Myanmar authorities should release two Reuters journalists detained for investigating a military massacre of Rohingya Muslims and drop the case against them, Human Rights Watch said today. On July 2, 2018, a Yangon court will hear final arguments on whether to charge Wa Lone, 32, and Kyaw Soe Oo, 28, under the 1923 Official Secrets Act, which carries a prison sentence of up to 14 years.

The journalists were detained on December 12, 2017, after being invited by police officials to meet at a restaurant in Yangon, where they were handed rolled up papers allegedly linked to security force operations in northern Rakhine State. The Myanmar Police Force announced that the journalists were arrested for “illegally obtaining and possessing government documents,” with the intent “to send them to a foreign news agency.” For more than six months, the two men have been held without bail while evidence has emerged showing police misconduct and conflicting official accounts.

“Myanmar authorities set up and arrested the two Reuters journalists because of their work exposing a massacre of Rohingya by the military,” said Brad Adams, Asia director at Human Rights Watch. “The authorities have turned to tactics long-favoured by past military juntas – locking up and prosecuting those exposing the truth.”

Prior to their arrest, Wa Lone and Kyaw Soe Oo were investigating the September 2017 killing of 10 Rohingya men and boys by the Myanmar military in Inn Din village in northern Rakhine State. Reuters published an in-depth report based on their investigation in February, reconstructing the chronology of the attack through accounts from security personnel and villagers who took part in the military operation. The commanders of a military unit and paramilitary police battalion that carried out the abuses in Inn Din were sanctioned on June 25 by the European Union and Canada.

Since January 2018, Wa Lone and Kyaw Soe Oo have attended weekly hearings at a Yangon courthouse while being held at the notorious Insein Prison, with their requests for bail and dismissal denied.

Witness accounts of the arrest point to a case of entrapment, Human Rights Watch said. In April, a police captain testified that Police Brig. Gen. Tin Ko Ko had ordered the officers to “trap” the journalists by handing them “secret documents” as a pretext for their arrest. Shortly after testifying, the captain was sentenced to one year in prison under the police discipline act and his family was evicted from government housing.

The prosecution’s case has been marked by inconsistencies and irregularities, indicating possible misconduct in the original police operation. During the hearings, one arresting officer testified that he was unaware of proper procedures for recording arrests, while another admitted that he had burned his notes on the arrest. An additional witness for the prosecution wrote the location where police claim the arrest took place on his hand. Police also submitted as evidence documents they allege were discovered on the reporters’ phones, which were searched without a warrant. Defence lawyers have asserted that the information provided by the police to the reporters was already in the public domain at the time of the arrest.

Wa Lone and Kyaw Soe Oo are accused of violating section 3(1)(c) of the colonial-era Official Secrets Act, which carries a maximum sentence of 14 years for anyone who “obtains, collects, records or publishes or communicates to any other person any secret official … document or information” that may be “useful to an enemy.” Under the act’s draconian provisions, criminal penalties are imposed for sharing documents without any requirement that the disclosure pose a real risk of harm, contrary to international standards on freedom of expression.

In particular, section 3(1)(c) does not require that the conduct result in any actual harm to national security or even create a significant risk of such harm. The overly broad and vague provisions should be amended to penalize only conduct that can be proven to pose a concrete risk to national security, and to eliminate the criminal penalties for journalists and other nongovernmental personnel who receive information, Human Rights Watch said.

After their arrest, Wa Lone and Kyaw Soe Oo were held incommunicado for two weeks, during which they were deprived of sleep and forced to kneel for hours during interrogation, according to defence lawyers. Human Rights Watch called for any evidence gathered through ill-treatment to be thrown out.

The use of torture or other coercive methods, including prolonged sleep deprivation, to obtain information from detainees is prohibited under the customary international law as well as international human rights treaties. Article 15 of the United Nations Convention against Torture, which Myanmar has not ratified, provides that any statement “made as a result of torture shall not be invoked as evidence in any proceedings,” a restriction also outlined in the UN Human Rights Committee’s General Comment 32 on fair trial rights.

The attack at Inn Din was one of a number of massacres allegedly carried out by the Myanmar military during its campaign of ethnic cleansing in northern Rakhine State, which has driven more than 720,000 Rohingya to flee to neighbouring Bangladesh since August 2017. The government has repeatedly denied allegations of military abuses and refused to allow access to the region to independent investigators, including the UN Fact-Finding Mission and the UN special rapporteur for human rights in Myanmar.

While the government has claimed that it will take action against security force personnel implicated in abuses if presented with “concrete evidence,” the only case in which soldiers have been detained for crimes committed in Rakhine State since August relates to the massacre exposed by Wa Lone and Kyaw Soe Oo. In January, the Myanmar government announced it was investigating the killings of “10 Bengali terrorists” in Inn Din, using a derogatory term for Rohingya. Seven soldiers were sentenced in April to 10 years in prison for their involvement in the massacre, which the government framed as a failure to “hand over to the police” the 10 men and boys, asserting they have lawfully arrested members of the Arakan Rohingya Salvation Army (ARSA) terrorist group.

The day after the announcement, Wa Lone reacted to the soldiers’ sentences after his appearance in court. “The culprits who committed the massacre were sentenced to 10 years in prison. However, the ones who reported on it – us – are accused under a law that can get us imprisoned for 14 years,” he called out to reporters on the courthouse steps. “Where is the truth and justice? Where is democracy and freedom?”

“The Reuters trial is a test case of press freedom under Aung San Suu Kyi’s government,” Adams said. “If the Reuters journalists are charged, authorities will be following in the footsteps of the military junta. Foreign governments should call for justice for Wa Lone and Kyaw Soe Oo and an end to the arrest and imprisonment of journalists for doing their jobs.”