The extreme vulnerability of the Rohingya is a consequence of State

policies and practices implemented over decades, steadily marginalizing them. The result is

a continuing situation of severe, systemic and institutionalized oppression from birth to

death.

21. The cornerstone of the above-mentioned oppression is lack of legal status.

Successive laws and policies regulating citizenship and political rights have become

increasingly exclusionary in their formulation, and arbitrary and discriminatory in their

application. Most Rohingya have become de facto stateless, arbitrarily deprived of

nationality. This cannot be resolved through the citizenship law of 1982, applied as

proposed by the Government through a citizenship verification process. The core issue is

the prominence of the concept of “national races” and the accompanying exclusionary

rhetoric, originating under the dictatorship of Ne Win in the 1960s. The link between

“national races” and citizenship has had devastating consequences for the Rohingya.

22. The displacement of Rohingya in the 1970s and 1990s, in the context of the military

regime’s implementation of this exclusionary vision, were earlier markers. Observers,

including United Nations human rights mechanisms and civil society, have alerted the

Myanmar authorities and the international community to a looming catastrophe for decades.

23. The travel of Rohingya between villages, townships and outside Rakhine State has

long been restricted on the basis of a discriminatory travel authorization system. This has

had serious consequences for economic, social and cultural rights, including the rights to

food, health and education. The degree of malnutrition witnessed in northern Rakhine State

has been alarming. Other discriminatory restrictions include procedures for marriage

authorization, restrictions on the number and spacing of children, and the denial of equal

access to birth registration for Rohingya children. For decades, security forces have

subjected Rohingya to widespread theft and extortion. Arbitrary arrest, forced labour, ill-

treatment and sexual violence have been prevalent.

6 Quotes are from victim interviews, unless stated otherwise.

3. Violence in 2012

We cried when we left; 25 years of hard work lost. My time is almost finished, but

what will happen to my children and grandchildren?

24. In this context, two waves of violence swept Rakhine State, in June and in October

2012, affecting 12 townships. The murder, and alleged rape, of a Rakhine woman and the

killing of 10 Muslim pilgrims are commonly presented as key triggers. According to the

government inquiry commission, the violence left 192 people dead, 265 injured and 8,614

houses destroyed. Actual numbers are likely much higher. Further violence broke out in

Thandwe in 2013.

25. Although the Government’s depiction of the violence as “intercommunal” between

the Rohingya and the Rakhine has prevailed, it is inaccurate. While there certainly was

violence between Rohingya and Rakhine groups, resulting in killing and the destruction of

property, these attacks were not spontaneous outbursts of hostility; they resulted from a

plan to instigate violence and amplify tensions. A campaign of hate and dehumanization of

the Rohingya had been under way for months, and escalated after 8 June 2012, led by the

Rakhine Nationalities Development Party (RNDP), various Rakhine organizations, radical

Buddhist monk organizations, and several officials and influential figures. It was spread

through anti-Rohingya or anti-Muslim publications, public statements, rallies and the

boycott of Muslim shops. The Rohingya were labelled “illegal immigrants” and “terrorists”,

and portrayed as an existential threat that might “swallow other races” with their

“incontrollable birth rates”. In November 2012, the RNDP, in Toe Thet Yay, an official

publication, cited Hitler, arguing that “inhuman acts” were sometimes necessary to

“maintain a race”.

26. Myanmar security forces were at least complicit, often failing to intervene to stop

the violence, or actively participated. They injured, killed and tortured Rohingya and

destroyed their properties. Witnesses from Sittwe and Kyaukpyu described cases of security

forces preventing Rohingya or Kaman from extinguishing houses set on fire by Rakhine,

including by gunfire. Witnesses from Maungdaw described security forces shooting

indiscriminately at Rohingya and conducting mass arbitrary arrests, including of Rohingya

workers from non-governmental organizations. Large groups were transferred to

Buthidaung prison, where they faced inhuman conditions and torture. Prisoners were beaten

by prison guards and fellow Rakhine detainees, some fatally.

27. The violence in 2012 marked a turning point in Rakhine State: the relationship

between the Rakhine and Rohingya deteriorated; fear and mistrust grew. Although the

Kaman are a recognized ethnic group, they were targeted alongside the Rohingya as

Muslims, and have since suffered increasing discrimination and marginalization.

28. The Government responded to the violence by an increased presence of security

forces and enforced segregation of communities. A state of emergency declared on 10 June

2012 was lifted only in March 2016. Township authorities in Rakhine State imposed a

curfew and prohibited public gatherings of more than five people. These restrictions remain

in force today in Maungdaw and Buthidaung and have been applied in a discriminatory

manner against the Rohingya. They have an impact on freedom of religion, as people are

prevented from praying collectively in mosques.

29. The violence displaced more than 140,000 people, mostly Rohingya. The few

thousand displaced ethnic Rakhine were able to return or were resettled by the Government.

Six years after the violence, 128,000 Rohingya and Kaman remain segregated, confined in

camps and displacement sites, without freedom of movement, access to sufficient food,

adequate health care, education or livelihoods. The displaced are prevented from returning

to their place of origin. Such confinement exceeds any justifiable security measure and

constitutes arbitrary deprivation of liberty. Other Rohingya in central Rakhine, including

those resettled, also face severe restrictions, including on freedom of movement, which has

an impact on daily life.

30. The violence exacerbated the oppression of the Rohingya. Movement outside

Rakhine State became even more difficult. Rohingya students have not been able to enrol at

Sittwe University since 2012; their access to higher education has been effectively removed.

This is a violation of the right to education, and a powerful tool to ensure cross-generational

marginalization. Although Rohingya were allowed to vote in 2010, the right was revoked

prior to the elections in 2015. The oppressive climate led to an increase in Rohingya

leaving Rakhine State by boat in the following years.

4. 25 August 2017 and the “clearance operations”

That day felt like the last day of this world, as if the whole world was collapsing. I

thought judgment day had arrived.

31. What happened on 25 August 2017 and the following days and weeks was the

realization of a disaster long in the making. It was the result of the systemic oppression of

the Rohingya, the violence of 2012, and the Government’s actions and omissions since then.

