Last week, the Security Council adopted a presidential statement which called upon the government of Myanmar to cooperate with all UN bodies and mechanisms. The statement comes after months of allegations of killings, rape, and torture of Myanmar’s minority Rohingya Muslim population by security forces, and the government’s persistent denial of visas to members of a UN investigative team. The government’s refusal to cooperate is unfortunately not an uncommon posture and brings to the fore the need for the UN to ensure that independent and impartial investigations can take place in the best conditions, and, where no cooperation is possible, to look for other creative ways to dig up the facts.
The Secretary-General, Security Council, General Assembly, Human Rights Council, and the Office of the High Commissioner for Human Rights all have the power to establish teams of experts to investigate violations of human rights, and, increasingly, violations of international humanitarian law. From Commissions of Inquiry, to Panels of Experts, and to Special Rapporteurs, the UN has been dispatching investigators to countries across the world since 1963, when a group of experts were sent to South Vietnam to investigate the relations between Vietnam’s government and the Vietnamese Buddhist community.
There is no legal requirement to obtain the consent of the investigated state when employing such mechanisms. Moreover, investigations established by the Security Council under Chapter VII of the UN Charter trigger article 25 of the Charter which obliges states to cooperate with council decisions. Consent is sometimes secured but many investigations have been put in place against the wishes of member states. As a result, a number of countries have made it a practice to refuse entry to UN-mandated investigators.
The Independent International Commission of Inquiry for Syria has, for example, never been given access to the country, resulting in understandable frustrations and the resignation of its head, Carla Del Ponte, this summer. An independent group of experts was established to investigate alleged abuses of human rights in Yemen this past September, and it remains to be seen if they will be granted access. Eritrea, Burundi, and North Korea systematically refuse access to the Commissions of Inquiry or Special Rapporteurs who are tasked with investigating allegations of abuses. Similarly, the Special Rapporteur on the situation of human rights in Iran has been denied access to the country since the creation of the mandate by the Human Rights Council. In the past, the UN has also faced cooperation challenges in Gaza, Sri Lanka, DRC, and South Sudan.
States have outlined a number of reasons justifying their refusal to grant access to and/or cooperation with investigators mandated by the UN. Myanmar’s government explained that the fact-finding mission would create greater hostility between its different communities. Other justifications have included the existence of national investigations, claims of infringements on national sovereignty, and the perceived lack of independence, impartiality, and objectivity of investigations mandated by the United Nations.
Contributing to member state’s reluctance to cooperate is that many of these UN-mandated investigations will produce public reports and their mandates are increasingly geared towards accountability. They can attribute responsibility for violations of international human rights and humanitarian law. Governments may want to prevent these investigations from shining a spotlight on the violations they commit against their populations. It is not a leap to perceive the complete lack of cooperation on the part of a state as an admission of guilt. As long as states wish to avoid such a perception, the UN still holds a rather persuasive argument. Only a handful of countries—Syria, Eritrea, North Korea, and Burundi—have never allowed access to their country. If governments want to avoid being linked to countries that have shown blatant disregard for their citizens’ rights and barred access for international investigations, they should choose a different course and put in place avenues for cooperation. For those investigations established by the Human Rights Council, other council members also have the option of suspending the membership of a non-complying state.
These denials of entry have hampered, but not prevented UN-mandated investigators from carrying out their mandates and producing reports through the use of remote research mechanisms. From interviewing refugees that have fled the country in question, conducting long-distance interviews with people on the ground, using satellite imagery, and taking advantage of the explosion in social media usage, investigations have found creative ways to piece together information and come to conclusions about the state of human rights violations in a country. Since 2011, the Commission of Inquiry for Syria has published reports with detailed accounts of violations committed by the various parties to the conflict. As detailed and important as the information such reports put forward is, however, one cannot help but think that it will always be second best to the information and evidence that could be gleaned from being on the ground, where the reported violations take place. Furthermore, the fact that investigative teams are not able to confirm the facts opens up their reports and findings to criticisms related to credibility and bias.
Myanmar’s government seemed headed toward a Syria-type blackout, but has since allowed the UN Under-Secretary-General for Political Affairs to visit the country, including northern Rakhine. This may bode well for other UN efforts in the country related to humanitarian aid as well as its fact-finding mission. Myanmar’s democratically-elected government, already under intense criticism from the international community for its reaction to the violence inflicted upon the Rohingya community, may decide to cooperate with the international investigation. If not, the UN-mandated investigators will have to make the best possible use of their resources from abroad to produce the written report expected for the next session of the Human Rights Council in March 2018.
Alice Debarre is a Policy Analyst in the Humanitarian Affairs program of the International Peace Institute.