16 September 2019
Human Rights Council
9–27 September 2019
Agenda item 2
Human rights situation that require the Council’s attention
Detailed findings of the Independent International Fact-Finding Mission on Myanmar*, **
I. Executive Summary 5
II. Introduction 8
III. Mandate and follow up the Human Rights Council resolution 39/2 9
A. Interpretation of the Mandate 9
B. Methodology 9
C. Legal Framework 9
IV. The situation of the Rohingya 17
A. Citizenship 18
B. Land clearance destruction, confiscation and construction 33
C. Restrictions 48
D. Security and safety 58
E. Forced or compulsory labour 59
F. The repatriation process 62
G. Conclusions and legal findings: the impossibility of return 67
V. The conflict between the Tatmadaw and the Arakan Army 80
A. Introduction 80
B. The Arakan Army 82
C. Violations by the Tatmadaw 86
D. Abuses by the Arakan Army 120
E. Gendered impacts 123
F. Landmines 124
G. Threats to freedom of expression, association and the press 125
VI. The situation in northern Myanmar 132
A. Introduction 132
B. Violations by the Tatmadaw and Tatmadaw sponsored militia 135
C. Patterns of abuses by EAOs 146
D. Landmines, improvised explosive devices and explosive remnants of war 154
E. Displacement, livelihoods and land 157
F. Situation in northern Myanmar requiring monitoring: the Kokang Self-Administered Zone 166
VII. Renewed human rights violations against the ethnic Karen 169
A. Background 169
B. Recent Tatmadaw operations 170
C. Human rights impact of the road construction project 171
D. Killings by the Tatmadaw 172
E. Return of Karen refugees 173
F. Conclusions and legal findings 174
VIII. Conclusions and Recommendations 174
A. The situation of the Rohingya 175
B. The situation of the ethnic Rakhine 176
C. The situation in northern Myanmar 177
D. Recommendations 177
Correspondence with the Government of the Republic of the Union of Myanmar 180
AA Arakan Army
ARSA Arakan Rohingya Salvation Army
ASEAN Association of Southeast Asian Nations
CAT Convention against Torture
CEDAW Convention on the Elimination of All Forms of Discrimination against Women
CESCR Committee on Economic, Social and Cultural Rights
CPED International Convention for the Protection of All Persons from Enforced Disappearance
CRC Convention on the Rights of the Child
CRPD Convention on the Rights of Persons with Disabilities
EAO Ethnic Armed Organization
FPNCC Federal Political Negotiation and Consultation Committee
GAD General Administration Department
ICC International Criminal Court
ICCPR International Covenant on Civil and Political Rights
ICERD International Convention on the Elimination of All Forms of Racial Discrimination
ICESC International Covenant on Economic, Social, and Cultural Rights
ICRC International Committee of the Red Cross
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the former Yugoslavia
IHL International Humanitarian Law
ILO International Labour Organization
KIA Kachin Independence Army
LIB Light Infantry Battalion
LID Light Infantry Division
MNDAA Myanmar National Democratic Alliance Army
NLD National League for Democracy
OHCHR Office of the United Nations High Commissioner for Human Rights
SGBV Sexual and Gender Based Violence
SLORC State Law and Order Restoration Council
SPDC State Peace and Development Council
SSA-N Shan State Army North
SSA-S Shan State Army South
TNLA Ta’ang National Liberation Army
UDHR Universal Declaration of Human Rights
UNHCR Office of the United Nations High Commissioner for Refugees
UNITAR United Nations Institute for Training and Research
UNOSAT UNITAR’s Operational Satellite Applications Programme
USDP Union Solidarity and Development Party
UWSA United Wa State Army
WFP World Food Programme
MaBaTha Association for the Protection of Race and Religion
MaHaNa Sangha Maha Nayaka Committee
NaSaKa Border Area Immigration Control Headquarters
NaTaLa Ministry for Development of Border Areas and National Races “model villages”
SaYaPa Myanmar Intelligence Office
I. Executive summary
1. This report provides an update on conflict-related and other human rights violations and abuses in Myanmar since the Mission’s last report to the Human Rights Council in September 2018. The report focusses on the situation of ethnic minorities in Myanmar’s Rakhine, Chin, Kachin and Shan States. More specifically, the report highlights the situation of the Rohingya, the armed conflict between the Arakan Army and the Tatmadaw, and the situation in northern Myanmar. The report documents violations and abuses under international human rights law and violations of international humanitarian law, principally by the Myanmar military, known as the Tatmadaw, and also by ethnic armed organizations (EAOs). The report also provides a brief overview of the situation of the Karen in Kayin State and the Kokang Self-Administrative Zone in northern Shan State.
The situation of the Rohingya
2. The situation of the Rohingya continues to be of grave concern to the Mission. The Mission did not document in relation to the last year violations of a similar gravity to the Tatmadaw’s “clearance operations” after attacks on police and military posts on 25 August 2017, described in its last report. However, it confirmed that the Rohingya remain the target of a Government attack aimed at erasing the identity and removing them from Myanmar, and that this has caused them great suffering. Additionally, many of the factors that contributed to the killings, rapes and gang rapes, torture, forced displacement and other grave human rights violations by the Tatmadaw and other government authorities that the Mission documented in its 2018 report are still present. This has led to the conclusion that the situation of the Rohingya in Rakhine State has remained largely unchanged since last year. The laws, policies and practices that formed the basis of the Government’s persecution against the Rohingya have been maintained. With another year having passed without improvements to their dire living conditions, prospects for accountability or legal recognition as citizens of Myanmar, their plight can only be considered as having deteriorated.
3. The Government of Myanmar has made no progress towards addressing the underlying structural discrimination against the Rohingya by amending the discriminatory laws, including the 1982 Citizenship Law. State policies that impose and force Rohingya to accept national verification cards (NVCs) have intensified. The Rohingya continue to perceive the NVCs with scepticism due to their history as a tool of persecution, having been used to disenfranchise and “other” them from the rest of the population.
4. The Mission found that movement restrictions, applied to the Rohingya in a discriminatory and arbitrary manner, touch almost every aspect of the lives of the 600,000 Rohingya remaining in Rakhine State, affecting basic economic, social and cultural rights, including their ability to sustain themselves, obtain an education, seek medical assistance or even pray and congregate.
5. The lack of safe and viable homes and land for Rohingya to return to is further exacerbating their situation. The Mission found that Rohingya villages continue to be bulldozed and razed. An estimated 40,600 structures were destroyed between August 2017 and April 2019, with over 200 settlements almost completely wiped out. Instead, new structures are being built on land that used to be cultivated and lived on by those who fled. Paradoxically, the Mission found that Rohingya have been forced to work in constructing new housing developments, in conditions that amount to forced labour.
6. Against the backdrop of these unbearable conditions, insecurity has been heightened as a result of the conflict between the Arakan Army and the Tatmadaw in northern Rakhine, in areas from which Rohingya were expelled. This has been an additional contributing factor to making a safe, dignified and sustainable return of the Rohingya population impossible at this time.
7. Justice remains elusive for the victims of grave crimes under international law that the Mission documented in its last report, in particular those perpetrated during the 2016 and 2017 “clearance operations”. The Government of Myanmar has not taken the necessary measures to effectively investigate or prosecute those responsible.
8. The cumulative effect of these factors has led the Mission to conclude on reasonable grounds that the Government’s acts continue to be part of a widespread and systematic attack against the remaining Rohingya in Rakhine State, amounting to the crimes against humanity of inhumane acts and persecution.
9. Furthermore, having considered the Government’s hostile policies towards the Rohingya, including its continued denial of their citizenship and ethnic identity, the living conditions to which it subjects them, its failure to reform laws that subjugate the Rohingya people, the continuation of hate speech directed at the Rohingya, its prior commission of genocide and its disregard for accountability in relation to the “clearances operations” of 2016 and 2017, the Mission also has reasonable grounds to conclude that the evidence that infers genocidal intent on the part of the State, identified in its last report, has strengthened, that there is a serious risk that genocidal actions may occur or recur, and that Myanmar is failing in its obligation to prevent genocide, to investigate genocide and to enact effective legislation criminalizing and punishing genocide. Against this background, the Mission deems that the conditions enabling the safe, voluntary, dignified and sustainable return of close to one million Rohingya refugees from Bangladesh do not yet exist. The current conditions makes their return impossible at this time. Because of the absence of positive change over the past two years, the Mission cannot foresee when repatriation will be feasible.
The conflict between the Tatmadaw and the Arakan Army
10. The most recent conflict between the Tatmadaw and the Arakan Army in northern Rakhine and southern Chin States bears many of the hallmarks of the Tatmadaw’s brutal military operations, in line with its notorious “four cuts” strategy. In an attempt to prevent civilian support to the insurgency, the Tatmadaw has cut the lifelines of ethnic Rakhine communities, restricting both people’s freedom of movement and humanitarian access, with direct consequences on access to food and livelihoods. Again the civilian population, especially ethnic Rakhine and Chin communities, bear the brunt of the Tatmadaw’s operations.
11. The Mission found that attacks by the Tatmadaw have resulted in civilian loss of life, including the lives of children. The Tatmadaw continues the practice of rounding up men and boys of fighting age in villages, interrogating them and, in some instances, detaining and torturing them for the purpose of obtaining confessions about their support to the Arakan Army. The Mission also documented deaths in custody that were the direct result of this practice. All of these acts have undeniably led to a general climate of fear and insecurity for the ethnic Rakhine.
12. The Mission concluded on reasonable grounds that a number of Tatmadaw attacks that took place over the last months, in the context of its conflict with the Arakan Army, violated several rules of international humanitarian law, in particular the rule prohibiting indiscriminate attacks. The Mission’s findings of violations of international humanitarian law also constitute violations of the right to life under international human rights law, which is applicable alongside international humanitarian law in situations of armed conflict. The Mission also calls attention to the military use of schools and places of worship and encourages the parties to the conflict to cease this practice.
13. Many of the patterns of violations, such as forced labour, torture and ill-treatment, that are associated with all of the Tatmadaw’s operations, were found to be prominent features of its conflict with the AA. These constitute violations of international human rights law and international humanitarian law, including war crimes that require effective criminal investigation.
14. The Mission also concluded on reasonable grounds that the Tatmadaw’s firing indiscriminately into the ancient town of Mrauk-U violated rules under international law that protect cultural property.
15. Notably, however, the Mission did not find evidence of the Tatmadaw engaging in widespread mass sexual violence against ethnic Rakhine women as a part of its military strategy to combat the AA. This is in striking contrast to the widespread and systematic use of sexual violence against the Rohingya during the 2017 “clearance operations”. It indicates that the highest levels of command appear to be able to control when their troops do or do not use sexual violence during attacks on civilians and civilian populations.
16. Although to a much lesser extent than the Tatmadaw, the Mission found that the Arakan Army has also been responsible for human rights abuses and violations of international humanitarian law, including forced labour and abductions of civilians. The Mission finds that these violations require effective investigation.
17. The Mission found that many of the patterns of violations in northern Myanmar, documented in its last report, have continued despite the Tatmadaw’s unilateral ceasefire since December 2018. While fighting has decreased in Kachin State, it has continued and recently increased in northern Shan State, resulting in the death and injury of civilians. Casualties may have been the result of indiscriminate attacks by the parties to the conflict in violation of international humanitarian law and warrant further investigation.
18. The Mission found that torture by Tatmadaw and Tatmadaw-supported militia of suspected members of EAOs have continued throughout the last twelve months. The Mission also found that, while sexual and gender-based violence was not prevalent in some other ethnic conflicts, it remains a prominent feature of the conflicts in Shan and Kachin States, although not on the scale or with the extremity as against the Rohingya in 2017.
19. The humanitarian situation in northern Myanmar continues to be of grave concern, with another year passing without UN access to non-government controlled areas and with IDPs unable to return to their lands, due to the prevailing insecurity in the region. The amendment of the Vacant, Fallow and Virgin Land Management Act has further exacerbated the situation. It has created uncertainty over land titles and communal usage of land, indispensable for the many ethnic populations in northern Myanmar dependent on land for their livelihoods.
20. The Mission also found that EAOs have been involved in human rights abuses and violations of international humanitarian law in the context of the armed conflicts in northern Myanmar. Abuses have included arbitrary detention and cruel treatment. The Mission also documented or received information on alleged cases of EAOs forcibly recruiting adults, recruiting and using children, using landmines and exposing civilians under their control to the effects of attacks. The Mission also collected information about allegation of the persecution of the Christian minorities that warrants further investigation. The Mission also concludes that further investigation is requird into reports of sexual and gender-based violence by EAOs in Kachin and Shan States.
21. The Mission gathered limited information on the situation of the Karen ethnic group in Kayin State and the ethnic groups of the Kokang Self-Administrative Zone from northern Shan State, with a view to drawing attention to these situations and the need for further investigations.
22. With respect to the Karen, the Mission found that further investigations into allegations that the Tatmadaw continues to violate their rights in the context of long-standing armed hostilities that date back to 1949 are warranted. The Tatmadaw’s construction of a road has been the cause of renewed fighting between the Tatmadaw and the Karen National Liberation Army (KNLA). That has triggered credible reports of new human rights violations, with significant displacements. The hostilities stand in the way of a potential return of the Karen refugees who have settled in refugee camps along the Myanmar-Thai border.
23. The situation in the Kokang Self-Administrative Zone also requires further investigation. Cyclical bouts of hostilities in this region of northern Shan State appear to bear some of the hallmarks of Tatmadaw’s operations, including the killing of civilians and a range of restrictions, including on humanitarian access, that have led to significant displacement of the civilian population.
24. While each of the situations of the ethnic minorities in Myanmar is distinct with its own facts and dimensions, a common thread underlies the situation of each of the ethnic groups. All ethnic groups highlighted in this report have suffered human rights violations and violations of international humanitarian law at the hands of the Tatmadaw. They have experienced the insecurity and hardship that prevail wherever the Tatmadaw operates. They have all been driven off their traditional lands and subjected to forms of marginalisation as a result of the Tatmadaw’s policies.
25. All the ethnic minority communities that the Mission investigated have been deprived of justice for the serious human rights violations perpetrated against them. For this reason, the Mission found it necessary to highlight once again the situation of ethnic minorities in Myanmar, to provide an independent and impartial assessment of the violations committed against them, and to call on the Government of Myanmar and the international community to put a halt to these violations by finally breaking the cycle of impunity that protects the Tatmadaw and leads to further violence in the future.
26. This report complements the Mission’s report submitted to the Human Rights Council pursuant to resolution 39/2, by which the Council extended the mandate of the Independent International Fact-Finding Mission on Myanmar (“the Mission”). The Council requested the Mission to present a final report on its activities to the Council at its forty-second session.
27. This report focuses on human rights developments since September 2018. It highlights the situation of ethnic groups in Rakhine, Chin, Kayin, Kachin and Shan States, focussing on conflict-related human rights violations and abuses and violations of international humanitarian law. It also provides a legal analysis of the situation of the Rohingya under the rules of State responsibility and the 1948 Genocide Convention, to which Myanmar is a party. The Mission further presents its findings on the situation of the conflict between the Tatmadaw and the Arakan Army since the beginning of 2019 and the latest developments in northern Myanmar.
28. The Mission comprised three experts: Marzuki Darusman (Indonesia, chair), Radhika Coomaraswamy (Sri Lanka) and Christopher Sidoti (Australia).
29. The Mission regrets the continuing lack of cooperation from the Government of Myanmar, despite the numerous appeals made by the Human Rights Council and the Mission. During the reporting period, the Mission requested to meet with the Permanent Representative of Myanmar in Geneva on two occasions and requested country access on 12 February 2019. It sent a detailed list of questions pertaining to the mandate of the Mission on 28 March 2019. The Mission received no official response to any of its communications. The Mission’s draft main findings were shared with the Government prior to its public release, providing an opportunity to comment or make factual corrections. No response was received. This conference room paper, containing the detailed findings of the Mission in relation to conflict-related and other human rights violations, was also shared with the Government on 11 September 2019. No response was received. The Mission’s letters are in annex 2.
III. Mandate and follow up to Human Rights Council resolution 39/2
A. Interpretation of the mandate
30. In extending the Mission’s mandate, the Human Rights Council sought to avoid an investigative gap between the end of the Mission and the operationalization of the Independent Investigative Mechanism for Myanmar. The mandate given to the Mission by the Council in its resolution 39/2 therefore includes the extension of its original mandate, as contained in Council resolution 34/22, 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. Accordingly, the Mission focused on investigating both alleged human rights violations and abuses perpetrated since the end of its previous investigation and some previously undocumented historical incidents and patterns of human rights violations and abuses. This report has been prepared with a view to fulfilling this part of the Mission’s mandate.
31. The Mission continued to base its factual findings on the “reasonable grounds” standard of proof (A/HRC/39/64, para. 6). The Mission also continued to employ the same methodology as it did for its 2018 report, unless otherwise indicated.
