Myanmar - UPR Submission to the UN Human Rights Council

I. Introduction

The Government of Myanmar (the “Government”) is obligated in its third cycle Universal Periodic Review (“UPR”) to provide detailed information on how it has implemented recommendations on human rights protections made during its second cycle UPR in 2015, as well on developments in human rights in Myanmar since 2015. With respect to progress regarding justice & accountability for mass atrocities, legal reform, including with respect to women’s rights, and ending discrimination, the Government has on the whole failed to make meaningful progress on recommendations from the previous UPR. In addition to the lack of progress on key issues that were the subject of concern during the last UPR, the human rights situation in Myanmar has largely regressed, not the least as a result of the genocidal targeting of the Rohingya in so-called “clearance operations” in 2016 and 2017.

The analysis below explains were the Government has not met its international obligations germane to the UPR and previously accepted UPR recommendations. It includes specific recommendations to the Government on meeting its international obligations to prevent and provide justice for mass atrocities in Myanmar, especially sexual and gender-based violence, and to eliminate discriminatory laws and policies.

 
   

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Myanmar made “no progress” in resolving plight of Rakhine Muslims, Yanghee Lee says

Excerpt of article from Myanmar Times that mentions GJC.

Former special UN Rapporteur Yanghee Lee said Myanmar did not make any progress in improving the plight of the northern Rakhine Muslims.

“Sadly, no progress at all,” she said on May 22 in a webinar organised by the Global Justice Center, ahead of the May 23 deadline for Myanmar to submit a report on the International Court of Justice (ICJ) about measures that were taken to stop alleged genocide of northern Rakhine Muslims.

Lee only concluded her mandate as the Special Rapporteur two weeks ago. 

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Myanmar to Report to World Court on Compliance with Order to Prevent Genocide

NEW YORK — Myanmar will submit its first report to the International Court of Justice (ICJ) on its compliance with an order to prevent and not commit genocide against the Rohingya this Saturday. The reporting obligations are one of the “provisional measures” issued by the ICJ in January.

Myanmar is required to report to the ICJ on “all measures taken to give effect” to the Order, including to prevent genocidal acts, ensure its military and police forces do not commit genocidal acts, and preserve all potential evidence of genocidal acts. The first report must be submitted by May 23, 2020, four months after the provisional measures order, while subsequent reports will be due every six months. The ICJ does not require the report be made public.

“The reporting requirement was a critical component of the ICJ’s historic order to protect the Rohingya from genocide. Having specifically recognized that the Rohingya remain extremely vulnerable, the periodic reports will allow the Court to monitor Myanmar’s actions related to the Rohingya in real time as the case proceeds,” said Akila Radhakrishnan, president of the Global Justice Center. “Unfortunately, the response since then from Myanmar’s government has been deeply flawed at worst, and superficial at best.”

On April 8, Myanmar issued “presidential directives” to all government officials, requesting they ensure acts prohibited by Article II of the Genocide Convention are not committed — and that evidence of those acts are not destroyed. A later directive asked officials to denounce and prevent hate speech. The directives — which represent the only substantive response from Myanmar since the January ICJ order — include no clear guidelines for implementation and monitoring, and do not touch on the key issues of structural discrimination that need to be addressed in order to meaningfully give effect to the order. Deeper analysis of Myanmar’s actions since the ICJ order can be found in our Q&A.

“Myanmar’s Generals ordered the atrocities, bulldozed and buried evidence of their crimes, and are the reason why Aung San Suu Kyi’s name will now forever be associated with genocide and injustice,” said Dr. Simon Adams, Executive Director of the Global Centre for the Responsibility to Protect. “Until Myanmar’s discriminatory laws are abolished and the perpetrators of the genocide are held accountable, the threat of further atrocities remains.”

The ICJ provisional measures: Is Myanmar protecting the Rohingya from genocide?

Description:
On 23 January 2020, the International Court of Justice (ICJ) issued provisional measures ordering Myanmar to take certain actions to protect the Rohingya from genocide and preserve evidence of genocidal acts. Recognizing the extraordinary urgency and importance of the measures ordered, the ICJ asked Myanmar to submit a report on its compliance with the order on 23 May and then every 6 months thereafter until the case is decided. While Myanmar has taken some steps since the ICJ’s January order, none touch on the long-standing structural discrimination against the Rohingya or provide a basis for safe, voluntary and dignified repatriation. Even against a backdrop of escalating conflict in Rakhine State and a global pandemic, there is much more Myanmar could do to protect the Rohingya. With Myanmar’s first report to the court due on 23 May, this Webinar will analyze the current situation in the country and explore concrete ways the authorities could effectively comply with the ICJ’s order.

