On Friday 12th February 2021, the Human Rights Council convened a special session to address ‘the human rights implications of the crisis in Myanmar’.
The special session was requested via an official letter dated 8 February 2021 and signed by H.E. Mr. Julian Braithwaite, Ambassador and Permanent Representative of the United Kingdom of Great Britain and Northern Ireland to the United Nations in Geneva. This letter, addressed to H.E. Ms. Nazhat Shameem Khan, the recently elected President of the Human Rights Council, was jointly submitted by the Permanent Mission of the United Kingdom and the Permanent Delegation of the European Union. This request was officially supported by 19 member States and 28 Observer States.
In conformity with operative paragraph 10 of the General Assembly resolution 60/251, the Human Rights Council is ‘able to hold special sessions, when needed, at the request of a member of the Council with the support of one third of the membership of the Council’ (i.e. 16 member States or more). Special sessions of the Council aim to provide a platform for the Council to consider and act on urgent human rights issues of either a country-specific or a thematic nature.
The Council’s action on the human rights situation in Myanmar to date
The UN Commission of Human Rights, created in 1946 to examine and monitor major human rights violations, was initially the body in charge of reviewing the human rights situation in Myanmar prior to the establishment of the Human Rights Council in 2006. The Commission adopted resolution 1992/58 establishing the mandate of the Special Rapporteur on the situation of human rights in Myanmar, which has been extended annually since 1992. Alongside reports prepared by the Special Rapporteur, numerous resolutions addressing human rights-related issues in Myanmar have been adopted by the Human Rights Council. Initially, these resolutions – which were presented by the EU and were generally adopted by consensus – broadly focused on the various types of human rights violations in the country. For instance, in 2010 the Council reviewed the government of Myanmar’s electoral laws, its treatment of political opponents and prisoners of conscience, its restrictive policies with regards to fundamental freedoms (including the right to assembly, association, movement and expression), and its use of torture or ill-treatment against detainees. Meanwhile, in its resolution 16/24, the Council condemned the lack of efforts undertaken by the government towards a process of national reconciliation, and reaffirmed the need to initiate a ‘credible transition to democracy … within the framework of a transition to a civilian, legitimate and accountable system of government, based on the rule of law and respect for human rights.’
Although issues of mistreatment and discrimination against ethnic minorities in certain regions, including the Northern Rakhine and the Kayin State, had been regularly addressed by the Council for years, a certain shift towards a more specific focus on the persecution of Rohingya Muslims was observed in 2013, as exemplified by the Presidential Statement 23/1. While resolutions tabled by the European Union continued to adopt a holistic approach to addressing the human rights situation in Myanmar, other groups of States, namely the Organization of Islamic Cooperation, introduced initiatives that focused more narrowly on the rights of Rohingya Muslims in Myanmar.
In the lead-up to the 2020 elections in Myanmar, the Council expressed concerns with regard to the abuses and increasingly violent policies of Myanmar’s military forces, as highlighted by resolution 40/29. This resolution also called upon the government of Myanmar and its institutions to ‘step up efforts to strengthen the respect, protection and fulfilment of human rights and the rule of law, and to advance democratization […]’. That same year, in its resolution 42/3 the Council reiterated its ‘urgent call upon the Government of Myanmar to sustain the democratic transition of Myanmar, in particular in view of the general elections in 2020 called by the Government, by bringing all national institutions, including the military, under the democratically elected civilian Government’. Similar calls were made by the Independent International Fact-Finding Mission on Myanmar, established by Council resolution 34/22 in 2017. At the same time, the Fact-Finding Mission’s 2018 report revealed a tendency – particularly since 2015 – for the government to criminalise and prosecute civilians exercising their fundamental freedom, including their right to protest, as part of a ‘broader trend to deliberately silence critical voices, negatively affecting democratic space’.
The 2021 special session on Myanmar, held in February 2021, is the third special session convened by the Council specifically addressing the human rights situation of the country. Indeed, a first special session was organised in October 2007, following a request by the Permanent Representative of Slovenia (on behalf of EU member States that were also members of the Council) supported by 17 member States, to address the violent repression of civilians by the government of Myanmar following peaceful protests. The main outcomes of this session are highlighted in Council resolution S-5/2, which condemns the government’s arbitrary arrests and detentions, killings, enforced disappearances, use of lethal force, and restrictions of fundamental freedoms.