32. Between February and June 2019, the Mission conducted 419 interviews with victims and witnesses, both targeted and randomly selected. It obtained and analysed satellite imagery, photographs and videos and a range of documents. It cross-checked the information against secondary information assessed as credible and reliable, including organizations’ raw data or notes, expert interviews, submissions and open source material.
33. In this second phase of its work, the Mission took special care to avoid re-interviewing victims and witnesses with a view to avoiding re-traumatisation and contamination of evidence.
34. The Experts travelled to Bangladesh, Indonesia, Malaysia and Thailand to interview victims and witnesses and hold other meetings. The secretariat undertook six additional field missions between February and June 2019. The Mission held consultations with other stakeholders, including intergovernmental and non-governmental organizations, researchers and government officials and diplomats, in person and remotely.
35. The Mission strictly adhered to the principles of independence, impartiality and objectivity and to the obligation to “do no harm”. Special attention was paid to the protection of victims and witnesses, considering their well-founded fear of reprisals, especially following the publication of the Mission’s previous report.
C. Legal framework
36. The Mission assessed facts under international human rights law, international humanitarian law and international criminal law, as applicable in Myanmar. The Mission’s 2018 report provides a detailed analysis of those bodies of law. This report cross references and supplements that analysis as needed in its legal findings and conclusions. The Mission also finds it necessary to set out the obligations that Myanmar has to respect, protect and fulfil the right to an adequate standard of living, including adequate food and housing, and right to the highest attainable standard of health as a party to the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention on the Rights of the Child (CRC). The Mission also finds it necessary to elaborate on the rules of State responsibility under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, to which Myanmar is a party.
1. Economic, social and cultural rights
37. The ICESCR places obligations on States to recognize and ensure the right to an adequate standard of living, including adequate food and housing, and the highest attainable standard of health. The CRC provides similar obligations towards children specifically. Under these obligations, State parties are generally required to undertake steps, to the maximum of their available resources, with a view to achieving progressively the full realization of these rights. These rights apply to everyone including non-nationals, such as stateless persons, regardless of legal status and documentation. Complaints of violations should be promptly, impartially and independently investigated and adjudicated, providing the complainant with access to an effective remedy where appropriate. The United Nations Committee on Economic, Social and Cultural Rights and the United Nations Committee on the Rights of the Child further consider that their respective treaties requires States parties to adopt an active approach to eliminating discrimination, with the former explaining that for systematic discrimination:
Tackling such discrimination will usually require a comprehensive approach with a range of laws, policies and programmes, including temporary special measures. States parties should consider using incentives to encourage public and private actors to change their attitudes and behaviour in relation to individuals and groups of individuals facing systemic discrimination, or penalize them in case of non-compliance. Public leadership and programmes to raise awareness about systemic discrimination and the adoption of strict measures against incitement to discrimination are often necessary. Eliminating systemic discrimination will frequently require devoting greater resources to traditionally neglected groups. Given the persistent hostility towards some groups, particular attention will need to be given to ensuring that laws and policies are implemented by officials and others in practice.
38. While the right to an adequate standard of living and the highest attainable standard of health are to be progressively realised, Myanmar, as a party to the ICESCR and CRC, must take immediate action, irrespective of its resources to, inter alia, eliminate discrimination, comply with the components of rights that are not subject to progressive realization because they do not require significant resources, and refrain from retrogressive measures that would reduce the enjoyment of the Covenant’s rights, unless there are strong justifications for doing so.
39. States’ obligations in relation to the right to an adequate standard of living, including adequate food and housing, and the right to the highest attainable standard of health, do not cease in times of emergency or humanitarian crisis. In such situations, violations of the right to food can occur, for example, through the prevention of access to humanitarian food aid and the failure to regulate individuals or groups restricting others’ access to food. The Special Rapporteur on the right to food defined the right to food as “the right to have regular, permanent and free [unobstructed/unrestricted] access, either directly or by means of financial purchases, to quantitatively and qualitatively adequate and sufficient food corresponding to the cultural traditions of the people to which the consumer belongs, and which ensures a physical and mental, individual and collective, fulfilling and dignified life free from anxiety”. The right to food and health are also closely linked to non-derogable rights, such as the right to life: “without food there is no life, and with the wrong food, life is shorter and more prone to ill-health”. This requires, for example, States to take measures to increase life expectancy, especially in adopting measures to eliminate malnutrition.
2. Rules of State responsibility
40. Based on the Mission’s past and present findings, the Mission has considered Myanmar’s obligations under the rules of State responsibility, under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, to which Myanmar is a party. Relatedly, the Mission welcomes the efforts of States, in particular The Gambia and Bangladesh, and the Organisation of Islamic Cooperation to encourage and pursue a case against Myanmar before the International Court of Justice (ICJ) under the Genocide Convention. Elected officials in The Netherlands and Canada have also called on their governments to pursue such a case.
41. Many of the people to whom the Mission spoke emphasized the need for perpetrators of the most serious crimes of international law to be held criminally accountable. The Mission discussed this in its 2018 report. Many of those people also stressed that the safe and dignified treatment of the Rohingya people required legislative and institutional reforms that run deeper than sanctioning individuals. The rules of State responsibility help address this demand by providing for forms of reparation that are reformative and additional to what criminal accountability most often provides.
42. Under the rules of State responsibility, reparation is often assessed not by the injury caused to individuals but by the injury caused to a State, which includes material and moral damages. In the case of a State that commits genocide or other violations against its own people, it would be more appropriate for reparation to benefit the individuals directly harmed and the international community as a whole. Such reparation may include, as required, restitution, compensation and satisfaction, either singly or in combination. The purpose of these reparations is to “wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed”. The enormity and scope of the destruction that Myanmar caused to people’s lives makes it impossible to suggest that reparation could ever achieve this purpose. At the same time, the enormity and causes of the acts that the Mission has documented indicate that Myanmar’s reparation obligations are far reaching and wide ranging.
43. Restitution may require, depending on the breach, restoration of liberty; enjoyment of human rights, identity, family life and citizenship; return to one’s place of residence; and restoration of employment and return of property. This may include requiring juridical restitution through legislative modifications. Compensation may be required for economically assessable damage, such as physical or mental harm; lost opportunities, including employment, education and social benefits; material damages and loss of earnings, including loss of earning potential; and costs required for legal or expert assistance, medicine and medical services, and psychological and social services. Compensation may also be payable in respect of damage suffered where restitution is either not possible or not possible in full. The inability to restore people’s homes and property, because they have been destroyed, is an example of a situation in which compensation is payable as a result of inability to make restitution. Satisfaction may require effective measures aimed at the cessation of continuing violations; verification of the facts and full and public disclosure of the truth; the search for the whereabouts of the disappeared and killed and assistance in the recovery, identification and reburial of bodies; official declarations or judicial decisions restoring the dignity, the reputation and the rights of the victim and of persons closely connected with the victim; public apology, including acknowledgement of the facts and acceptance of responsibility; judicial and administrative sanctions against persons liable for the violations; and commemorations and tributes to the victims. When a State breaches its international obligations under the rules of State responsibility it must also cease the wrongful act, if it is continuing, and the State must offer appropriate assurances and guarantees of non-repetition if circumstances require.
(a) Prohibition on committing genocide
44. Under the Genocide Convention, States parties have an implicit obligation not to commit genocide and express obligations to prevent and punish genocide crimes. For a State to be in breach of the genocide prohibition, it must be shown that State organs, or persons or groups whose acts are attributable to the State, committed one or more specific acts “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”. Those acts, referred to as “underlying acts”, are (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; and (e) forcibly transferring children of the group to another group. The Mission’s 2018 report provides the Mission’s assessment that the Rohingya constituted a protected group under the terms of the Genocide Convention and that the violence directed at them constituted underlying acts (a), (b), (c) and possibly (d).
45. To establish that a State had the intent to destroy, in whole or in part, a protected group, an investigator must be able to establish either that a State had a plan expressing the intent to commit genocide or that a pattern of conduct reveals such intent. To make a finding of genocide under the rules of State responsibility it is sufficient to demonstrate that genocide is attributable to a State organ, such as a ministry or security force, without identifying specific individuals who are responsible for the genocide. In the case of Myanmar, the Mission has concluded on reasonable grounds that the Tatmadaw is the most notable, but not the only, State organ that engaged in underlying genocidal acts with the inference of genocidal intent. In sum, State involvement through military and civilian acts, organs and persons was extensive.
46. There is limited guidance for assessing what factors are relevant for making a finding of genocidal intent under the rules of State responsibility. When assessing whether a pattern of conduct reveals genocidal intent, the Mission was guided by case law from international criminal tribunals and took into account interrelated factors, as documented in its previous report and supplemented by the Mission’s 2019 investigation.
(b) Obligation to investigate genocide
47. The Genocide Convention places a general obligation on all States parties to prevent and punish genocide. Article III places an obligation to punish all genocide crimes regardless of the suspect’s government position. Article VI places a specific obligation on States parties in whose territory genocide was committed to try in a competent court individuals charged with genocide or, alternatively, allow them to be tried by an international tribunal with jurisdiction. Article V requires States parties to enact legislation to give effect to the Convention’s provisions and, in particular, to provide effective penalties for persons guilty of genocide.
48. The Mission interprets the Genocide Convention as placing an obligation on Myanmar to effectively investigate allegations of genocide where reasonable grounds exist and, where appropriate, to bring charges. This interpretation follows the approach of international and regional human rights treaties. Any other interpretation would render much of the Genocide Convention ineffective and go against the Convention’s object and purpose of freeing the world of such as “odious scourge”. If there were no obligation to conduct an effective investigation and prosecute where appropriate, a State’s obligation to enact legislation to “give effect” to the Genocide Convention, as well as the State’s obligation to hold perpetrators criminally accountable, would be rendered meaningless. Moreover, punishment without an investigation, prosecution and conviction would contravene basic procedural guarantees and the right to a fair trial.
49. The obligation to conduct an investigation typically requires that the investigation be carried out whenever there is “reason to believe” or a “reasonable ground” to believe that an offence has been committed. The obligation is one of conduct, not of result. In meeting that obligation, it is generally recognized that an investigation must always be independent, impartial, prompt, thorough, effective, credible and transparent.
(c) Obligation to enact legislation
50. Article V of the Genocide Convention requires States Parties to enact the necessary legislation to give effect to the Convention and, in particular, to provide effective penalties for persons guilty of genocide and persons who incite genocide, attempt to commit genocide or are complicit in genocide. Although there is limited guidance on how courts would interpret a State’s obligation under the Convention to enact effective legislation, the legislation that Article V requires States to enact has been understood as a statutory law that results from formal domestic enactment procedures. For the legislation to “give effect” to the Convention the State’s domestic criminal law must include the specific acts in Article II and the list of offenses in Article III. Legislation that simply criminalizes individual acts without referring to genocide, for example homicide, is insufficient. The Convention also places requirements on how States penalize the crimes of genocide. The penalties must be “effective” and the penalties and the form of the penalties must be sufficiently defined. The duration of a penalty of imprisonment must meet a minimum threshold of severity, given the grave nature of the crime, taking into account a State’s national scale of penalties, including domestic penalties for the ordinary crime of murder. The Convention requires that legislation that criminalizes and penalizes acts of genocide does not permit a person convicted of genocide to receive a pardon or to be free from punishment.
(d) Obligation to prevent genocide
51. The obligation to prevent genocide, which includes a corresponding duty to act, arises when a State “learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed”. The Mission does not consider that a “serious risk” requires that the risk be imminent or immediate. Such a narrow interpretation would hollow out the preventive nature of the Convention by effectively requiring States to act only once the genocide were inevitable. But once a serious risk of genocide is identified, a State is under a duty to make use of available means to deter “those suspected of preparing genocide, or reasonably suspected of harbouring specific [genocidal] intent”. In the case of Myanmar, it may appear incongruous to place expectations on a State to prevent genocide when its own organs and agents are the ones that pose the serious risk of committing genocide. Nonetheless, Myanmar has a legal obligation to apply important and potentially wide ranging deterrent measures, arising from the core of the Convention’s object and purpose, to bring an end to genocide.
(e) Responsibilities of third party states
52. The Mission’s findings also attract the obligations of all States through general rules of State responsibility, international humanitarian law, arms transfer law and international human rights law. As a general matter, States must not aid or assist another State in the commission of unlawful acts. States must also cooperate to bring to an end the gross or systematic failure of another State to abide by obligations arising under a peremptory norm of general international law, which includes crimes against humanity, torture, genocide, racial discrimination and apartheid, and slavery. They must also not render aid or assistance in maintaining a situation that arose from such failures.
53. The Genocide Convention specifically requires all States parties to prevent and punish genocide. These obligations are not territorially limited or merely abstract. The obligation to prevent genocide has a corresponding duty to act that arises when a State “learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed”. Once this happens, a State is under a duty to make use of available means to deter “those suspected of preparing genocide, or reasonably suspected of harbouring specific intent”.
54. States with greater influence over deterring genocide should do more. Factors for determining influence can include political, military and financial links. Levels of influence can also depend on geographic proximity, regularity of contact and legal powers. But even a State with limited influence retains obligations under the duty to prevent genocide. Moreover, the failure to prevent genocide does not require proof that the State definitely had the power to prevent the genocide. It is sufficient that the State manifestly refrained from using its powers when it had the means to do so. International law restricts States from doing only what is legally permissible when fulfilling their duty to prevent genocide.
55. The Genocide Convention is silent on the issue of States prosecuting people who are under their jurisdiction but who committed genocide on another State’s territory. Conversely, the Rome Statute recognized in its preamble “that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes”. Regardless of whether the Genocide Convention contains a similar obligation on foreign States parties to prosecute or extradite, the Mission continues its call to States to exercise their criminal jurisdiction over perpetrators of genocide crimes.
IV. The situation of the Rohingya
56. In its 2018 report, the Mission found that the attack on the Rohingya population of Myanmar was “horrendous in scope”. It found that, in much of northern Rakhine, “every trace of the Rohingya, their life and community as it had existed for decades, was removed” and that “indeed the clearance operations were successful”. The Mission concluded on reasonable grounds that, in addition to crimes against humanity and war crimes, the factors allowing for inference of genocidal intent were also present.
57. Based on information gathered by the Mission over the last year, this section describes the human rights situation of the approximately 600,000 Rohingya that remain in Rakhine State, of which 126,000 are in internally displaced camps and the remaining non-displaced population is spread across 10 townships.
58. Rohingya are faced with a situation where they continue to be denied the legal status of citizens and live in dire conditions. The Mission’s findings conclude that the Myanmar Government bears responsibility for the severe inhumane suffering that displaced Rohingya are facing. The policies and practices also make return impossible and are indicative of the continued persecution of the Rohingya population as a crime against humanity. The Mission concludes, based on its findings, that grave violations against the Rohingya continue and that there is a real and significant danger of the situation deteriorating further. The Mission also has reasonable grounds to conclude that the evidence that infers genocidal intent on the part of the State against the Rohingya, identified in its last report, has strengthened, that there is a serious risk that genocidal actions may occur or recur, and that Myanmar is failing in its obligation to prevent genocide, to investigate genocide and to enact effective legislation criminalizing and punishing genocide.
59. One year since the publication of its report, and two years since the “clearance operations” that began on 25 August 2017 and resulted in the exodus of over 743,000 Rohingya to neighbouring Bangladesh, the situation in Rakhine State also makes the prospect for a return of the Rohingya population impossible in the foreseeable future. This was the conclusion of the Mission last year and this remains its conclusion at present.
60. In its 2018 report, the Mission found that “the lack of legal status and identity is the cornerstone of the oppressive system targeting the Rohingya”. It found that the denial of citizenship had a profound impact on the enjoyment of other fundamental rights and that the requirement of membership of a “national race” as a key criterion of Myanmar citizenship was profoundly discriminatory against the Rohingya.
61. Section 347 of the 2008 Constitution of Myanmar stipulates that the Government is to “guarantee any person to enjoy equal rights before the law and shall equally provide legal protection”. The reality is that rights, such as the right to access to education, health care and livelihood activities, are linked to citizenship. Most notably, Constitutional provisions link land ownership with citizenship, giving rise to a well-founded fear that Rohingya can be legally dispossessed of their lands without confirmation of citizenship.
62. The Citizenship Law 1982 provides three categories of citizenship: “citizen”, “associate citizen” and “naturalized citizen.”
63. Only those identified as belonging to one of the 135 “national races” recognized in Myanmar’s Constitution are eligible for full citizenship, effectively making Myanmar a race-based State, where full rights are only reserved for those who are recognised as from one of the “national races”. The Rohingya are automatically disqualified from full citizenship, not being one of the 135 recognised national races. Individual Rohingya people may however qualify for associate or naturalised citizenship if they prove ancestral links to residence in what is now Myanmar since 1824 or a link that predates the establishment of the State in 1948. In a country where over 25 per cent of the population lacks official documents and where many have lost documents due to violence or departures, a large portion of the population, in particular the Rohingya, is unable to meet these requirements and so is unable to claim any of these categories of citizenship.
