Statement by Mr. Marzuki DARUSMAN, Chairperson of the Independent International Fact-Finding Mission on Myanmar, at the 37th session of the Human Rights Council

12 March 2018

Mr. President, Special Rapporteur, distinguished delegates, ladies and gentlemen,

The Independent International Fact-Finding Mission on Myanmar is pleased to provide this oral update on its work, as required by Council decision 36/115. We are focusing on establishing the facts and circumstances of alleged human rights violations and abuses in Myanmar, in particular in Rakhine, Kachin and northern Shan States, since 2011.

The Fact-Finding Mission has made significant progress in fulfilling its mandate. Other international mechanisms and officials, non-governmental organizations, and the media have been reporting on events as they occurred. We have been able to proceed more deeply and broadly. We ourselves have undertaken missions to Bangladesh, Malaysia, Thailand and the United Kingdom and our teams have spent a significant amount of time gathering information in these and other locations. We and our teams have made many visits to the region, each of several weeks. We have now conducted over 600 in-depth interviews with victims and witnesses of alleged human rights violations and abuses. Additionally, we have held numerous consultations with experts, activists, civil society actors and diplomats. We are in contact with people and organizations who are keen to share their information, including the raw data for their research, and we have received a number of formal submissions. We have also received and analysed satellite imagery, photographs and video footage of events. We are proceeding thoroughly, meticulously, to gather information, analyse it and draw conclusions.

The Myanmar Government has rejected the need for and blocked every attempt of an independent and impartial investigation, including by ourselves. From the beginning, we reached out to the Government of Myanmar to seek dialogue and to be able to visit to conduct inquiries on the ground. We proposed a mission to the country for specific dates in February. This was denied on our proposed starting date.

Nonetheless, even though Myanmar has denied us access, the Fact-Finding Mission has no shortage of credible and reliable information. We take this opportunity to express our gratitude to those, and in particular victims and survivors, who have shared their stories, data and insights.

Our team is in the process of further verifying, authenticating, corroborating and analysing this wealth of information, with a view to presenting solid and comprehensive findings on the human rights situation in Myanmar from 2011 onwards in our final report to this Council in September. Conscious of the polarised context in which we operate, with starkly competing narratives circulating, we attach great importance to our methodology. We operate independently, impartially and rigorously. Our final report will give a detailed account of our methodology so that there can be no question about the rigour of our fact-finding.

Mr President,

While much of our work to date has been focused on events in Rakhine since August 2017, we are also looking closely at allegations of human rights violations and abuses in other parts of the country. These suggest certain patterns of violations that are experienced by different groups across the country. While the intensity, scale and impact of the recent events in Rakhine were of a different order, the manner in which operations are conducted demonstrates marked similarities.

The long-standing conflicts in Kachin and Shan states have recently intensified, leading to more reports of serious violations of international human rights and humanitarian law committed in these areas by the security forces. These include reports of extrajudicial killings, arbitrary deprivation of liberty, enforced disappearances, destruction of property and pillage, torture and inhuman treatment, rape and other forms of sexual violence, forced labour, recruitment of children into armed forces, and indiscriminate or disproportionate attacks. We are also looking into reports of human rights abuses and violations of international humanitarian law committed by ethnic armed organizations, including the recruitment of children and the failure to take feasible precautions in attacks. In many of these cases, civilians have been at the receiving end of the violence.

For example, civilians have reported to the Fact-Finding Mission how they were forced to work for the Myanmar military. Many stated that they had been used as porters, carrying heavy material for days by foot, or as guides in the jungle and as human shields for the military on patrol. Many reported that they were severely beaten, had their identity cards confiscated, were insulted with derogatory racist language or were sexually assaulted. Many fled the country immediately after, for fear of being further targeted by the military. The Mission has also heard testimony of men arbitrarily arrested and detained by the Myanmar military, often subjected to torture or ill-treatment because they were suspected of being affiliated to or supportive of an ethnic armed organization. Women and girls have reported many instances of sexual violence. They were targeted during military operations or because their ethnic group or community was suspected of supporting a particular armed group. The Fact-Finding Mission has also collected information from victims from Kachin and northern Shan who were forcibly recruited by ethnic armed organizations before the age of 18 years.

Victims and witnesses told us about their suffering and how their lives are forever broken as a result of violence in this part of the country. They spoke about their displacement as a consequence of the years of armed conflict in Kachin and northern Shan, where they are unable to return to their home villages. They told us about the effect of living in dire conditions in IDP camps, with inadequate food and without protection.

