Burma’s Lost Rapport on Rights Protection

David Scott Mathieson reflects on the history of UN Special Rapporteurs in Burma.

Burma’s State Counsellor Aung San Suu Kyi and the United Nations Special Rapporteur on the situation of human rights in Myanmar, Yanghee Lee, once had a seemingly warm relationship. No longer. Following the special rapporteur’s visit in July 2017, the government delayed permission for a follow up visit and finally in December last year informed the South Korean law professor access would be denied and she would no longer receive any cooperation for the remainder of her tenure. That left Professor Lee “puzzled and disappointed” and saying “this declaration of non-cooperation with my mandate can only be viewed as a strong indication that there must be something terribly awful happening in Rakhine [Arakan State], as well as in the rest of the country.”

Professor Lee was thus forced to conduct a research mission in Bangladesh and Thailand, and present her end of mission statement at a press conference in her home city of Seoul. That statement on February 1, 2018 is one of the most principled and balanced assessments of the rights situation in Burma for some time, a sense of perspective many leaders in the country have rejected in the past several months. She spoke of widespread discrimination and violence against ethnic minorities over decades, including in Shan and Kachin States and the Eastern borderlands and how international emphasis on Arakan State has made many other besieged ethnic minorities fearful.

The rights rapporteur pointed to “a continuing erosion of democratic space. The civilian government has failed to usher in a new era of openness and transparency and is instead persisting with repressive practices of the past,” and highlighted arrests and intimidation of journalists and students. Noting reports of widespread violations throughout Myanmar from people she interviewed in neighboring countries, she said “During my mission, I was told by people of different ethnicities that the (nationwide) peace process is floundering largely because of the failure of the military and the government to earn the trust of ethnic groups, and what they see as a lack of a genuine commitment to peace on the part of officials.” She called the current situation a “tragic déjà vu” that “will reverberate through the future as it has through the past.”

This effectively drags Burma backwards to the dark days of military rule when the country stonewalled a succession of rights rapporteurs. UN sources have told me the Permanent Mission of Myanmar to Geneva has requested that the Human Rights Council find a replacement for Professor Lee, which would likely set a precedent of states picking and choosing what are Human Rights Council-appointed independent experts, who apply for the position and are vetted and selected. It has never been clear if senior Burmese government officials are aware that Professor Lee (like previous special rapporteurs) does not work for the United Nations, nor is she paid, nor does the UN instruct her what to say: the essence of independence. But it does illustrate how the civilian government is in tandem with the military in rejecting any criticism or calls for accountability from the UN rights body, indeed a sense of déjà vu. The rejection, dismissals, the appeal to sovereignty and the claims of being treated unfairly and judged too harshly, have been honed over nearly three decades of diplomatic stonewalling.

There have been five UN special rapporteurs mandated by the UN Human Rights Council (formerly Commission). The mandate for the rapporteur stems from 1992 and the passing of Human Rights Commission Resolution 1992/58 which called for the appointment of a rapporteur “to establish direct contacts with the Government and with the people of Myanmar, including political leaders deprived of their liberty, their families and their lawyers, with a view to examining the situation of human rights in Myanmar and following any progress made towards the transfer of power to a civilian Government and the drafting of a new Constitution, the lifting of restrictions on personal freedoms and the restoration of human rights in Myanmar.” That first rapporteur was the Japanese law professor Yoza Yokota, who served until 1996 and was permitted several tightly restricted visits to the country.

It is fascinating to read the first report by Professor Yokota in December 1992 and the responses from the then ruling State Law and Order Restoration Council (SLORC) leaders, and their direct relevance to events 26 years later. The main issues were the incarceration of Aung San Suu Kyi and other political prisoners, frozen progress on democratic reforms, the continued exodus of, and planned repatriation, of “Myanmar Muslims” from Bangladesh back to Maungdaw in Arakan State (the name Rohingya did not appear in UN Special Rapporteur reports until 1996), and a list of allegations of rapes of women and young girls, forced labor, enforced disappearances and other abuses against Muslims in Rakhine State. On a positive note, Yokota praised the military regime for signing and ratifying the four Geneva Conventions of 1949, even though subsequent reports for over two decades make clear the Tatmadaw (Burmese military) routinely breached Common Article 3 of the conventions in its failure to protect non-combatants.

