The 50th Session of the Human Rights Council

13th June - 8th July 2022

Agenda Item 2: Interactive Dialogue on the Oral Update by the United Nations High Commissioner for Human Rights on Myanmar on the Implementation of the Recommendations by the FFM 

 14 June 2022

By Ardya Syafhana and Makaela Fehlhaber  / GICJ

Executive Summary

On the 14th of June, United Nations High Commissioner for Human Rights, Ms Michelle Bachelet, delivered an oral update on the situation in Myanmar. The High Commissioner drew attention to the “devastating consequences” of the military coup that ensued in 2021 amidst the international concerns about the purported genocide of ethnic minorities within the State. The consequence of the continued international human rights concerns has placed citizens “in a cycle of poverty and abuse”.

It was highlighted by the Office that there were reasonable grounds to believe the existence of crimes against humanity and war crimes instigated and continued by Burmese authorities. The focus was on the “amplified suffering of civilians” in the form of the use of human shields, the burning and indiscriminate attacks on civilian objects and the prosecution of political activists. Such persons are regarded as protected persons under the principles of International Humanitarian Law (IHL) in the absence of legal due process. Ms Bachelet emphasised collective actions by the international community through the imposition of restrictions on Myanmar’s business and financial sector and in the pursuit of accountability for crimes against humanity and war crimes. In doing so, the message from Ms Bachelet and her Office was to ensure the end of impunity. 

The response of the representatives in attendance demonstrated a unified reaction to the pursuit of accountability for grave violations of international law, ceasing the persecution of minorities and protecting civilians and non-combatants at all costs. The representative of Lithuania, on behalf of the Northern Baltic countries, issued a strong condemnation in light of Myanmar’s absence and called upon the state to cooperate fully with the United Nations and its respective organs and permit access to those seeking to provide humanitarian assistance into its territory. Amongst the calls for the protection of civilians in armed conflict were the requests for Myanmar to issue a moratorium on the death sentences issued to political activists.

The events leading up to the 50th session of the Human Rights Council illustrate consistent reiterations of the human rights violations in the territory of Myanmar. This report details the findings of the Report of the Special Rapporteur on the Situation of Human Rights in Myanmar, the Report of the  High Commissioner in the HRC 49th Regular Session and the Report of the Working Group on the Universal Periodic Review. All reports pertaining to the violations relative to the political, economic, and social freedoms of those residents in Myanmar, purported war crimes, crimes against humanity and allegations of genocide. 

Geneva International Centre for Justice (GICJ)  remains contingent on alliance with the protection of the rights enshrined in various international human rights instruments inter alia, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic and Social Rights. GICJ implores Myanmar to adhere to the principles relative to international humanitarian law, and above all, respect the right to life of all citizens but especially of the Rohingya people, and the four political activists sentenced to death in the absence of proper, due legal process. The actions of the international community are imperative in ensuring that appropriate measures and sanctions are implemented against Myanmar in an effort to preserve the rights of its citizens. Furthermore, GICJ encourages the state of Myanmar to respect neutral bodies, such as the International Committee for the Red Cross, in the deliverance of humanitarian assistance to individuals plagued by the aftermath of the armed conflict within its borders.           

Background

Myanmar's government has been tormented by long-standing political battles with the dominance of military power from the junta; most recently, the democratic government was overthrown by the military following the election of Aung San Suu Kyi’s National League for Democracy. Prior to the coup, the people in Myanmar dealt with violent oppression of their right to freedom of expression, assembly and information, coupled with the ongoing hostilities between state forces and armed groups. The genocide issue on Rohingya People and related human rights fulfilment was then followed by another catastrophe when the military authority overthrew the government led by President Wint Myint and State Counsellor Aung San Suu Kyi on 1 February 2021. The people in Myanmar are now facing a reality where their human rights continue to deteriorate at the hands of a military leader. 

Report of the Special Rapporteur on the Situation of Human Rights in Myanmar

On 29 September 2021, the Special Rapporteur published their report concerning the situation of human rights in Myanmar before and after the Coup d’etat in February 2021. This was presented under the agenda of the 46th Regular Session of the Human Rights Council (HRCR) (Report A/HRC/46/56).  The Report highlighted violations of humanitarian law by military forces and armed groups in different regions– despite the conclusion of the National Ceasefire Agreement in 2020. The indiscriminate attacks committed against civilians in Rakhine, Chin, Kachin and Shan by the military forces and other ethnic armed organisations continued to occur and even intensified after the military coup.  The undermining of state policy regarding freedom of expression and other fundamental human rights allowed for a higher level of abuse committed by the Junta, especially in the existence of News Media Law, Counter-Terrorism and Citizenship Law 1982.  The accountability process in Myanmar remains in a deadlock since the provisional measure issued by the International Court of Justice (ICJ) in January 2020. The National Committee of Myanmar and the domestic justice system in the country had shown no initiative to investigate the crimes concerned, let alone after the military administration seized power. On 24 March 2021, UNHRC adopted Resolution 46/21 (Res 46/21) to request the UN High Commissioner of Human Rights to submit a comprehensive report on the country's situation starting from 1 February 2021 in the 49th regular session.  