Mr President,

At this very moment, we are deeply concerned about the clashes between the Myanmar military and the Kachin Independence Army since January 2018, including through airstrikes in areas around the town of Tanai in Kachin, displacing thousands of civilians, as reported by the Special Rapporteur. Large numbers of civilians were trapped and displaced for several days without adequate humanitarian assistance. We have received credible reports of a number of civilians killed or injured in Tanai Township.

Since the beginning of the year, the escalation of violence has resulted in another wave of internal displacement in Kachin and northern Shan and has magnified the longstanding humanitarian crisis in those areas. We are very concerned that humanitarian actors, including the United Nations, have not been granted access to conflict affected areas, including Tanai and Sumprabum Townships, while local aid agencies continue to face severe restrictions on the delivery of life-saving humanitarian aid to the civilians most affected by the fighting.

International humanitarian law requires that the Myanmar military and all ethnic armed groups in Kachin and Shan states taking part in hostilities take all feasible precautions to protect civilians and civilian objects under their control against the effects of attacks, and ensure safe access to humanitarian assistance for all those affected by the conflict. We urge the authorities of Myanmar to lift all movement restrictions and ensure that humanitarian actors can carry out their work in safety.

Mr President,

My previous presentations to this Council reflected the fact that the work of the Fact-Finding Mission had been overtaken by the unfolding events in Rakhine. Today, we report on what we have learned concerning those events, all the while stressing that this is work in progress. The Council has been briefed many times, by the High Commissioner for Human Rights and the Special Rapporteur on the situation of human rights in Myanmar, among others, on the horrifying accounts of the Rohingya who have crossed into Bangladesh since October 2016. They fled a crisis in Rakhine State that has longstanding roots and deepened significantly in 2012. It radically intensified following the attacks in 2016 and 2017 by the Arakan Rohingya Salvation Army, or ARSA, and the Myanmar security forces’ so-called “clearance operations”. The violence has been extreme, the humanitarian consequences disastrous and the impact on people’s lives devastating.

Earlier during this Human Rights Council session, the representative of Myanmar stated that the Government will not condone impunity for human rights violations and that action will be taken against any perpetrators where there is concrete evidence. We welcome that, for the body of information and materials we are collecting is concrete and overwhelming. It points at human rights violations of the most serious kind, in all likelihood amounting to crimes under international law.  It should spur action. In fact, action should have been taken long ago, since Myanmar’s human rights obligations are not limited to acting when it is presented with concrete evidence. Its duty is to ensure that all allegations of human rights violations and abuses are promptly, thoroughly, independently and impartially investigated in the first place.

This is not happening. The response of the Myanmar Government and military to the events and allegations has been totally inadequate and is of grave concern. In November 2017, the military announced the results of an internal investigation concluding that there had been no excessive use of force; that all security forces personnel had strictly abided by the orders, directives and rules of engagement; and that all Rohingya (or “Bengali” as they call them) who were arrested had been systematically handed over to the local police stations. It begs the question what those orders, directives and rules of engagement were. Just two months later, when Reuters was about to break its story, the military admitted to the involvement of the security forces in the killing of 10 Rohingya men in Inn Din village in Maungdaw Township, reportedly because these individuals could not be transported to a police station. The bodies were dumped in a mass grave and the journalists who were investigating some of the allegations were arrested. Those journalists are still in detention and could face lengthy prison sentences.

At the same time, the Myanmar authorities continue to accuse the international media of spreading fake news. They continue to block unmonitored access to the affected areas. We would like to make clear that the quality of our work is not affected by this. We have eyewitness accounts that allow us to distil the fake news. We have seen unsettling photographs and satellite images of Rohingya villages flattened to the ground by bulldozers, erasing all remaining traces of the life and community that once was - not to mention destroying possible crime scenes, evidence, and landmarks. The way to counter fake news is to respect freedom of information, expression and association.

Mr President,

We note the Government’s stated intent to implement the recommendations of the Rakhine Advisory Commission led by Kofi Annan, including through the creation of an Implementation Committee and an Advisory Board. We note that the Union Enterprise for Humanitarian Assistance, Resettlement, and Development in Rakhine is endeavouring to revive private investment in that state. We also note with interest the Government’s recent first Report to the People on the Progress of Implementation of the Recommendations on Rakhine State. We encourage the Government to communicate in a transparent manner details about these and other efforts, particularly their human rights objectives and how they plan to fulfil them. Based on the public accounts released so far, the glaring absence of human rights is most notable. We further call for the release of the full reports of all internal investigations into allegations of human rights violations and abuses.

