Report of the Special Rapporteur on the situation of human rights in Myanmar

Human Rights Council Thirty-first session 27 February-24 March 2017 Agenda item 4 Human rights situation that require the Council’s attention Report of the Special Rapporteur on the situation of human rights in Myanmar* ** Summary Nearly one year since the new government assumed office, it continues to face formidable human rights challenges. In this report, the Special Rapporteur builds on previous reports to identify some of these challenges, and makes related recommendations.

READ ALL HERE @ http://yangon.sites.unicnetwork.org/files/2017/03/A_HRC_34_67_EN.pdf

IV. Conclusions

82. It has been almost one year since the new Government came to power. The Special Rapporteur has already noted in her previous report the formidable human rights challenges it faces while simultaneously having to navigate and direct a bureaucracy carried over from the previous Government as well as govern within the constraints of a Constitutional framework which gives precedence to military prominence over civilian authority. She recalls that the consolidation of democracy and the creation of a culture of respect for human rights is a complex undertaking requiring political will as well as sustained investment in not just enhancing the functioning and integrity of State institutions but also their accountability. 83. While improvements have been seen in some areas and some are making clear efforts, as the Special Rapporteur reflected after her recent visit, many ordinary Myanmar people have unfortunately begun to lose hope that the new Government will address their needs and concerns. This is undoubtedly at least partially due to the continued impunity enjoyed by the military and other security forces and their dominant position in the government. Trust that was placed in the new civilian leadership has started to wane with repeated incidents that carry the hallmarks of the previous Government. Where allegations of abuses and violations are suspected, the Government appears quick to resort to its standard position of ‘defend, deny, and dismiss.’ 84. Addressing the apparent climate of impunity will be vital for the new Government moving forward. Impunity arises from a failure by States to meet related obligations including to investigate violations; take appropriate measures in respect of the perpetrators by ensuring that those suspected of criminal responsibility are prosecuted, tried and duly punished; provide victims with effective remedies; and take other necessary steps to prevent recurrence of violations.27 Pervasive impunity also 27 E/CN.4/2005/102/Add.1, Principle 1 A/HRC/34/67 18 emboldens acts of retaliation and reprisals by those implicated by alleged abuses and violations. 85. Currently, existing policies, laws and avenues for redress appear to favour those in positions of power rather than to ensure that everyone is equal before law and has equal opportunity to have legitimate grievances addressed. Laws continue to be misused to stifle freedom of association and assembly, and subvert freedom of opinion and expression. Individuals who have lived on land for generations continue to face evictions without proper safeguards for projects which bring them little or no benefits. Conflict, which continues to have a devastating effect on civilians, sometimes appears to be focused around resource-rich areas or near lucrative projects. 86. The Special Rapporteur reminds the Government of the distinction between rule of law and rule by law as far too often issues of concern are explained away as having been dealt with “according to the law.” Too often also cases of abuses and serious, even grave, human rights violations, that potentially involve the State as the perpetrators, get closed with no explanation or dealt with in secrecy under the pretext of national security. Alternatively, a plethora of committees or commissions are set up to tackle the same issue with duplicative mandates, insufficient guarantees of independence and impartiality, and confusing, inconclusive and delayed outcomes. Where the State is unable to discharge its primary duty of investigating violations, taking appropriate measures against perpetrators, and providing victims with effective remedies, then it must seek assistance to do so. And when it is unwilling to do so, then the international community must step in and step up. V. Recommendations 87. To the UN: (a) Under the leadership of the new Secretary-General arrive at a more comprehensive and coordinated approach to UN action in Myanmar, including peacebuilding, development, humanitarian assistance, with human rights principles at their core. 88. To the International Community: (a) Establish a Commission of Inquiry to investigate the systematic, structural, and institutional discrimination in policy, law and practice, as well longstanding persecution, against the Rohingya and other minorities in Rakhine State with focus on the incidents of violence in 2012 and 2014, and the security operations following the attacks on 9 October 2016 which may amount to crimes against humanity. (b) Hold a dedicated and urgent discussion in the appropriate format at the Human Rights Council on Myanmar to address the human rights violations occurring in other parts of the country including the escalating conflict in Kachin, northern Shan, as well as increasing militarization in areas such as Kayin State. (c) Call on the Government of Myanmar to implement its commitment to open a country office of the Office of the UN High Commissioner for Human Rights (OHCHR), with a full mandate. (d) Remain seized of the human rights situation of Myanmar in all relevant inter-governmental forums. A/HRC/34/67 19 (e) Put human rights at the forefront of all bilateral cooperation with, and investments in, Myanmar and proactively adhere to the Guiding Principles on Business and Human Rights. (f) For all investors and businesses, domestic and international, to abide by the Guiding Principles on Business and Human Rights and other relevant standards in their investments and operations in Myanmar. (g) For home states of companies operating in Myanmar to fulfil their duties to protect human rights as called for by resolution A/HRC/RES/31/24. 