Report of the  High Commissioner in the HRC 49th Regular Session

On 21 March 2022, the UN High Commissioner of Human Rights presented the report on the human rights situation in Myanmar mandated by Res 46/21, focusing on the lack of accountability in relation to allegations of international humanitarian law and human rights violations. The report reiterated the findings of Report A/HRC/46/46 by underlining the massive escalation of state-sponsored attacks and violence directed at civilians. The report even described the situation where “civilians are not just being caught in the crossfire but rather being deliberately targeted” as these people were considered as persons with connections to the Tatmadaw’s political opponents. The report also estimated over 1.500 deaths, 10.000 cases of arbitrary detention-including torture—and the increased number of 440.000 Internal Displaced Persons (IDP). The High Commissioner further gave particular recommendations on the implementation of regional settlement led by Association of Southeast Asian Nations (ASEAN) members in line with the ASEAN 5-point consensus adopted in April 2021 and the referral of the situation in the country to the International Criminal Court (ICC). ASEAN 5-Point Consensus covers an immediate end to violence in the country; dialogue among all parties; the appointment of a special envoy; humanitarian assistance by ASEAN; and the special envoy's visit to Myanmar to meet with all parties.UNHRC finally adopted Resolution Number 49/23 in furthering the monitoring and assessment work in Myanmar as well as requesting the High Commissioner to present an oral update during the 50th Regular Session.  

Report of the Working Group on the Universal Periodic Review - Myanmar

The Report of the Working Group on the Universal Periodic Review (UPR Report) on the situation in Myanmar was issued on 12 April 2021 with Myanmar’s response to the questions presented by delegates. While a representative of Myanmar was not present during the interactive dialogue session for the 50th session of the HRC, Myanmar had previously indicated a shared concern over the human rights violations occurring within its territory in the UPR Report. Various issues addressed to the government included the ratification of human rights treaties (e.g., ICCPR), internal discriminatory views that continued to perpetuate a cycle of violence (particularly in the Rakhine state), the repatriation of IDP, the right to peaceful protest and freedom of expression, the recruitment of child soldiers, and the treatment of the detainee.

In response to issues raised, Myanmar requested time and space to be able to adequately turn its attention to its international obligations and implement domestic accountability measures. Myanmar drew attention to domestic efforts to implement portions of international instruments in an effort to fulfil its international obligations. A series of domestic actions were cited to counter the concerns related to both economic and social rights, including the implementation of the Child Rights Law 2019, the Vacant, Fallow and Virgin Land Management Law and its News Media Law. Each had been implemented or amended to ensure the protection of children in armed conflict, job prosperity and press freedom, respectively. 

The report references that during the interactive dialogue, 106 statements were made by delegations. The common themes included justice and accountability for the state and individual perpetrators, the protection of fundamental freedoms, the rights of specific groups and implementing themes of peace and democracy. Specific recommendations encompassing access to core international human rights treaties including the Convention on the Rights of the Child, the Convention on the Elimination of All Forms of Racial Discrimination and the Convention against Torture. Further recommendations included enhancing domestic efforts to align with the Sustainable Development Goals. Further, with the issuance of the ICJ’s order on 23 January 2020 concerning the current proceedings between The Gambia and Myanmar on the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), a prevalent recommendation made by States was for Myanmar to comply and implement the order of the Court. This requires Myanmar to take effective measures to comply with its obligations under the Genocide Convention. A number of these issues were reiterated as concerns by states during the interactive dialogue that proceeded at the 50th Session of the Human Rights Council on 14 June 2022 including the ongoing inaction in relation to the alleged genocide of the Rohingya people, the protection of children in armed conflict, and the protection and fulfilment of the rights to freedom of expression, speech and assembly.

Oral Update of the United Nations High Commissioner for Human Rights

On 14 June 2022, the 50th Session of the Human Rights Council began with the oral update by the United Nations High Commissioner for Human Rights, Ms Michelle Bachelet. The High Commissioner recalled its report in the 49th session concerning the declining human rights situation in Myanmar since February 2021. During the meeting, the High Commissioner articulated the last status where there were reasonable grounds to believe the existence of the commission of crimes against humanity and war crimes in Myanmar. The death tolls to date have reached 1.900 victims, and there are one million individuals registered as IDPs. 

