Original HRC document

PDF

Document Type: Final Resolution

Date: 2018 Oct

Session: 39th Regular Session (2018 Sep)

Agenda Item: Item2: Annual report of the United Nations High Commissioner for Human Rights and reports of the Office of the High Commissioner and the Secretary-General

GE.18-16374(E)



Human Rights Council Thirty-ninth session

10–28 September 2018

Agenda item 2

Resolution adopted by the Human Rights Council on 27 September 2018

39/2. Situation of human rights of Rohingya Muslims and other minorities in

Myanmar

The Human Rights Council,

Guided by the purposes and principles of the Charter of the United Nations,

Reaffirming the Universal Declaration of Human Rights, and recalling the

International Covenant on Civil and Political Rights, the International Covenant on

Economic, Social and Cultural Rights, the Convention on the Right of the Child, the

Convention on the Elimination of All Forms of Discrimination against Women and the

International Convention on the Elimination of All Forms of Racial Discrimination, and

other relevant international human rights law,

Recalling relevant resolutions of the General Assembly and the Human Rights

Council, the most recent being Assembly resolution 72/248 of 24 December 2017 and

Council resolutions 29/21 of 3 July 2015, 34/22 of 24 March 2017, S-27/1 of 5 December

2017 and 37/32 of 23 March 2018, and Council decision 36/115 of 29 September 2017,

Welcoming the work of the independent international fact-finding mission on

Myanmar and its oral updates to the Human Rights Council, while deeply regretting that the

Government of Myanmar has not cooperated with the fact-finding mission and urging the

Government to grant it full, unrestricted and unmonitored access to all areas and

interlocutors,

Welcoming also the work and the reports of the Special Rapporteur on the situation

of human rights in Myanmar, deeply regretting the decision of the Government of

Myanmar to discontinue cooperation with the Special Rapporteur and to deny her access to

Myanmar since January 2018, and calling upon the Government to resume its cooperation

with the Special Rapporteur without delay,

Welcoming further the appointment by the Secretary-General of a special envoy, the

cooperation of the Government of Myanmar with the special envoy and the agreement on

the opening of an office in Nay Pyi Taw, and commending the work of the special envoy

since her nomination, including her recent visits to the region and her consultations with a

range of interlocutors,

Welcoming the cooperation extended by the Government of Bangladesh allowing in

this context the Special Rapporteur to visit the country from 29 June to 8 July 2018, while

reaffirming the importance of cooperation with the Government of Myanmar in taking all

measures necessary to promote and protect human rights in its territory without any

discrimination,

Expressing deep concern about the ongoing non-cooperation of the Government of

Myanmar and its denial of access to the fact-finding mission and the Special Rapporteur,

Expressing deep concern also that, despite the signing of the bilateral instruments

between Bangladesh and Myanmar and the subsequent formation of the Joint Working

Group on the Repatriation of Displaced Myanmar Residents from Bangladesh, no displaced

Rohingya person has been able to return to Myanmar to date owing to the fact that no

visible effort has been made to create a conducive environment for the safe, voluntary,

dignified and sustainable return of displaced Rohingya, including assurance of non-

occurrence of violence, assurance on rights, including citizenship and mobility, or

assurance of accountability of perpetrators and justice for victims, and owing also to the

very slow verification process of the list of intended returnees handed over to Myanmar,

Expressing concern at the reports of continued intimidation and violence against the

remaining Rohingya Muslim population and other minorities in Myanmar,

Recognizing the initial steps taken by the Government of Myanmar to address the

underlying causes of the situation in Rakhine State, including the setting up of the Central

Committee for the Implementation of Peace, Stability and Development in Rakhine State

and the Advisory Commission on Rakhine State, established on 5 September 2016 at the

behest of the State Counsellor of Myanmar, Daw Aung San Suu Kyi, and chaired by former