64. The few Rohingya who have been successful in obtaining citizenship in the past received the lesser “naturalised citizenship”. To qualify for naturalised citizenship, Section 44 of the 1982 Citizenship Law requires applicants to be over 18 years of age, speak one of the ethnic languages, be of good character and of sound mind. Naturalised citizenship falls short of full citizenship in that naturalized citizens may not hold political office or form a political party, and their citizenship may be revoked on various grounds. These provisions adversely affect women, who are less likely to speak an ethnic language. A UNHCR assessment of a group of 2,000 Rohingya from Myebon Township, who received citizenship documentation in a pilot project that began in 2014, found “no tangible changes” in their overall situation and found that “their constraints on freedom of movement persist, as well as their access to basic services including education, health and livelihoods”.
65. In 2017, the Rakhine Advisory Commission urged the authorities to review the 1982 Citizenship Law, acknowledge the arbitrary deprivation of nationality of the Rohingya community and restore their citizenship rights through a speedy administrative process developed through meaningful consultation with the Rohingya community. The Mission is not aware of any steps taken by the Government to review the 1982 Citizenship Law. Instead, the Government has intensified its efforts to force Rohingya to enter into a citizenship verification process by accepting National Verification Cards (NVCs) that explicitly recognize cardholders as non-citizens who need to apply for citizenship. Moreover, without amendments to the Citizenship Law, the NVC process could at best give them the status of either associate or naturalised citizens, neither of which confers the same level of rights as enjoyed by full citizens, further entrenching long-standing discrimination against the Rohingya community.
1. National Verification Cards
66. The Government claims that the National Verification Card process is a means for it to assess, verify and confirm or grant citizenship to the Rohingya. The process applies equally to Rohingya displaced internally, displaced across an international border and not displaced. An NVC declares that the holder is a “Bengali”, a term Rohingya reject as it implies the Rohingya are illegal immigrants from Bangladesh, and so not citizens of Myanmar. The Government is coercing people into accepting NVCs. It implies that accepting NVCs can lead to receiving citizenship and the fulfilment of other rights but in practice, for the great majority of those holding NVCs, it does not.
67. Intensified efforts by the Government of Myanmar in the lead up to and since the August 2017 “clearance operations” to coerce Rohingya to accept NVCs have been of grave concern. As one interviewee stated: “The authorities have linked everything to the NVC. People cannot fish or cut wood in the forest without holding a NVC. Businesspersons cannot do their business and families cannot visit relatives in prison. The Government is using every possible means to force people to obtain NVC.”
68. The Government has denied the Rohingya access to essential life-saving and life-supporting goods and services as punishment for refusing to accept the NVCs. Rohingya believe their refusal to accept NVCs in 2017 has led to the genocidal “clearance operations”, as described by the Mission’s 2018 report. Some civil society actors have gone so far as to suggest that the enforcement of the NVC process is a tool to commit genocide. The Government’s use of NVCs in this manner makes it inconceivable that they could be a pathway for the Government to respect the human rights of Rohingya; it is also inconceivable that Rohingya should trust the NVC process.
What the Government of Myanmar claims the NVCs provide
69. The Government continues to claim that the only pathway to citizenship for the Rohingya is through the NVC process. On 31 May 2019, the Government claimed that 67,699 individuals nationwide had received NVCs during the past three years. On 7 March 2019, U Shein Win, the deputy director-general of the National Registration and Citizenship Department of the Ministry of Labor, Population and Immigration, said that 14,000 NVCs had been issued in Rakhine, with half of the holders subsequently applying for citizenship. He noted that most of the successful applicants received green cards (Naturalized Citizenship cards) and blue cards (Associate Citizenship cards), with few who had the most complete family records receiving pink cards (Nationality cards). He did not indicate how many Rohingya had received citizenship through the NVC process.
70. Senior government officials claim that the NVC allows Rohingya to apply for citizenship in accordance with Myanmar’s Citizenship Law. In April 2018, a senior government official stated that “anyone who holds a NVC can apply for citizenship and can become a citizen within five months”. In May 2019, Dr Win Myat Aye, Vice-chair of Union Enterprise for Humanitarian Assistance, Resettlement and Development in Rakhine stressed that the returnees would be entitled to citizenship only after obtaining a NVC. This, he said, “is the first step in officially providing them with the right to citizenship”. In late July 2019, during a visit to the camps in Bangladesh, the Myanmar Government delegation restated the position about the requirement of a NVC to determine citizenship status.
71. The Mission received credible information suggesting that some applications for citizenship have remained unanswered for an extensive period and that the few successful applicants received only naturalized citizenship rather than full citizenship. Despite the Government’s claim to the contrary, the Mission found no evidence that supports its claims that the NVC process is to be extended to other ethnic groups apart from the Rohingya.
72. The Government of Myanmar claims that the NVC also provides cardholders with a series of rights, including registered residency and the ability to travel in accordance with local laws, orders and instructions. In January 2019, the Rakhine State Minister stated that NVCs will facilitate travel within Myanmar. Informational brochures prepared by the Ministry of Labour, Immigration and Population state that “the holders of NVCs in Rakhine State have the right to travel within Rakhine in accordance with the local orders and directives of the Rakhine State Government”. This followed reports that, in certain areas, NVC-holders could enjoy freedom of movement. For instance, in June 2018, the Government announced that NVC-holders can enjoy freedom of movement in Maungdaw district. In January 2019, authorities in central Rakhine’s Pauktaw Township announced that Rohingya traveling to neighboring villages require a NVC.
73. On 14 January 2018, during a visit to Sittwe Township, Union Minister for Social Welfare, Relief and Resettlement, Dr. Win Myat Aye, stated that NVC-holders can use the NVC as an official fishing licence and can overcome the difficulties of procuring food, clothing and shelter. In October 2018, during a visit to Cox’s Bazar, a delegation from Myanmar distributed brochures to refugees that also stated that travel, fishing rights, social and economic activities and “guarantees of life” all require the possession of an NVC.
Image of brochure distributed by a Myanmar delegation in Cox’s Bazar in October 2018 (page 1)
Image of brochure distributed by a Myanmar delegation in Cox’s Bazar in October 2018 (Page 2)
Rights conferred on NVC-holders in practice
74. While the Government has claimed that NVCs “are not for foreigners but for people residing in Myanmar” and that it allows for the enjoyment of a wide range of rights, the Mission finds that these various statements do not reflect the facts on the ground.
75. First, the NVCs do not grant automatic citizenship or trigger an automatic assessment of the applicant’s citizenship status. With the NVC, the cardholder may apply for citizenship and will need to undergo a citizenship assessment in accordance with Myanmar’s citizenship law. The card states this explicitly: “the holder of the card is a person who needs to apply for citizenship in accordance with the Myanmar citizenship law”. With the exception of the group of 2,000 Rohingya from Myebon, who received a form of citizenship in the pilot verification exercise that began in 2014, the Mission is unaware of any cases where NVCs have led to the same, or similar, results.
76. Second, the NVCs have not granted cardholders the ability to travel more freely or access their rights in a more meaningful way. Information from interviewees indicates that NVC-holders, similar to non NVC-holders, continue to face harassment and extortion at security checkpoints by the Tatmadaw and Border Guard Police (BGP) officials, affecting their freedom of movement. The Mission is also aware of reports of fishermen in Sittwe in possession of NVCs still being permitted to fish for only two days a week.
Harassment, intimidation and coercion
77. In its 2018 report, the Mission found that Rohingya were forced to accept NVCs through administrative pressure, threats and acts of violence. BGP and immigration officers consistently used threats and intimidation to force Rohingya to accept NVCs. Rohingya were told that they were Bengali, as the NVCs recorded, and did not belong to Myanmar. These derogatory statements were often accompanied by threats that their villages would be burnt down and people killed if they refused to accept the NVC. In some instances, Rohingya were told that they had to either accept the NVC or leave the country.
78. Some of these patterns continue to be reported to the Mission. In incidents that the Mission investigated, authorities resorted to extreme measures, including by making NVCs compulsory to enjoy freedom of movement, which resulted in the deprivation of livelihoods and work. NVCs have become the mandatory document to be checked at the security checkpoints, in the context of an increased number of security checkpoints throughout northern Rakhine State. One interviewee stated to the Mission:
My brother and I used to work as drivers in Maungdaw Town. Following the August 2017 violence, authorities began checking NVC when traveling from one location to another. Prior to the violence, only driving licence was required for driving. Without NVC I was unable to travel a long distance and could only move within my hamlet. The lack of job, shortage of food and movement restrictions without NVC, forced me to leave my village.
NVCs and prisoner release
79. The Government also forced NVCs on Rohingya prisoners as a condition of release, through threats and other forms of coercion. Individuals refusing to receive the document were at risk of indefinite arbitrary detention. A prisoner told the Mission: “I was handed a NVC on the day of my release. When I objected, I was told that I should either take a NVC or spend my entire life in prison.” Without asking Rohingya prisoners if they wanted to receive the cards, immigration officers made the prisoners accept the cards by forcing the prisoners to sign, electronically or on paper, and to have identity photos taken inside the prison. During this process, prisoners were not allowed to ask questions and were reminded that they were “Bengali”. The cards were prepared in advance and handed over to prisoners on the day of their release. Additionally, Rohingya prisoners had to pay 10,000 Kyat (7 USD) to receive the card. Prisoners from other ethnic communities were not issued NVCs.
80. A Rohingya man, who was released from Buthidaung prison in late 2018, after having served for 44 months, stated:
Prior to my release, prison officials issued me a NVC against my will. They forced me to accept the document. Prison officials threatened that they would keep me in prison for an indefinite period if I refused. My release was strictly conditional upon NVC and I knew refusal to accept would mean additional suffering inside the prison. I had no option but to give in and accept NVC card.
81. Authorities also required Rohingya family members to present a NVC to be able to visit relatives in detention. Individuals unwilling or unable to produce a NVC could not visit family throughout the course of their detention.
82. As an indication of what a repatriation process might include for the thousands of displaced Rohingya, authorities forced NVCs on Rohingya who were returned to Myanmar from India in October 2018 and January 2019. In its preliminary needs assessment for repatriation in Rakhine State, ASEAN-ERAT confirmed this process, noting that returnees will be issued NVCs upon completion of the registration process at the Reception Centre. It was said that the NVC would serve as a guarantee for the returnees to access livelihood opportunities and basic needs such as health and education services. However, the experiences of Rohingya with NVCs to date indicate the contrary.
Attitudes towards the NVCs
83. The Mission heard many accounts from the Rohingya community about their strong opposition to the NVCs. There appears to be a complete distrust in the Government’s sincerity regarding its assurances that the NVCs are a pathway to citizenship. The inherent distrust arises from a variety of factors, including a long history of cancellation or replacement of previous cards with new cards for Rohingya.
84. The Rohingya perceive the NVC as a tool of suppression that adversely affects nearly every aspect of their lives and erodes their fundamental freedoms, including their right to an identity, as it does not allow them to identify as Rohingya. Rohingya in Myanmar, Bangladesh, Malaysia and other parts of the region have consistently shared concerns with the Mission over the NVC and the associated process, and it has been cited as one of the main factors leading to their decision to leave the country and not return.
85. The NVC application form gives Rohingya no other option than to identify as “Bengali”. The Government’s apparent attempt to address this issue was to remove references to religion and ethnicity in an updated NVC sometime last year. However, the NVC application form still includes this specification, which renders the process deeply inadequate. The NVC application form is completed by the authorities, who record “Bengali” under ethnicity.
Image of the NVC application form (Page 1)
86. Rohingya also have the well-founded view that the NVC process is a deliberate attempt by the authorities to force Rohingya to concede they are foreigners who do not have Myanmar citizenship. The application form for the NVC requires applicants to provide information on “ethnicity and nationality, date and entry into Myanmar and place of arrival, vehicle and transport route into Myanmar”, all of which implies they came from elsewhere. The NVC states that the cardholder is someone who needs to apply for citizenship. This language implies that Rohingya are outsiders and plays into the false hate-filled narratives of Rohingya as “Bengali intruders”. This language on the NVC implies the cardholder is not already a citizen.
Image of the NVC application form (Page 2)
87. Given that, under the Constitution, land ownership is connected to citizenship, for Rohingya who registered land titles at a time when they were considered citizens, acceptance of the NVC may carry a real risk of a loss of their land and connected livelihood opportunities.
88. Many Rohingya also reject the NVC and its process due to a lack of clarity regarding the rights conferred upon NVC-holders. Rohingya interviewed by the Mission stated that NVCs do not grant them rights and discrimination continues regardless of whether the individuals are in possession of an NVC, as detailed above.
Part of an image of a NVC
89. Overall, Rohingya the Mission spoke to, did not believe NVCs provide a clear pathway to citizenship. They perceived NVCs as unwarranted because their ancestors were nationals of Myanmar, who actively participated in democratic processes, including elections, and some of whom held senior ministerial positions in the country. They assert a right to be recognised as full citizens and to be treated equally with other ethnic groups. An interviewee told the Mission:
We are citizens of Myanmar. Our grandparents were citizens of Myanmar. The Government introduced NVC to deprive us of our nationality. We will never give in to pressure and will never accept NVC. We knew by accepting the NVC, we would run into more sophisticated problems.
90. These attitudes are well-founded and understandable. Statements by government officials demonstrate that the “clearance operations” beginning on 25 August 2017 were a response to Rohingya villagers collectively refusing to accept NVCs and, that the “clearance operations” were not aimed at crushing the ARSA, as the Government claimed. The Mission has evidence that these statements were made at important village meetings, in front of large audiences of soldiers and Rohingya civilians, immediately preceding the “clearance operations” against the Rohingya.
91. At a 22 August 2017 meeting in the village of Chut Pyin in northern Rathedaung Township, a Tatmadaw commander from the 33rd LID told a group of Rohingya villagers, in the presence of members of the 33rd LID, that he would kill and burn them if they did not accept the NVCs. The commander told the audience, “We came from Yangon, from LID 33. You don’t belong to this country. As you are here, we gave you place to stay. You have to live here as how we want, we decide. You have to follow our order. We came from Kachin and Shan. We killed many people. We came here directly from there. We will kill you as well. You have to receive the NVC. We will burn your village and turn into ashes.” A few days later, on or around 27 August, the 33rd LID attacked villages in the Chut Pyin village tract after villagers rejected the cards.
92. A similar meeting took place on the same day in front of an old mosque in Min Gyi (Tu Lar Tu Li) village tract in northern Maungdaw Township. It is less clear who from the government attended or spoke at the meeting. When the villagers said they would not accept the NVC cards, the person conducting the meeting, referred to by one witness as “the chief”, said “If you don’t receive it, you will suffer, you will be destroyed.” Soon after the Tatmadaw attacked the village.
93. In March 2018, the media quoted Senior General Min Aung Hlaing as saying, “Rohingya do not have any characteristics or culture in common with the ethnicities of Myanmar” and “the current conflict has been fuelled because the Bengalis demanded citizenship”. These incidents and statements strengthen the inference that the military’s attack on the Rohingya was carried out with genocidal intent to destroy the Rohingya, in whole or in part, as a people.
2. Annual household list
94. Government authorities conduct an annual household listing exercise to record those living in Myanmar. Each year’s list adds newborns and deletes the names of the departed or deceased. The process includes taking photos of all family members in a household, often carrying a card with individual names and their “serial number” on the household list.
95. Household lists are issued and updated by the Ministry of Immigration and Population and the Ministry of Home Affairs. They are the only form of identification for many Rohingya since the revocation of Temporary Registration Cards on 31 March 2015, which established their place of origin and rights to their property. The household lists are so important that Rohingya the Mission interviewed in camps in Bangladesh showed interviewers their household photos, with the cards with their names that they had brought with them when they fled Myanmar.
96. Being absent from a household list puts people at risk of arrest, detention and extortion. Individuals not on a household list could also be denied access to basic services, including healthcare, education or other essential administrative services, including NVC applications, and marriage and travel permits.
97. These risks are so severe that Rohingya who arrived in Bangladesh during the reporting period told the Mission that they had fled due to their inability to register on the household lists.
98. Persons interviewed by the Mission reported that authorities were aggressive during the annual listing process and randomly removed individuals from the list, including those who were absent at the time when the officials went house to house to update the lists. Individuals not registered are at risk of arrest, detention and extortion. An interviewee from Buthidaung, who sought shelter in Bangladesh in early April 2019, stated:
BGP and immigration officers carried out an unannounced and sudden household inspection in early 2019. They removed the names of villagers who were absent. My family members were able to register but I could not, since I was not present when the officials carried out the inspection. I pleaded the village Administrator for help, which he refused. Following the removal of my name, I was risking arrest for staying in the village and had to flee Myanmar.