Moderators:
Akila Radhakrishnan, President, Global Justice Center

Speakers: 
Yanghee Lee,
former UN Special Rapporteur on the situation of human rights in Myanmar
Laetitia Van Den Assum,Independent diplomatic expert, former member of the Advisory Commission on Rakhine State chaired by Kofi Annan, and former ambassador of The Netherlands to the United Kingdom, Mexico, Kenya, Somalia, South Africa, and Southeast Asia
Wai Wai Nu,Founder and Director, Women’s Peace Network

(Updated) Q&A: The Gambia v. Myanmar – Rohingya Genocide at The International Court of Justice

On 11 November 2019, the Republic of The Gambia filed suit against the Republic of the Union of Myanmar in the International Court of Justice (“ICJ”) for violating the Genocide Convention. Two months later at the request of The Gambia, the ICJ ordered the government of Myanmar to take certain actions to protect the Rohingya via “provisional measures” while the case proceeds. This historic lawsuit brings a critical focus to Myanmar’s responsibility as a state for the Rohingya genocide.

The Gambia’s case focuses on the actions of Myanmar’s security forces, starting in October 2016 and then again in August 2017, where they engaged in so-called “clearance operations” against the Rohingya, a distinct Muslim ethnic minority, in Rakhine State. The operations, in particular those that started in August 2017, were characterized by brutal violence and serious human rights violations on a mass scale. Survivors report indiscriminate killings, rape and sexual violence, arbitrary detention, torture, beatings, and forced displacement. As a result, an estimated 745,000 people – mostly ethnic Rohingya – were forced to flee to Bangladesh. The “clearance operations” followed decades of institutionalized discrimination and systematic persecution of the Rohingya, including the passage of laws that stripped the Rohingya of their citizenship and restricted their religious freedoms, as well as reproductive and marital rights.

According to the UN Human Rights Council-mandated Independent International Fact-Finding Mission on Myanmar (“FFM”), the treatment of the Rohingya population during the “clearance operations” amounts to genocide, crimes against humanity, and war crimes, the commission of which evoke specific obligations and responsibility under international law. In its final report, published in September 2019, the FFM concluded that “the State of Myanmar breached its obligation not to commit genocide” and found that Myanmar “continues to harbor genocidal intent” towards the Rohingya, emphasizing the need for accountability.

This fact sheet answers fundamental questions about the ongoing ICJ case, Myanmar’s responsibility for genocide, and its impact on the Rohingya population. (Answers to questions about the early stages of the lawsuit are here.)

 
   

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Bangladesh: End Internet Blackout to Protect Public Health of Rohingya Refugees and Host Communities

(BANGKOK, April 2, 2020)—The Government of Bangladesh should immediately take all necessary steps to protect Rohingya refugees and nearby host communities in Cox’s Bazar District from COVID-19 infection, said Fortify Rights and 49 human rights organizations in an open letter today. The authorities should immediately lift all restrictions that prevent Rohingya refugees from freely accessing mobile communications and the internet and also halt the construction of fencing aimed to confine Rohingya refugees in camps.

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Joint letter re: restrictions on communication, fencing and COVID-19 in Cox's Bazar District Rohingya refugee camps

Dear Prime Minister Sheikh Hasina,

As authorities around the world struggle to cope with the spread of COVID-19, it is crucial that States act to protect the most vulnerable, including refugee populations.

We, the 50 undersigned organizations, have welcomed the Bangladesh government’s efforts to host the Rohingya refugees who were forced to flee atrocities perpetrated by the Myanmar Army. We also commend the Bangladesh Government for working closely with the humanitarian community on COVID-19 preparedness and response in Cox’s Bazar District, including efforts to establish isolation and treatment facilities.

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UN Special Rapporteur on Myanmar Releases Final Report

NEW YORK – Yanghee Lee, United Nations Special Rapporteur on the situation of human rights in Myanmar, released an advance version of her final report today. Lee was appointed by the UN Human Rights Council in 2014.

