How Myanmar’s government passed up two chances to address human rights while on trial for genocide

Nobel laureate Aung San Suu Kyi (C) gives speech to the supporters during 2012 by-election campaign at her constituency Kawhmu township, Myanmar on 22 March 2012.Photo: Htoo Tay Zar

Myanmar’s domestic investigation has concluded the military didn’t commit genocide. The announcement fits with the government’s recent refusal to mend its broken National Human Rights Commission.

By Skylar Lindsay

This week, the International Court of Justice (ICJ) in the Hauge will rule in the case against Myanmar for the genocide against the Rohingya. In the face of the allegations, State Counselor Aung San Suu Kyi has denied that the military committed genocide and called on the international community to trust Myanmar’s domestic justice system to deliver accountability.

But on Monday, the government’s own Independent Commission of Enquiry (ICOE) announced its conclusion that the military’s actions in late 2017 in Rakhine State did not show genocidal intent. The ICOE admitted that the military committed human rights violations and war crimes but has made no mention of holding the perpetrators accountable. The final report, issued to Aung San Suu Kyi and President U Win Myint, has not been made public but the President’s Office has released a summary.

The summary only uses the word Rohingya when blaming the group for refusing to give up their identity in exchange for citizenship, and even then the ICOE only used the name in quotes. The ICOE also denies the validity of interviews and testimony from Rohingya refugees as evidence of human rights violations and genocide.

The report claims that because the attacks by the Arakan Rohingya Salvation Army in 2017 amounted to “internal armed conflict,” the military’s actions were justified. The ICOE admitted that the military killed civilians, but made no mention of the widely-reported rape and torture of Rohingya citizens. 

The executive summary of the report claims: “There were no credible statements on allegations of gang rape committed by Myanmar’s security forces.” It also claims that the military’s actions did not force the Rohingya to leave their homes. Instead, it cites prior displacement of the Rohingya as evidence that Rohingya communities leave their homes because of “a natural protection instinct” to flee to Bangladesh. “Why such a large outflow occurred this time is a question for which the ICOE finds no easy or fully satisfactory answer,” the report concluded.

A spokesman for the Burmese Rohingya Organisation UK, Tun Khin, called the ICOE’s report a “blatant PR exercise to deflect attention from the International Court of Justice’s ruling later this week.”

The report directly contradicts the UN Fact-Finding Mission on Myanmar. In 2019, the UN concluded the military’s attacks possessed a genocidal intent and the Rohingya still faced the threat of genocide in Myanmar.

The government passed up an opportunity to make progress on human rights protections

The government in Myanmar also missed another key opportunity to substantively address human rights abuses in the country. Last week, the government dismissed the entire Myanmar National Human Rights Commission (MNHRC) and appointed 11 new commissioners. The change-up is mandated by law but it also offered a chance for the government to create an effective, functional human rights body to investigate and protect against abuses. A chance the government appears to have passed on.

The MNHRC has a track record of being slow and unresponsive, with commissioners failing to investigate allegations of rights abuses or hold perpetrators accountable. The commission is also not empowered to enforce its findings in cases when it does act, severely weakening its power. Civil society organizations have long called for the government to improve the commission. 

In December, civil society groups issued a statement complaining the commissioners lacked a “human rights mindset” and condemned “structural issues” which left the MNHRC “beholden to the Myanmar military.” 

Unfortunately, the new commission promises more of the same; a re-formation of the MNHRC without reform. The lack of ambition proves, at a time when Myanmar needs to show that it will make progress on human rights, that it is unwilling to act against rights abuses.

The MNHRC needs extensive reforms to be effective

Civil society groups have said the first step to an effective commission is to amend the selection process.

“How can we have commissioners who can effectively promote and protect human rights when the MNHRC is comprised of people who lack an understanding of fundamental human rights, and have either formerly served in or have close ties to the military?” said Ma Suu Chit, of civil society group The Seagull.

The Seagull Human Rights Peace and Development Myanmar
A report from Myanmar’s Independent Commission of Enquiry concluded the military’s persecution of Rohingya Muslims did not amount to genocide despite widespread reports of rape and torture.
Photo: Seagull/Facebook

The selection process is run by a board which convenes and submits a list of 30 nominees to the president, who then selects the commissioners with the approval of the Parliament.