The Myanmar authorities have announced willingness to receive refugees back. While professing this, they are bulldozing land such that the delineation of the boundaries of the homes and lands of those who fled are becoming untraceable. It is difficult to see how those who returned can rebuild their past lives. Meanwhile, the military have deployed heavily armed troops to the border area, threatening the Rohingya caught in “no man’s land” and causing many of those there to make the journey into Bangladesh. Abuses continue to be reported and people continue to flee. The root causes of the exodus remain unaddressed. Beyond the violence itself, we noted highly discriminatory policies and practices, including heavy restrictions on freedom of movement and their adverse consequences on a host of economic, social and cultural rights; widespread extortion; and the lack of citizenship of the majority of Rohingya, which increases their vulnerability.

People continue to flee, reporting oppression in their villages, restrictions on movements, lack of access to food and livelihoods, and a very real fear of a new wave of violence. The number of new arrivals in camps in Bangladesh are continuing at a pace of up to 1,000 persons per week.

At no point have the Myanmar authorities held any genuine consultation with the people concerned to understand their needs and dispel their fears. Nor are the authorities allowing the international community to play a role in ensuring that the return is voluntary, safe and dignified – with respect for human rights. We welcome the discussions on the possibility of UNHCR playing a role. This is crucial to ensure that any return of the Rohingya to Myanmar is in line with international humanitarian standards.

However, in light of the significant human rights issues that lie at the heart of this crisis, it is critically important for the displaced people not to be returned without adequate guarantees for human rights protection in place. Otherwise, we could be laying the groundwork, not for solutions, but for another repeat experience. This is amply shown in Myanmar’s history. One Rohingya interviewee told us how three generations of his family had been victimized by violence, fled abroad, returned under pledges of safety, only to have to flee again. We call on Myanmar, Bangladesh and the international community to ensure that independent human rights monitors are involved in the process and are based on the ground in Rakhine state until proper mechanisms for protection are established and proved effective.

Importantly, many Rohingya individuals with whom the Fact-Finding Mission has spoken in recent weeks expressed a genuine fear of being returned to Myanmar at this time and are extremely concerned about their future. They have lost everything. They wonder what is left for them in Myanmar. These people cannot be sent back without significant changes in Rakhine, including a clear path towards truth, justice, reparation, and reconciliation. A key element of a lasting solution is citizenship.

Regrettably, the signs are not positive. The Myanmar authorities, both military and civilian, have effectively labelled the whole Rohingya population as Bengali “illegal immigrants” and “extremist terrorists”. They published the names and photographs of approximately 1,300 so-called “ARSA terrorists” without any form of due process. The list includes children. It puts the lives of those individuals and their families at risk. The Parliament recently entertained the question of how best “to make the international community understand that there is no group called ’Rohingya’ in Myanmar”, further fuelling tension. Hate speech and incitement to violence on social media is rampant, particularly on Facebook. To a large extent, it goes unchecked. Reports that Rohingya are being forced to accept the National Verification Cards (which contravenes one of the recommendations of the Rakhine Advisory Commission) have reached the Fact-Finding Mission, too.

It is difficult to see how such actions reflect a genuine attempt to address a large-scale crisis that according to official UN data has uprooted some 671,000 people since last August, in one of the fastest concentrated movements of people in recent history, and joining up to 500,000 Rohingya who have fled in previous years. A crisis that is the consequence of and has further exacerbated complex and long-standing fears and grievances in all communities; a crisis resulting from deep-rooted and systemic discrimination, in law and in practice; a crisis that seriously calls into question the conduct of the security forces.

A first step in addressing such a crisis must surely be a recognition of the humanity of those who have had to flee and, consequently, of their human rights. From that comes respect for their identity. Indeed, from a human rights perspective, it is not relevant how long a person or a group has or has not resided in the country, how far back they can trace their ancestry, whether they belong to a declared “national race” or not, or what they call themselves. The Government carries the responsibility to respect, protect and fulfil the human rights of everyone.

Mr President,

The Fact-Finding Mission has made some preliminary findings on the 2017 violence from Rakhine State, without pre-empting our eventual conclusions. We take the opportunity of this interim report to state clearly that any denial of the seriousness of the situation in Rakhine state is untenable. The facts speak for themselves.

In our work on Rakhine state, we have a dual focus: we seek to understand the overall patterns of human rights violations and abuses, and we are collecting information regarding a number of specific incidents since August 2017 of a particularly egregious nature.

Information collected from across Maungdaw, Buthidaung and Rathedaung Townships indicates that the “clearance operations” of the Myanmar security forces in response to the ARSA attacks of 25 August 2017 followed similar patterns. They resulted in the emptying and destruction of entire villages. Analysis of satellite imagery so far reveals that at least 319 villages across the three townships were partially or totally destroyed by fire after 25 August. The destruction encompassed tens of thousands of structures, predominantly Rohingya homes and other buildings in those villages, including Mosques.