It caused the disintegration of a community.

32. In the early hours of 25 August, ARSA launched coordinated attacks on a military

base and up to 30 security force outposts across northern Rakhine State, in an apparent

response to increased pressure on Rohingya communities and with the goal of global

attention. A small number of minimally-trained leaders had some arms, and a significant

number of untrained villagers wielded sticks and knives. Some had improvised explosive

devices. Twelve security personnel were killed.

33. The response of security forces, launched within hours, was immediate, brutal and

grossly disproportionate. Ostensibly to eliminate the “terrorist threat” posed by ARSA, in

the days and weeks that followed, it encompassed hundreds of villages across Maungdaw,

Buthidaung and Rathedaung. The operations targeted and terrorized the entire Rohingya

population. The authorities called them “clearance operations”. As a result, by mid-August

2018, nearly 725,000 Rohingya had fled to Bangladesh.

34. Even though the operations were conducted over a broad geographic area, they were

strikingly similar. Tatmadaw soldiers would attack a village in the early hours, frequently

joined by other security forces, often by Rakhine men and sometimes men from other

ethnic minorities. The operations were designed to instil immediate terror, with people

woken by intense rapid weapon fire, explosions or the shouts and screams of villagers.

Structures were set ablaze, and Tatmadaw soldiers fired their guns indiscriminately into

houses and fields, and at villagers.

35. The nature, scale and organization of the operations suggest a level of preplanning

and design by the Tatmadaw leadership that was consistent with the vision of the

Commander-in-Chief, Senior General Min Aung Hlaing, who stated in a Facebook post on

2 September 2018, at the height of the operations, that “the Bengali problem was a long-

standing one which has become an unfinished job despite the efforts of the previous

governments to solve it. The government in office is taking great care in solving the

problem.”

(a) Human rights catastrophe

Everyone was just running for their lives. I was not even able to carry my children.

36. The “clearance operations” constituted a human rights catastrophe. Thousands of

Rohingya were killed or injured. Information collected by the mission suggests that the

estimate of up to 10,000 deaths7 is a conservative one. Mass killings were perpetrated in

Min Gyi (Tula Toli), Maung Nu, Chut Pyin and Gudar Pyin, and in villages in the Koe Tan

Kauk village tract. In some cases, hundreds of people died. In both Min Gyi and Maung Nu,

villagers were gathered together before the men and boys were separated and killed. In Min

Gyi, women and girls were taken to nearby houses, gang raped, then killed or severely

injured. Houses were locked and set on fire. Few survived. In numerous other villages, the

number of casualties was also markedly high. Bodies were transported in military vehicles,

burned and disposed of in mass graves.

7 Médecins Sans Frontières, “‘No one was left’: Death and violence against the Rohingya in Rakhine

State, Myanmar”, March 2018.

37. People were killed or injured by gunshot, targeted or indiscriminate, often while

fleeing. Villagers were killed by soldiers, and sometimes by Rakhine men, using large

bladed weapons. Others were killed in arson attacks, burned to death in their own houses, in

particular the elderly, persons with disabilities and young children, unable to escape. In

some cases, people were forced into burning houses, or locked in buildings set on fire.

38. Rape and other forms of sexual violence were perpetrated on a massive scale. Large-

scale gang rape was perpetrated by Tatmadaw soldiers in at least 10 village tracts of

northern Rakhine State. Sometimes up to 40 women and girls were raped or gang-raped

together. One survivor stated, “I was lucky, I was only raped by three men”. Rapes were

often in public spaces and in front of families and the community, maximizing humiliation

and trauma. Mothers were gang raped in front of young children, who were severely injured

and in some instances killed. Women and girls 13 to 25 years of age were targeted,

including pregnant women. Rapes were accompanied by derogatory language and threats to

life, such as, “We are going to kill you this way, by raping you.” Women and girls were

systematically abducted, detained and raped in military and police compounds, often

amounting to sexual slavery. Victims were severely injured before and during rape, often

marked by deep bites. They suffered serious injuries to reproductive organs, including from

rape with knives and sticks. Many victims were killed or died from injuries. Survivors

displayed signs of deep trauma and face immense stigma in their community. There are

credible reports of men and boys also being subjected to rape, genital mutilation and

sexualized torture.

39. Children were subjected to, and witnessed, serious human rights violations,

including killing, maiming and sexual violence. Children were killed in front of their

parents, and young girls were targeted for sexual violence. Of approximately 500,000

Rohingya children in Bangladesh, many fled alone after their parents were killed or after

being separated from their families. The mission met many children with visible injuries

consistent with their accounts of being shot, stabbed or burned.

40. Numerous men and boys were rounded up, marched into the forest by security

forces or taken away in military vehicles. While some families hope that their fathers and

brothers were imprisoned, others suspect they have been killed.

41. Hundreds of thousands of Rohingya fled, without shelter, food or water. They

walked for days or weeks through forests and over mountains. People died on the way,

some succumbing to injuries sustained during the attacks. Women gave birth; some babies

and infants died. An unknown number of people drowned after their boat capsized, or when

crossing rivers. The Tatmadaw also killed Rohingya during the journey and at border

crossings. Landmines planted in border areas by the Tatmadaw in early September 2017,

apparently to prevent or dissuade Rohingya from returning, led to further loss of life and

severe injuries.

42. Satellite imagery and first-hand accounts corroborate widespread, systematic,

deliberate and targeted destruction, mainly by fire, of Rohingya-populated areas across the

three townships. At least 392 villages (40 per cent of all settlements in northern Rakhine)

were partially or totally destroyed, encompassing at least 37,700 individual structures.

Approximately 80 per cent were burned in the initial three weeks of the operations, a

significant portion of which after the Government’s official end date of the “clearance

operations”. More than 70 per cent of the villages destroyed were in Maungdaw, where the

majority of Rohingya lived. Most destroyed structures were homes. Schools, marketplaces

and mosques were also burned. Rohingya-populated areas were specifically targeted, with

adjacent or nearby Rakhine settlements left unscathed.