Secretary-General Kofi Annan, while regretting that the Government has not yet fully

implemented all recommendations of the Advisory Commission on Rakhine State,

Acknowledging the establishment of an independent commission of enquiry by the

Government of Myanmar on 30 July 2018 as a step towards ensuring accountability for the

gross human rights violations and abuses committed in Rakhine State, and expressing hope

that the commission of enquiry, unlike previous national investigative mechanisms, will be

able to work with independence, transparency and objectivity,

Acknowledging with grave concern the statements made by the Secretary-General on

26 February 2018, the United Nations High Commissioner for Human Rights on 7 March

2018 and the Assistant Secretary-General for Human Rights on 6 March 2018, as well as by

the Secretary-General of the Organization of Islamic Cooperation on 27 February 2018, on

the situation of human rights in Rakhine State, in which they referred to ethnic cleansing in

Myanmar, and recalling resolution 59/45-POL of the Organization of Islamic Cooperation

adopted by the Council of Foreign Ministers at its forty-fifth session on the establishment

of an ad hoc ministerial committee on accountability for human rights violations against the

Rohingya, and the recommendations made by the participants in the international

consultation meeting on the Rohingya crisis, held on 6 July 2018 in Ankara,

Acknowledging the request made by the High Commissioner, during the thirty-

eighth session of the Human Rights Council, on the situation of human rights of the

Rohingya population and other minorities in the Rakhine State of Myanmar, that the

Council, in view of the scale and gravity of the allegations, consider making a

recommendation to establish a new impartial and independent mechanism, complementary

to the work of the fact-finding mission,

Stressing that States have the primary responsibility to respect, protect and fulfil

human rights,

Reiterating the urgent need to ensure that all those responsible for crimes relating to

violations and abuses of international human rights law are held to account through credible

and independent national or international criminal justice mechanisms, while recalling the

authority of the Security Council to refer the situation in Myanmar to the International

Criminal Court,

Recalling the responsibility of States to comply with their relevant obligations to

prosecute those responsible for violations of international law, including international

humanitarian law, international human rights law and international refugee law, and for

abuses of human rights law, and to provide an effective remedy to any person whose rights

have been violated, with a view to end impunity,

1. Expresses grave concern at the findings of the independent international fact-

finding mission that there is sufficient information to warrant the investigation and

prosecution of senior officials in the Tatmadaw chain of command so that a competent

court may determine their liability for genocide in relation to the situation in Rakhine State,

and that crimes against humanity and war crimes have been committed in Kachin, Rakhine

and Shan States, including murder, imprisonment, enforced disappearance, torture, rape,

sexual slavery and other forms of sexual violence, persecution and enslavement, and that

children were subjected to, and witnessed, serious human rights violations, including

killing, maiming and sexual violence, as part of a widespread and systematic attack on a

civilian population warranting criminal investigation and prosecution, and that the military

has consistently failed to respect international human rights law and international

humanitarian law;

2. Strongly condemns all violations and abuses of human rights in Myanmar, as

set out in the report of the fact-finding mission,1 including widespread, systematic and gross

human rights violations and abuses committed in Rakhine State, including the presence of

elements of extermination and deportation and systematic oppression and discrimination,

which may amount to persecution and to the crime of apartheid, also strongly condemns the

disproportionate response of the military and the security forces, deplores the serious

deterioration of the security, human rights and humanitarian situation, the exodus of more

than 723,000 Rohingya Muslims and other minorities into Bangladesh and the subsequent

depopulation of northern Rakhine State, and calls upon the Myanmar authorities to ensure

that those responsible for violations of international law, including human rights violations

and abuses, are held accountable;

3. Calls for a full and independent investigation of the reports of systematic and

widespread human rights violations and abuses committed, as reported by various United

Nations bodies, including the Human Rights Council, the fact-finding mission and the

Special Representative of the Secretary-General on Sexual Violence in Conflict;

4. Calls upon the Government of Myanmar to ensure the protection of the

human rights of all persons in Myanmar, including of Rohingya Muslims and other

minorities;