These operations further resulted in significant numbers of casualties among villagers. People died from gunshot wounds - often due to indiscriminate shooting at fleeing villagers, sometimes shot point blank. Some were burned alive in their homes, often the elderly, disabled or young children, unable to escape from attacks launched without warning. Many others were hacked to death by knives and swords. The Fact-Finding Mission has interviewed many people with wounds from gunfire, knives, and burning of a severe nature.

One Rohingya woman we met in the refugee camps in Bangladesh could hardly contain her tears as she told us: “If I start to tell you what happened, your heart will break”. She spoke of how her village was attacked by security forces at the end of August 2017 and houses were set on fire. She described how loud the sound of the gunfire was, and how villagers were hiding in the latrines and a pond to save their lives. She recalled how women were holding their babies tightly in despair, and how men and women were brought to a paddy field and separated. The group was shot at and her husband was one of many killed by gunfire. She felt powerless because she was unable to save him. In the midst of all of that, she was trying to find her children. I stress that this is not among the most dramatic testimonies we have taken but, incredibly, a rather typical one.

Overall, the widespread and systematic nature of the violence in all three townships suggests considerable prior military planning and organisation, which the Fact-Finding Mission is examining in detail. The military took steps to build up its presence in Rakhine state in the weeks prior to the ARSA attacks, and there are strong indications that military activities increased across the three townships through August 2017. In multiple areas, the military launched its “clearance operations” within hours of the first attacks on 25 August. Furthermore, in relation to the threat faced, information collected to date suggests that the ARSA attacks were undertaken by poorly armed and largely untrained villagers. Although there are many details still to be pieced together, this much is becoming clearer. We continue to seek information on ARSA’s conduct before and after the events of August 2017.

All the information collected by the Fact-Finding Mission so far further points to violence of an extremely cruel nature, including against women. We have collected credible information on brutal rapes, including gang rapes, and other forms of sexual violence, often targeting girls and young women. These rapes were often accompanied with severe physical injuries, including the mutilation of parts of the victims’ bodies. The Fact-Finding Mission has strong indications that many women and girls who were raped died from the injuries they sustained or were killed. Information also indicates that some women and girls were abducted, detained and raped in the security forces’ camps. The Fact-Finding Mission has met with women who showed fresh and deep bite marks on their faces and bodies sustained during acts of sexual violence. Information received from medical experts and counsellors overwhelmingly corroborates the accounts of rape survivors. We are convinced that what these women tell us is true.

Children were not spared in the “clearance operations”, and were sometimes targeted. We have numerous accounts of children and babies who were killed, boys arrested, and girls raped. The Fact-Finding Mission has seen children with machete, burn and gunshot wounds, visibly traumatised. The official estimate of unaccompanied and separated children in the camps in Bangladesh exceeds 5,000. Children saw family members and neighbours killed, maimed or abused.

One mother described how she had to choose which children to save. The security forces had entered her house and grabbed her young daughter. Her son tried to save his sister and was attacked by the security forces. The mother watched from the other end of the house and made the split second decision that that these two children would not live, but that she could perhaps still save her two younger children. They fled. Her husband returned the next morning to the village and dug through pits of bodies until he found the corpse of their son. They never found the body of their daughter. The mother told the Fact-Finding Mission with haunted eyes: “How can I continue with my life having made this choice?”

These horrific experiences have often been compounded by the arduous nature of peoples’ journeys to Bangladesh. The Fact-Finding Mission has received harrowing accounts of families’ long journeys across difficult terrain, without food, sometimes resulting in the death of injured, weakened or separated family members. Information we received also suggests that Myanmar security forces attacked groups of Rohingya during their journey. Numerous people drowned when crossing the dangerous Naf River between Myanmar and Bangladesh or in the Bay of Bengal.

Official attempts to attribute the flight of the Rohingya to unfounded mass hysteria or self-inflicted destruction contradict the mounds of information, materials and credible accounts collected. We have no hesitation in rejecting those assertions. Another argument presented is that fear of ARSA motivated many to flee. We are collecting information on ARSA operations, including the reported threats and executions of informants in the Rohingya community prior to August 2017, and alleged violence against other communities in Rakhine State. I can state now, however, that fear of ARSA has not emerged from our in-depth interviews so far as a factor for fleeing. Those that are in possession of concrete information to this effect are invited to share it with the Fact-Finding Mission.

