Myanmar: documentation practices may raise challenges for accountability

[Kingsley Abbott is ICJ’s Senior Legal Adviser for Global Redress and Accountability]

The documentation of serious human rights violations in Myanmar by civil society, UN bodies and journalists, has played a critical role in raising awareness of the situation and eliciting responses from the international community.

As it became clear that violations are likely to amount to crimes under international law including crimes against humanity, war crimes and possibly genocide, efforts redoubled, resulting in numerous actors conducting collectively one of the most intensive, ongoing, documentation exercises of its kind in history.

Efforts were encouraged when, in September 2018, the Prosecutor of the International Criminal Court (ICC) opened a preliminary examination into crimes where one element or part of a crime was committed in the territory of Bangladesh, a State Party to the Rome Statute.

At this juncture, when the violations may be categorized as crimes under international law and mandated bodies (a person or body granted official government powers or mandate to act in a law enforcement, investigation, expert witness, prosecution and/or adjudicative function) like the ICC, the Myanmar Fact-finding Mission (FFM), and the “Ongoing Independent Mechanism” (OIM) for Myanmar are seized of the situation – and the prospect of criminal trials in the future have emerged – those engaged in documentation efforts should take into account the following considerations:

1. Re-traumatization through multiple interviews of witnesses and victims

The large scale, mostly uncoordinated, documentation effort regarding Myanmar has raised concerns about potential harm being caused to victims and witnesses, including children and victims of sexual and gender based violence (SGBV), through their participation in multiple interviews often with different actors.

A cursory search of the Internet for named victims of crimes allegedly committed by the Myanmar Armed Forces, including crimes of SGBV, suggests that some individuals have been interviewed on multiple different occasions by media outlets, UN bodies, civil society and others.

The principle “Do No Harm” is reinforced in nearly every manual that touches on documentation and investigation including the Istanbul Protocol, the revised Minnesota Protocol on the Investigation of Potentially Unlawful Death (Minnesota Protocol), the Office of the UN High Commissioner for Human Rights’ (OHCHR) Manual on Human Rights Monitoring (OHCHR Manual) and the International Protocol on the Documentation and Investigation of Sexual Violence in Conflict (IP2).

The OHCHR Manual defines the principle by stating that anyone engaged in documentation has an obligation not to jeopardize the life, safety, freedom and wellbeing of victims, witnesses and other cooperating persons.

The IP2 notes that with regard to victims of SGBV, harm may include immediate physical harm, secondary physical harm, psychological harm, socio-economic harm, and legal harm – and emphasizes that multiple interviews of the same person, particularly when it is uncoordinated, can be harmful to individuals and communities.

Poor coordination may lead to victims and witnesses having to repeatedly tell their story on numerous occasions for varying purposes to different people, which may lead to re-traumatization.

It can also lead to communities being overwhelmed with multiple inquiries which, in addition to inducing fatigue, could also result in them coming under increased attention from people within the community, and others, who perceive them as potentially betraying or accusing others.

Interviewers should also be aware that while victims of SGBV may be empowered by the process of speaking about what has happened, there is also a risk that where it is known in the community that witnesses and victims are being interviewed about SGBV, in certain contexts, they may also experience shame and attract a negative stigma within the community.

2. The creation of multiple prior statements

 Interviewers should also be aware that multiple interviews of the same person, particularly when they are taken in the first person or recorded on audio or video, may also cause complications for future accountability processes including any criminal trials.

The greater the number of statements a victim or witness gives, the more likely that there will be inconsistencies between their different accounts, especially if those statements are taken by different actors. Such inconsistencies may be used to undermine their credibility at any trial, and may even lead to the person not being called as a witness at all.

Article 14 of the International Covenant on Civil and Political Rights (ICCPR) guarantees that every accused person is entitled to adequate time and facilities to prepare their defence as part of their right to a fair trial.

In practice, this principle places an onerous disclosure obligation on the prosecution in adversarial criminal proceedings.

At the ICC, for example, the Prosecution must disclose to the defence exculpatory material (Article 67(2)) and the “names of witnesses whom the Prosecutor intends to call to testify and copies of any prior statements made by those witnesses” (Rule 76).

It must also “permit the defence to inspect any books, documents, photographs and other tangible objects in the possession or control of the Prosecutor, which are material to the preparation of the defence or are intended for use by the Prosecutor as evidence for the purposes of the confirmation hearing or at trial, as the case may be, or were obtained from or belonged to the person” (Rule 77).

Defence lawyers also conduct their own search for relevant information, which would generally include searching the Internet for videos or other records of prior statements by potential witnesses and victims.

Statements may include interviews provided to journalists, human rights investigators, academic researchers, and others who have recorded information provided by a victim or witness.