(b) A foreseeable and planned catastrophe

My Rakhine neighbour warned me, “You cannot stay here and we cannot control the

bad behaviour of our own people. The Government is planning to drive away your

people.”

43. The attacks conducted by ARSA in 2017 and the ensuing “clearance operations” did

not occur in a vacuum. They were foreseeable and planned.

44. ARSA emerged as a Rohingya resistance organization in response to the violence in

2012 and increased State oppression over all aspects of life. On 9 October 2016, the group8

launched a small first offensive against three border guard police posts in northern Rakhine

State. Nine police officers were killed, and ARSA obtained some arms. The security forces,

led by the Tatmadaw, responded with the “clearance operations”. Some 87,000 Rohingya

fled to Bangladesh. The same tactics and violations were seen in this operation as later in

2017, albeit on a smaller scale. A government investigation commission led by the Vice-

President, and the security forces’ own inquiries, cleared the security forces of wrongdoing,

endorsing the lawfulness and appropriateness of the response.

45. As in 2012, the violence in 2016 resulted in a further intensification of oppressive

measures against the Rohingya. Security forces, camps and checkpoints were increased.

Daily life for the Rohingya became unbearable, with extreme movement restrictions.

Protective fences around Rohingya houses were removed, and knives and other sharp

implements were confiscated. Security patrols, house searches and cases of beatings, theft

and extortion increased. Hundreds of men and boys were arrested, with the most educated

and influential frequently targeted. Many were subjected to ill-treatment or torture in

detention. Some were later released on payment of bribes; others have not been seen since.

Women and girls were subjected to sexual violence, including gang rape.

46. In parallel, the authorities embarked on a renewed effort to impose the National

Verification Card on the Rohingya, a card that the latter had refused, seeing it as symbol of

a discriminatory system that would entrench their status as “Bengali immigrants”. The card

increasingly became a prerequisite for passing through checkpoints, gaining access to

farmland, and for fishing. Intimidation and force were used, including at community

meetings in the presence of the police and military, during which threats were made at

gunpoint. At these meetings, villagers were told to “take the card or leave the country”;

others, for example in Chut Pyin, were told by soldiers to accept it or be killed. Most

Rohingya still refused.

47. In May and July 2017, the ultranationalist monk Wirathu visited northern Rakhine,

where he conducted mass public sermons. The village of Zay Di Pyin (Rathedaung

Township) was blockaded by Rakhine villagers and security forces throughout August.

Amid heightened tension immediately before 25 August 2017, Myanmar media

increasingly reported on alleged ARSA activity in an inflammatory manner. State-

sponsored hate speech towards the Rohingya also continued.

48. A large build-up of troops and other military assets across northern Rakhine began

in early August 2017, following a meeting between Rakhine politicians and the Tatmadaw

Commander-in-Chief. Soldiers from the 33rd and 99th Light Infantry Divisions were

airlifted into Rakhine State, with additional deliveries of military equipment. The increased

presence was evident. Soldiers took over border guard police posts. Rakhine men were

recruited into the security forces, including “fast-track” recruitment into the police. Other

local Rakhine men were mobilized and armed. This build-up was significant, requiring

logistical planning and time to implement, considerations that indicate that the subsequent

operations were foreseen and planned.

(c) An enduring catastrophe

I will not go back until they recognize our rights like others in Myanmar. Otherwise,

I would prefer to die here.

49. While the Government claimed that “clearance operations” had ended on 5

September,9 military engagement continued well into October. Freedom of movement was

further constrained, restricting remaining Rohingya to their houses, with limited access to

markets and livelihoods and exacerbating malnutrition. Humanitarian access was severely

restricted or blocked. Conversely, no protection was provided to Rohingya against vigilante

8 Then known as Harakah al-Yaqin.

9 See www.facebook.com/state.counsellor/posts/speech-delivered-by-her-excellency-daw-aung-san-

suu-kyi-state-counsellor-of-the-/1121130291354519/ (accessed on 10 September 2018).

attacks and the theft of property, livestock and other possessions by members of other

ethnic groups. Sporadic attacks, including sexual violence, continued. These factors forced

more Rohingya to flee to Bangladesh, at an average rate of 1,733 per month since the

beginning of 2018.

50. The mass displacement and the burning of Rohingya villages were followed by the

systematic appropriation of the vacated land. Bulldozers flattened burned, damaged and

even surviving structures and vegetation, erasing every trace of the Rohingya communities,

while also destroying criminal evidence. Dozens of Rohingya villages have vanished. New

structures include posts for security forces and housing for other ethnic groups.

Government “resettlement” plans suggest that almost all houses to be constructed for

displaced communities are designated for non-Rohingya. Other infrastructure projects

appropriating Rohingya lands, including new roads and mines, are under way.

51. While the Government has, in principle, made a commitment to Rohingya

repatriation, nothing indicates to date that this will be in a manner that ensures respect for

human rights, which is essential for a safe, dignified and sustainable return of those

displaced. The repatriation procedure requires acceptance of National Verification Cards

and processing in barbed-wired reception centres. The root causes of the exodus, including

State-sanctioned oppression and an exclusionary and divisive rhetoric, are denied, yet

continue unabated. The security forces that perpetrated gross human rights violations with

impunity would be responsible for ensuring the security of returnees.

(d) Perpetrators

52. The “clearance operations” were led by the Tatmadaw, with other security forces,

mainly the Myanmar police force and the border guard police. Units of the Western

Command were actively engaged, together with the 33rd and 99th Light Infantry Divisions,

which report directly to the Deputy Commander-in-Chief, General Soe Win. The Divisions

were responsible for some of the most serious violations. Almost all instances of sexual

violence are attributable to the Tatmadaw.

53. In some villages, Rakhine men participated in the operations, mostly looting and

burning, but also killing and injuring Rohingya. Civilians from other minority ethnic groups

were also involved in some places. The recurrent and organized involvement of civilian

groups in the operations, and the consistent way in which they were equipped, tasked and

executed their roles across the three townships, demonstrate orchestration by the Tatmadaw.