99. After the “clearance operations”, the BGP and the Committee for the Prevention of the Illegal Immigration of Foreigners, or Makapa, commenced a “household list” updating exercise in late 2018. Conducting population checks after the “clearance operations” had a particularly detrimental impact on the hundreds of thousands of Rohingya who were unable to return to their homes to be present for the checks. The Mission received accounts of inspection authorities deleting the names of Rohingya who had fled to Bangladesh following the August 2017 events.
100. One victim recounted to the Mission that the household list updating exercise in his village, that took place in February 2019, was accompanied by intimidation, coercion, arbitrary arrests, extortion, high unofficial fees and physical and sexual violence. Women were forced to remove their veils, which is culturally and religiously sensitive, and in many cases they were inappropriately touched and sexually harassed by male officials. The interviewee said officers also used insulting and derogatory language. In addition, each family had to pay between 3,000 and 5,000 Kyat (2 to 4 USD) to the registering officers as a bribe. Families had to be photographed carrying a card representing their serial number on the household list, for an additional fee of 5,000 Kyat (4 USD).
3. Conclusion and legal findings
101. Consistent with its 2018 report, the Mission concludes on reasonable grounds, and for the same reasons, that the Government of Myanmar continues to exceed its sovereign right to establish laws governing the acquisition, renunciation and loss of citizenship by violating the prohibition against discrimination and arbitrary deprivation of citizenship, including when it would result in statelessness. The Mission restates its position that the 1982 Citizenship Law is discriminatory, is inconsistent with Myanmar’s international human rights obligations and arbitrarily denies Rohingya the possibility of attaining full citizenship. As a result, the Rohingya are also denied access to basic services, including education, health care and livelihood opportunities, thereby depriving them of fundamental human rights.
102. The Mission also concludes on reasonable grounds that the Government is using the NVC process and its annual household list as tools to deny the Rohingya these rights. The Government uses NVCs to deny Rohingya their right to citizenship in exchange for false promises of an effective citizenship process and other fundamental human rights. The Government is using its annual household list process as a tool to limit the number of people who can apply for NVCs.
103. When used in this manner, the NVC process is as an integral part of the Government’s protracted attempts to deny the Rohingya their identity and citizenship. Authorities are holding hostage the fundamental human rights of Rohingya through the NVC process, with a policy of denying the Rohingya their universal human rights unless they accept the NVC. When Rohingya refused to accept the NVCs in August 2017, authorities used it as a pretext to uproot and remove them from Myanmar through mass forced displacement, death and destruction. For all these reasons, the Mission concludes on reasonable grounds that the NVCs are being used in this manner only against the Rohingya population and that the NVC process is incapable of serving the purposes that the Government claims. Instead, the NVC is a tool that undermines and distracts from the immediate and effective legislative and other reforms required to resolve the human rights crisis that the Rohingya are facing.
104. Authorities enflame the situation by carrying out the household listing in a manner that intentionally omits people from the list and, in doing so, puts them at risk of detention, extortion and denial of access to basic services, including healthcare, education or other essential administrative services, such as marriage and travel permits. Rohingya who arrived in Bangladesh during the reporting period told the Mission that they fled because the consequences of not being on the household list were so severe. The Mission therefore concludes on reasonable grounds that the manner in which the Government applies the household list further demonstrates the disingenuous nature of its claims that the NVC is a pathway to citizenship.
105. The Mission also concludes on reasonable grounds that Rohingya have a deep-rooted and well-founded distrust in the NVC process and that the Myanmar Government must implement effective guarantees to acknowledge or recognize the citizenship of Rohingya through a direct citizenship application process, with due process rights guaranteed. Such a process cannot be through the NVC procedures. Rather, the right to citizenship of Rohingya must be recognized in an amended Constitution and Citizenship Law. This will support the voluntary, safe, dignified and sustainable return of Rohingya refugees to Myanmar. Consideration should be given to enable Rohingya to apply for citizenship from Bangladesh and elsewhere.
106. To understand the full consequences of the Government’s 1982 Citizenship Law, NVC process and household lists for the Rohingya people, the Mission finds it appropriate to assess this issue in combination with its other findings and conclusions. As explained in greater detail in the report’s Conclusions and legal findings: the impossibility of return, the Mission concludes on reasonable grounds that the Government’s citizenship restrictions contribute to the continued persecution of the Rohingya people and deny them rights that result in serious or great inhumane suffering, both of which are crimes against humanity. The manner in which the Government restricts citizenship also denies Rohingya their identity and deprives them of the rights people need to survive and live with dignity. The Mission regards such restrictions and denials as one of several indicators that it has identified to infer that the Government continues to harbour genocidal intent and that the Rohingya remain under serious risk of genocide. Finally, the Mission concludes that citizenship restrictions contribute to an overall condition that makes it unsafe, unhumane, unsustainable and impossible for Rohingya to return to Myanmar.
B. Land clearance, destruction, confiscation and construction
107. The Government of Myanmar has made statements to the effect that it will restore peace and stability in Rakhine State in order to facilitate repatriation. However, the Mission has found that the conditions under which some 600,000 remaining Rohingya live in Rakhine State are such that do not allow for safe, dignified and sustainable repatriation. Indeed, the Mission found that the Government of Myanmar has not put in place the necessary conditions to allow the returning Rohingya population to return to their land.
108. In May 2019, the Experts of the Mission visited Konarpara, Zero Point Zone, on the Myanmar-Bangladesh border, where approximately 4,000 internally displaced Rohingya remain trapped, predominantly inside Myanmar territory, since September 2017. Immediately after their arrival at the Zero Point Zone, Myanmar authorities replaced an old border fence with concrete, steel and wire barriers. This was aimed at preventing the displaced Rohingya from returning to their homes and land. The displaced population explained to the Mission that they have been unable to return to their places of origin despite repeated requests and pleas to the Myanmar authorities.
109. In March 2018, Myanmar authorities through loudspeakers demanded that they leave the area. High-level Myanmar officials visited the area and spoke with the displaced population. Rohingya requested the visiting delegation to allow them to return to their places of origin. Their responses had always been that they would discuss the matter with authorities in Naypyidaw, the capital. However, to date, there has been no progress on their return. The population remains in a precarious situation with limited access to humanitarian support, with only the International Committee of the Red Cross (ICRC) providing humanitarian assistance to the displaced population.
110. New arrivals in Bangladesh, with whom the Mission spoke, paint a bleak picture of the reality on the ground in Rakhine. This section summarises these findings.
The Situation of the Internally Displaced
111. Myanmar has 128,000 internally displaced persons (IDPs) in central Rakhine who have been living in camps or camp-like settings for the past seven years. Some 126,000 of them are Rohingya; all of them are Muslims. About 80 per cent of the camp population are women and children. These camps were established following the 2012 violence, which resulted in the displacement of over 140,000 people. Most of them were Rohingya. During the violence, security forces committed serious human rights violations against Rohingya and Kaman and failed to intervene to stop the violence, leading the Mission to find that the violence was pre-planned and instigated and that the security forces acted in complicity with ethnic Rakhine.
112. The harsh living conditions to which the Government is subjecting Rohingya IDPs is additional evidence that the Rohingya are not welcome. It indicates what premature repatriation of Rohingya from camps in Bangladesh would look like.
113. When the camps were established, the Government asserted that they would not be permanent. The Mission’s 2018 report described the camps’ appalling conditions. Seven years on, in May 2019, the High Commissioner for Refugees, Filippo Grandi, raised concerns over restrictions on IDP freedom of movement and access to livelihoods. The United Nations Assistant Secretary-General for Humanitarian Affairs, Ursula Mueller, reaffirmed that same month that “After seven years of displacement, the conditions in camps have deteriorated and are simply unacceptable”. At the end of a three day visit to Myanmar, on 31 January 2019, the UNICEF Executive Director, Henrietta Fore, remarked that living conditions in one of the camps she visited in Rakhine State were “sub-optimal, stripping children of their dignity and exposing them to violence, exploitation, disease and neglect. Families were confined to the camps, depriving them of a livelihood and leaving their children malnourished.” The camp was designed as a temporary shelter but had been housing families for over six years.
114. In June 2018, the Government announced a strategic plan to close IDP camps in Rakhine, Kachin, Shan and Kayin States. However, over a year later, a few camps have been declared “closed” but Rohingya residing there continue to live in the same conditions, dependent on humanitarian assistance, due to a lack of access to sustainable livelihood opportunities and basic services, further entrenching segregation. The draft plan states that the objective of the camp closure strategy is “to ensure sustainable resettlement …. and to create livelihood opportunities…” as well as to “…proceed with resettlement arrangements in accordance with the will of those residing in the camps in order to enable the residents in those camps to become independent and resume their normal lives…” While the draft strategy is welcome, it is important for the authorities to hold meaningful consultations with the affected communities and to take on board any of their concerns in implementing it. It is essential for the strategy to be implemented in a way that ensures the human rights of the IDPs.
115. In a recommendation of the Rakhine Advisory Commission in 2017, the Government was called upon to ensure freedom of movement, access to education, health, livelihood and basic services to the IDPs. However, in declaring a few camps closed, the Government has focused only on infrastructure and shelter changes without addressing the fundamental issues identified by the Commission, such as freedom of movement and access to livelihoods and other services. Without these reforms, IDPs remain unable to achieve normal and sustainable living conditions and to access basic services such as education, health and livelihoods. The lack of access to basic services and livelihoods and the movement restrictions have only increased the reliance of IDPs on humanitarian assistance.
116. The human rights crisis that the Rohingya remaining in Rakhine state are facing is in large part due to the Government’s confiscation and re-appropriation of land they once lived on and cultivated. This is in addition to the Government’s clearance and destruction of Rohingya lands during its 2017 “clearance operations”. According to a UNOSAT assessment, from the start of the “clearance operations” that began in August 2017, up until April 2019, 214 Rohingya settlements were completely or almost completely (more than 90 per cent) destroyed and another 202 settlements were partially destroyed. UNOSAT estimates that 40,600 structures were destroyed in these 416 settlements.
117. The Government of Myanmar established the Union Enterprise for Humanitarian Assistance, Resettlement and Development in Rakhine (UEHRD) in response to widespread international condemnation of the August 2017 “clearance operations” in northern Rakhine State. The UEHRD is a public-private partnership for implementing government policy in Rakhine State. Its stated aims are to provide humanitarian assistance to violence-affected populations and facilitate the return of Rohingya refugees from Bangladesh. It has an Infrastructure Development and Construction task force for renovating buildings and undertaking new construction in partnership with private companies. The UEHRD is chaired by State Counsellor, Daw Aung San Suu Kyi, with the Union Minister for Social Welfare, Relief and Resettlement, Dr. Win Myat Aye, as vice chair.
118. As outlined under the UEHRD Action Plan, the Ministry of Construction leads village development and Regional and State governments, carry out village construction, as well as the Infrastructure Development and Construction task force and the Ministry of Construction, using UEHRD funds. Donations for building new homes for victims of conflict are also accepted from private individuals and local foundations. Available information indicates that the UEHRD has engaged crony companies for these construction projects and that these companies and their leaders, with enduring links to the Tatmadaw, are financing UEHRD development projects in northern Rakhine. In her keynote remarks to an investment fair sponsored by Japan in Rakhine State on 22 February 2019, State Counsellor, Daw Aung San Suu Kyi, said,
For too long the international community’s attention has been focused narrowly on negative aspects related to problems in north Rakhine rather than on the panoramic picture that shows the immense potential of this state for peace and prosperity.
119. The FAO and WFP also reported in July 2019 that the Ministry for the Progress of Border Areas and National Races (now the Ministry of Border Affairs) constructed new “model villages” to host relocated “Burmese and Arakan people” on confiscated land in northern Rakhine. These villages, the report concluded, were mostly concentrated around Maungdaw Township and “were part of a scheme to remodel the demographics of Northern Rakhine State”.
Deprivation of Rohingya-owned and cultivated land
120. The forced deportation of over 812,000 Rohingya from Maungdaw, Buthidaung and Rathedaung Townships in 2016 and 2017 has significantly depopulated northern Rakhine. Prior to the clearance operations, Rakhine State was home to 1.2 million Rohingya – with two thirds residing in Buthidaung, Maungdaw and Rathedaung Townships. There are now estimated to be 600,000 Rohingya left, of which 126,000 are IDPs and the remaining non-displaced population is scattered across 10 Townships in central and northern Rakhine. In a highly agrarian area, this has meant that large areas of agricultural land have been left unattended to and unharvested.
121. The Myanmar Government, including through the UEHRD, has adopted several measures that have resulted in the large-scale confiscation of land where Rohingya had lived and farmed and in the appropriation of profits from that land into the national budget, under Union Government policy. One measure has been the harvesting of untended rice paddies by government personnel, in collaboration with private sector companies, under the auspices of the UEHRD. According to an official statement from the UEHRD information and communications office, another measure has involved Agriculture Mechanisation Department personnel, including additional staff from Sagaing and Mandalay States, recording ownership of paddies, plot numbers and quantity harvested, so that any rice or profit could be returned to the “original owners”. However, according to the Rakhine State Chief Minister, the proceeds of sale of the harvest from 70,000 acres of rice paddies in Maungdaw Township will be transferred to the national budget. The Chief Minister was quoted as saying, “We don’t want the paddies to go to waste so we are doing our utmost to quickly reap them and plus this can contribute to the national budget as well. The money that we receive from sales of these crops will be used in this state’s development. We have already signed a contract with [a local buyer]… We are currently reaping the paddies in Rathedaung and southern Maungdaw, and we will eventually head towards Buthidaung. As per the contract, money from the sales of the paddies will be deposited in a bank account as part of the national budget. As to how the money will be utilised will depend on the policies and guidelines the Union Government puts forward.”
122. Prior to the 2016 and 2017 “clearance operations”, 80 per cent of the population of Maungdaw Township was Rohingya. In Rakhine State, 85 per cent of agricultural land under cultivation was used for rice paddy cultivation. The Myanmar Rice Federation and Myanmar Agribusiness Public Cooperation were involved in the harvesting of Rohingya owned and cultivated land in 2017 and 2018. The General Secretary of the Myanmar Rice Federation stated that, to assist the UEHRD, the Myanmar Rice Federation would provide harvesters and dryers to harvest 30 to 40,000 acres of rice paddies in Buthidaung and Maungdaw Townships “because farmers and owners left their places”.
123. Rohingya-owned and cultivated land was also confiscated in areas of northern Rakhine State where Rohingya remained. Rohingya farmers living in Ah Lel Chaung in Buthidaung described the situation as becoming increasingly difficult from around October 2017, when security forces began harvesting Rohingya fields to the west of the village and took the crops away in trucks. According to the Rakhine State Minister of Agriculture, Livestock, Forestry and Mining, the UEHRD oversaw the harvesting and sale of 45,000 acres of “ownerless Bengali land” in northern Rakhine State. A Rakhine State lawmaker was quoted as saying that farmland formerly owned and cultivated by Rohingya would be leased out to local ethnic [Rakhine] farmers and private rice-growing companies.
124. Recent amendments to the Vacant, Fallow and Virgin Lands Managament Act (VFV Law) increase greatly the insecurity of tenure Rohingya people have over the land they own and farm. Under the VFV Law as amended, anyone living on land categorized as “vacant, fallow, or virgin” must apply for a permit to continue using it. Failure to do this can result in harsh criminal sanctions, including imprisonment and fines. In May 2019, the Government announced that it would confiscate 19,000 acres (7,689 hectares) of land for not complying with the law. According to government estimates, “vacant, fallow or virgin” land totals more than 20 million hectares, 30 per cent of Myanmar’s land area. Seventy-five percent of this land is located in Myanmar’s most ethnically diverse states, as a result of the Government’s failure to recognize the ethnic groups’ traditional and informal documentation of land ownership. Rakhine State has one of the highest proportions of land categorized as “vacant, fallow or virgin”, amounting to 42 per cent of its land area. Under the VFV Law, Rohingya cannot apply for permits for their land as they are not recognized as members of a “national race”. This could result in the confiscation of the land owned by nearly one million forcibly displaced and deported Rohingya.
125. In 2019, seven Special Procedures mandate holders of the UN Human Rights Council expressed serious concerns that the law could result in the dispossession of land without adequate notice, loss of livelihoods and adequate food and that it could drive people into poverty. Combined with the Government’s other land access restrictions, the law will have a disproportionate impact on Rohingya.