5. Also calls upon the Government of Myanmar to take all measures necessary

to ensure accountability and to end impunity for all violations of human rights by

undertaking a full, transparent and independent investigation into reports of all violations of

international human rights law and international humanitarian law;

6. Further calls upon the Government of Myanmar to grant full, unrestricted

and unmonitored access for the fact-finding mission, other human rights mechanisms and

relevant United Nations agencies, as well as for relevant international and regional human

rights bodies, including the Independent Permanent Human Rights Commission of the

Organization of Islamic Cooperation, and to ensure that all individuals have unhindered

access to and can communicate with the United Nations and other human rights entities

without fear of reprisal, intimidation or attack;

7. Welcomes the holding of the third session of the Twenty-first Century

Panglong Conference from 11 to 16 July 2018 and the progress made towards the principles

of a future democratic federal union of Myanmar, while calling for further steps, including

an immediate cessation of fighting and hostilities, of targeting civilians and of all violations

and abuses of international human rights law and international humanitarian law in northern

Myanmar, and of the harassment, intimidation, arrest, detention and prosecution of human

rights defenders and activists demonstrating for peace, the provision of immediate, safe and

unhindered humanitarian access, including to areas controlled by ethnic armed groups, in

particular in Kachin and Shan States, and the implementation of an inclusive and

1 A/HRC/39/64.

comprehensive national political dialogue ensuring the full, effective and meaningful

participation of all ethnic groups, women and young people, and persons with disabilities,

as well as civil society, with the objective of achieving lasting peace;

8. Calls upon the Government of Myanmar to take the measures necessary to

address the spread of discrimination and prejudice and to combat the incitement to hatred

against Rohingya Muslims and other minorities by publicly condemning such acts and

enacting necessary anti-hate speech laws, in accordance with international human rights

standards, and by promoting interfaith dialogue in cooperation with the international

community, and encourages political and religious leaders in the country to work towards

national unity through dialogue;

9. Also calls upon the Government of Myanmar to make efforts to eliminate

statelessness and the systematic and institutionalized discrimination against members of

ethnic and religious minorities, in particular relating to the Rohingya Muslims, by, inter

alia, reviewing the 1982 Citizenship Law, which has led to the deprivation of human rights;

by ensuring equal access to full citizenship through a transparent, voluntary and accessible

procedure and to all civil and political rights by allowing for self-identification; by

amending or repealing all discriminatory legislation and policies, including discriminatory

provisions of the set of “protection of race and religion laws” enacted in 2015 covering

religious conversion, interfaith marriage, monogamy and population control; and by lifting

all local orders restricting rights to freedom of movement and access to civil registration,

health and education services and livelihoods;

10. Strongly urges the Government of Myanmar to take all measures necessary to

implement fully all recommendations made by the Advisory Commission on Rakhine State;

11. Notes with concern the continued departure of members of the remaining

Rohingya population and other minorities for Bangladesh, and strongly urges the

Government of Myanmar and the armed forces to lift the curfew order in Rakhine State, in

particular to ensure freedom of movement and the safety and security of all persons without

discrimination, and to put an end to extortion against and the intimidation of the Rohingya

population;

12. Calls upon the Government on Myanmar to allow free and unhindered access

for local and international staff of humanitarian and other relevant international agencies to

provide humanitarian assistance, including gender-responsive assistance, and encourages it

to grant access to the diplomatic corps, independent observers and representatives of the

national and international independent media, without fear of reprisal, and to safeguard

those who report abuses;

13. Stresses the need for the creation of the conditions for the safe, voluntary,

dignified and sustainable return of Rohingya refugees from Bangladesh to their places of

origin, offering dignified solutions to displacement, in consultation with the populations

concerned and in accordance with international law and standards, with international

oversight and monitoring and with the free and informed participation of refugee

communities;

14. Strongly calls upon the Government of Myanmar to expedite the safe,

voluntary, dignified and sustainable return of all internally displaced persons in conditions

of safety and dignity to their homes in Myanmar, including the approximately 120,000

internally displaced Rohingya and Kaman persons currently in camps near Sittwe in central