54. ARSA also committed serious human rights abuses, including the killing of dozens

of suspected informants and the burning of the Rakhine village of Ah Htet Pyu Ma on 25

August 2017. Although the Government has claimed that ARSA burned Rohingya villages,

the mission found no such indication. Other abuses allegedly perpetrated by ARSA,

including several incidents where Rakhine and members of other ethnic groups, including

the Mro, were killed, require further investigation, as does the killing of up to 100 Hindu

men and women from Kha Maung Seik. The mission’s primary source information on the

latter incident corroborates the killing, but is inconclusive as to the perpetrator. Other

militant or criminal groups were also active in the region and may have been responsible

also for abuses.

B. Kachin and Shan States

The Tatmadaw soldiers don’t treat us like humans, they treat us like animals. They

look at us as though we shouldn’t even exist.

55. Similar patterns of conduct by security forces, particularly the Tatmadaw, have been

witnessed elsewhere. The mission focused on the situation in northern Myanmar (Kachin

and Shan States), where interlocutors considered their plight ignored.

56. Successive Governments have signed bilateral ceasefire agreements and a

nationwide ceasefire agreement with various “ethnic armed organizations”. In parallel,

since 2011, northern Myanmar has witnessed a sharp increase in fighting between the

Tatmadaw and armed groups, in particular those excluded from or not signatories to the

ceasefire agreement; these include the Kachin Independence Army, after a 17-year

ceasefire broke down in 2011; the Shan State Army-North; the Myanmar National

Democratic Alliance Army; and the Ta’ang National Liberation Army. Clashes also erupted

between the Ta’ang National Liberation Army and the Shan State Army-South.

57. Each of the above-mentioned conflicts has a complex history and is fuelled by

various grievances, including with regard to land use, development projects, the

exploitation of natural resources and illegal narcotics trading. The underlying factors,

however, are demands for greater autonomy, self-determination and the elimination of

ethnic or religious discrimination, as well as resentment about Tatmadaw tactics targeting

civilians and violating human rights.

58. The mission verified a number of incidents in the context of these armed conflicts,

and subsequently confirmed consistent patterns of violations of international law. With

continuing hostilities and prevailing insecurity, these violations persist.

1. Violations by the Tatmadaw

There were no rebels in my village. But the army just came and attacked the people.

59. The Tatmadaw operations in northern Myanmar are characterized by systematic

attacks directed at civilians and civilian objects, and indiscriminate attacks. Attacks are

often carried out in civilian-populated residential areas, without any apparent military

objective and in flagrant disregard for life, property and the well-being of civilians.

Tatmadaw soldiers have shot directly at and shelled civilians fleeing or seeking shelter.

Attacks routinely resulted in civilian deaths and injuries. Widespread looting and the

destruction and burning of homes were commonplace. This conduct was observed in most

conflict-affected areas in northern Myanmar, especially in or around territory under the

control of ethnic armed organizations.

60. This modus operandi is a catalyst for other violations. Civilians are targeted because

they belong to the same ethnic group or because they are considered to be of “fighting age”,

seemingly in an effort to dissuade civilians from becoming involved with ethnic armed

organizations. The mission established a pattern of violations of the right to life, with

numerous unlawful killings, mostly committed in the context of military operations, as a

consequence of indiscriminate attacks, attacks targeting civilians, or the murder or

extrajudicial execution of persons in Tatmadaw custody. Unlawful killings are committed

in other contexts also, without any immediate or apparent link to hostilities, for example in

the context of forced labour.

61. Similar patterns emerge for cases of torture and other forms of ill-treatment, often

against men, women and children to obtain information or confessions regarding the

activities of ethnic armed organizations or as punishment for perceived sympathy for the

opponents of the Tatmadaw. Torture and ill-treatment were used to coerce individuals into

forced labour, and conditions of detention often amounted to ill-treatment; civilians were

forced to precede military units on patrol in conflict areas, sometimes in Tatmadaw

uniforms, thereby exposing them to attacks, death and injury.

62. Women have been subjected to rape and other forms of sexual violence. Some have

been abducted by soldiers and then raped, or even gang-raped, before being killed. Women

and girls have been selected for forced marriage, and targeted in their homes for sexual

violence. In many cases, sexual violence was accompanied by degrading behaviour,

including insults and spitting. When women did escape, Tatmadaw soldiers would

frequently search for them, threaten and physically abuse members of their family, and

destroy or steal their property. Sexual violence against men has been inflicted as a means of

torture, including to obtain information or confessions.

63. The Tatmadaw has engaged in arbitrary arrest and deprivation of liberty, in many

cases amounting to enforced disappearance. Men and women, and in some cases children,

were taken from their villages and detained for forced labour or because of suspected links

to ethnic armed organizations. Victims have been held incommunicado in unofficial places

of detention for periods ranging from one day to two years. Most were not informed of the

reason for arrest, nor brought before a judge. In one incident in Monekoe, Shan State, more

than 100 individuals were arrested and detained in November 2016.

64. As in other areas of Myanmar, forced labour has been a common feature of life for

many in northern Myanmar. The mission verified a pattern of systematic use by the

Tatmadaw of forced labour, including for portering or digging trenches, or as guides or

cooks. Soldiers routinely arrived in villages without warning and took people for forced

labour for up to weeks at a time. Some of those taken were required to fight for the

Tatmadaw. The Tatmadaw recruited children throughout the period under review, although

it has made some effort to address this issue.

65. Violations against ethnic and religious minorities in northern Myanmar are often

committed with persecutory intent, in a context of severe discrimination based on ethnic or

religious grounds. This has led, for example, to the destruction or ransacking of churches

and religious objects during military operations (and sometimes to the subsequent

construction of Buddhist pagodas), but also in the use of insulting language while the acts

were being committed.

2. Violations and abuses by “ethnic armed organizations”

Since my son was forcibly recruited in 2016, I have not heard from him. I always

check Facebook to see if I will recognize him in a post, either dead or alive.