The official explanations of the situation of Arakan State to the UN in 1992, especially “the slander campaign by foreign public media” on reporting of abuses, could have been written by the current government in 2018: the resemblance is remarkable. The report outlined the April 1992 agreement with Bangladesh to repatriate Muslims from Arakan State, 250,000 of whom had been forced to flee following a security campaign in 1991, and told the UN that five reception camps had been opened in Maungdaw: the first nine families of 25 men and 21 women to be ‘voluntarily repatriate [sic]’ was on 22 September that year, which should give serious pause for thought to optimists predicting any imminent Rohingya repatriation now.

The successor to Yokota was the Mauritian jurist Rajsoomer Lallah, who served for four years until 2000 when he resigned after the military government refused all his requests to visit the country. This was a period of intensified military arrests and intimidation of the National League for Democracy (NLD) membership throughout the country, and Lallah did important work collating the names and numbers of arrests of political activists. It is especially disturbing to place in historical perspective the role Special Rapporteurs played in raising serious abuses against the democratic opposition during military rule, only for the NLD to churlishly reject that same role when it finally gained power in early 2016 after the sweeping victory of the November 2015 elections. Lallah’s reports were all derived from visits to neighboring countries to interview refugees fleeing abuses, a methodology Yanghee Lee has been forced to return to.

The flamboyant Brazilian scholar Paulo Sergio Pinheiro served two terms between 2000 to 2008. Pinheiro is a Special Rapporteur stalwart: previously serving as rights rapporteur for Burundi, leading a study on violence against children during his Burma rapporteur tenure and now chairing the Independent International Commission of Inquiry on the Syrian Arab Republic. Pinheiro was initially seduced by the 2002 charm offensive of the successor to the SLORC, the State Peace and Development Council (SPDC), which released Aung San Suu Kyi from house arrest (what the SPDC jubilantly heralded as “Turning of a New Page”), freed an estimated 600 other prisoners and pursued a more upbeat rapprochement with the international community (partly directed by the US public relations firm DCI Associates).

This period included hopeful human rights training workshops with Myanmar government officials that were funded and delivered by the Australian government and led in part by the former Australian Human Rights Commissioner Christopher Sidoti. Sidoti is now one of the three commissioners of the UN’s Fact Finding Mission (FFM) to investigate allegations of abuse throughout Burma since 2011, with special reference to Rakhine State. This is an investigation team which, like Yanghee Lee, has been banned from entering Myanmar (allegedly photos of commissioners Sidoti, Marzuki Darusman, and Radhika Coomeraswamy have been posted at immigration counters at international airports).

This apocryphal SPDC opening abruptly ended when Pinheiro detected a listening device under his table during a confidential interview with a political prisoner in Rangoon’s Insein Prison in March 2003. He cut short his visit and stormed out of the country, visiting once more at the end of the year, and from then was not given access until late 2007. But by then Suu Kyi was back under house arrest after the military tried to murder her in the town of Depayin in Upper Burma on May 30, 2003, and the country entered another period of estrangement from the international community. Pinheiro was permitted to return in November 2007 and conduct an investigation into the security forces’ violent quashing of the popular protests led by Buddhist monks in Yangon, when the SPDC faced intense international condemnation over the use of violence against unarmed protesters. Pinheiro’s tenure was emblematic of the peaks and deep troughs of manipulative Burmese officialdom, and minimal progress often squashed by a return to authoritarianism and estrangement from the UN.

Pinheiro himself reflected on the role of special rapporteurs in an article in the journal Global Governance in early 2003 when he wrote,

Special rapporteurs take pains to maintain their independence, impartiality, and objectivity; to weigh the information on human rights provided by governments and civil society groups; and to report fully on the progress made and obstacles faced. Special rapporteurs perform a delicate balancing act. They must discharge their duties with thoroughness and sobriety, bearing in mind their essential role of protecting the interests of victims. At the same time, they must avoid high-profile appearances that draw excessive attention to their office. However, discretion sometimes has its advantages. For instance, I am able to engage in conversations, which I would label ‘principled engagements’, with authorities in Rangoon, whereas neither Human Rights Watch nor Amnesty International has been, unfortunately, able to conduct research in Myanmar for over a decade.”

(Of course, he said this without acknowledging that human rights NGOs spend more time documenting reports from witnesses and survivors on a regular basis, before engaging with governments.)