The new heads of the MNHRC will be U Hla Myint, a representative for the ASEAN Intergovernmental Commission on Human Rights (AICHR) and Nanda Hmun, former secretary for Myanmar’s Ministry of Religion and Culture. Tin Aung, previously the head of the Office of the Commander-in-Chief (Army), will also serve on the newly-appointed commission.

Like the ICOE, the MNHRC seems unable to hold anyone accountable for rights abuses. The MNHRC has acknowledged that the military and the Ministry of Home Affairs are responsible for the majority of rights abuse cases, both of which were represented among the outgoing commissioners. 

Back in November, the International Commission of Jurists, which has worked extensively to support Myanmar to strengthen its legal system, identified four steps that the government could take to make the MNHRC more functional.

The NLD has ignored three of the steps, including introducing a more transparent selection process and amending the NHRC law to make the commission stronger and more independent. The fourth recommendation, that the Charter Amendment Committee propose reforms that would support a constitutionally-mandated, independent commission, depends on a pair of bills due in Parliament later this month.

In December, 20 civil society groups published “Myanmar: A Little Less Conversation, A Little More Action Please,” an indictment of the MNHRC’s failure and part of a series of independent evaluations of national human rights institutions in Asia. The report noted that the MNHRC largely avoids issues in conflict zones, a major limitation in a country with multiple active armed conflicts. 

The MNHRC is haunted by an appalling track record

The MNHRC has refused to address any of the crimes the military committed against the Rohingya. The commission allegedly cannot act on any abuse that’s the subject of an active court case. This restriction could be interpreted very broadly to mean that the commission’s hands are tied by individual court cases in Rakhine, ongoing military courts-martial or accountability processes within the Myanmar government.

When the MNHRC has stepped in to address abuse allegations, it has only further underscored activists’ claims that the commission is inept. Most recently, the commission said in December that it would not investigate allegations that the Myanmar military has abused civilian detainees in Rakhine State, despite numerous reports of torture and civilian deaths in military custody. 

“We’ve got a lot on our plate right now,” Yu Lwin Aung said at the time. The commission said it would only investigate the accusations if the Ministry of Defense first finds soldiers guilty of wrongdoing. 

Rohingya women walk through Balukhali camp in Cox's Bazaar,
Rohingya women walk through Balukhali camp in Cox’s Bazaar, Bangladesh, on 5 March 2018. Photo: UN Women

Last year, the commission took steps to look into human rights abuses committed against workers on offshore fishing rafts in Ayeyarwady Region.

In October, Myat Thura Htun, a history student at Dagon University in Yangon, was abducted by traffickers and sold into labour on a raft for 700,000 kyat (US$475). After a month and a half, his family reportedly bought his freedom, but when Myat Thura Htun was released, it appeared he had been tortured. Following public outcry over the incident, the MNHRC agreed to investigate.

However, on a four-day visit to the area, the commission determined it could not investigate the case properly due to bad weather. Then-commissioner Yu Lwin Aung told Frontier Myanmar that he hoped to return. As he is no longer on the commission, it’s unclear when, or if, this will happen.

Last June, the commission said it would investigate the death of Ko Kyaw Zin Win, a librarian at Myanmar Imperial University who committed suicide after colleagues bullied him over his sexuality. Before his death, the 25-year-old Kyaw Zin Win posted on Facebook about the harassment, including screenshots of messages from his coworkers mocking him. The post quickly went viral. 

“Since the incident is widely criticized, we have interest in it. Moreover, LGBT rights groups have sent complaints to MNHRC so we decided to start the investigation,” said commissioner U Yu Lwin Aung.

The investigation concluded that Kyaw Zin Win was “mentally weak” and that there was no violation of his rights. Speaking after the findings, U Yu Lwin Aung said: “Absolutely no evidence could be found he was bullied.”

Myanmar has no anti-discrimination laws protecting the LGBTQ community and gay sex is still illegal under the country’s colonial-era Penal Code.

The missed opportunity to improve the MNHRC doesn’t bode well for further domestic attempts at accountability. The commission’s track record also undermines Myanmar’s defence at the ICJ and Aung San Suu Kyi’s insistence that the international community should trust the country’s domestic accountability processes. Like the ICOE’s conclusion, the preservation of the apathetic MNHRC shows the Myanmar government is still unable, or unwilling, to protect its people against human rights abuses.

About the Author

Skylar Lindsay
Skylar Lindsay is a writer and photographer focused on development, the envrionment and conflict, primarily in Southeast Asia.