126. The Mission received information from Rohingya directly affected by the Government’s land policies. This included accounts of the Tatmadaw and ethnic Rakhine confiscating Rohingya land for the construction of security bases or camps. In some cases, the Tatmadaw confiscated cultivatable lands that belong to Rohingya who fled Myanmar. In other instances, ethnic Rakhine forcibly occupied Rohingya lands. One interviewee described to the Mission how the military marked the land by placing a military flag - a sign indicating that the land had been confiscated. Some Rohingya told the Mission that they were no longer allowed to consume products from their own lands following the confiscation and that the land was used for the Tatmadaw’s own interests. One interviewee described how he and his brother were driven out of their house and how their house was destroyed and the site turned into a police base. An interviewee who was released from prison in early 2019 gave the following account:
After my release, I spent a couple of days in Buthidaung Township before I visited my village. As I arrived, I found the entire village demolished. The authorities were constructing a huge compound. It looked like a military compound or an IDP camp. The area was fenced and the compound was constructed on around 200 hectares of land. I saw huge bulldozers, vehicles and construction materials. The construction of the building was yet to begin. I couldn’t stay in the village for fear of arrest.
127. Satellite imagery confirms these types of accounts and that new construction is taking place, particularly in Maungdaw and Buthidaung Townships, on sites of Rohingya villages that were either burnt or abandoned around the time of the “clearance operations” in 2017.
128. UNOSAT identified destruction still occurring in northern Rakhine State after November 2018, mostly concentrated in central Maungdaw and Buthidaung Townships. Between November 2018 and May 2019, a total of 30 villages, including five new villages, across these two townships were destroyed, mostly by burning. These five villages are Yae Khat Chaung Gwa Son village, Yae Khat Chaung Gwa Son village tract, the three villages of Ka Nyin Tan, Doe Tan, and Na Khaung To, Ka Nyin Tan (a) Alel Than Kyaw Ka Nyin Tan village tract, Maungdaw Township and the village of Taung (Pale Taung), Nan Yar Kone village tract, in Buthidaung Township.
129. Demolition of a significant number of structures was also visible throughout the reporting period as was construction of new structures throughout the analysed area.
Image around the village tracts of (Pa) Nyaung Pin Gyi, Tha Yae Kone Tan, Zaw Ma Tet, Than Dar, and Ka Nyin Tan (a) Alel Than Kyaw Ka Nyin Tan, Maungdaw Township dated 10 April 2019 showing structures damaged by fire
130. In addition, UNOSAT detected four small cleared areas in Maungdaw Township: the first related to previous road improvement works 500 meters south of Khway Lar Bin Gar, Thi Ho Kyun village tract; the second affected a small damaged portion of the Tha Yae Kone Tan (North) village, Tha Yae Kone Tan village tract, possibly a small excavation site; the third in Myin Hlut Ywar Thit village, Myin Hlut village tract, potentially related to an enlargement of a recently constructed small security post; and the fourth at Zay Di, Kyauk Pan Du village tract, in a previously detected new construction site, with new buildings (on top of a damaged area) and possible security features constructed in the area.
Image of Zay Di, Kyauk Pan Du village tract dated 30 March 2019 showing terrain clearing, newly constructed features and previously damaged areas bulldozed in the area
131. Further damage has been identified mainly in three different areas: around Yin Ma Zay village, Nga Yant Chaung (a) Taung Bazar village tract, Buthidaung Township; in Dar Gyi Zar village, Dar Gyi Zar village tract, Maungdaw Township; in the village tracts of (Pa) Nyaung Pin Gyi, Tha Yae Kone Tan, Zaw Ma Tet and Than Dar, Maungdaw Township, affecting also three previously intact villages: Na Khaung To, Doe Tan and Ka Nyin Tan, Ka Nyin Tan (a) Alel Than Kyaw Ka Nyin Tan village tract. This last large affected area was almost completely destroyed in September 2017, and was mainly marked by freshly burnt fields and structures, with fire still visible in the images.
Image of damage within and around the village of Yin Ma Zay, Nga Yant Chaung (a) Taung Bazar village tract, Buthidaung Township, as of 29 April 2019
132. Construction of a considerable number of new single structures or very small groups of houses was also visible during the reporting period. New structures were also constructed in 3 village tracts which were destroyed previously, namely Shein Kar Li, Hla Poe Kaung village tract (Maungdaw), Gu Dar Pyin in Gu Dar Pyin village tract (Buthidaung) and Chein Khar Li in Koe Tan Kauk village tract (Rathedaung). Minor infrastructure construction was identified in Yae Myet Taung and Gaw Du Thar Ra (Ywar Thit Kay) in Maungdaw Township. In Gu Dar Pyin, in addition to the new houses, built in November 2018, more than 50 additional structures were built on the areas destroyed in September 2017. In the north between the villages of Hla Poe Kaung and Shein Kar Li, Maungadaw Township, a total of 120 structures were detected forming a possible reception centre planned in the area. This area is near the resettlement camp constructed by March 2018 over the bulldozed damaged area of the former Haw Ri Tu Lar village, Zin Paing Nyar village tract. In Chein Khar Li, a new site under construction was identified that would possibly accommodate 50 structures.
Image of new construction in Gu Dar Pyin village, Buthidaung Township as of 2 April 2019
Image of new structures north of the resettlement camp of Haw Ri Tu Lar village between 23 November 2018 and 8 April 2019
Image of Chein Khar Li (Ku Lar), Koe Tan Kauk village tract, Rathedaung Township as of 20 March 2019 showing new structures under construction in the village
133. UNOSAT identified further development in four village tracts including Aung Ba La village in Shwe Zar Kat Pa Kaung village tract, Maungdaw Township, Inn Din village tract in Maungdaw Township, Yin Ma Zay village in Nga Yant Chaung (a) Taung Bazar village tract, Buthidaung Township, and a security area in the northern Buthidaung region. In Aung Ba La a large new site appeared completed with 150 structures. In the small port area west of Ka Nyin Chaung village in Maungdaw Township, a small road network, a new bridge and a couple of additional features were under construction.
Image of Aung Ba La, Shwe Zar Kat Pa Kaung village tract, Maungdaw Township as of 8 April 2019 showing the completion of new structures near the village
134. In Inn Din village tract, a considerable number of structures appear to be under construction in addition to the new large structures at the security post that was initially visible as of March 2018 on damaged land. In Tha Ra Zaing, Aye Yar Cha village tract, Buthidaung Township, two artillery pieces and many possible missile transport trailers were visible near the large main central buildings of the security post.
Image of Inn Din village tract, Maungdaw Township showing additional security structures as of 19 April 2019
Image of northern Buthidaung Township showing new structures and two artillery pieces dated 29 April 2019
Image showing new structures, helicopters and artillery pieces at the security post near the village of Da Pyu Chaung, Da Pyu Chaung village tract as of 19 April 2019
135. Further expansion of security posts, constructed by March 2018, were identified in November 2018, including the ones at Let Thar village, Ah Lel Chaung village tract, Kan Kya (South) village in Myo Thu Gyi village tract and Inn Din village tract.
Image of continuous security post expansion works near the village of Let Thar, Ah Lel Chaung village tract, Buthidaung Township, as of 2 April 2019
Image of Kan Kya (South) village in Myo Thu Gyi Village Tract, Maungdaw Township showing newly constructed security features and those under construction as of 10 April 2019
136. Road construction is visible in the northern part of the major north-south road axis running from Myin Hlut Ywar Thit, Myin Hlut village tract, Maungdaw Township, to Ah Ngu Maw (Kone Tan), Ah Ngu Maw Kone Tan village tract, Rathedaung Township. A new road has been constructed between Ku Toet Seik village, Nan Yar Kone village tract, Buthidaung Township, located opposite the river east of Buthidaung Town, and Pyin Shey (Rakhine) village, Kyauk Taung (a) Pyin Shey village tract, Buthidaung Township.
137. UNOSAT also reported a steady increase in securitization after November 2018, including through building fences or trenches in and around existing posts. In a few places additional structures were built inside or around the posts. Other new apparent security features include single small lines of security fences constructed around small areas, some enclosing a few new buildings. Most of them were constructed close to populated places, like NaTaLas or Buddhist villages, distinguished by proximity to pagodas. In addition, excavation activities are visible in three places, including one between Gandamar (NaTaLa) village and Buthidaung prison, a second north of Kyauk Hla Pyin village, both in Let Wea Det Pyin Shey village tract, Buthidaung Town, and the last one between the villages of Baw Di Kone and DPA (Nyein Chan Ray), (Du) Chee Yar Tan village tract, Maungdaw Township.
Image of Myin Hlut showing excavation sites as of 20 March 2019
138. The Mission acknowledges reports that the Government is purportedly building new houses for Rohingya returnees but it received strong indications that these new constructions will be used to control and manage the Rohingya population in a manner that will not respect their rights and freedoms. It appears that they will remain segregated from other ethnic communities, as has been the case with the existing Rohingya IDP camps. A man who left Buthidaung said that, around July 2018, a group of military officials said at a meeting that the Government was building these camps, while at the same time telling villagers that “This is not your country. You are Bengali, Bangladeshi. You have to follow our order. Everything belong to us –even the cows, goats.”
By its own admission, in June 2019, the Government said that it would “take into consideration the distance to original villages” in relocating returnees and that it had only “identified 42 villages to be relocated whereby a total of 80,000 houses were expected to be constructed and that as of then, only 1,036 permanent houses had been completed, 618 permanent houses were under construction, and 27 permanent houses had been earmarked but not started yet”. These numbers alone speak to the impossibility of return for the close to one million displaced Rohingya people. There are also strong indications that the constructions on Rohingya land are not destined for the returning Rohingya, but for ethnic Rakhine and other Buddhists, in an effort to ethnically re-engineer northern Rakhine State.
Conclusions and legal findings
139. The Mission concludes on reasonable grounds that the Government undertook a concerted effort to clear and destroy and then confiscate and build on the lands from which it forcibly displaced hundreds of thousands of Rohingya. The consequences are two-fold. This government-led effort subjugates Rohingya to inhumane living conditions as IDPs and refugees by denying them access to their land, keeping them uprooted from their homes, depriving them of their to ability to progress in healthy and safe communities and preventing them from engaging in livelihood activities that sustain them as a people. The second consequence of the Government’s four-pronged approach of clearing, destroying, confiscating and building on land is that it is fundamentally altering the demographic landscape of the area by cementing the demographic re-engineering of Rakhine State that resulted from mass displacement. Much of this is being done under the guise of “development”, with a clear discourse emerging to this effect in the immediate aftermath of the August 2017 “clearance operations”.
140. The Government’s four-pronged land approach represents a total onslaught against the rights of the Rohingya, in particular their economic, social and cultural rights. To understand its full consequences, the Mission finds it appropriate to assess this issue in combination with its other findings and conclusions. As explained in greater detail in the report’s Conclusions and legal findings: the impossibility of return, the Mission concludes on reasonable grounds that land restrictions contribute to the Government’s continued persecution of the Rohingya people and result in serious or great inhumane mental or physical suffering, both of which are crimes against humanity. The manner in which the Government deprives Rohingya of land is one of several indicators that the Mission has identified to infer that the Government continues to harbour genocidal intent and that the Rohingya remain under serious risk of genocide. Finally, the Mission concludes on reasonable grounds that the Government’s severe land access restrictions contribute to an overall condition that makes it unsafe, inhumane, unsustainable and impossible for Rohingya who remain in Rakhine State and those who might be allowed to return to Myanmar. The current situation of IDPs is a testament to what awaits Rohingya who might return after having fled across the border.
1. Restrictions on movement
141. The Mission’s 2018 report documented government patterns and practices that severely affected freedom of movement through harassment, vehicle searches, interrogation, extortion, payment of bribes and physical abuse at security checkpoints. These restrictions have continued unabated with an increased degree of severity. The movement restrictions have been imposed more strictly through increased security patrols and increased numbers of security checkpoints across Rakhine State. The consistent requirement of a NVC or other travel documentation has led to arrests, detentions and harassment of the remaining Rohingya. Rohingya face movement restrictions when they want to travel inside their village tracts or to other tracts, Townships, or States.
142. The number of new Rohingya arrivals from Rakhine State to Bangladesh has seen a dramatic drop, especially since March 2019. Only 1,051 individuals have arrived in Bangladesh during the first seven months of 2019. The Mission found that this drop in arrivals has been partly due to the increase in movement restrictions, particularly the proliferation of security checkpoints, accompanied by increased documentation verifications across northern Rakhine State.
143. Restrictions on freedom of movement are affecting almost every aspect of the way of life of the Rohingya community. Some recent movement restrictions may be attributable to some extent to the continued conflict between the Tatmadaw and the Arakan Army (AA), discussed below. However, the evidence is that they are targeted specifically at the Rohingya and, predominantly, they are not merely collateral to the AA conflict.
Current restrictions on Rohingya freedom of movement
144. The Government currently restricts the freedom of movement of Rohingya through a combination of local orders, verbal instructions and security checkpoints, soldiers and patrols, which have the cumulative effect of confining them to their villages and camps. The Mission received numerous and consistent accounts that the authorities in Buthidaung Township, and in particular the Tatmadaw, issued verbal instructions and threats, restricting movement of Rohingya even between villages. For inter-township travel, Rohingya have to obtain authorisation (known as a “Form 4”), even though they do not fall into the category of either “foreigners” or “Bengali”. Travel authorisation usually restricts the travel to a prescribed validity period, generally one or two weeks. The process to obtain a travel authorisation is expensive and lengthy and involves cumbersome bureaucratic procedures. For travel between villages, Rohingya have to obtain a village departure certificate to travel outside their own village tract and in some cases even for traveling between villages within the same tract. Interviewees told the Mission that, for months following the August 2017 “clearance operations”, people could not venture out of their villages.
145. Rohingya who travel without the necessary documentation risk arrest and prosecution under section 188 of the Penal Code or the 1949 Residents of Myanmar Registration Act. The latter carries up to six months imprisonment for not producing a registration card when being checked. Section 188 of the Penal Code and the Residents Registration Act provide detention sentences of one month to two years for disobeying a public servant’s order. The Mission received information that many of the female prisoners in Buthidaung Prison were serving jail terms for violating the Government’s movement restrictions.
146. Rohingya who arrived in Bangladesh during the reporting period told the Mission of a notable increase in security checkpoints and presence of soldiers along the roads and waterways across Rakhine State. The increase in checkpoints was coupled with an increase in document-checking, as well as more severe punishment for those who failed to produce a village departure certificate and/or NVC. Rohingya passing through these checkpoints regularly encountered harassment, extortion, mistreatment, mocking and insults by security forces, sometimes regardless of travel authorisation. As one interviewee stated:
From Nga Kyin Tauk village to Buthidaung township (approximately 4 km distance), the authorities have established four additional checkpoints—one BGP and three Tatmadaw—making the total number of checkpoints nine: eight Tatmadaw and one BGP. These checkpoints carry out regular documentation checks and searches.
147. Authorities at checkpoints forced women to remove their veils; male officers searched their bodies and subjected them to sexual harassment.
148. On 2 April 2019, the Rakhine State administration issued a local order authorizing a curfew in the five ethnic Rakhine dominated townships of Kyauktaw, Ponnagyun, Minbya, Mrauk-U and Rathedaung. On 11 April 2019, authorities issued an order extending a curfew that had been in place since June 2012 in Maungdaw and Buthidaung Townships, from where the majority of the Rohingya refugees of 2016 and 2017 came. In 2014, Rakhine State authorities lifted curfews in central Rakhine but in practice, they remain in effect, impeding the ability of Rohingya to move during certain periods.
149. The Government justified the expansion of the curfew in the context of the continuing fighting between the AA and the Tatmadaw, However, the Mission has received no evidence of any link between the Rohingya and the AA. Rather the expansion of the curfew is part of the incremental tightening of restrictions on the Rohingya over the past eight years. These additional restrictions have exacerbated the already difficult living conditions for the Rohingya and they have been applied less strictly to non‐Rohingya communities.
150. While the official curfew applied to Maungdaw and Buthidaung Townships are from 10 pm to 5 am, the Mission found that the authorities do not allow people to be outside their homes between 6 pm and 6 am. Interviewees told the Mission that the Village Administrator repeatedly warned residents to observe the curfew strictly from dusk to dawn. Villagers have to abide by the instructions and return home by 6 pm. In many instances, the Mission found that Rohingya working outside on farms return home by 4 pm for fear of arrest, physical violence, extortion and even death. The curfew is adversely affecting live-saving services, including healthcare and livelihood activities, especially fishing at the peak night and early morning periods.
151. In addition, the curfew prohibits gatherings of more than four people at any time in mosques, schools, gardens, streets and other locations. The curfew has affected the ability of the Rohingya to perform congregational prayers in mosques, especially the Friday and Eid prayers, which have religious significance for Muslims, or attend burial prayer or funerals. Some interviewees had to seek prior authorisation from the authorities for weddings, burials or funerals, which is burdensome and costly and represents major obstacles for community life. Such restrictions serve to weaken communal harmony and reduce economic interaction. An interviewee told the Mission:
After the August 2017 events, the Village Administrator in a meeting announced that curfew should be observed from dusk until dawn and villagers are not allowed to move out of their villages. People are not permitted to get together, not even for prayer, congregation, funeral and burial. Security forces have been ordered to shoot anyone found in breach of these strict measures. These measures only apply to Muslims because they are involved in bad acts.