The Argentinian human rights lawyer Tomas Ojea Quintana, was appointed the fourth special rapporteur in 2008. He assumed his mandate in the aftermath of the devastating Cyclone Nargis of May 2008 that killed over 130,000 people in the Irrawaddy Delta, with the military regime blockading international humanitarian assistance efforts as world criticism mounted, even as thousands of Burmese aid workers flocked to the affected areas to assist survivors. Quintana also had to address the SPDC’s resumption of the Road Map to Discipline Flourishing Democracy which gained traction in the nationwide constitutional referendum held a week after the cyclone: a clearly rigged exercise amidst the carnage of the natural disaster, and which added more fuel to international outrage.

It is an evident pathology of freshman rapporteurs that they believe a new approach bolstered by the energy of innovative ideas can evince a productive partnership. The new SR laid out an optimistic agenda of engagement in an environment that didn’t reward confidence in the generals sincerity. Quintana was dealing with seasoned veterans of the Ministry of Foreign Affairs (MOFA) who can sense all interlocutors’ need for measurable progress and then slam the door shut when it suits them. Quintana was soon to be so frustrated with the government’s restrictions on his travel and meeting requests, that in March 2010 he raised the possibility of forming a UN Commission of Inquiry into long standing reports of crimes against humanity. The recommendation was well-founded. The timing was awkward. In the months before the long anticipated November 2010 elections, there was a surge of optimism for reform and openness in Myanmar. Despite the desultory commitment of 16 states (not very ardent support, indeed even perfunctory) to form a CoI, this important recommendation languished as the democratic transition under former President Thein Sein gathered steam in 2011. International effusion for the democratic transition had no place for accountability measures or transitional justice, as the response to the nationwide peace process made clear: diplomats, donors, and political leaders wanted no form of accountability for past crimes.

Quintana rightly turned his attention to the conflict in Arakan State following the 2012 intercommunal violence and the long-standing repression of Rohingya Muslims. The next year saw the rise of the anti-Muslim 969 movement and also coincided with the rise of Buddhist nationalism in the shape of Ma Ba Tha (the Race and Religion Protection Association). The last two years of Quintana’s mandate were marred by attacks from ultra-nationalist monks and their supporters, including in one notorious case an attack on his motorcade outside the town of Meiktila in August 2013 following horrific anti-Muslim violence there that had killed scores of people months before. The attack on the UN convoy clearly had a level of official security force connivance or forewarning, something Quintana criticized publicly, yet was rejected by government officials. Quintana was publicly vilified inside Burma and his engagement with government officials became even more strained.

Reflecting on his six-year tenure and the transition, Quintana wrote “(a) change of mindset still needs to take place within all levels of Government to allow civil society, political parties and a free media to flourish beyond the limited freedoms that have currently been granted.” He also said, quite presciently, “tackling the impunity and systematic discrimination in Rakhine State represents a particular challenge which, if left unaddressed, could jeopardize the entire reform process.” Obviously appreciating a challenge, Quintana is now Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea (DPRK), the same post formerly held by the current chairman of the FFM, Marzuki Darusman.

As the turnover between rapporteurs was taking place, another often-overlooked factor was playing out. President U Thein Sein had agreed to the opening of an office of the High Commissioner for Human Rights (OHCHR) in a series of pledges to US President Barack Obama, with the president’s office taking steps towards agreeing to a full office of the rights organisation to help with capacity building and monitoring and reporting. Soon that initiative was delayed over disagreements between the government and the UN over the alleged massacre in a village in Arakan State called Du Chee Yar Tan, which rights groups, the media and a subsequent OHCHR report claimed occurred yet which the government heatedly denied. Evidence of the Du Chee Yar Tan massacre has never been conclusively produced, with many journalists and NGO researchers who first reported the allegations now privately claiming it was misreported, and stating the UN OHCHR report contained numerous inaccuracies. Former Burmese navy admiral, presidential advisor, and now member of parliament, U Soe Thane wrote in his recent memoirs, Myanmar’s Transformation and U Thein Sein: A Insider’s Account, that “a crime of killing of Muslim people in Duchira-Tan (Du Chee Yar Tan) Village in Arakan State was meticulously faked up and put out on the international front. We had to defend our innocence with the clear cut evidence.” The alleged massacre has never been fully accounted for, nor have the likely mistakes made by the media, rights groups and the UN been acknowledged or retracted.

It is unclear what effect the disagreements over Du Chee Yar Tan had on institutional trust in the government’s cooperating with the UN rights regime. From four OHCHR staff members based in country during 2014, the UN now has no one officially permitted inside Burma, as the relationship between UN rights promotion and the Myanmar government has been in a downward spiral since then. The recently-departed Resident Coordinator, Renatta Lok Dessalion was widely criticized for failing to effectively promote the UN’s ‘Rights Up Front’ agenda. The UN in Burma has been deservedly criticized for failing to support a greater role for rights promotion in operations and engagement, including more support for the independent role of special rapporteurs.