66. Ethnic armed organizations committed international humanitarian law violations and

human rights abuses, many in the context of hostilities between the Ta’ang National

Liberation Army and the Shan State Army-South, including abduction and detention, ill-

treatment and destruction or appropriation of civilian land and property. There have been

instances where these groups, as well as the Kachin Independence Army and the Myanmar

National Democratic Alliance Army, have failed to take precautionary measures to protect

civilians in attacks and forcibly recruited adults and children. Some put immense economic

pressure on civilians through arbitrary “taxation”. The extent to which rape, torture and

killings were committed requires further investigation.

67. While the mission’s information on violations and abuses by ethnic armed

organizations may not be representative, accounts would indicate that these are frequent but

generally not systematic. This warrants further investigation.

3. Devastating humanitarian impact

68. Poverty levels in Kachin and Shan are high. The hostilities in northern Myanmar

have compounded the humanitarian situation. People trapped in conflict-affected areas have

been denied safe passage to leave. Others are unable to return because their homes have

been looted and/or destroyed, because of continuing fighting or the presence of landmines,

or because their land was appropriated after they fled, including by the Tatmadaw and

corporations. This has resulted in protracted situations of internal displacement.

69. An estimated 100,000 people in Kachin and Shan have been living in displacement

camps or camp-like situations since 2011. They live in overcrowded conditions with

inadequate shelter. Access to food and health care is limited, while the rate of chronic

malnutrition is well above the national average. Outbreaks of preventable diseases are

reported. Access to education at all levels is inadequate. Furthermore, the cycle of

temporary displacements continues. Among non-displaced populations, access to education

and health care is often disrupted by fighting.

70. Humanitarian assistance has been frequently and arbitrarily denied, and despite the

clear need thereof, the movement of relief personnel has been restricted for long periods of

time. Access has significantly deteriorated since June 2016, to a point where international

humanitarian actors are unable to assess needs or provide assistance to the majority of

displaced persons, exacerbating already dire conditions. Local organizations also are

increasingly restricted.

C. Fundamental freedoms

The Bengali population exploded and the aliens tried to seize the land of local

ethnics. [...] Race cannot be swallowed by the ground but only by another race. All

must be loyal to the State in serving their duties, so that such cases will never

happen again.10

71. The mission examined the issue of democratic space and the enjoyment of the rights

to freedom of expression, association and peaceful assembly. While Myanmar has taken

significant strides on this front, especially between 2011 and 2015, disturbing trends have

emerged. Violence and human rights violations, including in Kachin, Rakhine and Shan

States, are fuelled by the silencing of critical voices by the Myanmar authorities, who at the

same time amplify a hateful rhetoric that emboldens perpetrators.

72. The Myanmar authorities, in particular the Tatmadaw, do not tolerate scrutiny or

criticism. They use various laws to arrest, detain or harass civil society actors, journalists,

lawyers and human rights defenders who express critical views. The case against two

Reuters journalists for their investigative work into the Inn Din massacre and the

prosecution of persons peacefully protesting the conflicts in northern Myanmar, including

in Yangon, are recent examples. The mission verified instances of reprisals for engagement

with the United Nations and of excessive use of force in managing demonstrations.

73. The Government’s response to hate speech has been inadequate. The mission is

deeply disturbed by the prevalence of hate speech, offline and online, often including

advocacy of national, racial or religious hatred constituting incitement to discrimination,

hostility or violence. This has accompanied outbreaks of violence, especially in Rakhine

State. Dehumanizing and stigmatizing language against the Rohingya, and Muslims in

general, has for many years been a key component of the campaign to “protect race and

religion”, spearheaded by extremist Buddhist groups like MaBaTha (see para. 13 above).

Hate narratives are common. The Myanmar authorities have condoned these developments

and, although generally using less inflammatory language, their rhetoric has mirrored and

promoted the narratives espoused. This includes the insistence that “Rohingya” do not exist

or belong in Myanmar, even denying use of the term; denial of the suffering of Rohingya;

the association of Rohingya identity with terrorism; and the repeated allusions to illegal

immigration and incontrollable birth rates. The impact of this rhetoric is compounded by

the stream of false or incomplete information and explicit calls for patriotic action (for

example, in a Facebook post, “every citizen has the duty to safeguard race, religion, cultural

identities and national interest”). The Myanmar authorities, including the Government and

the Tatmadaw, have fostered a climate in which hate speech thrives, human rights

violations are legitimized, and incitement to discrimination and violence facilitated.

74. The role of social media is significant. Facebook has been a useful instrument for

those seeking to spread hate, in a context where, for most users, Facebook is the Internet.

Although improved in recent months, the response of Facebook has been slow and

ineffective. The extent to which Facebook posts and messages have led to real-world

discrimination and violence must be independently and thoroughly examined. The mission

regrets that Facebook is unable to provide country-specific data about the spread of hate

speech on its platform, which is imperative to assess the adequacy of its response.

V. Hallmarks of Tatmadaw operations

75. The mission highlights four key common characteristics of Tatmadaw operations in

Kachin, Rakhine and Shan States.

10 Senior General Min Aung Hlaing, “Gallant efforts to defend the HQ against terrorist attacks and

brilliant efforts to restore regional peace, security are honoured”, Facebook post, 21 September 2017.

A. Targeting of civilians

76. The military has consistently failed to respect international human rights law and the

international humanitarian law principles of distinction, proportionality and precaution. The

deliberate targeting of civilians has been part of Tatmadaw policies, tactics and conduct for

decades. The “Four Cuts” counterinsurgency policy, initiated in the 1960s and still

implemented, is aimed at cutting off non-State armed groups from access to food, finances,

intelligence, and recruits from the local civilian population. The policy has been

implemented through “clearance operations”, essentially scorched earth campaigns in

which civilians are killed and entire villages destroyed, leading to mass displacement.

77. Such policies and practices violate the State’s obligations under international law

and amount to criminal conduct. They are also unwarranted; military necessity would never

justify killing indiscriminately, gang-raping women, assaulting children and burning entire

villages. The tactics used by the Tatmadaw are consistently and grossly disproportionate to

actual security threats, especially in Rakhine State, but also in northern Myanmar.