89. To Government of Myanmar: (a) The Special Rapporteur reiterates all of her previous recommendations that have not yet been implemented. In particular, she reiterates the following past recommendations: 90. Rule of law and democratic space (a) Amend or repeal legislation and legal provisions that limit fundamental freedoms and contravene international standards including those previously identified by the Special Rapporteur and the previous mandate holders (see Annex A/HRC/31/71), to bring them into line with international human rights standards. (b) Remove criminal sanctions from the Peaceful Assembly and Peaceful Procession Law and amend or repeal section 505 (b) of the Penal Code. (c) Review and amend the Citizenship Law (1982) to bring it into line with international standards; in particular, remove provisions that provide for the granting of citizenship on the basis of ethnicity or race. (d) Resolve the legal status of habitual residents of Myanmar, including former holders of the temporary registration card, and ensure that they have equal access to citizenship through a non-discriminatory and voluntary process. (e) Enact laws on the prevention of violence against women and on the rights of children that are compliant with Myanmar’s international obligations. (f) Initiate a process of consultation with all stakeholders, possibly through the establishment of a preparatory committee focusing on the review and amendment of the Constitution, to bring it into line with international standards. (g) Cease immediately the arbitrary arrest and prosecution of those exercising their fundamental rights including their rights to freedom of assembly, association and expression, and release all those arrested for exercising these rights. (h) Conduct prompt, thorough, independent and impartial investigations and systematically ensure redress for any violence, threats, acts of intimidation or harassment against media and civil society actors. (i) Publicly condemn all acts of incitement to discrimination, hostility and violence against minorities, while upholding freedom of expression. 91. Conflict and peace process (a) Immediately ensure prompt, thorough, independent and impartial investigations into allegations of violations committed in conflict areas, and the prosecution and punishment of all perpetrators. (b) Immediately ensure that the UN and its partners have regular, independent and predictable access to all those in need of humanitarian assistance, wherever they are located. A/HRC/34/67 20 (c) Ensure greater participation of women in the peace process, particularly in leadership roles including in the forthcoming Union Peace Conference, with a minimum quota of 30 per cent and integration of a gender perspective into political dialogues. (d) Take concrete steps to develop a comprehensive support programme for victims and survivors of SGBV, including access to justice, health and psychosocial care, and socioeconomic support, and take the necessary steps to ensure that perpetrators are prosecuted and convicted. (e) Cease immediately the use of landmines, ratify the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on their Destruction and scale up the clearance of mines and unexploded ordnance, marking and fencing activities. Institute systematic mine risk and education activities. (f) Ratify Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. (g) Ensure the involvement and integration of the CSOs in the Peace Process. 92. Development and economic, social and cultural rights (a) Ensure access to adequate health, education and other basic services for all, particularly in Rakhine State, without discrimination. (b) Ensure consistent participatory, inclusive and meaningful consultations with the communities on all development projects and the proper consideration of all comments received. (c) Ensure careful drafting of any changes to existing or new legislation, rules, regulations and agreements governing extractive industries and major development projects to ensure they include transparency requirements and environmental, social and human rights protections. (d) Ensure full implementation of the UN Guiding Principles on Business and Human rights and protect against any human rights abuse within Myanmar’s territory by third parties, including business enterprises, through adequate policies and laws (e) Ratify the International Covenant on Economic, Social and Cultural Rights. 93. Rakhine State (a) Conduct prompt, thorough, independent and impartial investigations into all alleged violations of international human rights law, and hold perpetrators to account. (b) Lift the curfew order and restrictions on freedom of movement in Rakhine State. (c) Review and revise all local orders, instructions and other policies and practices that are discriminatory in law and in practice. (d) Take concrete steps to address long-standing challenges to social and economic development through a human rights-based approach, while ensuring the participation of affected communities, and fostering reconciliation and greater integration between communities. (e) Provide immediately durable solutions for the IDPs displaced since 2012. A/HRC/34/67 21 94. Additionally, the Special Rapporteur makes the following new recommendations to the Government of Myanmar: (a) Cooperate to agree on joint benchmarks which are specific and time bound. (b) Conduct a conclusive independent and impartial investigation into the assassination of Ko Ni with international assistance. 95. Rule of law and democratic space (a) Establish, an appropriate systematic consultation process on drafting and review of amendments to existing legislation or new draft bills to ensure transparency, vetting for compliance with international standards and adequate engagement by CSOs and members of the public, possibly through a ‘law on lawmaking.’ (b) Ensure draft laws including the Hate Speech Law and Citizens Private Security and Protection Law are in line with international standards. (c) Create a legal framework for surveillance in line with international human rights standards and in consultation with experts. (d) Continue the moratorium on the death penalty with a view to its abolition. 96. Development and economic, social and cultural rights (a) Ensure protections in the National Land Use Policy are retained and draft, following consultations, an overarching land law which complies with international human rights standards. 97. Rakhine State (a) Uphold the rights of the accused by ensuring all due process guarantees are respected and fulfilled, and by keeping their families informed of their arrest/detention and location. (b) Desist from issuing and implementing new orders and instructions that that are discriminatory in law and in practice and/or have a disproportionate impact on Muslim and Rohingya communities resulting in the deterioration of their living conditions and legal status. (c) Grant regular, independent and predictable access for humanitarian actors to northern Rakhine, to undertake needs assessments and continue delivering assistance, as well as ensure that the protection, needs and wellbeing of affected populations are urgently and properly addressed. 98. The Special Rapporteur further recommends the following areas and bodies to be considered by the Government for technical assistance and capacity-building and supported by relevant international organizations, particularly OHCHR through the establishment of a fully-mandated country office: • Administration of justice including upholding safety standards in prison administration as well as institution of an appropriate complaints mechanisms • Administrative reform and governance standards • Human rights in the peace process • The mining department including in specialized areas such as geology • Members of Parliament including on business and human rights A/HRC/34/67 22 Annex Proposed joint SR-Government benchmarks Constitutional, legislative and judicial reform (i) Initiate, by March 2018, a process of consultation with all stakeholders on the review and amendment of the Constitution, to bring it into line with international standards. (ii) Undertake, by October 2017, a comprehensive review of legislation and legal provisions that limit fundamental freedoms and contravene international standards including those previously identified by the Special Rapporteur and the previous mandate holders (see Annex A/HRC/31/71), with clear target dates for the conclusion of the review. (iii) Establish, by October 2017, a legislative reform process with clear timelines on the drafting and review of amendments to existing legislation or new draft bills by October 2017. The timeline should allow for the full consideration of the proposed laws. (iv) Establish, by October 2017, an appropriate systematic consultation process on drafting and review of amendments to existing legislation or new draft bills to ensure transparency and adequate engagement by civil society organizations and members of the public. (v) Establish a vetting mechanism to ensure amendments to existing legislation or new draft bills comply with international standards by October 2017. (vi) Amend or repeal, by October 2017, section 18 of the Peaceful Assembly and Peaceful Procession Law and section 505 (b) of the Penal Code, drop all charges currently being brought against individuals under these provisions; and ensure that multiple charges are not brought against individuals for the same offence. (vii) Amend or repeal the four ‘protection of race and religion’ laws by October 2017. (viii) Review and amend, by March 2018, the Citizenship Law (1982) to bring it into line with international standards; and, in particular, remove any provisions that provide for the granting of citizenship on the basis of ethnicity or race. (ix) Resolve, by March 2018, the legal status of habitual residents of Myanmar, including former holders of the temporary registration card, and ensure that they have equal access to citizenship through a non-discriminatory process. (x) Take concrete steps, by March 2018, to continue judicial reform and the capacitybuilding and training of judges and lawyers to strengthen the independence and effectiveness of the judiciary. (xi) Enact, by March 2018, an overarching prison law which is in line with international standards, particularly in relation to the minimum standards of accommodation and access to health facilities. Political Prisoners and Human Rights Defenders (i) Cease immediately the arbitrary arrest and prosecution of those exercising their fundamental rights including their rights to freedom of assembly, association and expression. (ii) Release all remaining political prisoners by October 2017. A/HRC/34/67 23 (iii) Undertake, by October 2017, a comprehensive review of all cases, based on broad and public consultations with all relevant stakeholders in view of the discrepancies in the numbers of remaining political prisoners. (iv) Develop, in consultation with all relevant stakeholders, including representatives of civil society, former political prisoners, representatives of the Ministry of Home Affairs, other relevant ministries and the National Human Rights Commission and parliamentarians, a formal definition of the term “political prisoner.” (v) Take concrete steps to provide adequate compensation and support, including psychological support and employment training, for released political prisoners by October 2017. (vi) Establish, by October 2017, a system to prevent the surveillance and monitoring of civil society and human rights defenders. (vii) Investigate and redress systematically any threats, acts of intimidation or harassment against media and civil society actors. Rights of minorities, women and children (i) Publicly condemn all acts of incitement to discrimination, hostility and violence against minorities, while upholding freedom of expression. (ii) Take concrete steps to implement, by October 2017, a comprehensive set of measures to combat and prevent acts of incitement to discrimination, hostility and violence against