Professor Lee inherited the mandate in 2014 when international optimism over the Thein Sein administration was beginning to plateau. The mandate was broadened to include assessing the human rights dimensions of the looming elections of 2015. As Professor Lee was wrapping up her early 2015 research mission, the attention seeking firebrand Buddhist monk U Wirathu told supporters at a rally in Rangoon she was a “bitch” and a “whore.” She became more widely vilified by a social media infused smear campaign. Her laudable pursuit of balanced reporting led her to the conflict zones of Northern Burma, where increasingly the military commanders denied her travel authorization to visit conflict affected communities dotted throughout the area. The new government of Suu Kyi, predicted to be an ardent supporter of her mandate, soon became more circumspect. Following violence by security forces against Rohingya Muslims in Arakan State in October 2016 in the wake of an attack by Rohingya militants, that attitude turned increasingly to rancor. The relationship between the State Counsellor and the Special Rapporteur lost its luster. The post-August 25, 2017 violence and Suu Kyi’s stubborn refusal to acknowledge the scale of human suffering has terminally severed the NLD’s commitment to domestic and international human rights promotion.

In advance of Professor Lee’s mid-2017 visit, she was asked to give assurances she would have no contact with the Fact Finding Mission, something she said in her end of mission statement “was an affront to the independence of my mandate.” The NLD government has claimed that Professor Lee’s statement following her July 2017 visit was biased and unfair, and its official statement expressed “disappointment” that it “contains many sweeping allegations and a number of factual errors,” but these are likely mealy-mouthed methods of expressing anger at her consistent and principled criticism of the sharply deteriorating human rights situation throughout Burma, not just Arakan State.

In March of this year, Yanghee Lee delivered her report to the UN Human Rights Council, and it was one of the strongest in a series of detailed and carefully researched reports. Presenting to the public, she decried violence in Arakan State that bore the “hallmarks of genocide” which the civilian and military governments have strenuously denied. Professor Lee also called attention to ongoing abuses in northern conflict zones in Kachin and Shan States, alongside failings of the United Nations in promoting protection of human rights. She also noted “In the two years since the victory of the NLD in national elections, the Government has yet to make any real progress on legal and judicial reform. The statute books still contain several repressive laws from the colonial era while more recent laws are also being used to target people and stifle dissenting voices. The democratic space continues to shrink, with journalists, civil society actors and human rights defenders placed in an increasingly perilous position, particularly when speaking out about human rights abuses.” Decrying the use of social media to spread hate and incitement to violence against Muslims, and against her, the rapporteur also called Facebook a “beast” at a press conference.

While the ultimate blame for the violence in Arakan State rests squarely with the Rohingya militants of the Arakan Rohingya Salvation Army (ARSA) who committed the August 25 attacks and the overwhelming savagery of the state security forces that have driven 700,000 Rohingya Muslims into Bangladesh, responsibility for the deteriorating state of relations with the UN also sits on the desk of the Minister of Foreign Affairs, Suu Kyi’s other portfolio. In her desultory, distorted and at times outright dishonest defense of her handling of the Rakhine situation she has fueled international anger, not attempted to assuage it.

Suu Kyi’s evident disdain for the UN’s rights regime mirrors the neo-populist assault on promoting rights around the world, which has partly driven the decision by the High Commissioner Prince Zeid Ra’ad Hussein not to pursue a second term, saying “in the current geopolitical context, (that) might involve bending a knee in supplication; muting a statement of advocacy; lessening the independence and integrity of my voice.”

Suu Kyi’s recent treatment of Yanghee Lee is a sadly consistent pattern of denial and diversion honed by Burmese diplomats and generals for decades. But if the government and military think that denying Professor Lee access to the country will make her go away, they are misguided. She will continue to report to the Human Rights Council as she did in March, and endeavor to gather evidence from the outside if denied entry. The Fact Finding Mission will produce its final report in September, where Burma will likely face another self-inflicted barrage of condemnation and mounting pressure over not just the horrors of Arakan, but the nationwide decline in protection and promotion of human rights by a democracy league that had championed them for thirty years.

David Scott Mathieson is a Rangoon-based independent analyst working on peace, conflict and human rights issues.