posted on Tue 23 Oct 2018 6:26 PM
Myanmar Briefing

Tomorrow (24 October), the Security Council is scheduled to receive a briefing from Marzuki Darusman, the chair of the Independent International Fact-Finding Mission on Myanmar, on the Mission’s report, which was released on 27 August. The Fact-Finding Mission, established by the Human Rights Council, was authorised to establish the facts and circumstances of alleged human rights violations and abuses by military and security forces in Myanmar. It focuses on the situation in Kachin, Rakhine and Shan states since 2011.

The meeting was requested on 16 October by nine members of the Council—Côte d’Ivoire, France, Kuwait, the Netherlands, Peru, Poland, Sweden, the US and the UK. On 18 October, Bolivia, China, Equatorial Guinea and Russia responded with a letter to the president of the Council expressing their objection to such a briefing. Among the reasons given were that there was no precedent for the Council to invite a briefing from a special mechanism on a country-specific issue of the Human Rights Council, nor was it within the mandate of the Mission to brief the Council. Due to these divisions, it is possible that there may be a motion to vote on the holding of the meeting. Such a vote would be a procedural one, requiring nine affirmative votes to pass (in other words, to hold the meeting) and it would not be subject to the veto.

Darusman is expected to highlight the main recommendations of the report, which concluded that the security forces in Myanmar, specifically the Myanmar military (the Tatmadaw), has committed what amount to war crimes and crimes against humanity, in its treatment of several ethnic and religious minorities in Rakhine, Kachin and Shan States. It also concluded that there was sufficient information in the case of the Rohingya in Rakhine State “to warrant the investigation and prosecution of senior officials in the Tatmadaw chain of command, so that a competent court can determine their liability for genocide.”

In his briefing, Darusman is likely to characterise the situation in Myanmar as an ongoing humanitarian catastrophe and appeal to the Council to recognise the situation as a threat to international peace and security, and take action. He is also expected to cover the recommendations of the Mission regarding accountability for crimes under international law, including that the Council refer the situation of Myanmar to the International Criminal Court (ICC) or create an ad hoc international criminal tribunal. The ICC Pre-Trial Chamber recently ruled that the ICC may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh, as well as over the alleged crimes against humanity. ICC Prosecutor Fatou Bensouda has opened a Preliminary Examination concerning the alleged deportation of the Rohingya people from Myanmar to Bangladesh.

Accountability is expected to be the main focus of most members’ statements during the meeting. These members may underscore that the report’s findings provide the basis for the Council to take action as soon as possible.

Members will be interested in hearing Darusman’s views on the “ongoing, independent mechanism” established by the Human Rights Council in its resolution adopted on 27 September. It has been tasked to “collect, consolidate, preserve and analyze evidence of the most serious international crimes and violations of international law committed in Myanmar since 2011, and to prepare files in order to facilitate and expedite fair and independent criminal proceedings”. It also decided that the Mechanism should make use of the information collected by the Mission as well as continue to collect evidence and document and verify information.

The report further recommended the imposition of targeted sanctions, including travel bans and assets freezes, against those who are responsible for serious crimes under international law. An arms embargo was also recommended. While it is clear that the divisions in the Council would make this option difficult at the moment, some members may suggest the use of such sanctions to put pressure on the Myanmar authorities to work with the UN and the international community in addressing issues of accountability and to promote conditions for the voluntary, safe and dignified return of the refugees from Bangladesh to Myanmar.

Members that objected to the meeting are likely to reiterate their view that having a briefing by a special mechanism of the Human Rights Council could set a bad precedent. They may also express the view that this could erode the mandate of the General Assembly and the Human Rights Council and duplicate the work of the other UN bodies. China and Russia may reiterate that the crisis must be resolved through bilateral efforts, views they expressed in the August debate. China may also refer to the role it is playing in facilitating consultations between Bangladesh and Myanmar. In this regard, Chinese Foreign Minister Wang Yi, Myanmar Minister for the Office of the State Counsellor U Kyaw Tint Swe and Bangladeshi Foreign Minister Abul Hassan Mahmud Ali met in New York during the high-level week of the General Assembly, with Secretary-General António Guterres present.

Since returning from the visiting mission in April, there has been a concerted effort from a number of Council members, including France, the Netherlands, Kuwait, Peru, Poland, Sweden, the UK and the US, to keep the Council’s focus on this issue. The last Council meeting was held on 28 August, about a year after the start of the crisis that led to over 750,000 refugees fleeing to Bangladesh. Several meetings during the high-level week allowed for discussions on the different aspects of the situation in Myanmar with a wide range of interlocutors.

While no outcome is envisaged immediately after tomorrow’s meeting, some members are keen to use the momentum from the recent developments—including the Fact-Finding Mission report, the creation of an independent mechanism by the Human Rights Council and the ongoing General Assembly negotiations around a resolution on Myanmar—to start discussions on a possible Council resolution that would address the issue of accountability.