Grant Shubin, legal director of the Global Justice Center, had the following response:

“Special Rapporteur Lee has been a stalwart advocate for human rights and justice in Myanmar throughout her entire tenure. As expected, her final report conveys the gravity of the situation in Myanmar as well as the urgency of domestic and international action.”

“Backed up by years of investigation and documentation, Lee’s report recognizes that international action, whether at the International Criminal Court or the International Court of Justice, is critical to reversing the scourge of genocide and other grave crimes in the country. We hope the international community heeds her words. They’re more important now than ever.”

Jacob Blaustein Institute Panel on UN Secretary-General Prevention Agenda

GJC President Akila Radhakrishnan spoke at this event hosted by the  Jacob Blaustein Institute for the Advancement of Human Rights .

Panelists:
Mr. Volker Türk, Assistant Secretary-General for Strategic Coordination 
Mr. Ben Majekodunmi, Chief of Equality, Development and Rights Section, OHCHR
Ms. Akila Radhakrishnan, President, Global Justice Center

Opening remarks by Ms. Danica Damplo, Universal Rights Group NYC

 

Letter to UN Security Council members regarding Myanmar’s Independent Commission of Enquiry and the Provisional Measures ordered by the International Court of Justice

Your Excellency,

We are writing to you in light of the recently published summary of the final report of Myanmar’s Independent Commission of Enquiry (ICOE), which was issued the same week that the International Court of Justice (ICJ) ordered Myanmar to take immediate action to prevent genocide against the country’s persecuted Rohingya minority. In particular, we would like to raise grave concerns regarding the ICOE’s: (1) independence and impartiality; (2) methodology; and (3) flaws in narrative and findings.

The ICOE’s independence and impartiality have been seriously undermined by its reliance on the Office of the President of Myanmar for financial and technical support, as well as by the composition of the Commission itself, which includes at least one official directly implicated in the bulldozing of Rohingya villages damaged during the 2017 crisis in Rakhine State. The executive summary of the ICOE’s report also provides no information as to what sources and materials were relied upon beyond individual interviews, nor how the ICOE corroborated and verified this information, making it impossible to assess the quality of their methodology. Crucially, the ICOE did not interview a single Rohingya refugee in Cox’s Bazar, Bangladesh, regarding the circumstances that resulted in over 700,000 people fleeing the country. Finally, there are serious flaws and misrepresentations in the ICOE’s narrative of the crisis in Rakhine State, including disturbing inaccuracies and omissions in relation to mass rape and widespread sexual violence directed at Rohingya women and girls during the military’s so-called “clearance operations.”

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Behind Myanmar’s Military Alibi: A Path for Compliance with the ICJ’s Order to Protect Rohingya

Excerpt of Just Security op-ed by GJC's Akila Radhakrishnan and Grant Shubin.

In the wake of the ruling from the International Court of Justice (ICJ) ordering Myanmar to prevent genocide against the Rohingya going forward, the initial excitement was tempered by pragmatics—how this important court order can be enforced so that it actually protects the 600,000 Rohingya who remain in Rakhine State.

To be sure, there is no confusion that these measures are binding—as the court noted, they create international legal obligations that require Myanmar’s compliance. But how can the international community guarantee that Myanmar actually does anything? And does Myanmar’s civilian government have the capacity to do what is needed?

The answers to these questions are mixed, generally relying on exertion of geopolitical pressure, including through the United Nations Security Council, to which the order has been transmitted. As a general rule and absent a concrete enforcement mechanism, ICJ orders have a reliable compliance rate. However, looking at the Myanmar case in context, and in particular the measures requiring prevention of the commission of genocide by Myanmar’s military, compliance will require a serious and concerted effort by both the international community and the civilian government.

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Myanmar’s Independent Commission of Enquiry: Structural Issues and Flawed Findings

On January 20, 2020, Myanmar’s Independent Commission of Enquiry (“ICOE”) submitted its final report to Myanmar’s government. The report, which was initially due on July 30, 2019, was instead submitted three days before the International Court of Justice handed down its unanimous decision on provisional measures in The Gambia v. Myanmar. With the mandate to “investigate the allegations of human rights violations and related issues, following the terrorist attacks by ARSA,” Myanmar has relied on the work of the ICOE since its creation to object to international efforts, including those of the UN Security Council, to ensure accountability for the crimes against the Rohingya.

