Q&A: United Nations Fact-Finding Mission on Myanmar

By Human Rights Watch

August 3, 2017

On March 24, 2017, the UN Human Rights Council authorized a three-member Fact-Finding Mission to Myanmar. Aung San Suu Kyi, who leads the country’s civilian government as state counsellor and also serves as foreign minister, has stated that the UN’s decision to establish an independent international inquiry was not “in keeping with what is actually happening on the ground.” Kyaw Tin, deputy minister of foreign affairs, said on June 30 in parliament that, “We will order Myanmar embassies not to grant any visa to UN fact-finding mission members.” Even if the UN team is not granted access to the country, the mission intends to work from abroad and produce a written report by March 2018. 

Why did the Human Rights Council set up a Fact-Finding Mission on Myanmar?

The UN Human Rights Council adopted a resolution creating the Fact-Finding Mission because it was concerned about the recent serious allegations of human rights abuses there. In a March resolution, the Council pointed to a February 2017 report by the UN Office of the High Commissioner for Human Rights that found that crimes against the ethnic Rohingya community in northern Rakhine State “seem to have been widespread as well as systematic, indicating the very likely commission of crimes against humanity.” As a part of their violent crackdown on the community since October 2016, Burmese security forces burned at least 1500 buildings in predominantly Rohingya areas, raped or sexually assaulted dozens of women, and committed extrajudicial executions. Human Rights Watch released satellite imageryshowing the destruction caused by the arson of these buildings. Human Rights Watch also conducted research among Rohingya who fled into neighboring Bangladesh, documenting the kinds of human rights abuses that Burmese security forces inflicted on them.

What has the Human Rights Council asked the mission to examine?

The Human Rights Council requested the three-person team to establish the facts and circumstances of the alleged recent human rights violations by military and security forces and other abuses in Myanmar. They have been asked to focus “in particular” on the situation in Rakhine State. But in general, the Fact-Finding Mission received a broad mandate. The mission is empowered to look at all “recent” allegations of situations where the human rights of people in Myanmar have been undermined by any actor, whether they are part of the military or security forces, or non-state armed groups.

How many countries agreed to create the Fact-Finding Mission? 

The Human Rights Council resolution was drafted by the European Union, garnered 43 co-sponsors and had broad support from diverse UN regions. No country opposed the resolution when it was considered by the whole 47-member UN Human Rights Council. In recognition of the broad consensus behind the measure, the Council adopted the resolution without a vote. Myanmar and several other countries – the Philippines, India, China, and Venezuela – dissociated themselves from the resolution. While Japan did not support the creation of the Fact-Finding Mission, it nonetheless welcomed the adoption of the resolution by consensus and expressed regret that Myanmar had dissociated itself from that consensus. At the Human Rights Council, in cases where all countries agree in principle to a consensus adoption of a resolution, some choose to separate themselves from that broad agreement. Myanmar’s dissociation does not preclude it from respecting the decision of the Council and cooperating with the Fact-Finding Mission, and the Council resolution itself encourages the government of Myanmar to “cooperate fully” with the mission.

Why are international investigators needed in Myanmar? 

National or domestic investigations into alleged crimes committed by the state security forces, especially in the context of recent operations in Rakhine State, will lack credibility, independence and rigor. Human Rights Watch and others identified problems with recent national inquiries led by Myanmar's vice-president and the military, including poor investigation methodology, compromised leadership and bias of commissioners in the domestic inquiries, a history of security forces’ aversion to accountability, and a tendency for covering up rights abuses.

Have domestic investigations helped uncover the truth?

Recent Burmese government-run inquiries have not only lacked credibility, but they have put victims and witnesses to serious offenses at risk. The Burmese military published its findings into alleged crimes committed by its troops, and ignored the voluminous third-party evidence of serious human rights violations, including satellite imagery of burned villages and first-hand accounts of rape and torture. The military concluded that it was only able to find evidence of a motorbike theft and some beating of a few villagers.