78. While the mission outlines in the present report the violations against civilians from

many ethnic groups in Kachin, Rakhine and Shan States, the contempt shown by the

Tatmadaw for human life, integrity and freedom, and for international law generally, should

be of concern to the entire population. The number of refugees from areas outside these

three States attests to the existence of similar human rights concerns elsewhere in the

country.

B. Sexual violence

79. Rape and sexual violence have been a particularly egregious and recurrent feature of

the targeting of the civilian population in Rakhine, Kachin and Shan States since 2011.

Similar patterns of rape and sexual violence have been reported for at least three decades.

Rape, gang rape, sexual slavery, forced nudity, sexual humiliation, mutilation and sexual

assault are frequently followed by the killing of victims. The scale, brutality and systematic

nature of these violations indicate that rape and sexual violence are part of a deliberate

strategy to intimidate, terrorize or punish a civilian population, and are used as a tactic of

war. This degree of normalization is only possible in a climate of long-standing impunity.

C. Exclusionary rhetoric

80. The Tatmadaw has historically cast itself as the protector of the nation, preserving

“national unity in the face of ethnic diversity” while prioritizing Bamar-Buddhist identity

and interests. Discrimination against ethnic and religious minority groups has been well-

documented for decades. Military operations are often accompanied by deeply insulting

slurs and outright threats linked to ethnicity and religion.

81. The situation of the Rohingya has been aggravated by their gradually increasing

exclusion from the Myanmar nation since the 1960s, amid decades of State-sponsored

stigmatization, leading to their de facto statelessness and being reviled by much of the

population. The members of the mission were struck by the normality of deeply

exclusionary and dehumanizing rhetoric in Myanmar society, actively nurtured by the

Tatmadaw. While other ethnic and religious minorities are, at least in theory, accepted as

belonging to the nation under their “national race” status, the lack of status of the Rohingya

has dramatically increased their vulnerability, which contributes to the extreme scale and

intensity of the violence against them.

D. Impunity

82. The Tatmadaw acts with complete impunity and has never been held accountable. Its

standard response is to deny, dismiss and obstruct. It publicly lauds the discipline of troops

and operations conducted “in full accordance with the law”. It promotes perpetrators.

Occasional superficial investigations have only been undertaken when the Tatmadaw has

been faced with public exposure of undeniable evidence. It consistently fails to attribute

responsibility, thereby reinforcing its message to troops that they will face no consequences.

This pattern is a result of the political and legal construct of the country, whereby the

Tatmadaw is removed from all civilian oversight and is given the constitutional right to

adjudicate its own affairs. The Commander-in-Chief makes “final and conclusive”

decisions in matters of military justice. The documented history of crimes committed by the

Tatmadaw demonstrates an absence of responsible command, and of measures to prevent or

repress crimes.

VI. Crimes under international law

83. On the basis of the body of information collected, the mission has reasonable

grounds to conclude that serious crimes under international law have been committed that

warrant criminal investigation and prosecution.

A. Genocide

84. Genocide is when a person commits a prohibited act with the intent to destroy, in

whole or in part, a national, ethnical, racial or religious group as such. The Rohingya are a

protected group under this definition. Their treatment by the Myanmar security forces,

acting in concert with certain civilians, includes conduct that amounts to four of the five

defined prohibited acts: (a) killing; (b) causing serious bodily or mental harm; (c) inflicting

conditions of life calculated to bring about the physical destruction of the group in whole or

in part; and (d) imposing measures intending to prevent births.

85. The critical element of the crime is “genocidal intent”. The mission assessed its

body of information in the light of the jurisprudence of international tribunals regarding the

reasonable inference of such intent. The crimes in Rakhine State, and the manner in which

they were perpetrated, are similar in nature, gravity and scope to those that have allowed

genocidal intent to be established in other contexts. Factors pointing to such intent include

the broader oppressive context and hate rhetoric; specific utterances of commanders and

direct perpetrators; exclusionary policies, including to alter the demographic composition of

Rakhine State; the level of organization indicating a plan for destruction; and the extreme

scale and brutality of the violence committed.

86. Having given careful consideration to other possible inferences regarding intent, the

mission considers that these can be discounted as unreasonable. In this regard, it recalls the

statement made by the Tatmadaw Commander-in-Chief that the “clearance operations”

were not a response to a concrete threat from ARSA, but to the “unfinished job” of solving

the “long-standing” “Bengali problem” (see para. 35 above).

87. In the light of the above considerations on the inference of genocidal intent, the

mission concludes that there is sufficient information to warrant the investigation and

prosecution of senior officials in the Tatmadaw chain of command, so that a competent

court can determine their liability for genocide in relation to the situation in Rakhine State.

B. Crimes against humanity

88. On the basis of information gathered, the mission finds that crimes against humanity

have been committed in Kachin, Rakhine and Shan States, principally by the Tatmadaw. In

the case of Kachin and Shan States, the crimes include murder, imprisonment, enforced

disappearance, torture, rape, sexual slavery and other forms of sexual violence, persecution,

and enslavement. In Rakhine State, these and other crimes against humanity have been

committed. The elements of extermination and deportation are also present, while the

systematic oppression and discrimination not only supports a finding of persecution but

may also amount to the crime of apartheid. For both northern Myanmar and Rakhine State,

the acts were committed as part of a widespread and systematic attack on a civilian

population.

C. War crimes

89. Given the mission’s consideration that non-international armed conflicts have been

ongoing in Kachin and Shan States (for the entire period under review) and in Rakhine

State since at least August 2017, much of the conduct amounting to crimes against

humanity will also satisfy the war crime elements of murder, torture, cruel treatment,

outrages upon personal dignity, attacking civilians, displacing civilians, pillaging, attacking

protected objects, taking hostages, sentencing or execution without due process, as well as

rape, sexual slavery and sexual violence. Certain acts committed by ethnic armed

organizations and ARSA may also constitute war crimes.

