The possible futility of Myanmar's Commission of Inquiry
Almost one year after the recent Rohingya crisis began, Myanmar appears to be finally responding to international appeals for action. A headline in The Daily Star announced, "Ethnic Cleansing: Myanmar Forms Probe Commission". The news item provided the names of the four individuals, two Myanmarese, one Japanese and one Filipino, who would be members of this Commission of Inquiry (CoI). The formation of this panel, delayed by several months, to check into the allegations of ethnic cleansing against the Rohingyas, comes at a critical moment for all parties concerned. Nonetheless, we cannot let down our guard or be distracted from the collective responsibility to ensure safe, voluntary, dignified and sustainable return of the Rohingyas passing time in makeshift camps in Bangladesh. Concurrently, we need to keep our expectations low, as well as understand the scope and limitation of the CoI. The world community also could help by cautioning its members to the challenges it faces even if it is able to function with full independence and support from the authorities in Myanmar.
What do we know about Myanmar's views on an independent inquiry? Previously, we witnessed a lot of resistance and hostility to any investigative mission since 2017. Only in June, Zaw Htay, Director General, Myanmar State Counsellor Office had voiced his scepticism about any international inquiry. "Myanmar isn't a member country nor signed the ICC. Member countries must sign and approve in the International Vienna Convention. If so, the agreement will take effect on member countries. Myanmar is neither a member country nor signs the agreement. Therefore, the ICC does not have the right to take actions against Myanmar. The ICC did not send such cases to other countries facing Refugee Crisis." Most recently, the UN Special Rapporteur on the human rights situation in Myanmar, Yanghee Lee, was unable to visit Myanmar during her 10-day visit to the region.
At an interview with NHK of Japan, State Counsellor Aung San Suu Kyi had informed all that "we will only appoint people in whose integrity and whose ability we have full confidence" to the new CoI. Ironically, one member of CoI, Aung Tun Thet, an economist and former UN official, expressed his reservations about the existence of any ethnic cleansing. "Whatever has happened in Rakhine is not systematic", Thet said during an interview last April with The Daily Star. His assertion stands in stark contrast to the evidence of brutality and mass graves that researchers found.
David Mathieson, a scholar of international repute who lives in Yangon, had previously questioned the sincerity of the ruling group in Myanmar. "Naypyidaw can announce as many inquiries as it desires, but it's sincerity is still obviously in short supply." Others including International Commission of Jurists (ICJ) legal advisor Sean Bain, warned that as soon as the government officials in Naypyidaw get a hint that the CoI have discovered evidence pointing to crimes against humanity or ethnic cleansing, the inquiry will be shut down or delayed.
Another warning. The CoI does not have the teeth of UN-mandated commissions of inquiry, fact-finding missions and investigations, established by the Security Council, the General Assembly, the Human Rights Council, its predecessor, the Commission on Human Rights, the Secretary-General and the High Commissioner for Human Rights. Nor does it have access to the expertise and support provided by the UN Office of the High Commissioner for Human Rights (OHCHR). Since 1992, OHCHR has deployed or supported close to 50 commissions and missions and provided guidance and tools for logistical support. These include advising on mandate development, investigation methodology and applicable international law, setting up secretariats with specialist staff, providing administrative, logistical and security support, providing briefing and training to members and staff, undertaking reviews and lessons-learned exercises.
Despite its limitations—notably the likelihood that investigators will be barred from visiting crime scenes inside Myanmar—the commission could still play a useful legal role, according to Irene Pietropaoli, a Yangon-based human rights consultant. And finally, even if investigators are prevented from visiting areas inside Myanmar and Rakhine as in the past, they can and must collect evidence from witnesses and survivors of attacks who fled to Bangladesh.
Dr Abdullah Shibli is an economist, and Senior Research Fellow, International Sustainable Development Institute (ISDI), a think-tank in Boston, USA. His new book Economic Crosscurrents will be published later this year.