minorities, including an anti-discrimination law or policy, while upholding internationally recognized human rights standards. (iii) Undertake, by March 2018, holistic prevention, education and awareness-raising measures addressing the root causes of discrimination, and promote interfaith and intercommunal dialogue. (iv) Enact, by October 2017, a law on the prevention of violence against women that is compliant with international law. (v) Take more effective measures to prevent and respond to all forms of sexual and gender-based violence, including in conflict. (vi) Take concrete steps to develop, by March 2018, a programme of comprehensive support for victims and survivors of sexual and gender based violence in conflict, including access to justice, health and psychosocial care, and socioeconomic support, and take the necessary steps to ensure that perpetrators are prosecuted and convicted. (vii) Take concrete steps to create, by March 2018, a system for the collection of disaggregated data on all forms of gender-based violence in order to measure the scope and scale of the problem. (viii) Ratify, by October 2017, the ILO Convention 138 on the Minimum Age of Employment. (x) Incrementally increase the age of compulsory education from 10 to at least 14 years. Peace process and conflict-related issues (i) Ensure greater participation of women in the peace process, including in delegations, particularly in leadership roles, with a minimum quota of 30 per cent going forward and integration of a gender perspective into political dialogues. A/HRC/34/67 24 (ii) Ensure the full participation of local and affected communities, civil society organizations and women in the peace process, including at the State level and in implementation and monitoring mechanisms. (iii) Ensure prompt, independent and impartial investigations into allegations of violations committed in conflict areas, and the prosecution and punishment of all perpetrators. (iv) Ensure, by March 2018, the cases of members of the military who perpetrate serious crimes against civilians are systematically transferred to civilian courts. (v) Ensure that complainants are not penalized or threatened with legal action for bringing complaints and seeking redress against violations committed by the military. (vi) Immediately ensure that the United Nations and its partners have regular, independent and predictable access to all those in need of humanitarian assistance, wherever they are located. (vii) Conduct, by October 2017, a full verification count of all underage soldiers and ensure their release. (viii) Take concrete steps to end child recruitment in the armed forces, by March 2018, through strengthened age determination process in recruitment procedures, the improved enforcement of existing accountability, unhindered access and independent monitoring and oversight of all armed forces. (x) Cease immediately the use of landmines and scale up the clearance of mines and unexploded ordnance, marking and fencing activities. (xi) Develop, by March 2018, a strategy and timeline for comprehensive mine mapping and removal. (xii) Institute, by March 2018, systematic mine risk and education activities for communities in affected areas. (xiii) Ratify, by October 2017, the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on Their Destruction; prioritize the clearance of landmines and unexploded ordnance. Rakhine (i) Grant immediate access for humanitarian actors to northern Rakhine State, to undertake a needs assessment and continue delivering assistance and aid, as well as ensure that the protection, needs and wellbeing of affected populations are urgently and properly addressed. (ii) Conduct a full, independent and impartial investigations to address allegations of serious human rights violations in Rakhine and hold perpetrators to account. (iii) Lift, by October 2017, the curfew order and restrictions on freedom of movement in Rakhine State. (iv) Review and revise, by March 2018, all local orders, instructions and other policies and practices that are discriminatory in law and in practice. (v) Take concrete steps, by March 2018, to address long-standing challenges to social and economic development through a human rights-based approach, while ensuring the participation of the communities affected, and fostering reconciliation and greater integration between communities. A/HRC/34/67 25 ESCR and rights related to land (i) Ensure, by October 2017, that environmental impact assessment procedures are consistently implemented and enforced, and ensure that all relevant information is freely and easily accessible. (ii) Put in place, by October 2017, a mechanism for participatory, inclusive and meaningful consultations with the communities on all development projects and the proper consideration of all comments received. (iii) Take concrete steps to review, by March 2018, legislation, regulations and agreements governing extractive industries and major development projects to ensure they include transparency requirements and environmental, social and human rights protection. (iv) Draft, by March 2018, following consultations with civil society and affected populations, an overarching land law which complies with international standards. (v) Streamline, by October 2017, the complaints procedure regarding land disputes and ensure information on the process is widely disseminated to guarantee non-duplication and prevent gaps. (vi) Ensure, by October 2017, access to adequate health, education and other basic services for all, particularly in Rakhine State, without discrimination. Engagement with international human rights mechanisms (i) Expedite the establishment of an OHCHR country office in Myanmar with a full mandate. (ii) Ratify, by October 2017, the International Covenant on Economic, Social and Cultural Rights. (iii) Ratify, by October 2017, the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. (iv) Ratify, by March 2018, the International Covenant on Civil and Political Rights, and all other core international human rights instruments.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s