The government of Myanmar in 2019 continued to defy international calls to seriously investigate human rights violations against ethnic minorities in Shan, Kachin, Karen, and Rakhine States. A United Nations-mandated Fact-Finding Mission (FFM) found sufficient evidence to call for the investigation of senior military officials for crimes against humanity and genocide against ethnic Rohingya Muslims. The government has been unwilling to address the root causes of the crises, including systematic persecution and violence, statelessness, and continued military impunity.
In August 2019, the FFM called on Myanmar’s security forces to stop using sexual and gender-based violence, including rape and gang rape, against women, children and transgender people, to terrorize and punish ethnic minorities. The military has used sexual violence to devastate communities and deter women and girls from returning to their homes.
De facto leader Aung San Suu Kyi and her civilian government have repeatedly refused to cooperate meaningfully with UN rights investigators’ pursuit of accountability for rights violations. The government has not granted visas for independent UN investigators including Special Rapporteur Yanghee Lee and the members of the UN FFM, and limited access to the country by staff of the Office of the UN High Commissioner for Human Rights.
Rohingya Under Threat
More than two years after the Myanmar military’s campaign of ethnic cleansing in northern Rakhine State, over 900,000 Rohingya refugees remain in overcrowded camps in Cox’s Bazar in Bangladesh, now the largest concentration of encamped refugees in the world.
The FFM’s final report in September 2019 found that the 600,000 Rohingya remaining in Rakhine State were still the target of a government campaign to eradicate their identity, and were living under “threat of genocide.” The report found the laws, policies, and practices that underpin the government’s persecution of the Rohingya—and which serve as causal factors for the killings, rapes and gang rapes, torture, and forced displacement by the military and other government authorities—remain in place.
In July 2019, a delegation of senior Myanmar officials arrived in Cox’s Bazar to promote refugee repatriation. The delegation pressured refugees to enter a digitized National Verification Card (NVC) process but would not guarantee they would be granted citizenship. The government has made no efforts to amend the discriminatory 1982 Citizenship Law that effectively stripped Rohingya of their citizenship rights. Refugees who want to return are required to sign up for the NVC, which identifies them as foreigners in Myanmar, making them vulnerable to discrimination and restrictions on their rights.
On August 22, Bangladesh and Myanmar made a second attempt to return refugees to Myanmar. Unlike the first attempt to return refugees in November 2018, Bangladesh this time agreed to consult with the UN refugee agency, asking UNHCR to assess the intentions of the 3,450 refugees Myanmar said were eligible to return, selected from a list of 22,000 names shared by Bangladesh. Once again, Bangladeshi officials, UN staff, and journalists waited for refugees to appear for voluntary return to Myanmar, but none did.
UNHCR has stated that conditions in Myanmar are not currently conductive for voluntary returns of refugees in dignity and safety. Facilities that resemble detention camps, surrounded by barbed-wire perimeter fences and security outposts, have been built to receive and house returning refugees from Bangladesh. Satellite images of the Hla Poe Khaung Transit Centre show it was built on top of razed Rohingya villages.
The approximately 128,000 Rohingya and Kaman Muslims confined to closed internally displaced people (IDP) camps in central Rakhine State have little freedom of movement and limited access to important health, education, and other humanitarian services. In addition, there are security concerns for refugees returning to Rakhine State due to hostilities between the Myanmar military and the insurgent Arakan Army.
Ethnic Conflicts and Forced Displacement
Fighting between the Myanmar military and ethnic armed groups intensified in 2019. The government regularly barred rights monitors and journalists from conflict areas and denied access to UN and international humanitarian agencies seeking to provide food, medicine, and other important aid.
Starting in November 2018, fighting increased between the Arakan Army and government security forces in Rakhine and Chin States. The government ordered an internet blackout that began on June 21 across eight townships in Rakhine State and Paletwa township in Chin State, making it very difficult to verify reports of attacks on civilians and arbitrary detention, torture, and deaths in military custody. The internet ban was lifted from Chin State and four townships in Rakhine State on September 1, leaving Ponnangyn, Mrauk-U, Kyauktaw, and Minbya still under blackout.
The UN Office for the Coordination of Humanitarian Affairs (OCHA) estimates at least 33,000 ethnic Rakhine remain displaced due to fighting, including 3,300 children out of 9,000 IDPs in northern Rakhine State. The figure is contested; the UN special rapporteur stated as many as 65,000 were displaced. A lack of food security, access to shelter and basic humanitarian services, and inability to access to livelihoods remain major problems for Rakhine civilians.