A second special session, convened in December 2017, was requested upon allegations of systematic violations in Myanmar, notably against the Rohingya Muslim community and other minorities. Following the session, the Council expressed that it is ‘Highly alarmed at the outbreak of violence in Rakhine State…that caused the displacement of hundreds of thousands of Rohingya civilians to Bangladesh’. During this special session, the Council adopted a resolution requesting the government to protect and respect the rights of members of ethnic minorities targeted by repressive policies, notably by ensuring accountability for crimes committed under its jurisdiction, lifting all restrictions on movement, ensuring humanitarian access to all concerned regions, and resolving the conditions that led to mass displacement.
29th special session
The session, held virtually on Friday 12th February 2021, began with keynote statements by H.E. Ms. Nada Al-Nashif, Deputy High Commissioner for Human Rights, and Mr. Tom Andrew, Special Rapporteur on the situation of human rights in Myanmar, speaking on behalf of the Coordination Committee of the Special Procedures of the Human Rights Council.
The UN Deputy High Commissioner for Human Rights opened the 29th special session by stating that the military coup in Myanmar constituted a ‘profound setback for the country, after a decade of hard-won gains in its democratic transition … gains that had been reinforced by the clear results of the general elections of November 2020.’ She highlighted that the OHCHR was tracking the detention of more than 350 Myanmar citizens, political and State officials, activists, and civil society members including journalists, monks and students, while highlighting that most had not received any form of due process and others still remained missing.
H.E. Al-Nashif conveyed her admiration for the demonstrators, emphasising the diverse and inclusive nature of the persons marching in opposition of the coup. Emphasising that ‘it is they who represent Myanmar’s future: a future of shared justice and equitably shared national wealth, amid harmonious relationships between peoples and communities’, she warned the military leaders that ‘the world is watching’ and that ‘the indiscriminate use of force against peaceful protestors is unacceptable.’
Reflecting on the root causes of the current crisis, H.E. Al-Nashif noted that impunity, lack of civilian control over the military, and the absence of genuine accountability for past human rights violations perpetrated by the military forces had precipitated the coup. She highlighted that in the past two decades the Council had been briefed on these violations by successive High Commissioners and human rights experts alike and argued that the ‘lack of action to address them has emboldened military leaders and contributed to this present crisis.’
The Deputy High Commissioner recommended that the Council presents the strongest possible call for the military leadership to:
- respect the result of the election;
- return power to civilian control; and
- immediately release all individuals arbitrarily detained.
H.E. Al-Nashif finished her statement by expressing support to the people of Myanmar in their struggle for their ‘rights to justice, to freedom, to democratic participation, to personal safety and security, and to peaceful, sustainable and inclusive development’. She also expressed her and the High Commissioner’s hope ‘that from this crisis, you will be able to rebuild a country that rests on firmer democratic foundations, which can ensure the equality, dignity, human rights and the full inclusion of all in national development.’
The Special Rapporteur on the situation of human rights in Myanmar, on behalf of the Coordination Committee of Special Procedures of the Human Rights Council, began his message by stating that it was not the first time that the Tatmadaw had shown ‘their cynical belief that they are above the law – their own laws and the laws of nations’ and that it therefore was crucial for the international community, including the Council, to send a clear message to Myanmar’s military that ‘that they are, in fact, not above the law and that the people of Myanmar, and the people of world, will not let these illegal and reprehensible actions stand.’
Mr. Andrews highlighted the illegal nature of the actions taken by the military, stressing that even if election irregularities did exist, there was, and is, no justification for declaring a state of emergency, arresting the civilian leadership, and attempting to destroy Myanmar’s fledgling democracy’ and that ‘the military junta even failed to follow its own requirements for taking control of the country as specified in the 2008 constitution that the military itself drafted.’
In response to the illegal coup and despite a history of oppression and crackdowns, peaceful protests are taking place and growing in numbers across the country, according to the Special Rapporteur. In this regard he highlighted the diversity of the people taking to the street in opposition of the military’s action, stating that ‘this is as united as I have seen Myanmar. And it gives me great hope.’
