This opinion piece by Clinical Advocacy Fellow Yee Htun and Tyler Giannini, co-director of the International Human Rights Clinic, appeared in The Irrawaddy on March 29, 2017

UN Investigation Can Help Myanmar Down the Path of Democracy

At first glance, the UN Human Rights Council resolution passed on Myanmar looks like a rebuke of Aung San Suu Kyi and her National League for Democracy (NLD) government. The resolution calls for an international investigation into “alleged recent human rights violations by the military and security forces,” singling out Rakhine State in particular for scrutiny.

Given her muted public response to the violence, her government’s denials, and the lack of any serious domestic investigation to date, it would be easy to lay a lot of the blame at Aung San Suu Kyi’s door. But the real story remains in plain sight: there are roadblocks that prevent her and the civilian government from investigating and controlling the abuses of security forces. These roadblocks are rooted in the country’s Constitution, adopted by the military in 2008, and until they are removed, domestic and international maneuvering will be necessary to pressure the military to change its violent ways.

This is not the first time that we have seen Myanmar’s Constitution fail its citizens. Despite her party winning the first open elections in a generation, Aung San Suu Kyi herself was denied the presidency under the Constitution. She and her party had to resort to creating a new position – State Counselor – that has made her the de facto leader of the government. It was a creative, and necessary, move to bring a just outcome to the election.

Similarly, the international investigation is a necessary move, given that Myanmar is missing the basic checks that a functioning democracy requires. Since October, the security forces have allegedly killed as many as 1,000 people and forced an estimated 77,000 Rohingya Muslims to flee their homes in northern Rakhine State to Bangladesh. These security forces are legally and factually controlled by the military.

By constitutional design, the three ministries that control the security forces – Border Affairs, Defence, and Home Affairs – are not subject to civilian control. From the appointing of these ministers to the structure of the chain of command, the military operates independently and with very little civilian oversight.

Without that oversight, it is not surprising that numerous national-level investigations on the human rights violations in Rakhine State have failed to change the way the military operates. Since the NLD came to power, two separate commissions have formed. The first, led by former UN Secretary General Kofi Annan, had no mandate to investigate rights violations; instead, the commission has focused on humanitarian and development issues. The second commission, which included former military officials, has simply dismissed reports of abuse in northern Rakhine State.

In sharp contrast, a UN team that visited refugees in Bangladesh earlier this year found evidence of potential crimes against humanity, including extrajudicial killings, rape, and torture.

Some are likely to portray the resolution passed yesterday as an “outside” effort attempting to meddle in Myanmar politics. However, the reality is that for years, advocates from Myanmar have been calling for international investigations into rights violations in light of the severe limitations of the national system.

For example, it was largely because of the efforts of the Federation of Trade Unions of Burma that the International Labour Organization initiated a landmark investigation in 1999 into the epidemic use of forced labor. And in the mid-2000s, activists in exile from Myanmar worked with international partners to push for investigation into possible international crimes in the country. More recently in 2015, a coalition of numerous domestic groups joined international organizations, including Harvard Law School’s International Human Rights Clinic, to call for an investigation into war crimes and crimes against humanity. Specifically, the coalition targeted former Minster of Home Affairs General Ko Ko for his involvement in a 2005-2006 military offensive in eastern Myanmar. In January of this year, 40 Myanmar organizations called for an independent international investigation into abuses in Rakhine State.

In the face of the violence in Rakhine State, some have criticized Aung San Suu Kyi for not speaking out and doing more to stop it. If she strongly condemned the abuses, her moral authority could certainly go a long way in pushing for change. And it is problematic that her civilian government has opposed this international investigation, saying national efforts should be given a chance to address the rights violations. But when Aung San Suu Kyi and her government are either unable or unwilling to act, waiting for national processes to play out is not a viable option. This is particularly true when it comes to abuses by security forces, where the structural barriers to accountability remain so deeply entrenched. The military is unwilling to hold its own to account. And the Constitution prevents Aung San Suu Kyi and the NLD from doing the job themselves.

The NLD government has said the rule of law is essential for Myanmar’s transition to democracy. With abuses by security forces extending from Rakhine State to Kachin and Shan States, it is clear, however, that the transition is not complete. And with no real prospect for movement inside the country, the international investigation should not be viewed as an intrusion, but instead as an opportunity. Aung San Suu Kyi and her government can show they are committed to the rule of law by cooperating and giving access to investigators. It would keep up the pressure on the military and signal that the NLD is dedicated to moving further down the path towards genuine democracy.