The government’s other investigative body, a commission led by first vice-president Gen. U Myint Swe, only issued an interim report in January 2017. Myint Swe’s commission used methods that produced incomplete, inaccurate, and false information. Burmese investigators badgered villagers, argued with them, told them not to say things, accused them of lying, and interviewed victims – including rape survivors – in large groups where confidentiality was not provided. Yanghee Lee, the UN special rapporteur for human rights in Myanmar, raised concerns about the commission’s methodology in her report to the Human Rights Council, saying that the Burmese government had not met its obligation to investigate the abuses. The commission has made no further conclusions, and has yet to issue a final report.

Myanmar’s state counsellor and de-facto leader, Aung San Suu Kyi, has set up an “Information Committee” that has publicly accused members of the Rohingya community of fabricating accounts of sexual and gender based violence, labelling alleged cases reported to international journalists and Human Rights Watch as cases of “fake rape.”

Given the Kofi Annan-led Rakhine Commission, is an international Fact-Finding Mission still needed?

The international inquiry is complementary to the Rakhine Commission and is crucial for accountability efforts. Although the Burmese government contends that the Rakhine Commission, created a year ago, makes a UN-led inquiry unnecessary, that is not the case. When asked about the Annan Commission, Aung San Suu Kyi’s spokesman told the media: “The [Annan] commission is serving as a shield for us. Was it not for Kofi Annan commission, the allegations would be much worse, I think.” The Rakhine Commission is mandated to look at root causes of conflict in Rakhine State. It does not have a mandate to investigate human rights abuses, nor will it address questions of justice and accountability. Additionally, the Fact-Finding Mission has a mandate to work beyond Rakhine State and address rights abuses in other parts of the country, including conflict-ridden Shan and Kachin States.

Will the Fact-Finding Mission only investigate alleged abuses by government forces?

The Fact-Finding Mission has a broad mandate that is not limited to violations by government forces. The Human Rights Council resolution specifically asks the experts to look at violations of international law by government military and security forces, but also asks the mission to examine recent allegations of abuses more broadly, which would include acts by non-state armed groups and private sector companies.

Will the Fact-Finding Mission only examine the situation in Rakhine State?

The Fact-Finding Mission’s mandate is not confined to Rakhine State. So, although the resolution directs the experts’ mission to look at Rakhine state “in particular,” it also gives the team a mandate to consider all “recent” allegations of human rights violations and abuses across the country. The mission’s three experts should also consider violations committed by government security forces in Shan and Kachin state, as well as recent abuses by non-state actors in those areas. The mission is also not restricted to conflict-affected areas of the country and is free to look at other issues of concern as well.

Who are the three experts on the Fact-Finding Mission?

As appointed by the president of the Human Rights Council, the mission is headed by Indonesian human rights expert Marzuki Darusman, and includes Sri Lankan human rights lawyer and former UN Special Representative of the Secretary-General for Children and Armed Conflict Radhika Coomaraswamy, and Australian human rights lawyer Christopher Sidoti.

When will the Fact-Finding Mission begin its work and when is it expected to report its findings?

The Fact-Finding Mission will begin its work in August 2017. It is due to give an oral update of its findings at the Human Rights Council’s 36th session in September 2017 and present its findings in full at the Council’s 37th session in March 2018.

Has the Myanmar government officially denied the three UN experts visas to the country?

The government has indicated it will deny the experts visas but to date it has not done so. Aung San Suu Kyi has made her opposition to this Fact-Finding Mission clear during recent trips to Brussels and Stockholm. Kyaw Tin, the deputy minister of foreign affairs, told parliament on June 30 that, “We will order Myanmar embassies not to grant any visa to UN fact finding mission members.” Similarly, Kyaw Zeya, the Foreign Ministry’s permanent secretary told Reuters, “if they are going to send someone with regards to the fact-finding mission, then there’s no reason for us to let them come.” Zeya also told Reuters that visas would not be issued to members of the mission or those staffing the effort.