Consequences of the movement restrictions
152. The imposition of stringent movement restrictions has had severe adverse effects on access to basic services for Rohingya. The tightening of movement restrictions prevents Rohingya from accessing livelihood activities, such as fishing, collecting firewood and/or bamboo from the forest and cultivating land, and accessing life-saving health services, education and food. Due to obstacles to accessing livelihood opportunities as a result of the movement restrictions, supply of food has decreased with the resulting spike in food prices. Movement restrictions have increased the dependency of Rohingya on humanitarian assistance.
153. The inability to move freely has significantly obstructed access to education in Rakhine State, which already has one of the lowest primary and secondary enrolment rates in the country, as well as among the lowest adult literacy rates. In most areas, schools remain closed. Where schools are open, children cannot travel or the school administration does not allow Rohingya children to enrol. Movement restrictions also made access to education beyond primary school for internally displaced Rohingya impossible. According to reliable sources, only 892 Muslim students were enrolled in two high schools across the State in 2018.
154. The continued movement restrictions also have a detrimental impact on the health of the Rohingya. For instance, people are unable to access life-saving treatment in areas of northern Rakhine in particular, where there is a lack of functioning health facilities at the village level, forcing residents to rely on traditional healers or to self-medicate. Pregnant women are forced to deliver babies with traditional birth attendees, often in unsafe and unhygienic places, due to movement restrictions and high hospital charges, leaving infants and mothers at risk of death and at times unable to have births registered. Newborns are at risk of being excluded from household lists and so of statelessness. This has exacerbated the already precarious health situation for Rohingya, where the maternal mortality rate is higher than in the rest of the country.
155. Fear of attack by members of the ethnic Rakhine community also drives Rohingya to restrict their own movement, opting not to move out of their villages or beyond a certain radius from their village. The fear arises from the involvement of members of the ethnic Rakhine community in the violence in 2012 and in the Tatmadaw’s “clearance operations” against the Rohingya in 2016 and 2017, the Government’s failure to hold those individuals accountable, and new instances of attacks and hostilities. Rohingya live in constant fear and do not know when or where they will be attacked and what will happen to them. An interviewee, who arrived in Malaysia in January 2019, told the Mission:
Residents from the village were afraid of ethnic Rakhine. They were scared to go outside for fear of attacks by ethnic Rakhine following the August 2017 events. They feared that, if they go out, the ethnic Rakhine were going to kill them. The ethnic Rakhine attacked and beat my uncle and cousin when they went for fishing. Their faces were bleeding.
2. Access to livelihoods
156. Since the “clearance operations” began on 25 August 2017, the Government has severely restricted access to food for Rohingya in Rakhine State, triggering heightened risk of food insecurity with related consequences on health. This lack of access is another major factor Rohingya cite for fleeing from northern Rakhine State to Bangladesh. Food insecurity is being caused by Government laws and policies, including stringent restrictions on movement and the Tatmadaw’s use of Rohingya land that prevents them from farming and related activities, both discussed above. This has resulted in significantly higher food prices. The Government’s restrictions on access for humanitarian actors are exacerbating the situation.
157. Food insecurity is particularly threatening to Rohingya. The Rohingya community has traditionally provided food for themselves and their families, including farming, especially rice, fishing, livestock rearing and collecting firewood and bamboo from the forest.
158. The 2017 “clearance operations” had such a devastating impact on the food security in Rakhine State that the United Nations human rights mechanisms had to intervene on several occasions. In 2017 the Special Procedures mandate-holders of the Human Rights Council issued communications to the Government expressing concerns about the deterioration of food security in northern Rakhine. In 2019 the Committee on the Elimination of Discrimination against Women concluded that:
The estimated 600,000 Rohingya remaining in Northern Rakhine State after the security ‘clearance operations’ of 2016 and 2017, are reportedly experiencing conditions of forced starvation, with security forces denying access to the remaining rice fields and markets.
159. In 2018 the Food and Agriculture Organization (FAO) and the World Food Programme (WFP) conducted a food and agriculture assessment in Rakhine State at the request of the Myanmar Government. The assessment found that the the food security situation was “precarious” in the northern part of the State, notably in Maungdaw Township. There were fewer supplies than normal, accompanied by a spike in food prices and restrictive diets with increased risk of nutritional deterioration in pregnant, nursing women and young children. The assessment found that violence in northern Rakhine exacerbated food insecurity in what historically has been one of the “most vulnerable and chronically food-insecure areas in the country”. The assessment explains, “food assistance is an essential component of people’s diet”. The 2019 Humanitarian Needs Overview prepared by Myanmar’s Humanitarian Country Team, consisting of the United Nations and its partners, estimated that 715,000 people in Rakhine State are in need of humanitarian assistance, including 128,000 IDPs, 470,000 non-displaced “stateless” people and 117,000 other vulnerable crisis-affected people.
160. The Mission recognizes that seasonal patterns and natural conditions may at times adversely influence food security in Rakhine State. However, government-caused factors, in particular the movement restrictions exacerbated by the lack of humanitarian access, are the main causes of the current food insecurity. Numerous interviewees from northern Rakhine reported to the Mission that people are running out of food stocks and are unable to produce or purchase supplies, because of the movement restrictions. As described below, some of these restrictions may be due to the conflict this year between the AA and the Tatmadaw. In an effort to “wipe out the insurgents”, an order dated 12 April 2019 by the Kyauktaw Township administration, for instance, provides that, in “townships in Rakhine State, any transfer of rice, food supplies, and medicines from one place to another, within the township, from one township to another, or via trade route or waterway, can only be carried out after having been inspected by the Township Police and with a letter of permission”. In the Mission’s view, the conflict between the Tatmadaw and the AA is not however the main driver of food deprivation and insecurity.
Harassment by the Tatmadaw and ethnic Rakhine
161. The Mission found that the security forces and members of ethnic Rakhine communities routinely visit Rohingya villages to confiscate food, including crops and even humanitarian aid. In some instances, members of the ethnic Rakhine community have sold the stolen materials on the market.
162. An interviewee from Buthidaung Township explained how “the army would often come to the village, search houses for food and steal anything they could find”. The interviewee recounted how this, as well as other causes of food shortages, forced people to limit and share food for survival: Of the 500 households in my village tract, only a handful remained. Living conditions were difficult and people were surviving from sharing food. We would eat only when we had to. Residents ran out of food and consumed their food stocks.
163. The Tatmadaw and ethnic Rakhine villagers also denied Rohingya people food by deliberately killing or confiscating livestock, including cattle, goats and chickens, without permission or payment, depriving Rohingya both of food and of income-generating opportunities. The military would hunt chickens with slingshots and confiscate cattle for failure to pay bribes. This was in addition to the requirement for Rohingya to register their cattle, sheep, goats, chicken and other animals with the authorities. The requirement to report and register new livestock was accompanied by extortion, confiscation of cattle or financial penalties.
164. Food insecurity is made worse in northern Rakhine State by military and members of the ethnic Rakhine communities raiding or confiscating Rohingya-owned and cultivated lands. The military also reportedly leases out farmlands, formerly owned and cultivated by Rohingya, to local members of the ethnic Rakhine communities. In some cases, according to interviewees, the military confiscated land for personal economic benefit and made Rohingya cultivate and harvest the crops without compensation. An interviewee who fled Buthidaung Township in late 2018 stated:
Military, police and members of ethnic Rakhine constantly came to the village and looted everything including food items. The military took away my seven cows that I was grassing in the hillside. I cultivated rice in my land, when it was ready for harvesting; members of ethnic Rakhine snatched the harvest. I was left with nothing except two goats, which I had to offer to the military for my release, as I was unable to pay them 100,000 Kyat. I was arrested at my home and after beating, they demanded 100,000 Kyat.
165. In some areas, the military ordered villagers not to cultivate their lands. A Rohingya from Buthidaung Township told the Mission that Rohingya cannot cultivate their lands and that access to food production activities worsened after the Government’s 2017 “clearance operations” explaining:
The military and ethnic Rakhine occupied most of our lands and residents were ordered not to cultivate their lands…residents were starving and were on the brink of famine.. Rohingya were treated worse than slaves and had control over nothing. They did not have control over their lives, livelihood, property or cattle.
Restrictions to access to markets
166. Rohingya businesses suffered serious losses during and after the 2017 “clearance operations”. In Maungdaw, many markets were either burnt or closed. The few businesses that remain open are at risk of closure due to the loss of customers and reduced supplies. This has also contributed to a spike in food prices. Interviewees told the Mission that food prices have increased many times over. One interviewee said that the price of 1 kg of potatoes has increased by one hundred-fold in price, from 50 or 60 kyats (0.035 USD or 0.042 USD) to 5,000 kyats (4 USD). He said, “As we were starving, I decided to leave”.
Restrictions on humanitarian access
167. Government-imposed access restrictions on domestic and international humanitarian organizations are interrupting life-saving assistance to Rohingya communities in need. These organizations provide support for health and nutrition, education, water and sanitation, and food security. As found in the Mission’s 2018 report, the Government suspended or severely restricted humanitarian access to Maungdaw, Buthidaung and Rathedaung Townships after the 2012 violence, further tightened them in June and July 2017, and also did so after the clearance operations in 2016 and 2017. The restrictions left the population without critical lifesaving assistance, including access to food and health services. As discussed in more detail below, humanitarian access to northern Rakhine has been further curtailed following the escalation in violence in 2019 between the AA and the Tatmadaw, leaving the population in need of support and assistance.
168. The only international humanitarian organisations permitted access are the World Food Programme (WFP) and the International Committee of the Red Cross (ICRC) and their access is unpredictable and arbitrary. When access is granted, they are hindered by restrictive procedures, including the short validity of travel authorisations and the requirement to provide detailed information on staff, places and dates of visits. As of April 2019, only 25 per cent of national staff were authorised to carry out operations and, with exception of food assistance, other life-saving programmes outside urban centres were suspended.
169. On 10 January 2019, the Rakhine State Government introduced new access restrictions in five townships, Kyauktaw, Ponnagyun, Buthidaung, Maungdaw and Rathedaung, citing security concerns. WFP and ICRC were exempted from these restrictions but their operations were strictly limited to food distribution. Other activities, including livelihood activities, agricultural support and other development efforts, which were not directly affected by security concerns, were suspended. With the exception of food assistance, other life-saving programmes outside urban centres remain either suspended or subject to unpredictable interruptions. At least 95,000 people, who were directly or indirectly benefiting from humanitarian and development support, were no longer able to access a number of basic services, including healthcare, education and clean water. These newly imposed restrictions are in contrast to the recommendations of the Advisory Commission on Rakhine State that called for full and unimpeded humanitarian access.
170. Many interviewees told the Mission that the distribution of aid was not regular or the quantity of aid was not adequate, or both. The process was marred by irregularities and discrimination. In one instance, an interviewee said that the Village Administrator, a non-Rohingya, collected money from villagers in return for the aid. The Mission also received credible reports that security forces took relief materials. Non-Rohingya Village Administrators, who receive aid from humanitarian organizations for distribution to the Rohingya communities, gave preference to ethnic Rakhine over Rohingya. Some interviewees said that ethnic Rakhine would get double the quantity. A man from Buthidaung Township, who sought shelter in Bangladesh in March 2019, explained to the Mission:
Distribution of humanitarian aid was not regular. The amount of relief materials was not sufficient for a family. Sometimes, villagers would receive aid once a month and sometimes once every 2 or 3 months. Survival became very difficult.
3. Conclusions and legal findings
171. The International Covenant on Economic, Social and Cultural Rights (ICESCR) became binding on Myanmar in January 2018. It places obligations on States to recognize and ensure the right to an adequate standard of living, including adequate food, and the highest attainable standard of health. The Convention on the Rights of the Child (CRC), to which Myanmar is also party, provides similar obligations towards children specifically. The Government’s movement restrictions, deprivation of food and denial of humanitarian relief are all having severe effects on the right to food and health of Rohingya.
172. The Mission concludes on reasonable grounds that the Government’s movement restrictions, deprivation of food, restrictions on land use and denials of humanitarian relief all constitute retrogressive measures that violate its obligations under ICESCR and CRC. The Government’s retrogressive measures deny Rohingya access to food and put their health and lives at risk. It is inconceivable that the Government is unaware of these consequences. The Mission also concludes on reasonable grounds that Government-imposed movement, humanitarian and food access restrictions disproportionately affected the Rohingya population due to the Rohingya’s particularly vulnerable status after the 2016 and 2017 “clearance operations” and the Government’s overall discriminatory treatment of them. The Mission also found that the movement restrictions imposed disproportionately severe penalties.
173. The Government sought to justify the further tightening of restrictions in 2019 as a necessary response to the conflict between the Tatmadaw and the AA. Its 12 April 2019 local order was to stop “the flow of rice and food supplies, medicines and medical supplies, required for the insurgents’ long-term livelihood”. If that was the basis of the restrictions, the applicable rules of international humanitarian law would apply that may under certain circumstances justify the restrictions on the basis that they are necessary to deprive the AA of supplies.
174. The Mission finds, however, that in the majority of cases it documented, the Government’s imposition of movement restrictions, deprivation of food and denials of humanitarian relief are not directly connected with the Tatmadaw’s conflict with the AA. The Government used movement restrictions and deprived Rohingya of food and humanitarian relief in many different ways and did so long before the conflict between the Tatmadaw and AA intensified in January 2019. Additionally, accounts that the Mission received that relief supplies were distributed in favour of ethnic Rakhine over Rohingya indicate that these restrictions were not done in response to the conflict with the AA. In most cases, the AA would have relied on ethnic Rakhine communities for food. Finally, in instances where the Tatmadaw may have denied Rohingya food either by the theft or destruction of food supplies or by the deprivation of farm land, with the purpose of depriving the AA of food, the anticipated civilian deaths or injuries, including malnutrition, must be assessed under the principle of proportionality under international humanitarian law.
175. To understand the full consequences that Rohingya suffer from the Government’s movement restrictions, deprivation of food and denial of humanitarian relief in Rakhine State, the Mission finds it appropriate to assess this issue in combination with its other findings and conclusions. As explained in the report’s Conclusions and legal findings: the impossibility of return, the Mission concludes on reasonable grounds that these restrictions, deprivations and denials contribute to the Government’s continued persecution of the Rohingya people and result in serious or great inhumane suffering, both of which are crimes against humanity. Finally, the manner in which the Government imposes its movement restrictions, deprivation of food and denial of humanitarian relief is one of several indicators that the Mission has identified to infer that the Government continues to harbour genocidal intent and that the Rohingya remain under serious risk of genocide. Finally, the Mission concludes on reasonable grounds that the Government’s food restrictions contribute to an overall condition that makes it unsafe, inhumane, unsuitable and impossible for Rohingya to return to their homes and lands.
D. Security and safety
176. Against the backdrop of legal and physical restrictions on the remaining Rohingya population in Rakhine State, there also continue to be serious concerns about their safety and security.
177. During 2019, concerns for the safety and security of the Rohingya in northern Rakhine State have arisen from the conflict between the Tatmadaw and the AA. That conflict does not involve the Rohingya directly but, because it is most intense in northern Rakhine State, it has had some effect on those Rohingya who remain there and it poses increasing dangers. As discussed below, clashes between the AA and the Tatmadaw have intensified since October 2018 and the new spate of attacks in early 2019 marked a significant escalation in hostilities, bringing the conflict into northern Rakhine State on a large scale for the first time. The conflict has affected nine townships, including Maungdaw, Buthidaung and Rathedaung Townships. The AA has stated that they are only in conflict with the Tatmadaw and its operations are not directed at the Rohingya. However, some Rohingya have been affected. One interviewee gave the following account to the Mission:
The fighting between the AA and the Tatmadaw has started in my area two months back. All villagers are very afraid of the current situation, even they are afraid to talk about the situation. One day a bomb was dropped on my village. During the time, I was at home. I heard the sound of bombing and, later on, I went to see the place where the bomb was dropped. I saw that one Muslim house and one mogh house were burnt to the ground. These houses were next to each other. Another bomb was dropped on the school. The school was destroyed. The bomb was fired from the hill at the east side. As they dropped bomb once, there is a high possibility that it would happen again. I am afraid of bombing. That’s why I left.
178. Interviewees reported that early in the conflict, the Tatmadaw warned Rohingya not to provide support to the AA and to inform the Tatmadaw if they observed any AA movements in and around the villages. The Mission received accounts of the arrest of Rohingya in Buthidaung Township on the suspicion of providing support to the AA. The use of helicopters by the Tatmadaw in recent attacks has also increased the level of fear among the local Rohingya population.