VII. Responsibility

90. Non-State armed groups have committed crimes against civilians, for which they

should be held accountable. During the period under review, the Tatmadaw was the main

perpetrator of serious human rights violations and crimes under international law in Kachin,

Rakhine and Shan States. In addition, in Rakhine State, the Myanmar police force,

NaSaKa 11 and Border Guard Police were also perpetrators. Local authorities, militias,

militant “civilian” groups, politicians and monks participated or assisted in violations, to

varying degrees.

91. The Tatmadaw command exercises effective control over its own soldiers, as well as

over other armed actors deployed in military operations. The consistent tactical formula

employed by the Tatmadaw exhibits a degree of coordination only possible when all troops

are acting under the effective control of a single unified command. This effective control,

combined with the knowledge of crimes committed by subordinates, a failure to take

necessary and reasonable measures to prevent and punish crimes, and a causal link between

these failures and the atrocities committed, indicate that individual criminal liability would

extend beyond individual perpetrators to their hierarchical commanders.

92. The mission has drawn up a non-exhaustive list of alleged perpetrators of crimes

under international law, indicating priority subjects for investigation and prosecution. The

list includes the names of alleged direct perpetrators, but focuses on those exercising

effective control over them. In relation to the recent events in Rakhine State, this includes

the Tatmadaw Commander-in-Chief, Senior-General Min Aung Hlaing, and:

• Deputy Commander-in-Chief, Vice Senior-General Soe Win

• Commander, Bureau of Special Operations-3, Lieutenant-General Aung Kyaw Zaw

• Commander, Western Regional Military Command, Major-General Maung Maung Soe

• Commander, 33rd Light Infantry Division, Brigadier-General Aung Aung

• Commander, 99th Light Infantry Division, Brigadier-General Than Oo

The full list will be held in the mission’s archives, kept in the custody of OHCHR, and may

be shared with any competent and credible body pursuing accountability in accordance with

recognized international norms and standards.

93. The constitutional powers of the civilian authorities afford little scope for controlling

the actions of the Tatmadaw, nor is there any indication that they participated directly in

planning or implementing security operations or were part of the command structure.

Nevertheless, nothing indicates that the civilian authorities used their limited powers to

influence the situation in Rakhine State where crimes were being perpetrated. The State

Counsellor, Daw Aung San Suu Kyi, has not used her de facto position as Head of

Government, nor her moral authority, to stem or prevent the unfolding events, or seek

alternative avenues to meet a responsibility to protect the civilian population. On the

contrary, the civilian authorities have spread false narratives, denied the wrongdoing of the

11 The “Border Area Immigration Control Headquarters”, disbanded in 2013.

Tatmadaw, blocked independent investigations (including that of the fact-finding mission),

and overseen the destruction of evidence. Through their acts and omissions, the civilian

authorities have contributed to the commission of atrocity crimes.

94. Systemic discrimination and crimes under international law were committed during

a period of significant international engagement in Myanmar, and while the United Nations

was supposed to be implementing its Human Rights Up Front action plan. While Myanmar

was repeatedly identified as a crisis situation requiring a human rights-driven response by

the “whole of the United Nations”, this approach was rarely, if ever, taken. Rather, many

United Nations agencies have continued to prioritize development goals, humanitarian

access and quiet diplomacy. That approach has demonstrably failed; and the United Nations

as a whole has failed adequately to address human rights concerns in Myanmar. Even now,

the approach taken displays few signs of any lessons learned, with human rights missing

from agreements recently signed with the Government. While thanking those United

Nations entities that have provided it with valuable assistance and information, the mission

regrets the lack of cooperation from others.

VIII. Accountability

I am not a very educated person but I hope the United Nations has the ability to get

us justice by making sure that the Government of Myanmar can be questioned about

what they did to us.

95. Justice has remained elusive for victims in Myanmar for decades, with the

authorities systematically failing to condemn, investigate and prosecute perpetrators.

Impunity for gross human rights violations has significantly and demonstrably contributed

to the validation of deeply oppressive and discriminatory conduct, enabled recurrence of

human rights violations and atrocity crimes, emboldened perpetrators and silenced victims.

Unless impunity is addressed, and all ranks within the security forces are held accountable

for their past, current and future actions, similar outbreaks of violence and associated

atrocity crimes can be expected to continue, with further devastating domestic and regional

impact.

96. In the face of the Rakhine crisis, the Myanmar authorities have created ad hoc

inquiry commissions and boards. The mission has examined eight such efforts since 2012.

None meets the standard of an impartial, independent, effective and thorough human rights

investigation. To the mission’s knowledge, none has led to any prosecution for gross human

rights violations and redress for victims. The reason is simple: this is not possible in

Myanmar.

97. Impunity is deeply entrenched in the State’s political and legal system, effectively

placing the Tatmadaw above the law. The Constitution and other laws provide for

immunities and place the Tatmadaw beyond civilian oversight. The Tatmadaw can

independently adjudicate its own matters, with the Commander-in-Chief having the final

word. The rare cases, brought mostly before military courts without transparency, are

wholly insufficient to counter the overall trend of impunity. Furthermore, military courts

are inadequate forums to deal with large-scale human rights violations perpetrated by the

military. Nor are civilian courts the answer; the domestic justice system is not independent

and lacks the capacity to respect fair trial standards or to deal with the breadth and gravity

of the violations perpetrated by high-level officials, especially crimes under international

law. Those who file complaints often face intimidation and reprisals. In short,

accountability at the domestic level is currently unattainable.

98. Even though the primary responsibility for investigating and prosecuting crimes

under international law lies with the Government of Myanmar, it has demonstrated that it is

unable and unwilling. Accountability would require an overhaul of the entire national

justice and security sectors. The mission has concluded on reasonable grounds that the

Government’s recently-created commission of inquiry will not and cannot provide a real

avenue for accountability, even with some international involvement. The impetus for

accountability must come from the international community.

99. The Mission proposes an accountability process that is transformative, victim-

centred, comprehensive and inclusive. 12 The process is aimed at contributing to three

fundamental shifts: breaking the climate of impunity, ensuring that all State institutions,

including the security forces, are answerable to the people, and promoting a concept of the

State and the nation of Myanmar that is inclusive, based on equality and respect for the

human rights of all. These considerations should permeate all measures adopted in the areas

of truth, justice, reparations and guarantees of non-recurrence.