On the contrary, the greater fear among the Rohingya expressed to us was of the Myanmar military. As for the purported threat to which the Myanmar security forces reacted, the information received about ARSA activity in the region so far strongly suggests that the security forces’ response, particularly its use of force, was far in excess of the actual threat and in violation of international norms and standards.

Virtually all interviews conducted by the Fact-Finding Mission concerning Rakhine State point to the Myanmar military as having been in charge of the “clearance operations” and as the main – although not always sole – alleged perpetrator of violations. We are satisfied that other state security forces and groups of non-Rohingya civilians were also involved in acts of violence. The Mission is in the process of analysing the respective roles and command structures of the security forces and the involvement of other actors. We will attribute responsibility where it is due.

We are also attentive to the omissions, which will affect the attribution of responsibility. Most importantly, we have no indications of the security forces taking actions to halt the violence. We have no accounts of them trying to protect Rohingya villagers. We know of only a small number of soldiers, police and others reportedly investigated for improper conduct and crimes, primarily linked to one particular massacre at Inn Din. We know very little about any attempts to combat hate speech.

Another critical piece of work the Fact-Finding Mission is undertaking is an analysis of the intention and motivation of the perpetrators. To that effect, we are examining several indicators including the choice of targets, the manner in which the operations were conducted, the language used by government and security personnel prior to, during and after the operations, and other relevant information. Our findings, including on legal accountability, will be presented in our final report.

Mr President,

In our final report, we will present in more detail and in a broader context our findings with respect to the October 2016 and 25 August 2017 attacks in Rakhine state and the response of the security forces. However, let us remember that the 2016 and 2017 events did not take place in a vacuum. We are also examining the circumstances of the 2012 violence in Rakhine state and the serious violations that followed against various communities, including Kaman Muslims. We are looking in detail at patterns of human rights violations suffered by the ethnic Rakhine too. More generally, we are looking at the various discriminatory policies and practices put in place in the state and their consequences on the enjoyment of civil, political, economic, social and cultural rights for all.

Similarly, we will present our findings with respect to the human rights situation in Kachin and Shan states since 2011, within its political, social and historical context. And most importantly, we will explore how patterns of human rights abuse across the country are linked. For the Fact-Finding Mission, the events we are examining in detail in Rakhine, Kachin and Shan states are products of a longstanding, systemic pattern of human rights violation and abuse in Myanmar.

Our work is proceeding at full speed, but it is nowhere near complete and we are hampered by cuts in our budget, especially in relation to staffing. The generosity of the Council in granting our extension with the level of resources that we requested was, unfortunately, not matched by the ACABQ in New York. While we will complete a solid final report by September, we will most likely not have the time and capacity to leave our archives in the order required to facilitate easy access and use by any follow-up accountability mechanism, which we believe would be a tremendous loss.

Mr. President,

The Fact-Finding Mission is receiving a flood of allegations of human rights violations and abuses against the Myanmar security forces, whether in Rakhine, Kachin, Shan or elsewhere. People want to be heard and taken seriously; they want to understand why they suffer; they want a better future for themselves and their children; they want to live in peace with their neighbours, and to be reassured that they will no longer fall victim to violence and oppression.

The road to peace may be long and painful, but it is achievable. It starts with acknowledgment - acknowledgement of people’s existence, their identity, their suffering, and their human rights. It must be accompanied by remedies – action to restore to the extent possible, to compensate, and to bring justice. Both are necessary to prevent further violations.

We invite the Government of Myanmar to start listening to all people in the country, and work with them to address and rectify the abuse and injustice they have experienced. Impunity will only serve to erode people’s trust in the authorities and their capacity to ensure a secure and equitable society in which they can prosper. We call on the Myanmar Government and military to heed the Government’s promise and not condone impunity for serious human rights violations and abuses, no matter how senior those who are responsible. The available information is overwhelming.

I reiterate our invitation to the Myanmar authorities to engage with the Fact-Finding Mission in establishing the facts, which must be the basis of any viable solution. We took good note of the remarks of the representative of Myanmar alluding to the perceived suppression of the Myanmar narrative of events, and we take this occasion to respond: the Fact-Finding Mission is more than ready to hear the Myanmar narrative and to receive any substantiating information that the Government wishes to share. If it does not avail itself of this opportunity, the Fact-Finding Mission can only draw its own conclusions.

Looking to the future, when our work is finished, the Council will have a decision to take. What will be done with our findings? Although we have not as yet developed a firm view about its precise nature, we join the voices that call for the establishment of a follow-up mechanism that will ensure accountability. This is the cornerstone of a peaceful and just society for all the people of Myanmar, who deserve nothing less.