He stressed the importance of a clear and rapid response by the international community and also asked the Council and the international community at large to iterate four clear demands to the military junta, namely ‘release, unconditionally, all who have been detained; end the persecution and prosecution of the people of Myanmar for exercising their basic human; stand down immediately so that the duly elected government of Myanmar can begin its work; and return to your barracks and consent to fundamental reforms that will end the impunity of the Tatmadaw leadership while fully establishing accountability of the military to civilian control.’
Mr. Andrews concluded that this was a ‘moment of truth’ for us all, as the principles and values on which the Council was founded are under siege in Myanmar. As such, he called on the international community to ‘speak truth with clarity and force. And then let us act with and for a people in their hour of great peril and need.’
During the following debate, 30 member States, 41 Observers (including Myanmar, as the country concerned) and 11 civil society representatives took the floor to deliver statements.
At the start of the debate, H.E. U Myint Thu, Permanent Representative of Myanmar to the UN in Geneva (speaking as the country concerned) underlined that ‘over the years, Myanmar has been nurturing democratic values, establishing peace and stability, and sustainable development to the benefit of the people’. With regard to the current situation, Myanmar stated that: ‘In light of the post-election irregularities and the following complex situation in the country, Tatmadaw was compelled to take the State responsibilities in accordance with the State Constitution.’ Myanmar assured that the newly formed State Administration Council ‘retained the Myanmar National Human Rights Commission to continue their duties and responsibilities’. Myanmar underlined that ‘it continues to adhere to the Independent, Active and Non-aligned Foreign Policy and uphold the principles of peaceful co-existence amongst nations’ and ‘will extend her continued cooperation with the United Nations, ASEAN, WFP and ICRC and other development partners’. Myanmar expressed that ‘as a member of ASEAN, Myanmar will continue to uphold the purposes and principles enshrined in the ASEAN Charter and the Treaty of Amity and Cooperation in Southeast Asia (TAC)’. Myanmar concluded that ‘it is undergoing the extremely complex challenges and delicate transition. We do not want to stall our nascent democratic transition in the country.’ Finally, Myanmar assured that it will ‘continue to engage with the United Nations towards lasting peace and stability and sustained development to the benefit of the people in the country.’
Portugal, on behalf of the European Union, underlined that the ‘session is a crucial opportunity for the Council to contribute to the prevention of further human rights violations’. Portugal stressed that ‘accountability for past and ongoing serious human rights violations in Myanmar must be ensured.’ While recalling the mandate of the Independent Investigative Mechanism for Myanmar, Portugal called upon ‘all States and entities, including private corporations, to offer their full cooperation.’
The United Kingdom expressed concern at reports and images of violence perpetrated by police and the military. While calling for all those arbitrarily detained to be released, the UK emphasised that ‘we must receive assurances of their safety and wellbeing.’ In expressing their solidarity with the people of Myanmar, the UK also called ‘on the military to refrain from obstructing the people’s access to information and communication.’ The UK concluded by encouraging ‘all partners to work constructively to prevent any further violence and seek a peaceful resolution.’
Indonesia called on Myanmar to uphold democracy and human rights but underlined that a solution to the present situation lies in a ‘Myanmar-led, Myanmar-owned process.’ It underscored that the international community should assist Myanmar in strengthening its democratic institutions and processes, including by helping settle the election dispute and addressing root causes of the current situation. Indonesia highlighted that the international community should support the leading role of ASEAN by reinforcing the individual and collective efforts of its member States. It concluded that it is only through dialogue on how the international community can assist Myanmar in addressing the current situation can its solution be found.
India underlined that ‘the rule of law and democratic processes must be upheld and the detained political leaders released.’ While noting that it has ‘direct stakes in the maintenance of peace and stability and the development’ of Myanmar, India proposed to continue developmental efforts ‘so that people on the ground do not suffer.’ India concluded by highlighting that ‘restoring democratic order should be a priority for all stakeholders.’
