Fact-Finding and the Rohingya Community
In March of this year, the Human Rights Council (HRC) unanimously adopted a resolution concerning the Myanmar Government’s treatment of its Rohingya minority, which declared an imminent need to dispatch an ‘independent fact-finding mission’ to ascertain and study the facts and circumstances relating to the escalating human rights violations the State is accused of perpetrating upon such people. However, on the 30th of June, Myanmar’s deputy minister of foreign affairs told the Myanmar Parliament that “We [The Government] will order Myanmar embassies not to grant any visa to UN fact finding mission members” – indicating an outright refusal to even engage with the mission, let alone grant it ‘full, unrestricted and unmonitored access to all areas and interlocutors,’ as pleaded by the HRC in its resolution. More worryingly, on the 7th of August, the Government published its own findings in respect of the condition of the Rohingya community – which rejected allegations of human rights abuse levelled at the Government, with sitting Vice-President Myint Swe declaring that ‘some incidents (of abuse) appear to be fabricated, others had little evidence…’
Myanmar’s subsequent refusal to grant an international fact-finding commission access to the Rakhine state (where the atrocities are said to have taken place) could be legally justified under Article 2 of the UN Charter, which states:
“Nothing … in the … Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State or shall require the Members to submit such matters to settlement under the present Charter.”
This Article codifies the view that investigation of State abuse and human rights violations are within the exclusive domestic jurisdiction of the State itself, empowering a country like Myanmar to declare, as it has done, that its own commissions and inquiries validate its claims of innocence. Likewise, the Israeli Government consistently refuses to cooperate with UN and HRC commission enquires into alleged human rights abuses in Palestinian territories, by preventing them access to Israeli territories and government data on grounds of Article 2.
Despite these significant roadblocks and the increased difficulty of accurate fact-collection, investigative commissions are not rendered helpless. The international community has investigated human rights abuses in countries such as North Korea, Eritrea, Yugoslavia, Sudan and Rwanda – often without the consent or minimum cooperation of the State concerned, through remote research methodologies which use written submissions, satellite imagery and film-footage. In fact, the 1998 report of the International Labour Organisation which studied the widespread practices of forced labour in Myanmar without the cooperation of the then militarily ruled State, was subsequently hailed as a “detailed and incisive human rights investigation.”
This is not to suggest however, that the appointment or creation of a Fact-Finding Commission is of itself sufficient to make clear the plight of the Rohingya community. Commissions such as the one recommended for Myanmar by the HRC do not follow the same exacting standards for the collection of evidence as that required by a legally established judicial process, with there being a lower burden of proof than ‘proving facts beyond reasonable doubt’ required to arrive at conclusions. As argued by Theo Bortruche in his study on the efficacy of Fact-Finding Commissions, conclusions are often based on the prima facie existence of a ‘balance of probabilities’ in favour of a particular finding (due to their structural inability to irrevocably ascertain fact), which allows room for fact-clashes, falsifiable evidence and ultimately, rebuttable conclusions. Moreover, even if such reports are recognised as representing the true state of affairs, there exists a curious lack of follow-up to such reports, with little to no action from the international community on implementing the recommendations of such committees. The UN Commission of Inquiry on the 2014 Gaza Conflict noted as much in its final findings:
“The persistent lack of implementation of recommendations [from previous reports] lies at the heart of the systematic recurrence of violations in Israel and the [oPt]…”
There is, however, a need for the Government of Myanmar to take stock of the manner in which its refusal will be viewed by the international community. The Myanmar State Counsellor’s Office and the Lower House of Parliament continue to condemn the findings of a separate Special Rapporteur appointed by the HRC to investigate the abuse of children in the Rakhine region – indicating at best, an unwillingness to engage with the international community on its own investigations into the atrocities, and at worst, a systemic rejection that any such atrocities are indeed taking place.