On 30 May 2018 the Government of Myanmar announced its latest “International Commission of Enquiry” (ICOE) to investigate human rights violations in Rakhine State.
Its creation follows at least eight other special government inquiries and boards conducted since 2012 in Rakhine State alone.
In a five-page legal briefing, the International Commission of Jurists (ICJ) assesses the inquiry in reference to standards on the conduct of investigations.
The ICJ finds that the ICOE cannot reasonably be seen as having any chance of being independent, impartial, or making an effective contribution to justice or accountability for the crimes under international law. To the contrary, giving any recognition to it is likely to undermine and delay effective international measures for justice and accountability.
On 28 August the spokesperson for the Office of the President stated that:
“We have formed the Independent Commission of Enquiry to response [sic] to false allegations made by the UN Agencies and other international communities.”
Indeed, the Chairperson of the ICOE stated at a press conference, that:
“[T]here will be no blaming of anybody, no finger-pointing of anybody… saying you’re accountable.”
Such prejudicial statements confirm the conclusion of the United Nations Independent International Fact-Finding Mission (IIFFM), that:
“The Government’s recently-created Commission of Inquiry will not and cannot provide a real avenue for accountability, even with some international involvement. The impetus for accountability must come from the international community.”
Crimes against humanity and war crimes have been committed in Myanmar, and an investigation of evidence of the crime of genocide is warranted, according to the summary report of the UN IIFFM, published on 27 August 2018.
Throughout Myanmar the rule of law is severely undermined by a lack of accountability for perpetrators of rights violations; lack of access to remedies and reparation for victims; and persistent challenges to the independence of the justice system.
In current circumstances it is impossible to rely on any national courts, prosecution services, or commissions of inquiry in Myanmar to deliver justice or accountability of security forces in relation to human rights violations constituting crimes under international law.
The UN Security Council should refer the situation to the International Criminal Court or a similarly constituted international tribunal without delay.
The UN Human Rights Council should promptly establish a robust International Impartial and Independent Mechanism (IIIM) or similar mechanism, to collect and analyse evidence for future prosecutions; action should be taken by the Council at its September 2018 session – waiting for or deferring to the UN General Assembly to act would risk further delaying or denying justice for victims, including because key criminal evidence could be irretrievably lost, destroyed, or deteriorate in the meantime.
Contact
Frederick Rawski, Asia and the Pacific Director, frederick.rawski(a)icj.org
Legal briefing
Myanmar-COI cannot deliver justice or accountability-Advocacy-Analysis brief-2018-ENG (full text, PDF)
Myanmar-COI cannot deliver justice or accountability-Advocacy-Analysis brief-2018-BUR (full text in Burmese, PDF)