Namibia expressed concern about ‘reports regarding the use of lethal force by the Myanmar military against unarmed peaceful protestors’ and called on ‘the military to immediately and unconditionally release the political leaders and all other persons who have been arbitrarily detained.’ To conclude, Namibia indicated that as a member of the Council it will support ‘the request to enhance the monitoring and reporting mandate of the Special Rapporteur on Myanmar.’
Mexico expressed their conviction that democracy, respect for human rights, the rule of law, and inclusive dialogue are the only ways to achieve peace and prosperity. While urging Myanmar’s authorities to cooperate with international and regional mechanisms, as well as grant access to their territory, Mexico highlighted that human rights mechanisms must continue to monitor the situation and report back to the Council regularly.
Japan strongly urged ‘the military and other security forces to immediately halt the use of force and other violent acts against the public’ and expressed hope that a democratically elected government will be swiftly reinstated. Japan also highlighted that it will ‘continue to proactively and constructively engage in discussions toward the improvement of the human rights and humanitarian situation in Myanmar in close cooperation with the international community.’
The Russian Federation noted that ‘settlement of differences between Myanmar’s political forces is strictly an internal matter of that sovereign State.’ Further, the delegation argued that ‘the transfer of power to the State Administrative Council did not result in an overhaul of the national legal framework and institutional mechanisms for the promotion and protection of human rights’. They concluded that ‘existing human rights issues need to be addressed together with the State concerned through open dialogue and cooperation. Today’s special session is clearly not conducive to this’.
The People’s Republic of China emphasised that it maintains its previous unfavourable position on country-specific resolutions, while underlining that what ‘happens in Myanmar is Myanmar’s internal affair’. The delegation urged that the ‘International community, on the basis of respecting Myanmar’s sovereignty and political independence, territorial integrity and national unity, help all parties concerned in Myanmar to engage in dialogue and reconciliation in accordance with the wishes and interest of the Myanmar people and support the ASEAN, UN Secretary General Special envoy in their mediation efforts’. China underlined that the ‘actions of the Council must contribute to Myanmar’s political and social stability and help solve key problems rather than intensifying conflicts and further complicating the situation’.
Bangladesh highlighted its position as ‘a strong advocate of democracy and democratic values’ and expressed hope that the ‘democratic process and the constitutional arrangements will be upheld in Myanmar’. It emphasised that the ‘restoration of peace and stability in Myanmar is not only vital for the country itself but also for other countries of our region’. The delegate expressed particular concern with regard to ‘the situation of human rights of the minority communities in Myanmar including the Rohingyas’ and urged for ‘full and effective implementation of the recommendations of the Advisory Commission on Rakhine State’. To ensure the safe return of the Rohingyas, the delegation requested that the ‘international community should assist us through their constructive engagement in the repatriation processes.’
Vietnam, as a neighbouring country and fellow ASEAN member, stressed that ‘political stability in ASEAN member States is essential to achieving a peaceful, stable and prosperous ASEAN Community.’ Vietnam expressed hope that ‘Myanmar would soon stabilise the situation for national building and development, for peace, stability and cooperation in the region’. It further encouraged ‘the pursuance of dialogue, reconciliation and the return to normalcy in accordance with the will and interests of the people of Myanmar’.
The United States of America strongly condemned the military’s coup against the democratically-elected government of Myanmar. They urged all the Council members to: ‘(i) urge the military to immediately release all those unjustly detained; (ii) urge the military and police to restore power to the democratically-elected government, demonstrate respect for human rights and fundamental freedoms, and refrain from further violence against peaceful protesters; (iii) urge the military to lift all restrictions on access to information, including by maintaining telecommunications and internet access; (iv) join us in promoting accountability for those responsible for the coup, including through targeted sanctions’.
Amnesty International noted that ‘nearly 220 people have been arbitrarily detained and many more are in hiding in Myanmar after the coup’. It also drew attention to the fact that ‘the proposed cyber security law will grant sweeping censorship and surveillance powers to the military and have dire consequences for civil society engagement with the international community’. It further stressed that ‘this a dangerous and volatile situation’ and requested that ‘the international community – including this Council and the Security Council – must do all it can to protect the people of Myanmar from harm and to prevent further violations of their rights and to ensure accountability for crimes under international law’.