Tatmadaw has exacerbated Myanmar’s economic crisis, creating stagflation. Meanwhile, their role in the public sphere has consistently been negative. In the middle of internet shutdowns, Tatmadaw instituted military tactics to either militarise or exterminate the civilian population who disapproved of their administration. The military junta had been linked to the widespread campaign “four cuts” strategy, which resulted in massive illegitimate arrests, demolition of property and use of violence, including the recent announcement to impose the death penalty on two influential political activists.  

In the Rakhine State,  prolonged discrimination and human rights abuses still take place, leaving no possibility of return for those who fled to Bangladesh or live in international displacement camps. Amid continued hostilities between the military and the Arakan Army, Rohingyan people faced the challenge of travelling across the country. However, within the space of a few weeks, three hundred Rohingya were arrested for exercising their freedom of movement. 

The High Commissioner demonstrated her appreciation for all action plans undertaken by the international community, at a regional level, and the ASEAN five-point plan. Albeit a minimal result, the High Commissioner still urged ASEAN as well as UN members to maintain engagement with national stakeholders such as representatives of the National Unity Government (NUG) and civil society. The High Commissioner invited all states to increase pressure on Tatmadaw through restrictions on their economic and corporate-related entities, as well as access to military equipment and necessities. She stated that all available mechanisms for the accountability process regarding the situation in the country must be continuously pursued. In the end, the High Commissioner underlined the cruxes of this crisis: the restoration of democratic governance, a total end to impunity, and a halt to the structural discrimination of persecuted minorities, primarily Rohingya People.  

Interactive Dialogue on the High Commissioner Oral Update Report

The Delegate of Lithuania, Mr Darius Staniulis, representing the Nordic-Baltic States, remarked during the interactive dialogue, on the “feracious” shelling and air strikes in the country. He stated that this military tactic had resulted in the demolition of infrastructure, created internal displacement, and increased the number of deaths during the humanitarian and human rights crisis. The Nordic-Baltic Countries condemned, in the strongest terms, the continued violence perpetrated by both Junta and security forces which targeted the civilian population. Thereafter, the delegate drew attention to Rohingya and other minorities and the urgent need to commence the accountability process against perpetrators. In his concluding remarks, the delegate inquired with the High Commissioner about the plan to enhance the protection of the victims and ensure justice for past and existing human rights violations in Myanmar.

The delegate for the European Union, Mr Thomas Wagner, reiterated the condemnation of the continued shelling and airstrikes by the military Junta. The delegate further underscored their concern about sexual and gender-based violence, arbitrary detentions, torture and extrajudicial killings, in addition to the death penalty imposed by Junta. The European Union called for an inclusive dialogue between the stakeholders to restore Myanmar to democracy and safeguard the rule of law. Mr Wagner expressed his support for the ASEAN 5-Point Consensus and the endeavours of the ASEAN Special Envoy together with the UN Special Envoy. The delegate subsequently questioned the High Commissioner about the best way for the Council to develop the situation in Myanmar and its effect on persons belonging to minorities.

The Delegate of Pakistan, representing Organisations of Islamic Cooperation (OIC), Mr Afaq Ahmad, highlighted the human rights violations and discrimination aimed at the People of Rohingya. The delegate strongly supported all levels of criminal justice and judicial mechanisms with regard to the Rohingya crisis, stating the political situation in Myanmar must not deter the International Community from seeking solutions for Myanmar’s citizens. The delegate also urged the military junta to implement all recommendations of the Advisory Commission of the Rakhine State, among others, including restoring the citizenship of Rohingyans. OIC expressed its appreciation to Bangladesh for its effort to shelter Rohingya IDPs and finally called upon the immediate commensuration of the repatriation of these people.

Bangladesh’s Representative, Mr Md. Mustafizur Rahman expressed discontent for the “unfair burden” its country had to bear in hosting around a million Rohingya IDPs and the political unwillingness of Myanmar to facilitate their return to their homes.  The delegate further deplored the accountability mechanism for the allegation of genocide against Rohingya, which seemingly lost its momentum. In this sense, Bangladesh called upon the international community to focus on the renewed and sustained pressure on Myanmar to initiate accountability agenda while also meaningfully pursuing justice in other possible channels. 

The Delegate of the Russian Federation, Mr Evgeny Ustinov, endorsed different points of view as they underlined international assistance to be an auxiliary role in Myanmar’s situation. The delegate urged the international community to refrain from intervening in the domestic affairs in the country and expressed its negative assessment of the persistent effort by some countries to politicise human rights issues in the presence of international forums. The Russian Federation disapproved of the prevailing sanctions and pressure on the authority on the assertion that it would push the military junta to resort to the use of force. In recognising the absence of the  Myanmar Representative, the delegate of the Russian Federation called for the authorities of Myanmar to focus on holding a democratic parliamentary election in 2023. Finally, the delegate urged the military government in Myanmar to build peace for those brought to account for participation in unsanctioned protests, as the establishing factor, given that it would enhance the political predictability in this state. 