The ICOE is not the first, but the eighth ad-hoc commission and board set up by Myanmar since 2012 with regard to the situation in Rakhine State; however, the UN Independent International Fact-Finding Mission on Myanmar has determined that none of these commissions, including the ICOE, meet the standards of an “impartial, independent, effective and thorough human rights investigation.” This Factsheet seeks to provide context and analysis on the ICOE and its final report and can be used by the international community to understand the report and its analysis.

 
   

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Myanmar’s Commission Report Delivers Genocide Denial Playbook

Excerpt of Just Security article that features GJC President Akila Radhakrishnan.

As Akila Radhakrishnan of the Global Justice Center put it, the ICoE summary is a “masterclass in how to erase the gendered experiences of conflict and genocide.” While the FFM had described “rape and other forms of sexual violence [as] one of the hallmarks of Tatmadaw (Myanmar military) operations,” the ICoE concluded:

“There were no credible statements on allegations of gang rape committed by Myanmar’s security forces. Although some interviewees mentioned rape cases, these were all secondhand information heard from someone else.”

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U.N. Court’s Order on Rohingya Is Cheered, but Will Myanmar Comply?

Excerpt of New York Times article that features GJC President Akila Radhakrishnan.

“The court confirmed that no matter where genocide occurs, it’s a matter for the entire international community, and that a state does not have to be connected or affected by the genocide in order for them to take action to prevent, end and punish it,” said Akila Radhakrishnan, president of the New York-based Global Justice Center.

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Myanmar ordered to prevent genocide against Rohingya by top UN court

Excerpt of CNN article that features GJC President Akila Radhakrishnan.

Akila Radhakrishnan, President of the Global Justice Center, said the ruling was a legal statement and a powerful recognition of what the Rohingya went through.

"It's like a surface affirmation from the court, that kind of the basics of the case have been met," she said. "There's power in acknowledgment, there's power in another country standing up for your rights, taking someone to court, putting a lot behind exposing in a very serious manner what happened. I think that that can't be lost in this."

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International Court of Justice orders Myanmar to prevent genocide against the Rohingya

Excerpt of Washington Post article that features GJC President Akila Radhakrishnan.

Experts in international justice said the court’s ruling that Gambia did indeed have a case against Myanmar set a strong precedent. The decision at the United Nations’ highest court also acknowledged that Rohingya Muslims constitute a vulnerable group that is in need of protection, they said.

“There was a level of complicity that existed around the Rohingya,” said Akila Radhakrishnan, the president of the New York-based Global Justice Center. “The ruling not only sends a signal to Myanmar that its flimsy excuses won’t be accepted, but also sends a signal to the rest of the international community that there are still some serious risks to the Rohingya that must be acted on.”

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Burma urged to take measures to prevent genocide against the Rohingya

Excerpt of Le Monde article that features GJC Deputy Legal Director Grant Shubin.

The decision must now be transmitted to the United Nations Security Council. Grant Shubin, deputy legal director of the Global Justice Center, said: "It is not certain that the Council will take action, particularly because of opposition from China," Burma's ally, "but such a decision constitutes a warning for Burma that the international community is watching.”

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International Court of Justice orders Myanmar to prevent Rohingya genocide

Excerpt of ABC Australia article that features GJC President Akila Radhakrishnan.

The full report is not public, but the Global Justice Centre cast doubt on the commission's independence and said it couldn't provide real accountability.

"All signs point to what human rights experts and Rohingya themselves already know, which is that the government has no intention of bringing perpetrators of mass rape and other genocidal crimes to justice," Akila Radhakrishnan, president of the Global Justice Centre, said.

"This Commission is just yet another domestic attempt to deflect responsibility and whitewash the situation of the Rohingya."

She pointed out that the report "also seemingly fails, like the Government of Myanmar, to use the term 'Rohingya', which continues to deny the identity of the group".

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World Court Orders Interim Protection for Myanmar’s Rohingya

Excerpt of Bloomberg article that features GJC Deputy Legal Director Grant Shubin.

Failure to comply may affect Myanmar’s international standing or prompt reactions in bilateral or multilateral forums, Grant Shubin, deputy legal director of the New York-based Global Justice Center said in an email. ”While there are still several stages of the case that must happen before the court finally decides if Myanmar violated the Genocide Convention, the broader international community should do everything in their power to ensure Myanmar complies with an order,” Shubin added.

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