179. The Mission heard accounts that the Tatmadaw and BGP have increased patrolling, including in the forest areas where Rohingya often go to collect firewood or cut bamboo. In a village in Buthidaung Township, the Village Administrator warned Rohingya to limit their movement within the village because the military had received orders to kill anyone found in violation of these new restrictions.
180. The Mission reiterates its view that the Government’s actions targeting the Rohingya are not directly connected with the Tatmadaw’s conflict with the AA. The security situation in northern Rakhine State has deteriorated as a result of the conflict but the Mission does not consider that the conflict is the basis of the Government’s continued persecution of the Rohingya.
E. Forced or compulsory labour
181. In its 2018 report, the Mission documented a consistent pattern of the Tatmadaw using both Rohingya and ethnic Rakhine men, women and children for forced or compulsory labour. Since its 2018 report, the Mission found that the use of Rohingya as forced labour continues and has possibly increased. This trend may be related to the conflict between the Tatmadaw and the AA in northern Rakhine. There seems to have been a marked decrease in the use of ethnic Rakhine for forced labour, possibly because the Tatmadaw mistrusts Rakhine labourers.
182. Rohingya arrivals in Bangladesh in late 2018 and 2019, mostly men and boys, cited forced labour as a contributing factor for fleeing northern Rakhine State. The Mission documented patterns, similar to those outlined in its 2018 report, of the Tatmadaw physically taking a person when they passed thorough the village, or asking the village head to provide specific number of villagers for a certain period of time without any prior notice or consultation. The duration of forced labour varied but for most victims it lasted for a period of weeks. In some cases, the same person was forced to labour on several occasions. One victim from Buthidaung told the Mission that he was made to work in construction sites of new camps, six to seven times. He was beaten with sticks and slapped by the soldiers and it was only after his relatives paid the Tatmadaw 90,000 Kyat (approx. 60 USD) that he was released. However, he was again forced to labour after that. Often victims were left hungry due to insufficient and poor quality food provided.
Forced labour in the construction of camps, security checkpoints and prisons
183. The Mission previously documented forced labour that included portering, farming, maintenance of security camps, clearing of land for military bases, village guard duty and construction work for the Tatmadaw. During 2019 the Mission observed a new trend of the Tatmadaw forcing Rohingya to work on the construction of new camps that interviewees said were destined for Rohingya IDPs or returnees.
184. The interviewees said that, while deprived of their liberty as forced labourers some had to arrange their own food, did not have access to water, were kept in inadequate accommodation, were deprived of sleep and were subjected to violence if they resisted, worked slowly or rested. The Tatmadaw also extorted money from forced labourers. In one case, a victim witnessed the Tatmadaw kill a fellow Rohingya forced labourer. He died as a result of severe beating.
185. Another interviewee told the Mission that, in December 2018, her cousin had been raped and killed by the Tatmadaw in retaliation for her brother refusing to do “night duty”. One interviewee explained how in late 2018 he was severely beaten with the butt of a rifle by the Tatmadaw and then forced to carry heavy materials on his wounded shoulder. Another explained that in July/August 2018:
I had to hide in my house when the military came searching for men. They found me and took me forcibly to their base, kept me for 3 days where I was severely beaten with a bamboo stick, was kicked with the boots. I was not given any food during the time. I still carry marks of the beatings. My relatives had to pay 90,000 Kyat (60 USD) to the military for my release.”
186. The Mission corroborated forced labour cases from Maungdaw and Buthidaung Townships, although it is likely that Rohingya in Rathedaung Township have also been subjected to forced labour.
187. The Mission received consistent accounts of individuals being forced to work at the new camp construction site in Thein Taung (Ah Twin Hnget Thay), Buthidaung Township. A victim from Buthidaung Township told the Mission with respect to an incident that occurred in late 2018:
I had to flee Myanmar to avoid working in the camp that the Tatmadaw was building for the Rohingya. The military asked the head of my village for 300-400 individuals. I was amongst those selected. I served with them 6 to 7 times in the new camp construction sites. The first round ran for up to six days. I made bamboo partitions, dug lands and assisted with other construction related work. We were not provided food and had to sleep on bare floor at night
188. Interviewees also reported that Rohingya villagers were forced by the Tatmadaw to guard military bases and villages at night against possible attacks by the AA. A victim from Buthidaung Township told the Mission that every day in the early evening in February 2019, Tatmadaw soldiers would come to the village and pick around 100 persons to guard their base during the night, which was located on top of a hill. These individuals, he said, had to sit or stand 10 to15 meters away and they were not allowed to rest, sleep, talk or move away from their designated locations. He recounted how those who the military found resting or sleeping were subjected to beatings. He said that once
The military found me asleep, they beat me so badly that I could hardly move. I served for 18 consecutive nights without any break, which was overwhelming and took a heavy toll on me. I couldn’t bear it further and had to flee Myanmar.
189. Interviewees reported that they had heard that Rohingya would be engaged in the new camp construction sites in Gu Dar Pyin village in Buthidaung Township.
190. The Mission also received accounts of Rohingya prisoners being subjected to physical abuse, including beatings, while being compelled to work. Interviewees repeatedly referred to Buthidaung Prison, where prisoners were forced to work in brick kilns or farms to produce food for either the prison officials or the Tatmadaw. Prisoners were forced to work in two shifts from 8 am to 12 pm and from 2 pm to 5 pm without compensation. Ethnic Rakhine were exempted from this labour. Prison officials and ethnic Rakhine, who were appointed to be in charge of Rohingya prisoners, subjected them to physical abuse and violence, including beatings, if they became slow in their work. In some cases, prisoners were taken to military compounds, where they were forced to construct buildings, clean and perform other heavy labour. One interviewee provided the following account:
I used to be a road construction worker for 10 years. I witnessed Rohingya prisoners forced to work in the paddy fields and brickfields located adjacent to the jail. Sometimes Rohingya prisoners were taken to the forest for collecting or cutting firewood or to the waterfall side to collect rocks for the construction of roads. Prison officials used to bring prisoners in a group of 25-30. Moghs and the police used to guard them. Moghs and police carried sticks in their hands and would often beat prisoners for slowing down.
Conclusions and legal findings
191. Consistent with the Mission’s legal assessment in its 2018 report, the Tatmadaw continued to engage in the practice of forced or compulsory labour contrary to its international legal obligations. Additionally, the Tatmadaw’s beatings of forced labourers and labourers forced to work in prisons resulted in a severity of pain or suffering that amounts to cruel, inhuman or degrading treatment under international human rights law. In many cases, this pain was inflicted as a means of punishment and therefore constituted torture.
192. The Mission also assesses that many of the cases of forced labour it documented had a sufficient nexus to the armed conflict between the Tatmadaw and the AA to amount to violations under international humanitarian law. This includes the Tatmadaw exposing forced labourers to the dangers of armed conflict, such as forcing them to perform guard duty at military bases, which violates the rule that parties to a conflict must take all feasible precautions to protect civilians under their control against the effects of attacks. The Mission also concludes on reasonable grounds that it documented cases that constitute war crimes of torture, cruel treatment for the infliction of severe physical or mental pain or suffering it caused or as outrages upon human dignity for the severity of the humiliation or degradation. All these violations of international human rigths law and international humanitarian law must be effectively investigated.
193. In addition to its obligations under international law, Myanmar’s Penal Code and the Ward or Village Tract Administration Act adopted in 2012 punish forced labour as a criminal offence. However, authorities have not adequately enforced the law. Adding to impunity, Article 359 of the Constitution, which exempts from the prohibition of forced labour “duties assigned by the Union in accordance with the law in the interest of the public” could be interpreted to exempt the military from the forced labour prohibition. According to the International Labour Organization’s Committee on the Application of Standards, Tatmadaw soldiers involved in forced labour have only faced internal disciplinary action, with the exception of one person who the Committee reported was punished under section 374 of the Penal Code.
194. Similar to the Mission’s other findings, the Mission also concludes on reasonable grounds that the Government’s use of forced labour and its unwillingness to address its regular use contribute to an overall condition that makes it unsuitable and unsafe, inhumane, unsustainable and impossible for Rohingya to return to Myanmar.
F. The repatriation process
195. In the aftermath of the “clearance operations” that began on 25 August 2017, the official rhetoric of the Government of Myanmar has been to pursue the repatriation of 912,852 Rohingya refugees, 55 per cent of them children, most of whom were forcibly deported during the 2016 and 2017 “clearance operations”. They include 743,016 refugees who have arrived in Bangladesh since the August 2017 violence. On 23 November 2017, only months after the mass exodus of the Rohingya, the Governments of Myanmar and Bangladesh signed a Memorandum of Understanding (MoU) as a preliminary step to begin the repatriation process. A Joint Working Group on repatriation (JWG) was established, consisting of officials from the two Governments pursuant to the MoU. At the time of writing it had held four rounds of meetings with no breakthrough regarding the question of repatriation.
196. In April 2018 Bangladesh and UNHCR signed another MoU that establishes a bilateral cooperation framework for the voluntary, safe and dignified repatriation of Rohingya refugees to Myanmar. A verification team was set up to consolidate a unified database for purposes of protection, identity management, documentation, provision of assistance, population statistics and ultimately to find solutions for almost one million refugees.
197. A separate tripartite MoU was signed by the Government of Myanmar, the United Nations Development Programme (UNDP) and the United Nations High Commissioner for Refugees (UNHCR) in June 2018. It was renewed on 28 May 2019. The MoU has not been officially released but is widely publicly available. It appears to require the Government of Myanmar to work towards a durable solution for the displaced from Rakhine and to ensure that they are able to return to their own households and original places of residence, or to a safe and secure place nearest to it of their choice, based on their well-informed decision.
198. Under the MoU between the Government of Myanmar, UNHCR and UNDP, the two UN agencies have begun implementing “quick impact projects”, but access restrictions on UN agencies remain in place. Following the signing of the MOU, after months of delay, UNHCR and UNDP were allowed to carry out two initial assessments in Rakhine State between September and December 2018, which were limited in scope and in the locations visited, prompting the agencies to call on the Government of Myanmar for effective access to Rakhine State. Further access restrictions were imposed following the recent escalation of the conflict between the Tatmadaw and the AA in Rakhine State. They have impeded the implementation and effectiveness of these “quick impact projects”. In March 2019, after almost three months during which activities were suspended, the Government issued a four-week authorisation to UNDP and UNHCR to start the implementation of the “quick impact projects” in Maungdaw and Buthidaung.
199. Alongside these repatriation discussions, Myanmar has said it has undertaken repatriation-related development and infrastructural projects in Rakhine, in particular the establishment of reception and transit centres to receive returnees. It has also said it has identified possible pilot sites for returning refugees to live. The Mission is not aware of any independent inspection carried out by humanitarian agencies to ascertain the suitability of the designated sites.
200. In June 2019, ASEAN’s Emergency Response and Action Team (ERAT) was permitted to visit Rakhine State. It produced a “preliminary needs assessment to assess the readiness of Reception and Transit Centres, including potential relocation sites that have been identified by the Government of Myanmar”. However, the report noted that whether or not conditions were in place for return was “beyond the scope” of the assessment. Notwithstanding, the assessment noted that, based on current capacity, the repatriation process can only be completed in six years for a total number of 500,000 displaced persons. The media has reported that the Government has also received bilateral assistance from China and India, including prefabricated housing units for Rohingya returnees.
201. At the time of writing, Rohingya refugees were not voluntarily returning from Bangladesh to Rakhine State. The Mission found that the overwhelming majority of Rohingya refugees in Bangladesh have no confidence in the Myanmar Government’s ability to guarantee their voluntary, safe, dignified and sustainable return. Refugees in Bangladesh repeatedly expressed their desire and willingness to return to their homes only if certain conditions are met. Refugees know that conditions are not conducive for return owing to the precarious situation of the remaining Rohingya, including denial of citizenship, the lack of access to livelihood opportunities, fear of arbitrary arrest, movement restrictions, the Myanmar authorities’ failure to implement confidence-building measures inside Rakhine and conflict between the Tatmadaw and the AA. They have also demanded equal rights and freedoms, recognition as an ethnic group, freedom of movement and guarantees of citizenship as minimum preconditions for their return.
1. Historical factors
202. Any assessment of whether the human rights conditions are conducive for return must proceed on the basis of recognition that this is not the first time Myanmar has driven large numbers of Rohingya off their lands and into Bangladesh. On the contrary, over the past sixty years there have been repeated periods of extreme violence against the Rohingya in Rakhine State leading to their displacement, indicating the Myanmar Government’s deeply rooted antagonism towards them. In the span of five years from 2012 and 2016, an estimated 168,500 Rohingya fled Myanmar as a result of violence and desperation.
203. Bangladesh has hosted Rohingya refugees on each of these occasions in the past. However, each repatriation process has been tainted by reports of involuntary repatriation of Rohingya refugees to unsafe conditions, marred by coercion and violence, to ensure their return to Myanmar. They were returned to the same conditions as they fled and so subsequent displacement back into Bangladesh followed.
204. For example, in 1977, due to military operations in Rakhine State, some 200,000 Rohingya fled to Bangladesh. A bilateral repatriation agreement was signed on 9 July 1978 in Dhaka. The agreement did not have a provision for voluntary return and Myanmar made no commitment in the agreement to guarantee the rights and freedom of returnees. Refugees objected to their repatriation, arguing that conditions were not conducive for return. Bangladeshi security forces reportedly intimidated the refugees, including by restricting food supplies. Médecins Sans Frontières estimated that some 10,000 refugees died from hunger and malnutrition in Bangladesh. Despite the conditions not being safe for return of refugees, over 190,000 refugees were forced back to Myanmar at the end of 1979.
205. The two Governments signed another repatriation agreement following the departure of over 260,000 Rohingya from Myanmar to Bangladesh in 1992, following reports of extra-judicial killings, torture, rape and other violations against the Rohingya population in Rakhine. The two Governments committed to making the repatriation safe, voluntary and dignified. Once again, however, coercive tactics were reported by human rights organizations who documented Bangladesh government forces beating and intimidating refugees into returning to Myanmar.
2. Current repatriation efforts
206. In October 2018, in an announcement reminiscent of past statements leading to premature repatriation, following the third meeting of the Joint Working Group on repatriation, Bangladesh and Myanmar announced that the repatriation of refugees would start by mid-November 2018. A total of 485 families consisting of over 2,000 people were identified for the repatriation.
207. On 13 and 14 November 2018, at the request of the Government of Bangladesh, UNHCR undertook an “assessment of voluntary return intentions of refugees”. The assessment was conducted with the families approved for return by Myanmar. UNHCR concluded that none of the refugees consulted expressed willingness to return to Myanmar. UNHCR, OHCHR and the Special Rapporteur on the human rights situation in Myanmar also noted that conditions were not conducive for the voluntary, safe and dignified return of refugees to Rakhine State, warning that the return could put the lives and freedoms of returnees at serious risk. In an extreme demonstration of their resistance to forced repatriation, several refugees threatened suicide and two elderly men attempted to take their life. Additionally, most of the individuals who Myanmar identified as potential returnees reportedly went into hiding. Rohingya refugees in Cox’s Bazar also held a demonstration opposing the planned repatriation, chanting “We won't go back”. Bangladesh decided to halt the repatriation programme, emphasising that it was committed to the principle of non-refoulement and voluntary repatriation.
208. The fourth meeting of the Joint Working Group on repatriation took place in May 2019, where no agreement was reached in terms of timelines for return. Instead, the Bangladesh delegation proposed that Myanmar “send a team to interact with the Rohingya and persuade them to return to their homes after creating a favourable condition for safe, dignified, and sustainable repatriation”. On 27 July 2019, a Myanmar Government delegation, consisting of 19 members led by Permanent Secretary of the Ministry of Foreign Affairs, Mr Myint Thu, visited Cox’s Bazar and held discussion with refugees on possible return. During the meeting, refugees insisted on citizenship and freedom of movement as preconditions for their return. Bangladesh continued to position itself in support of repatriation only upon appropriate conditions being put in place for voluntary, safe, dignified and sustainable return. Myanmar continued to maintain its position that repatriation should take place in the context of the bilateral agreements between Myanmar and Bangladesh.
209. In August 2019, the Government of Myanmar agreed to the repatriation of 3,450 Rohingya refugees, who were cleared from a list of approximately 25,000 individuals that the Government of Bangladesh had shared. The first group of refugees were scheduled for repatriation on 22 August 2019. The Government of Bangladesh stressed the voluntariness of the process and noted that nobody would be forced to return. While the Government of Bangladesh made logistical arrangements for their return, none of the selected families agreed to the planned repatriation. Instead the refugees held protests against the repatriation and demanded accountability, full citizenship rights, return of land and properties. UNHCR interviewed the refugees who had been cleared for repatriation. On 22 August, UNHCR publicly acknowledged that none of them had indicated a willingness to return.