IX. Conclusions and recommendations

100. The gross human rights violations and abuses committed in Kachin, Rakhine

and Shan States are shocking for their horrifying nature and ubiquity. Many of these

violations undoubtedly amount to the gravest crimes under international law. They

are also shocking because they stem from deep fractures in society and structural

problems that have been apparent and unaddressed for decades. They are shocking

for the level of denial, normalcy and impunity that is attached to them. The mission

concludes that these abusive patterns are reflective of the situation in Myanmar as a

whole.

101. Myanmar has a heavy responsibility to remedy the situation as a matter of the

utmost urgency; otherwise, it risks destroying its democratic reform process. The

international community also bears responsibility and must take a united stand both

to condemn the violations and to assist Myanmar in addressing the root causes of its

recurrent problems. This begins by ensuring that the perpetrators of crimes are held

to account, and by giving hope to victims of a future without the fear and insecurity

that have to date characterized their existence.

102. The steps required to address the human rights crises in Myanmar are well

known. For nearly three decades, five consecutive special rapporteurs on the situation

of human rights in Myanmar have presented an annual report to the General

Assembly and the Human Rights Council, with detailed recommendations for all

stakeholders. Similarly, the United Nations High Commissioner for Human Rights has

formulated concrete recommendations, as have many international and national civil

society organizations. The Advisory Commission on Rakhine State also presented a

detailed report. These recommendations should be implemented immediately.

103. Besides its comprehensive recommendations, 13 the mission draws particular

attention to the priority areas for action by the international community below.

104. The international community, through the United Nations, should use all

diplomatic, humanitarian and other peaceful means to assist Myanmar in meeting its

responsibility to protect its people from genocide, crimes against humanity and war

crimes. It should take collective action in accordance with the Charter of the United

Nations, as necessary.

105. The Security Council should ensure accountability for crimes under

international law committed in Myanmar, preferably by referring the situation to the

International Criminal Court or, alternatively, by creating an ad hoc international

criminal tribunal. Furthermore, the Security Council should adopt targeted

individual sanctions, including travel bans and asset freezes, against those who appear

most responsible for serious crimes under international law. It should also impose an

arms embargo on Myanmar.

106. Until the Security Council acts, the General Assembly, or alternatively the

Human Rights Council, should create an independent, impartial mechanism to collect,

consolidate, preserve and analyse evidence of violations of international humanitarian

law and human rights violations and abuses and to prepare files to facilitate and

12 See A/HRC/39/CRP.2.

13 Ibid.

expedite fair and independent criminal proceedings in national, regional or

international courts or tribunals.

107. The Human Rights Council should continue to support the mandates of the

Special Rapporteur on the situation of human rights in Myanmar, the United Nations

High Commissioner for Human Rights and the Office of the High Commissioner, and

ensure they have adequate resources to maintain a strong focus on the human rights

crisis in Myanmar.

108. The Human Rights Council should specifically request OHCHR to focus on

ensuring accountability for human rights violations and abuses in Myanmar,

including by enhanced monitoring, documentation, analysis and public reporting on

the situation of human rights; raising awareness among civil society and other actors

engaged in documenting human rights violations about relevant international

standards; working with victim communities to raise awareness about justice options;

and supporting comprehensive rule of law and security sector reform in Myanmar in

accordance with international human rights norms and standards. Appropriate

resources should be allocated.

109. The Human Rights Council should establish a second fact-finding mission for a

limited period to build on the work undertaken by the mission, until either one of the

mechanisms outlined in paragraphs 103 and 104 above are operational, or the

reinforced work of OHCHR set out in paragraph 107 is in place.

110. The United Nations should urgently adopt a common strategy to ensure that all

engagement with Myanmar takes into account and addresses human rights concerns,

in accordance with the Human Rights Up Front action plan. This should guide all

engagement of the United Nations in Myanmar, particularly in relation to Rakhine

State, and include policies and public advocacy stances. All support provided by the

United Nations to the Myanmar authorities should undergo a full human rights due

diligence analysis.

111. As a matter of urgency, a comprehensive, independent inquiry should be

conducted into the involvement of the United Nations in Myanmar since 2011, with a

view to establishing whether everything possible to prevent or mitigate the unfolding

crises was done, identifying lessons learned and good practices, making

recommendations as appropriate, including on accountability, and enabling more

effective work in future.

112. The United Nations and the international community must ensure that the

repatriation of refugees and the return of internally displaced persons are allowed

only when safe, voluntary and dignified, with explicit human rights protections in

place, including citizenship. In the current circumstances, such returns are not

possible.

113. All Member States should ensure that engagement with Myanmar, and support

for aid, development and reform projects, take into account and address human rights

concerns and explicitly conform to the principles of non-discrimination and equality.

They should ensure that humanitarian organizations working on the situation in

Myanmar are appropriately funded. States should cease operational support for the

Tatmadaw and other security forces until there is (a) a demonstrable commitment to

genuine reform; (b) international assistance in implementing reform; and (c)

acceptance of and cooperation with international mechanisms to hold those

responsible accountable for crimes under international law.

114. Regardless of the imposition of an arms embargo by the Security Council,

States should not authorize the transfer of arms to Myanmar, considering the

overriding risk that they would be used to undermine peace and security and in the

commission of serious crimes under international law.

115. Relevant regional organizations, including the European Union and the

Association of Southeast Asian Nations (ASEAN), should develop strategies to ensure

accountability for perpetrators of crimes under international law in Myanmar,

including through sustained engagement with Myanmar and support for an

international justice mechanism.

116. Member States should exercise jurisdiction to investigate and prosecute alleged

perpetrators of serious crimes under international law committed in Myanmar.

117. The United Nations should establish a trust fund for victim support, through

which victims can receive psychosocial support, legal aid and livelihood support, and

others means of assistance. All trust fund projects should be designed in consultation

with victims.