Rakhine since 2012, by offering dignified solutions to displacement, in consultation with

the populations concerned and in accordance with international law and standards;

15. Calls upon the Government of Myanmar to provide any returnees with

freedom of movement, unimpeded access to livelihoods, social services, including health

services, education and shelter, and compensation for all losses;

16. Calls upon the United Nations and encourages other international agencies to

provide all support necessary for the Governments of Bangladesh and Myanmar to expedite

the safe, voluntary, dignified and sustainable return of forcibly displaced Rohingya

Muslims and other minorities from Myanmar, including internally displaced persons,

including through the early implementation of the memorandum of understanding signed by

the Government of Myanmar, the Office of the United Nations High Commissioner for

Refugees and the United Nations Development Programme;

17. Urges the Government of Myanmar to take all measures necessary to reverse

and abandon policies, directives and practices that marginalize Rohingya Muslims and

other minorities economically, to prevent the destruction of places of worship, cemeteries,

infrastructure and commercial or residential buildings belonging to all peoples, and to

ensure that displaced Rohingya Muslims and other minorities in Rakhine State do not lose

their rights to their homes and properties, including by reviewing relevant laws, and to

address the root causes of their vulnerability and forced displacement;

18. Expresses grave concern that the journalists Wa Lone and Kyaw Soe Oo,

who were investigating the Inn Dinn killings, have been jailed, prosecuted and sentenced,

and calls for their immediate and unconditional release, and calls upon the Government of

Myanmar to allow unhindered access of journalists throughout Myanmar, in particular in

Rakhine, Kachin and Shan States;

19. Welcomes the signing by the Governments of Myanmar and Bangladesh of

an arrangement on the return of displaced persons from Rakhine on 23 November 2017 and

of a physical arrangement for the repatriation of displaced Myanmar residents from

Bangladesh on 16 January 2018 as important first steps towards the safe, voluntary,

dignified and sustainable return and repatriation of Rohingya refugees, and acknowledges

the cooperation of Bangladesh with the Office of the United Nations High Commissioner

for Refugees, while urging all parties to invite the Office of the High Commissioner, the

International Organization for Migration and other relevant international organizations to

fulfil their mandates and to participate fully in the work of the Joint Working Group on the

Repatriation of Displaced Myanmar Residents from Bangladesh and to ensure the

transparent, effective and sustainable implementation of the returns process, in accordance

with international law and with the free and informed participation of refugee communities;

20. Acknowledges the signing of a memorandum of understanding on 6 June

2018 by the Government of Myanmar, the United Nations Development Programme and

the Office of the United Nations High Commissioner for Refugees and the creation of a

technical working group to oversee implementation as an important and necessary step to

create conditions for the safe, voluntary and dignified return of refugees from Bangladesh,

and encourages the immediate publication of the memorandum;

21. Also acknowledges the establishment of an independent commission of

enquiry by the Government of Myanmar on 30 July 2018, and calls for its close cooperation

with all United Nations bodies and mandates, in particular the independent international

fact-finding mission and the Special Rapporteur on the situation of human rights in

Myanmar to ensure that all those responsible for crimes involving violations of

international law, including violations and abuses of international human rights law, such as

conflict-related sexual and gender-based violence and the attacks on children perpetrated

during the military “clearance” operations in northern Rakhine State, are held to account;

22. Decides to establish an ongoing independent mechanism to collect,

consolidate, preserve and analyse 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, in accordance

with international law standards, in national, regional or international courts or tribunals

that have or may in the future have jurisdiction over these crimes, in accordance with

international law;

23. Also decides that the mechanism shall:

(a) Be able to make use of the information collected by the fact-finding mission

and continue to collect evidence;

(b) Have the capacity to document and verify relevant information and evidence,

including through field engagement and by cooperating with other entities, as appropriate;

(c) Report on its main activities on an annual basis to the Human Rights Council

as of its forty-second session and to the General Assembly as of its seventy-fourth session;