G. Conclusions and legal findings: the impossibility of return
210. The Mission determined in its 2018 report that the level of oppression faced by the Rohingya was hard to fathom. Over many decades Government laws, policies and practices made life for the Rohingya in Rakhine State slowly but steadily unbearable. Rights were eroded and removed, in a process of marginalisation, exclusion and “othering”. Layers of discrimination and ill-treatment were added. This occurred through the denial of legal status and identity and the denial of the right to freedom of movement. It occurred through restrictions on access to food, livelihoods, health care, education, humanitarian access and additional restrictions affecting private life. And it occured through the oppression of arbitrary arrest, detention and other measures. The State-sanctioned laws, policies and practices occurred in the context of State-sanctioned discriminatory rhetoric. Hateful and divisive language targeted the Rohingya on the basis of their ethnicity, religion and status. The Mission concluded that the severe, systemic and institutionalised oppression, from birth to death, amounted to persecution.
211. The Mission also concluded in its 2018 report that there were reasonable grounds for an inference that the Tatmadaw and other security force carried out attacks against Myanmar’s Rohingya population with genocidal intent. The Mission found there were reasonable grounds to also conclude that members of Myanmar’s security forces, and members of the Tatmadaw in particular, committed crimes against humanity and war crimes against the Rohingya. Based on these findings, the Mission determined that a competent prosecutorial body and court of law should investigate and adjudicate cases against specific persons to determine individual guilt or innocence.
212. Based on its second phase of investigation, the Mission concludes on reasonable grounds that the situation of the Rohingya remains largely unchanged since the Mission’s 2018 report. If anything, the situation of the 600,000 Rohingya remaining in Myanmar is worse after another year of living under deplorable conditions.
213. The Mission draws four main conclusions from the final investigation under its mandate:
• Myanmar continues to commit crimes against humanity of inhumane acts that inflict great suffering and of persecution as part of a widespread and systematic attack against the Rohingya population.
• Myanmar incurs State responsibility for committing genocide and is failing in its obligations under the Genocide Convention to investigate and, where appropriate, prosecute genocide. It is also failing to enact effective legislation criminalising and punishing genocide.
• The State of Myanmar continues to harbour genocidal intent and the Rohingya remain under serious risk of genocide.
• Conditions in Myanmar are unsafe, unsustainable and impossible for approximately one million displaced Rohingya to return to their homes and lands.
1. Crimes against humanity of persecution and other inhumane acts
214. Crimes against humanity are among the gravest crimes under international law and the legal threshold for crimes against humanity is high. In its consideration of whether the facts it established amount to crimes against humanity, the Mission relied on the legal analysis from its 2018 report. Based on that analysis, the Mission concludes on reasonable grounds that, since the publication of the Mission’s 2018 report, the Government has committed the crimes against humanity of “other inhumane acts” and “persecution” in the context of a continued widespread and systematic attack against the Rohingya civilian population in furtherance of a State policy to commit such an attack.
215. Under the definition of crimes against humanity, an “attack” does not need to involve a military attack or the use of armed force; it can, for example, encompass mistreatment of the civilian population. This is the nature of the Government attack being perpetrated against the Rohingya today. Since the end of the 2017 “clearance operations”, the Government has continued its widespread and systematic attack on the Rohingya through its denial of fundamental rights, including citizenship, through its laws, policies and regulations; its denial of access to land they once lived and relied on; and its denial of items essential to human survival, in particular food.
216. The Myanmar Government’s implementation of laws, regulations and policies, including the 1982 Citizenship Law, the NVC process and the annual household lists that result in the denial of citizenship and other fundamental human rights, is causing the type of serious or great physical or mental suffering to the Rohingya people that constitutes the crime against humanity of “other inhumane acts”. The gravity and impact of discriminatory laws and policies of this nature were highlighted in the Nuremburg Judgement of Goering et al, where the Court found defendants guilty of inhumane acts and persecution for, among other acts, their role in issuing and implementing a series of discriminatory laws which restricted the “family life [of Jews] and their rights of citizenship”.
217. The Mission also concludes on reasonable grounds that the Myanmar Government is continuing its concerted efforts to keep Rohingya off the land from which they were uprooted and forcibly displaced. These efforts cause the type of “serious mental harm” that, in the words of an ICTY Appeals Chamber, invariably occurs in situations of “forced departure from the residence and the community, without guarantees concerning the possibility to return in the future”. The Mission concludes that Rohingya face suffering and anguish because the Government continues to prevent them from accessing their property and living in their homes. In the Mission’s view, this suffering and anguish are comparable to the suffering caused by the forcible transfer or deportation, both of which are crimes against humanity. It constitutes a crime against humanity of “other inhumane acts” because “other inhumane acts” must be as serious and grave as other crimes against humanity. In other words, the Government’s systematic denial of Rohingya’s return to their lands through destruction, confiscation and construction is causing great mental suffering analogous to forcible transfer or deportation and, therefore, amounts to the crime against humanity of “other inhumane acts”.
218. The cumulative impact of restrictions on movement and denial of humanitarian access is also inflicting great suffering tantamount to a crime against humanity. Their access to food through farming is limited and in some cases nearly eliminated due to movement restrictions and confiscation of property. Government-imposed restrictions on access to humanitarian aid are also depriving the remaining Rohingya population of access to food. This physical and mental distress and suffering is compounded by the continued risk to their physical and mental safety and security through harassment and fear of physical abuse at checkpoints and during searches. The Government’s establishment and maintenance of this system that ensures deplorable living conditions for the Rohingya population also amounts to the crime against humanity of “other inhumane acts”.
219. In addition, the Mission has reasonable grounds to conclude that the Government has continued to commit the crime against humanity of persecution. Persecution is an act or omission that (i) discriminates in fact and which denies or infringes upon a fundamental right laid down in international customary or treaty law (actus reus); and (ii) was carried out deliberately with the intention to discriminate on one of the listed grounds, including race, religion, ethnicity, and culture See, also, Rome Statute, art. 7(1)(h). (mens rea). International courts and tribunals have found that “it is not necessary that every individuals act underlying the crime of persecution … be of a gravity corresponding to other crimes against humanity: underlying acts of persecution can be considered together”. It is clear from the findings that the Rohingya are the target of the inhumane acts outlined above, all of which include the denial of fundamental rights.
2. Genocide under the rules of State responsibility
Inference of genocide
220. The Mission’s 2018 report called for investigations and prosecutions of certain individuals for the crime of genocide under the rules of international criminal law. In this report, the Mission has examined the question of whether Myanmar as a State bears responsibility too. The Mission concludes on reasonable grounds that the evidence supports an inference of genocidal intent and, on that basis, that the State of Myanmar breached its obligation not to commit genocide under the Genocide Convention under the rules of State responsibility. The Mission draws this conclusion based on four main findings that build upon its prior assessment of the crime of genocide under international criminal law. First, the Rohingya constitute a protected people under the Genocide Convention. Second, the Rohingya were the victims of numerous underlying acts of genocide, including killing, serious bodily and mental harm, and conditions of life calculated to bring about their physical destruction, and may also have been victims of measure intended to prevent births. Third, those acts were attributable to the State and committed intentionally. Finally, the Mission concludes on reasonable grounds that the State engaged in a pattern of conduct with, through inference, the genocidal intent to destroy the Rohingya in whole or in part as a people.
3. State attribution for underlying acts of genocide
221. The rules of State responsibility focus on the acts and intentions of a State through its organs and agents. Under the rules of State responsibility, the State, not the individuals, bears responsibility and must be held to account for its actions. By contrast, international criminal law focuses on individual criminal liability and therefore focuses on the acts and intentions of individuals. Under international criminal law the individual, not the State, bears responsibility and must be held to account for the individual’s actions.
222. To conclude that a State is responsible for genocide it is sufficient to demonstrate that genocide is attributable to a State organ, such as a ministry or security force, without identifying specific individuals who are responsible for the genocide. The Tatmadaw is the most notable State organ that engaged in genocidal acts but it is not the only one. The Genocide Convention does not require the entirety of the Myanmar State to be involved in genocide to make a finding of genocide under the rules of State responsibility. However, in the case of the “clearance operations” against the Rohingya beginning on 25 August 2017, the vastness of the State’s involvement is inescapable. The Tatmadaw and the other security forces acted in a planned and organized fashion under a unified chain of command. Military vehicles, such as navy vessels and helicopters, were reportedly used in the military operations. Soldiers and BGP prepared and launched attacks from government security bases and security forces tortured people in government detention facilities. There are strong indications that the State provided its resources and gave directions to members of non-Rohingya ethnic groups and informal armed groups who acted alongside, complementary to, and usually in tandem with, the Tatmadaw and other security forces during attacks. Local government officials, notably ethnic Rakhine administrators or former administrators, were seen at the sites of many of the attacks, including many of the most serious attacks with heavy loss of life. Prior to the attacks, government officials relied on discriminatory laws and policies as tools to justify their forthcoming genocidal attacks. After the attacks, the State adopted and implemented plans and policies that effectively endorsed everything that preceded it, by denying wrongdoing, destroying evidence, refusing to conduct effective investigations and clearing, razing, confiscating and building on land from which it displaced Rohingya, while ensuring that the Rohingya who they forced out of Myanmar would not be able to return. In sum, State involvement through military and civilian acts, omissions, organs and persons was extensive.
4. Establishing genocidal intent
223. For the Mission to demonstrate that the State of Myanmar harboured the genocidal intent to destroy, in whole or in part, the Rohingya as a group, the Mission must be satisfied either as to the existence of a State plan that expresses that intent or as to evidence that demonstrates a pattern of conduct that reveals or infers such intent. There is limited guidance from the case law for assessing what factors are relevant for making a finding of genocidal intent under the rules of State responsibility. The case law from international criminal tribunals, the Mission’s review of that case law in its 2018 report and information the Mission collected during its 2019 investigation all compel the Mission to conclude on reasonable grounds that genocidal intent on the part of the State of Myanmar can be inferred.
224. The Mission has identified seven indicators from which it inferred genocidal intent to destroy the Rohingya people as such, all based on the consideration of indicators of genocidal intent in international case law: first, the Tatmadaw’s extreme brutality during its attacks on the Rohinyga; second, the organized nature of the Tatmadaw’s destruction; third, the enormity and nature of the sexual violence perpetrated against women and girls during the “clearances operations”; fourth, the insulting, derogatory, racist and exclusionary utterances of Myanmar officials and others prior, during and after the “clearance operations”; fifth, the existence of discriminatory plans and policies, such as the Citizenship Law and the NVC process, as well as the Government’s efforts to clear, raze, confiscate and build on land in a manner that sought to change the demographic and ethnic composition of Rakhine State, the goal being to reduce the proportion of Rohingya; sixth, the Government’s tolerance for public rhetoric of hatred and contempt for the Rohingya; and seventh, the State’s failure to investigate and prosecute gross violations of international human rights law and serious violations of international humanitarian law, both as they were occurring and after they occurred. These seven indicators also allow the Mission to infer that the State did not object and in fact endorsed the Tatmadaw’s “clearance operations” and the manner in which they were conducted.
225. Every one of these indicators is linked to the acts or omissions of Myanmar State organs, including the military, other security forces, ministries, legislative bodies, the UEHRD and other civilian institutions. Collectively they demonstrate a pattern of conduct that infers genocidal intent on the part of the State to destroy the Rohingya, in whole or in part, as a group. For reasons explained in its 2018 report, there is no reasonable conclusion to draw, other than the inference of genocidal intent, from the State’s pattern of conduct.
5. Failure to investigate and punish genocide
226. Having concluded on reasonable grounds that the State of Myanmar is responsible for carrying out acts of genocide with genocidal intent, the Mission also concludes that Myanmar is not meeting its obligations under the Genocide Convention to conduct an effective criminal investigation into allegations of genocide. The Mission draws this conclusion based on the Government’s pattern of ignoring compelling evidence that genocide took place on its territory and its failure to put in place investigative mechanisms that are independent, impartial, prompt, thorough, effective, credible and transparent. The Government’s failure to reform legislation that promotes impunity, its destruction of evidence and its punishing of those who try to expose the crimes that occurred during the Government’s 2017 “clearance operations”, all of which the Mission has documented in its other reports, provide additional indications of State responsibility for a failure to investigate.
227. The Mission’s 444-page report, publicly released in September 2018, provided sufficient information at that time to trigger Myanmar’s obligation to conduct an effective criminal investigation into genocide. The report provided extensive details of the methodology the Mission used to make its findings. The report also explained that the Mission used a “reasonable grounds” standard, consistent with the practice of United Nations fact-finding bodies. Numerous reports from other UN mechanisms, civil society, and investigative journalists similarly exposed information that constituted evidence of underlying acts of genocide. Despite this, the State has not undertaken an effective investigation into genocide.
228. The Government of Myanmar clearly had knowledge of the Mission’s findings. The Mission’s report was provided officially, in advance of its release, to the Myanmar Government through its Permanent Mission in Geneva. Myanmar attended the “interactive dialogue” at the Human Rights Council in September 2018 where the Mission presented its report and States discussed the report’s findings. Myanmar’s representative made a formal response to the report in the Human Rights Council. Myanmar’s ambassador to the UN in New York also made a presentation to the Security Council when the Mission briefed the Security Council on the report. The Ministry of Foreign Affairs posted the ambassador’s full statement on its Facebook page. The Tatmadaw Commander-in-Chief, Senior-General Min Aung Hlaing, who has ultimate say over military justice, made similar statements. Myanmar’s Parliament discussed the Mission’s report(s) several times. The report received widespread international and domestic media attention. It has been posted on the Mission’s webpage since its release. The Mission also issued a shorter but official version of the report in Myanmar language.
229. Statements by the Government of Myanmar claiming that the Government had established effective investigation mechanisms and has undertaken effective investigations are further indications of the Government’s knowledge of possible crimes. In August 2019, the Government of Myanmar wrote to the President of the UN Security Council objecting to a meeting on the topic of “mass atrocities” and accountability in Myanmar, saying that the Government “is addressing the issue of accountability by setting up the Independent Commission of Enquiry (ICoE). The Myanmar Armed Forces has also established its own Court of Inquiry to address the allegation of human rights violations in northern Rakhine”.
230. The Government’s accountability efforts are woefully inadequate. In its 2019 report to the Human Rights Council, the Mission found a near complete absence of accountability at the domestic level for gross violations of international human rights law and serious violations of international humanitarian law. The Prosecutor of the International Criminal Court (ICC), in her Request for authorisation of an investigation pursuant to article 15, concluded much the same.
231. The Myanmar Government’s ICOE does not constitute an effective independent investigations mechanism. The ICOE lacks a clear mandate. Its chairperson has said that it is not an accountability mechanism. Its methodology is opaque. Its operating procedures are questionable. It is dependent on the Myanmar Government. There is no possibility that its investigations will identify perpetrators, promote accountability and justice, and provide redress to victims.
232. The Government’s unwillingness to pursue accountability was demonstrated vividly by the release of seven Tatmadaw soldiers in November 2018. The seven soldiers had been convicted and sentenced to 10 years imprisonment for the killings of 10 Rohingya civilians in the village of Inn Din, Maungdaw Township, on 2 September 2017. The Commander in Chief, Senior General Min Aung Hlaing, pardoned them, releasing them after less than one year in detention. By contrast, two Reuters journalists, whose investigation of this incident led to the soldiers’ convictions, were imprisoned for 18 months, significantly longer than the time served by the actual perpetrators of the crimes. Senior General Min Aung Hlaing is one of the persons recommended by the Mission for investigation and prosecution for crimes against humanity, war crimes and genocide.
233. In light of the Government’s awareness that reasonable grounds existed that genocide occurred on its territory, its continuing failure to initiative effective criminal investigations into genocide or its underlying acts, its continuing failure to reform legislation that promotes impunity, its destruction of evidence relevant to a genocide investigation and its willingness to punish those who try to expose the crimes that occurred during the Government’s 2017 “clearance operations”, the Mission concludes on reasonable grounds that Myanmar has breached, and is continuing to breach, its obligation under the Genocide Convention to conduct an effective investigation in relation to crimes of genocide.
6. Failure to enact legislation
234. The Mission also assessed Myanmar’s criminal justice system to determine whether it is meeting its obligations under Article V of the Genocide Convention to enact the necessary legislation to give effect to the Convention and, in particular, to provide effective penalties for persons guilty of genocide and persons who incite genocide, attempt to commit genocide and are complicit in genocide. The Penal Code has no provisions on the crime of genocide. Part of this can be explained by the fact that Myanmar’s Penal Code has not been substantially amended since it was first enacted in 1891, well before the term “genocide” was first used in 1943 and before it became part of international criminal law.
235. At the time of writing, no provisions in Myanmar’s Penal Code reflected the substance, object, purpose, letter or spirit of the Genocide Convention. The Penal Code lacks provisions that contain the defining elements of the crime of genocide, including the element of intending to destroy a protected group. It does not contain “ordinary crimes” that could amount to the underlying acts of genocide.