Myanmar’s Ongoing Independent Mechanism: Careful Planning Needed

[Kingsley Abbott is the ICJ’s Senior International Legal Adviser for Global Accountability, and is based in Bangkok, Thailand. Twitter: @AbbottKingsley.]

Later this month, the Fifth Committee of the UN General Assembly, responsible for budgetary and administrative matters, is likely to approve the budget for the “Ongoing Independent Mechanism” (OIM) for Myanmar created by resolution at the UN Human Rights Council last September. Its terms of reference are also in the process of being finalized by the UN Office of Legal Affairs (OLA) and the Office of the UN High Commissioner for Human Rights (OHCHR).

The OIM will provide a partial but significant foundation for accountability for serious human rights violations in Myanmar including in the face of Myanmar’s unwillingness to bring perpetrators to justice in domestic courts and political blockages at the UN Security Council resulting in it not (yet) using its Chapter VII powers to refer the situation to the International Criminal Court (ICC). In addition to the OIM’s potential contribution towards criminal accountability, it is expected to have a positive impact on a range of victims’ rights including the rights to truth and satisfaction. Hopefully, it will also have a deterrent effect.

The OIM is the second such independent mechanism specifically created to prepare files in order to facilitate and expedite fair and independent criminal proceedings in national, regional or international courts. The first was the International, Impartial and Independent Mechanism (IIIM) for Syria established by resolution at the UN General Assembly on 21 December 2016. The Human Rights Council also added similar functions to the more general mandate of the UN Commission on Human Rights in South Sudan in 2017.

While the creation of these “second-best” accountability mechanisms is in part a response to certain failings in the implementation of the international criminal justice framework by States and other UN bodies, they should also be viewed as part of its ongoing development and maturation.

How the OIM is framed and funded will play a significant role in ensuring its success. The OIM should be tailored carefully and sensitively to address the specific situation in Myanmar and should learn from the experiences of other similar bodies including the IIIM. Much international experience with international mechanisms for accountability was recently collated in Open Society Foundation’s “Options for Justice: A Handbook for Designing Accountability Mechanisms for Grave Crimes”.

Another good starting point is the IIIM’s first report to the UN General Assembly, which set out the three key challenges to its work, namely funding and resources, access to Syrian territory and handling the overwhelming volume of documentation, all of which should be addressed at the outset by those designing the OIM.

The OIM should interpret broadly its mandate to “collect, consolidate, preserve and analyze evidence of the most serious international crimes and violations of international law committed in Myanmar since 2011…” to extend to all of Myanmar, taking into account the Myanmar Fact-finding Mission’s (FFM) findings in September that, while it mainly focused on serious human rights violations in the situations of Kachin, Rakhin and Shan states, “serious allegations have also arisen in other contexts, meriting further investigation.” The OIM’s budget should reflect this expansive scope.

Considering the size and complexity of the task ahead, the OIM should be provided with the right leadership, multi-disciplinary staff and technical capacity as early as possible, including proven fit-for-purpose hardware and software for evidence collection, storage and analysis. Staff should include persons with expertise in a range of disciplines from international criminal, human rights and humanitarian law to the investigation of international crimes, forensics, digital evidence, military matters and sexual and gender based crimes and violence. Critical will be to recruit persons with expertise on the local context including the many different cultures, ethnicities and languages of Myanmar. At least part of the OIM’s operations should be based in the region for a range of reasons including to create a sense of local ownership which will contribute to the perceived legitimacy of the process.

A plan for cooperative engagement with the ICC and the sharing of information should be carefully set out in light of the Prosecutor’s ongoing Preliminary Examination into crimes committed against the Rohingya including their alleged deportation into the territory of Bangladesh. In the event that the Prosecutor moves to a full investigation, there will be an overlap of the two mandates, which should not be viewed as a hindrance but rather as of benefit to both bodies. While the Prosecutor will, for the time being, only look at crimes where one element or part of a crime is committed in Bangladesh, it is likely be interested in gathering evidence of the coercive acts that led to those crimes and contextual evidence including relevant to the chapeau of crimes against humanity, which would necessitate it looking at the situation in Myanmar more generally.

The same care should be taken in planning how the OIM will engage with States willing to exercise universal jurisdiction. By assisting individual States, or groups of States, to exercise universal jurisdiction at the national level, the OIM could play a particularly valuable role by filling the gap that exists at the international level, where situations tend to fall only to be addressed either through national proceedings at the individual initiative of States with little international assistance, or by international proceedings such as before the ICC (which can face certain limitations in terms of scope and potential political blockages). There are various ways the OIM could assist States willing to exercise universal jurisdiction. For example, many States’ current legislation or policies mean they tend only to exercise jurisdiction when an alleged victim or perpetrator is physically present in the county. In these cases, the OIM could assist by having evidence that has already been gathered, stored and analyzed ready to provide to national authorities who usually have to respond quickly when they receive notice an alleged perpetrator may visit the country. National authorities have in the past also faced difficulties with respect to resources, capacity, coordination with other actors, access to evidence and the ability to take into account the wider context in which crimes were committed. The OIM should develop strategies to assist States to overcome these hurdles. However, similar to the position taken by the IIIM, the OIM should only share information with those jurisdictions that respect international human rights law and standards, including the right to a fair trial, and in the absence of potential application of the death penalty.

A robust outreach capacity and strategy should be developed from the outset to engage with all stakeholders including, and primarily, victims and their families. At present, there is little understanding on the ground as to the different roles and functions of the FFM, ICC and OIM – and, importantly, what they hope to achieve, separately and collectively, in terms of accountability. The ability of victims’ groups and local civil society to engage meaningfully and safely with the OIM will be critical to its success including the value of any actual or perceived lasting contribution to justice in Myanmar.

A witness and victim protection unit should be established within the OIM. The unit should develop procedures in accordance with international law and standards to ensure that witnesses and victims may contribute to the work of the OIM without fear of retaliation. Any information they provide the OIM must be treated confidentially and sensitively and should not be shared with third parties without their prior informed consent.

The cooperation and assistance of the United Nations system, States and civil society will also be integral to the OIM’s work. In particular, Myanmar must seriously rethink its current strategy of non-cooperation and obfuscation in relation to independent examination of the serious human rights violations still occurring within the country. It is past time for Myanmar to recognize that accountability, including redress for victims and their families, is a necessary precondition for the peace and sustainable development it claims it seeks.

Myanmar’s neighbors and international partners including India, China, Bangladesh and members of the Association of Southeast Asian Nations (ASEAN) should also cooperate with the OIM, recognizing that its work will have a regional impact on stability and accountability, and should exercise their influence to encourage Myanmar’s cooperation as well.