Civilians continued to be targeted during hostilities in northern Myanmar. Northern Shan State witnessed renewed fighting where 17 civilians were killed and 27 injured in the first few weeks of fighting, many of them women and children, according to the UN. Fighting broke out on August 15 after insurgent Northern Alliance forces, minus the Kachin Independence Army, carried out coordinated attacks on military targets and civilian structures. The Myanmar military quickly counterattacked. Fighting is affecting civilians in at least five townships in northern Shan State, with civilians killed by shelling and in crossfire.
The fighting caused the displacement of an estimated 8,000 people who sought shelter in schools, monasteries, and churches. By the end of September, approximately 2,000 remained displaced.
In Kachin State, the United Nations Children’s Fund, UNICEF, reported an estimated 6,385 IDPs had returned to their areas of origin. However, more than 97,000 remained displaced, some for many years already, in 136 IDP camps, or camp-like settings throughout the state. Just over 40 percent of those IDPs were in camps in areas controlled by Kachin armed groups. Humanitarian assistance was barred from reaching those areas outside the government-controlled areas. In addition to fighting, return by IDPs to their original areas was hampered by landmines and unexploded ordinance.
Trafficking of women and girls remains a serious problem in Kachin and northern Shan States as revealed in Human Rights Watch’s report “‘Give Us a Baby and We’ll Let You Go’: Trafficking of Kachin ‘Brides’ from Myanmar to China.” IDPs face economic desperation from displacement by conflict, inability to pursue viable livelihoods by farming, and little access to other forms of employment.
Women are often breadwinners, and the eldest daughters face cultural expectations that they will help provide for their families. Young women and girls are being lured into China from IDP camps and villages near the porous border, on false promises of gainful employment and then sold to Chinese families for forced marriage. Neither the Myanmar nor the Chinese governments have taken necessary steps to prevent trafficking, recover victims, bring perpetrators to justice, and assist survivors.
Freedom of Expression and Repressive Laws
Freedom of expression declined sharply in Myanmar in 2019. More than 250 people faced lawsuits under various rights-restricting laws.
In May, Reuters journalists Wa Lone and Kyaw Soe Oo were released from prison on a presidential amnesty after serving eight months of a seven-year prison sentence under the colonial-era Official Secrets Act. The pair had reported on a military massacre of Rohingya in Rakhine State’s Inn Din village and police arrested them in December 2017. The politically motivated nature of the trial became clear when the court convicted them, despite a police officer testifying on the stand that arresting officers had been ordered to entrap the two journalists.
Prosecutions for criminal defamation continued under article 66(d) of the 2013 Telecommunications Act, frequently used as a tool to restrict freedom of expression online and curtail criticism of members of parliament, the government and military. Athan, a local group, reported that about 45 percent of all charges against media or journalists were filed under article 66(d). More than 250 people have faced criminal law suits in 2019 under various laws restricting freedom of expression. Authorities also used the Unlawful Associations Act and criminal defamation provisions under section 500 of the Myanmar Penal Code against journalists and critics.
At time of writing, 11 lawsuits encompassing 50 persons had been filed in 2019 under penal code articles 505(a), barring criticism of the military, and 505(b), prompting “fear or alarm to the public … whereby any person may be induced to commit an offence against the state or against the public tranquility.”
On August 29, the prominent filmmaker, Min Htin Ko Ko Gyi, was sentenced to one year in prison with hard labor under article 505(a) of the penal code for criticizing the military on Facebook. Despite suffering from liver cancer and being visibly unwell during his trial, Min Htin Ko Ko Gyi was repeatedly denied bail to seek medical care outside prison.
In April and May, seven members of a traditional theater group were arrested for their satirical performance deemed critical of the military. On October 30, five members were sentenced under article 505(a) of the penal code to one year each. On November 18, Kay Khine Tun, Zayar Lwin, Paing Ye Thu, Paing Phyo Min, and Zaw Lin Htut received an added one-year sentence by a different court, also under 505(a) charges. Su Yadanar Myint will serve one year, while Nyein Chan Soe was acquitted. All seven defendants face additional charges under section 66(d) for “defaming” the military, which brings a maximum prison sentence of two years.
