A/HRC/42/50
soldiers’ convictions were themselves imprisoned for 18 months, significantly longer than
the time served by the actual perpetrators of the crimes.
98.
The mission found that victims from a diverse range of ethnicities have little trust in
the authorities’ ability and willingness to ensure justice.
Independent Commission of Enquiry
99.
In June 2018, shortly before the mission released its report, the Government of
Myanmar established the Independent Commission of Enquiry to examine the events of 2017
in Rakhine State. The Commission was to publish an interim report in April 2019 and its final
report by 30 July 2019.8 At the time of writing, neither report had been released. In July 2019,
the Government extended the Commission’s mandate for an additional six months to
continue its work. Under its mandate, the Commission’s recommendations can only be
directed to enhancing peace and stability and ensuring law enforcement and the rule of law.
The chair has emphasized that it is not an accountability mechanism for human rights
violations and abuses and violations of international humanitarian law. The Commission
relies on the Office of the President for financial, administrative, technical and logistical
support.
100. In March 2019, the mission met with the Commission chair, Rosario Manalo, in
Geneva. The chair reported that the Commission had a secretariat with clerks and one staff,
and an investigation team with two local legal experts supported by two foreign experts. The
limited information the chair provided about the Commission’s resources and methodology
raised serious concerns for the mission; the Commission’s mandate provides that it “may
undertake study/investigative visits to relevant areas to obtain direct and first-hand
information”. The Commission has made no public statement of methodology, and did not
provide the mission with a detailed description of its methodology. The Commission
undertook one mission to Rakhine State, in August 2018, during which it met with
government officials and interviewed between 8 and 10 victims. The chair confirmed that the
interviews held during the field mission were undertaken in the presence of security forces.
101. At the time of writing, the Commission had not visited Cox’s Bazaar, and the
Rohingya with whom the mission spoke feared reprisals for speaking to Myanmar
government officials about Tatmadaw brutality in Rakhine.
102. Under international law, Myanmar has a duty to investigate, prosecute and punish
gross human rights violations and serious violations of international humanitarian law, in
particular where they amount to crimes under international law. The establishment of a
commission could have been a positive step towards fulfilling these obligations; however,
the Commission’s lack of a clear mandate, its opaque methodology and its questionable
operating procedures, as well as its dependence on the Government of Myanmar, undermine
the possibility that its investigations would lead to the identification of perpetrators, the
promotion of accountability and justice, and redress for victims.
B.
International accountability
103. Against such a background of domestic impunity, the mission reaffirms its conclusion
that accountability can only be advanced by the international community. The mission has
assessed the options available.
1.
International Criminal Court
104. On 6 September 2018, following a request submitted by the Office of the Prosecutor
of the International Criminal Court pursuant to article 19 (3) of the Rome Statute, Pre-Trial
Chamber I decided by majority vote that the Court may exercise jurisdiction over the alleged
deportation of the Rohingya people from Myanmar, which is not a State party to the Statute,
to Bangladesh. The Chamber urged the Office to supplement the investigation of the crime
8
16
See www.icoe-myanmar.org/key-terms and www.moi.gov.mm/ppd/sites/default/files/Vol-71%2CNo44.pdf.
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