24. Takes note of the International Criminal Court Pre-Trial Chamber’s ruling

that it may exercise jurisdiction over the deportation of the Rohingya people from Myanmar

to Bangladesh, and requests the mechanism to cooperate closely with any of its future

investigations pertaining to human rights violations in Myanmar;

25. Requests the Secretary-General to appoint the staff of the mechanism as

expeditiously as possible, taking into account the experience of other relevant mechanisms,

and to recruit or allocate impartial and experienced staff with relevant skills and expertise,

drawing upon terms of reference prepared by the United Nations High Commissioner for

Human Rights;

26. Calls upon all States, including the Government of Myanmar and its

independent commission of enquiry, and encourages civil society, business enterprises and

other relevant stakeholders to cooperate fully with the mechanism to effectively fulfil its

mandate and, in particular, to provide it with any information and documentation they may

possess or come to possess, as well as any other forms of assistance pertaining to their

respective mandate;

27. Requests the United Nations system as a whole to cooperate fully with the

mechanism and to respond promptly to any request made by the mechanism, including

access to all information and documentation;

28. Requests the Secretary-General to allocate the resources necessary for the

implementation of the present resolution, including the logistical and technical resources

necessary to support the functioning of the mechanism;

29. Encourages the General Assembly to consider taking further action to

address the serious human rights violations committed in Myanmar, particularly in

Rakhine, Shan and Kachin States, as documented in the final report of the fact-finding

mission,1 and to seriously consider the recommendations contained therein and to pay due

regard to the establishment of the mechanism;

30. Decides to extend the mandate of the independent international fact-finding

mission, established by the Human Rights Council in its resolution 34/22, until the new

mechanism is operational to ensure that the large and continually increasing amount of

evidence of human rights violations and abuses it has collected is fully documented,

verified, consolidated and preserved in order for the material to be effectively shared,

accessed and used by the mechanism, and requests the fact-finding mission to submit a final

report on its main activities to the Council at its forty-second session;

31. Requests the United Nations High Commissioner for Human Rights to

present a written report, to be followed by an interactive dialogue, to the Human Rights

Council at its forty-third session, on the root causes of the human rights violations and

abuses the Rohingya Muslim minority and other minorities in Myanmar are facing,

including discrimination, racial intolerance, xenophobia and Islamophobic practices, in

violation of international human rights law and contrary to international declarations,

including but not limited to the Durban Declaration and Programme of Action, and to

recommend concrete measures to be taken by the Government of Myanmar and the

international community to address the current situation;

32. Encourages the United Nations system to give due consideration to the

recommendation by the fact-finding mission on conducting a comprehensive, independent

inquiry into the involvement of the United Nations in Myanmar since 2011 with a view to

establishing whether everything possible to prevent or mitigate the unfolding crises was

done, identifying lessons learned and good practices, making recommendations as

appropriate, including on accountability, and enabling more effective work in the future;

33. Appeals to all States, international agencies and other donors to step up

support for victims, including support for refugees, displaced persons and host

communities, possibly through the establishment of a trust fund to address their needs,

including the needs of those who have been victims of sexual violence, as well as child

victims and witnesses.

39th meeting

27 September 2018

[Adopted by a recorded vote of 35 to 3, with 7 abstentions. The voting was as follows:

In favour:

Afghanistan, Australia, Belgium, Brazil, Chile, Côte d’Ivoire, Croatia,

Democratic Republic of the Congo, Ecuador, Egypt, Georgia, Germany,

Hungary, Iceland, Iraq, Kyrgyzstan, Mexico, Nigeria, Pakistan, Panama,

Peru, Qatar, Republic of Korea, Rwanda, Saudi Arabia, Senegal, Slovakia,

Slovenia, Spain, Switzerland, Togo, Tunisia, Ukraine, United Arab Emirates,

United Kingdom of Great Britain and Northern Ireland

Against:

Burundi, China, Philippines

Abstaining:

Angola, Ethiopia, Japan, Kenya, Mongolia, Nepal, South Africa]