The International Commission of Jurists underscored that the actions by the Myanmar military ‘defy core rule of law principles and provides a legitimate basis for the suspension and erosion of human rights.’ The ICJ stressed that ‘regulations imposed pursuant to the state of emergency grant military forces nearly complete impunity’ and that ‘regulations suspend crucial judicial remedies for violations of rights.’ To conclude, the ICJ urged Member States to ‘take necessary measures to ensure truth, justice and accountability for crimes under international law, including by supporting all relevant accountability mechanisms.’
Human Rights Watch highlighted that ‘the UN Security Council spoke with one voice, calling for respect for human rights and the rule of law’ and stressed that ‘the Council should also stand united in condemning the coup and calling for release of all detainees and reinstatement of the democratically elected government.’ They underscored that ‘the resolution should advance accountability, strengthen the rapid-response capacity of the Special Rapporteur and request the High Commissioner to fully exercise her prevention mandate’ and that ‘States should also apply targeted sanctions on military leaders responsible for the coup and on military-owned companies.’ To conclude, Human Rights Watch urged that ‘the Council needs to stand ready to take whatever further measures are needed to address this crisis as it unfolds.
During the second meeting of the special session, the United Kingdom and Austria on behalf of the European Union presented draft resolution S-29/L.1 on ‘Human rights implications of the crisis in Myanmar’. They explained that the objective of the resolution was to draw attention to the deteriorating human rights situation following the declaration of a state of emergency and the detention of democratically elected officials in Myanmar. They stressed that the resolution was an opportunity for the international community to convey their support to the people of Myanmar and to call on authorities to refrain from any use of violence in the context of peaceful protests. Ultimately, they argued that ‘to prevent an escalation of the human rights situation, we believe that the continued monitoring of the situation is necessary to shed light on the developments on the ground. Therefore, we are presenting a resolution that requests follow-up reporting to the Special Rapporteur and the High Commissioner for Human Rights.’
Draft resolution S29/L.1 as orally revised, was adopted by consensus.
With the adoption of resolution S29/L.1 as orally revised, the Council ‘deplores the removal of the Government elected by the people of Myanmar in the general election held on 8 November 2020, and the suspension of mandates of members of all parliaments, and calls for the restoration of the elected Government’ (OP1) and ‘calls urgently for the immediate and unconditional release of all persons arbitrarily detained, including State Counsellor Aung San Suu Kyi and President Win Myint, and others, and the lifting of the state of emergency’ (OP2).
Furthermore, the Council ‘stresses the need to refrain from violence and fully respect human rights, fundamental freedoms and the rule of law’ (OP3), calls for the protection of civil society space (OP4), the lifting of internet restrictions (OP5) and unimpeded humanitarian access (OP6), and encourages the pursuance of dialogue and reconciliation, while addressing the root causes of the the crisis in Rakhine State so as to create the conditions necessary for ‘the safe, voluntary, sustainable and dignified return of displaced persons, including of Rohingya Muslims and other minorities;’ (OP7)
Finally, the resolution requests ‘the United Nations High Commissioner for Human Rights and the Special Rapporteur on the situation of human rights in Myanmar to assess the current human rights situation in Myanmar, and to provide updates in their reports to the Human Rights Council, and calls upon Myanmar authorities to engage and cooperate with UN human rights mechanisms’ (OP8)
The full text of resolution S29/1 can be found here.
- Member States that signed the letter calling for a special session: Austria, Argentina, Bahamas, Brazil, Bulgaria, Czech Republic, Denmark, France, Germany, Italy, Japan, Marshall Islands, Netherlands, Malawi, Mexico, Poland, Republic of Korea, Ukraine, United Kingdom of Great Britain and Northern Ireland.
- Observer States that signed the letter calling for a special session: Australia, Belgium, Canada, Croatia, Cyprus, Estonia, Finland, Greece, Hungary, Iceland, Ireland, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, New Zealand, Norway, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, United States of America.
Feature image: สหพันธ์แรงงาน FGWM ที่มีสมาชิก 8,000 คน ลงมติหยุดงานต้านรัฐประหารเมียนมา, by Prachatai
Share this Post