Even if such information has not been made public, or only part of the interview has been made public, defence lawyers may seek to have a court order the person with the information to make it available for possible use in the trial; although some jurisdictions recognize exceptions allowing journalists, human rights investigators or academic researchers to refuse to do so, others may not.

Prior statements of witnesses to be called at trial are among the most important information provided to or obtained by the defence.

One reason is because the defence is likely to exploit any internal inconsistencies within statements or between the statements and what the witness or victim later says in court in order to impeach their credibility under cross-examination.

Where inconsistences are demonstrated, defence lawyers will sometimes argue that the inconsistences undermine all the statements of the witness or victim and therefore their evidence should be treated as unreliable on the whole.

ICC Trial Chamber III’s 2016 decision in the case of Bemba provides one illustration of how a court sometimes has to grapple with internal inconsistencies within statements and inconsistences between statements (including victim application forms) and testimony in court, and how this may negatively impact on credibility (see one example of the Chamber reasoning through the issue at para 552 ff (regarding witness V1).

Another example is found in the 2001 Trial Chamber Decision in Kunarac before the International Criminal Tribunal for Former Yugoslavia (ICTY) at para 787 ff where the Court discounted the identification evidence of witness FWS-87 on the basis of inconsistencies in her statements.

These challenges have also been discussed in other places including in Prosecuting conflict-related sexual violence at the ICTY (2016), edited by Serge Brammertz and Michelle Jarvis, at page 140 and following.

A skilled cross-examiner sometimes only requires one inconsistency to throw doubt on a witness’ overall credibility, which may, depending on the importance of the witness, impact the outcome of the whole trial.

Key considerations for interviewers

 These considerations should not discourage all documentation efforts.

 On the contrary, although several mandated bodies are now seized of the situation in Myanmar, documentation and monitoring by individuals and civil society remain of critical importance.

They are one of the key means of independently assessing the effectiveness and thoroughness of investigations and any eventual criminal proceedings, to address aspects and cases that may never be covered by the criminal investigations, or to campaign for systematic changes to prevent further violations.

The ability of civil society actors to do so is both an aspect of the right of persons, and the general public, to freedom of expression (including the freedom to seek, receive and impart information) under international law, and is specifically recognized by such international instruments such as the ICCPR and UN Declaration on Human Rights Defenders.

Accordingly, Myanmar or other States should not invoke concerns about multiple or potentially duplicative documentation efforts to restrict or interfere in any way with monitoring and documentation of human rights violations by individuals or civil society organizations.

However, the individuals and organizations themselves should take the above considerations into account when planning any documentation project.

In particular, key questions individuals and organizations should ask themselves during the planning stage include:

1. Where other individuals, organizations or mechanisms are conducting, or have conducted, similar documentation on the same issue is it possible to coordinate with them in order to minimize potential harm to victims and witnesses (and each other)?

2. Where similar documentation has already been conducted, is further documentation of the same issue necessary?

3. Do we possess the requisite specialist knowledge, experience and training to be conducting documentation, particularly of vulnerable persons including children and victims of SGBV, or should we be seeking the advice and assistance of persons who do?

4. Are any appropriate national or international authorities seized of the same issue and, in those circumstances, would referral to those bodies rather than conducting further documentation have a greater chance of achieving the objectives of the victim or witness and lessen the possibility of causing harm?

5. If a potential interviewee could be a witness or victim in ongoing or potential future criminal proceedings, and in light of the objectives and intended use of any statement produced by the interview, might it be better to create a summary or third person record rather than a first person statement, signed or otherwise, or audio or video recording?

Indeed, individuals and organizations who are gathering information with the specific intention of providing it to prosecutors or other investigators for possible use as evidence in criminal proceedings should be particularly sensitive to the special concerns highlighted earlier regarding prior statements and should first consult and coordinate with the relevant bodies wherever possible.

For example, in the past, the Prosecutor’s Office of the ICC has indicated to the author that it prefers third parties to provide it with summaries of information as opposed to first person statements.

Recent publications including Global Rights Compliance’s Basic Investigative Standards (primarily aimed at first responders to international crimes engaging with the ICC) reflect a similar view.

In the context of criminal investigations and prosecutions, investigators and prosecutors will ordinarily seek to obtain their own, official, signed, first person statement from a witness or victim, rather than solely relying on one provided by a third party.

However, prosecutors will often find summaries of information or third person records useful as “lead” evidence to locate potential witnesses, victims and other sources of information.

While the rules of evidence often vary from jurisdiction to jurisdiction, generally such summaries or third person records do not have the status of a prior statement and therefore cannot usually be put to a witness or victim at trial in order to impeach their credibility on the basis that they said something different on a prior occasion.