A/HRC/43/59
discussion about the past and future, and reinvigorate a vision for nation building.
The national dialogue needs to be inclusive, participatory, and firmly grounded in
human rights. It should involve stakeholders across the country, including women,
men, youth, people with disabilities, lesbian, gay, bisexual, transgender and intersex
persons, civil society and people of different religions and ethnicities, and include
refugees who remain outside the country. Genuine local ownership of the process
would be key: local-level dialogue should feed into dialogue at the state, regional and
national levels. With transparency and public engagement throughout, it should
address a wider scope of issues than the current peace process, including civic space,
land use, resource sharing, sustainable development, legacies of conflict and the
return of refugees and internally displaced persons. Additionally, ongoing issues of
discrimination and inequality should be addressed, with a view towards moving
towards an equal, tolerant and pluralistic society. The dialogue should look into
reasons for grievances, and explore victim-centred approaches to addressing them,
including transitional justice mechanisms to promote truth, justice, reparations and
guarantees of non-recurrence. The dialogue should build consensus about the future
of the nation and could include proposals for peace and constitutional, legal, security
and administrative reform. This would provide a solid foundation for the democratic
transformation to proceed.
2.
Justice and accountability
62.
The Government-established Independent Commission of Enquiry submitted
its report to the President on 21 January 2020. The Special Rapporteur has reviewed
the executive summary published by the President’s Office, as well as annexes 16 to 28,
and repeats her call for the full report to be released publicly. Without the full report,
it is impossible to understand the basis of the factual findings and legal conclusions.
She notes that there is no information available about the methodology and sources of
most of the information provided. She continues to question whether the Commission
was independent and impartial and notes that it cites facts and figures it says were
given to it by the Government, apparently unquestioningly. This includes the number
of people who fled to Bangladesh, which she observes is vastly lower than the number
recorded by the United Nations and the Government of Bangladesh. The findings that
there was no evidence of rape or gang rape, or that searches by male defence
personnel could constitute sexual violence, are incredible. The Special Rapporteur
recalls the interviews that she has held with Rohingya survivors of sexual violence,
including rape. Several findings are analogous to statements made by the Government
on previous occasions, including the claim that Rohingya burned down their own
houses, with no evidence cited.
63.
The Commission found that war crimes, serious human rights violations and
violations of domestic law took place in northern Rakhine after 25 August 2017, and
the Judge Advocate General and Attorney General are now reportedly undertaking
further investigations. It is entirely doubtful that those most responsible will ever be
held accountable, as war crimes do not exist within domestic law. Furthermore, under
the Defence Services Act of 1959, the only human rights violations that are
criminalized are murder, culpable homicide and rape, and these categories fail to
cover all the crimes that occurred. The Special Rapporteur fears that the work of the
Commission will only perpetuate impunity. She advises the international community
not to accept the executive summary of the Commission’s report, as a step towards
real accountability, and to monitor the responses by the Government and military
closely.
64.
There has been significant international progress in achieving justice for the
alleged crimes committed in Rakhine State since 2016. The Pre-Trial Chamber of the
International Criminal Court authorized the opening of an investigation into the
situation in Bangladesh/Myanmar on 14 November 2019. Alleged crimes with at least
one element occurring on the territory of Bangladesh or another State party after 1
June 2010, or before that date if they are continuing crimes, will be investigated. The
Special Rapporteur notes that the investigation covers any crime within the
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