In July, Yanghee Lee, the special rapporteur on the situation of human rights in Myanmar, reported that she was asked to assure the Myanmar government that she would “not undertake any activities that are to do with the Fact-Finding Mission while conducting” her visit to the country. She described this request as “an affront to the independence of my mandate as Special Rapporteur.”

Isn’t the Myanmar military responsible for most of the abuses reported, and not the civilian-led government?

The government as a whole is ultimately responsible for ensuring that Myanmar meets its obligations under international human rights and humanitarian law, even when the violations are committed by members of the armed forces or other state security forces. This is true regardless of the constitutional division of authority between military and civilian leaders and lawmakers. The government’s obligations include facilitating the implementation of the Human Rights Council resolution to send a Fact-Finding Mission to the country. 

Has the Burmese government been cooperating with other UN human rights initiatives in the country?

The government has largely cooperated with the Human Rights Council-mandated special rapporteur on the situation of human rights in Myanmar, Yanghee Lee, who made her sixth information-gathering trip to the country from July 10 to 21, 2017. She visited conflict-affected Rakhine, Shan and Karen states but was denied access to some parts of Shan state. In her end-of-mission report, Lee noted that individuals who met with her on the mission “continue to face intimidation, including being photographed, questioned before and after meetings and in one case even followed.” Lee further said that the request for assurance that she would not conduct any activities related to the Fact-Finding Mission was “an affront to the independence of [her] mandate as Special Rapporteur."

Following Lee’s July 2017 end-of-mission report, both the State Counsellor’s office, led by Aung San Suu Kyi, and the lower house of Myanmar’s parliamentissued a statement and declaration, respectively, denouncing her findings.

Many other UN agencies are able to operate in the country to deliver humanitarian aid and help implement development programming. However, the current government has not allowed the UN High Commissioner for Human Rights (OHCHR) to establish an office in the country. The OHCHR’s limited access to the country compelled it to send researchers to Bangladesh earlier this year to gather information from refugees fleeing Rakhine State.

Have other countries completely rejected UN-organized international investigations?

Only a handful of pariah countries – notably Syria, Eritrea, North Korea and Burundi – have completely denied UN investigators access to their country. Other countries that had initial reservations, including Sri Lanka, South Sudan and the Democratic Republic of the Congo, eventually cooperated with similar investigations authorized by the Council. If the democratically elected government of Myanmar wants to avoid being linked with the rights-rejecting governments that have barred international investigations, it should change course. 

Even if barred from the country, the Fact-Finding Mission will still be able to carry out its investigation by relying on remote research methodology that allows them to collect testimonies without meeting witnesses in person. This was the case with banned international missions to

Syria, Eritrea, North Korea and Burundi. The 1998 report of the International Labour Organization’s (ILO) Commission of Inquiry to investigate Myanmar’s breaches of ILO Convention No. 29 on forced labor – over the objections of the military government – still stands as one of the most detailed and incisive human rights-related investigations on Myanmar even though they had no access to the country.

Is Myanmar’s political transition too sensitive to be pressing on justice and accountability right now?

The Burmese military has long avoided any accountability for its widespread and serious abuses – and the country’s failure to address them has not brought the abuses to an end. Human Rights Watch's years of reporting in conflict areas around the world has found that justice can yield short and long-term benefits to achieving sustainable peace. Continuing abuses and impunity often are insuperable barriers to ending a conflict. In contrast, international commissions of inquiry with very similar mandates in Liberia and Bosnia and Herzegovina had a long-term positive effect on peacebuilding in those countries.

Will Myanmar let the Fact-Finding Mission into the country?

A UN spokesman told the media in late June that he still hoped the Fact-Finding Mission would “be facilitated by the government through unfettered access to the affected areas.” He added that the three mission members would try to “reach out to and engage constructively with the government” to seek entry into the country. Hopefully, the Myanmar government will recognize that it is in its own interests to cooperate with the Fact-Finding Mission. By doing so, the government would be demonstrating its willingness to uphold the rule of law, work collaboratively with the international community to establish the facts, help identify perpetrators of serious crimes, and deter future crimes by all parties to Myanmar’s armed conflicts.