The ASEAN Countries Representative, i.e.Indonesia, Malaysia, Cambodia,  Lao People's Democratic Republic, and Thailand, restated the deep concern over the human rights and humanitarian law violations occurring in Myanmar. The Indonesian delegate, along with the Lao People's Democratic Republic and Thailand, emphasised the vital role of the ASEAN mechanism in building peaceful resolution in Myanmar under the umbrella of the 5-Point Consensus or beyond, even though Indonesia recognised the insignificant progress. The representative for Cambodia, as the Special Envoy of ASEAN, remarked on meetings and visits with the stakeholder in Myanmar to oversee the implementation of the 5-Point Consensus where it is expected that another meeting will be set up to address the overall concerns of the international community. The delegate of Malaysia further raised a question to the High Commissioner regarding organising the third-party resettlement to resolve the management of the growing number of Rohingya Refugees and IDPs. 

NGOs and civil organisations also joined the dialogue to present their stance on the Oral Update of the High Commissioner and the Recommendations on the situation in Myanmar. Overall, NGOs condemned the military junta's campaign to persecute its political opponents while also questioning the legitimacy of their leadership. Special emphasis was placed on killings, sexual violence and arbitrary detention, and above all, the recently announced death penalty to four political activists in the middle of restrictions on the internet and communication in the country. Several NGOs called for international support to withdraw from any business relationship with the military authority and endorsed support to NUG based on the 2020 election.

Concluding Remarks

The High Commissioner appreciated the good faith of all delegations and NGOs for their statement and effort to address the complicated situation in Myanmar. The High Commissioner at first reflected on the long journey her office has had in encouraging institutional, security and constitutional reforms in Myanmar. The comprehensive plan designed by the Office of the High Commissioner and other human rights mechanisms regressed when the military campaign initiated its vicious campaign on Rohingyans and other minorities. The crisis was exacerbated by the military coup in February 2021 despite the success of the 2020 election. 

To answer the question on the future international assistance in Myanmar, the High Commissioner took several key steps as identified together with the UN Human Rights Council, UN General Assembly and ASEAN. These include the immediate halt on the violence, repression and detention by military authorities; the arms and revenues blockade of the Myanmar Military; the direct involvement by all stakeholders in the democratic reformation of Myanmar, including NUG and ethnic groups, in drafting peaceful political solutions; the continuous support of international accountability as pursued by ICC; and the protection of the people who cross the international border. 

In addition, the High Commissioner also stressed the need for the international community to ensure the availability of humanitarian aid and state initiatives to proceed with the accountability process internally based on universal jurisdiction or resettlement packages to encourage the people involved to provide relevant information. The High Commissioner further invited the states’ support to the Independent Investigative Mechanism for Myanmar and the financial state of the Office of the High Commissioner. Lastly, the High Commissioner appealed to continue work to explore the solution to the Rohingya Refugee and IDP resettlement and to the creation of conducive, sustainable and dignified return for them.  

Position of Geneva International Centre for Justice

Geneva International Centre for Justice (GICJ) strongly condemns the Myanmar military Junta’s widespread and indiscriminate attacks against innocent civilians and calls for an end to the relentless discrimination and oppression endured by minority groups such as the Rohingya people. GICJ urges Myanmar to respect the principles underpinning jus in bello and comply with the provisions laid out in the human rights treaties to which they are a party. Aside from the extrajudicial killings and sexual violence, we are deeply concerned about the blockade of internet access, information and humanitarian relief by the military junta. Notwithstanding the political restraint within the country, the well-being of the people is a non-negotiable aspect, and the transfer of information is extremely needed. 

Regarding the progress of domestic and international accountability mechanisms, Myanmar Authorities must respect their previous commitment to upholding the rule of law and justice. The international community must jointly ensure the development of international justice in ICJ and ICC in respect of the Genocide Case of Rohingya in Myanmar. GICJ also supports peaceful settlement by regional and international organisations, above all the ASEAN with its 5-Point Consensus. All actors involved must step up their endeavours to guide the Junta to return to the democratic path its country was on and design concrete solutions for the IDPs and Rohingya Refugees. 

During the discussion, in a joint statement with Ma’onah, GICJ’s intern Sivar Ahmed urged the international community, including the Council, to pressure the military regime in Myanmar to halt cycles of violence and ensure the protection of human rights to prevent further loss of lives. Human rights violations and crimes will persist if the international community and the Human Rights Council fail to hold the military regime accountable for its actions. GICJ believes access to all forms of media and information is a fundamental right of individuals, and any restriction is unacceptable. “We stand with the people of Myanmar and call on the international community to take action against the continued human rights violations in Myanmar.” 

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