Responses to the devastating human rights crisis in Rakhine State must be driven by respect for the rule of law, protection of human rights of all people without discrimination, and greater accountability and justice, the ICJ states in a briefing note published today in a Questions & Answers format.
More than 600,000 people, the vast majority of whom are Rohingya Muslims, have been displaced as a result of security operations commanded by the Myanmar military (Tatmadaw), following attacks on police posts by the Arakan Rohingya Salvation Army on 25 August.
“Credible allegations of crimes against humanity, including widespread and systematic killings, rape, and forced evictions demand a robust and immediate response from the Myanmar government, with full assistance from the international community,” said Sam Zarifi, ICJ’s Secretary General.
“The Myanmar government has so far not responded in a manner commensurate with the gravity of the situation or its obligations under international law, and the country’s military continues to enjoy de facto and de jure impunity for its actions,” he added.
Entitled Questions & Answers on Human Rights Law in Rakhine State, the 23-page (31 in Burmese) note details how members of Myanmar’s military, the Tatmadaw are largely shielded from prosecutions for human rights violations owing to provisions of constitutional and national law that codify the Tatmadaw’s dominance.
In law and in practice the Tatmadaw remains the most powerful institution in the country, largely outside the control of the civilian government.
“Constitutional arrangements in Myanmar are incompatible with the rule of law principle that security forces must be accountable to civilian authorities,” Zarifi said.
“The Tatmadaw must be held accountable for its conduct in Rakhine state, as well as its well-documented violations against other ethnic groups in the country,” he added.
The ICJ found no legal basis for the “area clearance operations” associated with widespread reports of arson, murder, rape and forcible transfer.
A lawful response to ARSA’s attacks would consist of independent and impartial investigations and public criminal prosecutions in accordance with national laws and fair trial rights standards – protections commonly violated throughout the country, the ICJ says.
“Recognizing the limitations on civilian authority over security operations, the NLD-led government remains bound to do everything in its power to respect and to protect human rights,” Zarifi added.
Measures available to the NLD include reforming laws that enable impunity for gross human rights violations, particularly the 1959 Defence Services Act and the 1995 Maintenance of Police Discipline Law, allowing full humanitarian access to protect the right to life; and supporting dignified, safe and voluntary return of displaced persons to their places or origin without discrimination.
The 2008 Constitution and provisions of national laws enable impunity for human rights violations, including by shielding security forces from public criminal prosecutions.
Myanmar lacks a mechanism to independently and impartially investigate allegations of serious human rights violations, the ICJ notes.
“The United Nations, as well as ASEAN and Myanmar’s other neighbors, such as China and India, should be clear that they expect, and will assist, a proper response to the Rakhine crisis in line with international law and respect for the rights of all people there, in particular, the Rohingya community,” Zarifi said.
Government cooperation with the UN-mandated Fact Finding Mission would also assist to independently establish facts and provide a factual basis to consider proper policy responses to human rights violations and humanitarian crises in Rakhine State and also in Shan and Kachin States, which remain embroiled in a state of conflict replete with human rights violations.
“Cooperation with the Fact Finding Mission would signal that the NLD is serious about its stated commitment to investigate allegations of human rights violations and to cooperate with the international community in doing so,” Zarifi said.
“Allowing this Mission to carry out its mandate would complement the work of the government’s Rakhine Advisory Commission,” he added.
The ICJ said that Myanmar’s neighbors and other States in the region must ensure that Rohingya refugees under their jurisdiction are offered full protection under international human rights and refugee law.
Any return of refugees to Myanmar must be dignified and voluntary to their places of origin without discrimination.
All refugee-receiving countries have an obligation to provide protection, including, in particular, against refoulement.
Sam Zarifi, ICJ Secretary General (Geneva)t: +41 22 979 38 25 ; e: sam.zarifi(a)icj.org
The ICJ has observed that statements and reports on the crisis have sometimes conflated the use of legal and non-legal terms to assess and describe the situation.
The ICJ briefing note clarifies some of the applicable national and international law and standards.
The ICJ’s independent legal research and analysis covers areas of law, including rules governing the conduct of security operations, protection of affected communities, justice and accountability for domestic offences and crimes under international law, and responsibilities and obligations relating to displaced persons.
Myanmar-QA Rakhine-Advocacy-Briefing Paper-2017-ENG (full report in English, pdf)
Myanmar-QA Rakhine-Advocacy-Briefing Paper-2017-BUR (full report in Burmese, pdf)AdvocacyAnalysis briefsNews