Article 8(f) of the Law Protecting the Privacy and Security of Citizens also contributed to the rise in defamation charges against ordinary citizens. There were 78 cases against individuals at time of writing, which aimed to limit online speech and criticism of the government. The law also enables third-party complaints to be filed against an individual.
Protesters were often targeted under the Peaceful Assembly and Peaceful Procession Law, which requires organizers to seek approval from authorities 48 hours prior to holding an event. Two Kachin activists, Paulu and Seng Nu Pan, were sentenced in September to 15 days in jail, for a street performance marking the eight-year anniversary of the end of a 17-year ceasefire in Kachin State. Paulu received an additional three months in jail for contempt of court, after presenting the presiding judge with a set of broken scales symbolizing the broken justice system.
Farmers across the country also faced difficulties with repressive laws. In March, the Vacant, Fallow and Virgin Lands Management Law came into effect, requiring anyone occupying land classified as “vacant, fallow, or virgin” to apply for permits. Failure to apply and continuing to use the affected land could mean up to two years in prison. In September, eight farmers were sentenced to two years for farming land in the Irrawaddy Division that local government sold to a private company.
Article 377 of the colonial-era penal code criminalizes adult consensual same-sex conduct.
Key International Actors
On November 11, Gambia brought a case against Myanmar before the International Court of Justice for its atrocities against the Rohingya as violating the Convention on the Prevention and Punishment of the Crime of Genocide. Gambia's filing marked the first time that a country without any direct connection to the crimes relied on its membership in the Genocide Convention to bring a case before the world court.
On November 13 in Argentina, Rohingya and Latin American human rights organizations used the principle of universal jurisdiction to file a criminal case against Myanmar’s top military and civilian leaders, including Aung San Suu Kyi, for crimes committed in Rakhine State. This avenue is available for crimes so serious that all states have an interest in addressing them.
The International Criminal Court (ICC), on November 14, also confirmed it would begin investigations into alleged crime against humanity, namely deportation, other inhumane acts, and persecution committed against Rohingya in Myanmar since October 2016. The court in 2018 confirmed its jurisdiction over the crime of deportation, which was completed in Bangladesh, an ICC member country, as well as other related crimes.
In July, the United States imposed travel bans against key military leaders, including commander in chief Gen. Min Aung Hlaing, for their role in the persecution of the Rohingya. His second-in-command, Gen. Soe Win, and two other senior officials were also subjected to travel bans. In September, a bill was passed by the US House of Representatives by a huge majority to strengthen sanctions against Myanmar’s military leaders.
The UN-mandated FFM ended its mission in September, handing over evidence of serious crimes committed by Myanmar’s armed forces against the Rohingya, Kachin, Shan, and Karen ethnic minorities to the newly operational Independent Investigative Mechanism for Myanmar (IIMM).
The UN Human Rights Council mandated the IIMM to follow up from the FFM, and collect and preserve evidence of serious crimes to facilitate and expedite fair and independent criminal proceedings.
Released on August 5, the FFM investigative report on military-owned businesses in the Myanmar Economic Corporation and Union of Myanmar Economic Holdings holding companies, found at least 14 foreign firms have partnerships with military enterprises, and at least 44 have other commercial ties. The report found these military businesses generate revenue strengthened the military and provided financial support for its operations that violated international human rights and humanitarian law.
The Independent Commission of Enquiry (ICOE), established by the Myanmar government in July 2018, operates without transparency, lending further weight to concerns about its credibility to investigate allegations of grave abuses against the Rohingya. Governments such as those of the United Kingdom and Japan continue to support the ICOE despite profound concerns about its independence, impartiality, and working methods.
The European Parliament passed a resolution on September 19 calling for the imposition of a comprehensive arms embargo on Myanmar and referral of the situation of Myanmar to the ICC. The resolution called on EU members to support efforts aimed at holding Myanmar to account for violations of the UN Genocide Convention before the International Court of Justice.
Despite strong findings pointing to Myanmar’s security forces’ responsibility for atrocities against the Rohingya, the UN Security Council remains paralyzed, making impossible the referral of Myanmar to the ICC and the imposition of sanctions on military and government officials implicated in grave abuses against the Rohingya.
In May, the report of an independent inquiry into UN involvement in Myanmar was published, finding “systemic and structural failures,” which undermined the UN response to the crisis.