Rohingya Symposium: Why Accountability Should Be at the Heart of Policy on Myanmar–Applying the Principles Against Impunity

[Kingsley Abbott (@AbbottKingsley) is the Coordinator of the International Commission of Jurists’ Global Accountability Initiative.]

Whenever I meet policymakers to discuss accountability for the well-documented and widespread serious human rights violations in Myanmar, I get engaged in some version of the ‘peace vs justice’ debate: that since Myanmar has only recently emerged from a long period of military rule, perhaps we shouldn’t press too hard for accountability; that the delicate relationship which has been cultivated carefully with the civilian Government to promote democracy, human rights, the rule of law and peace could be lost; that we risk losing the Government to the military, who could decide to close up the country again.

Accountability necessary for sustainable peace

Often those who made these arguments spoke as if they were somehow novel or particular to the situation in Myanmar, which, of course, they are not.  With the fourth meeting of the 21st Century Panglong Peace Conference just around the corner, it is timely to recall that long experience globally has led to consensus grounded in international law that there cannot be sustainable peace, nation-building, and social cohesion without justice and accountability.

Numerous case-studies illustrate the point, including in ASEAN, of which Myanmar is a member.  A colleague recently talked to me about the 2019 Indonesian elections, which were contested between Joko Widodo and Prabowo Subianto.  I asked her why Subianto, who as a former Lieutenant General in the Army had been implicated in alleged serious human rights violations, including the enforced disappearance of pro-democracy activists, was so popular?  She replied that, because he had never faced justice, this had contributed to many Indonesians being unaware of the truth around the allegations. As a result, they were willing to vote for him, perpetuating a blurry narrative of the past which enabled the menace of impunity to persist into the present.  There are many other examples in the region, including in neighbouring Thailand where prolonged unrest in the Muslim-majority deep South is stimulated by ongoing impunity for violations perpetrated by the security forces.

The Principles against Impunity

Many of the policymakers mouthing the peace vs justice argument seem unaware that their own governments, and the international community as a whole, have already analysed and embraced the necessity of accountability for a sustainable peace.  This consensus is captured most fully in the landmark Updated Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity (Principles against Impunity), in which the preamble affirms “…that there can be no just and lasting reconciliation unless the need for justice is effectively satisfied…”  The Principles against Impunity should be used an authoritative reference point for any policymaker working on the situation in Myanmar.

In 2005, the Principles against Impunity were recommended, though not formally adopted by the UN Human Rights Commission (the predecessor body of the UN Human Rights Council).  In its consensus resolution 2005/81, The Commission stated it “…encourages States, intergovernmental organizations and non-governmental organizations…” to consider the Principles “…in developing and implementing effective measures to combat impunity, including efforts to domestic capacity such as legislative and institutional reform, and in the design of judicial mechanisms and truth and reconciliation commissions and other commissions of inquiry, and to bring them to the attention of all relevant institutions and personnel.” 

The Commission also “request[ed] the High Commissioner for Human Rights to ensure the wide dissemination of the updated Principles, to make them available in an accessible and user‑friendly format.., to take them into account in relevant United Nations activities, especially in the framework of United Nations missions, field presences, as well as human rights, institution-building and capacity-building activities, in cooperation with other parts of the United Nations system, States and other relevant actors…”

Since the elaboration of the Principles against Impunity, they have been used as guidance by a range of international, regional and national bodies, including the UN General Assembly, the UN Secretary-General, the UN High Commissioner for Human Rights, the former Commission on Human Rights, and the UN Human Right Council.  They have also been cited by regional bodies including the Inter-American Commission on Human Rights and national Courts including the Colombian Constitutional Court, which affirmed that the Principles against Impunity “…contain guidelines formulated by the United Nations that contain normative and jurisprudential standards of international law, as well as the historical experience stemming from processes of the transition to democracy or of the consolidation of the rule of law in different nations, and that make up a conceptual framework of great value as a source of international law.”

Of course, other complimentary processes are underway which also underscore the fundamental role of accountability when states are in transition.  For example, the development of standards and best practices within the field of “transitional justice”, and the continuous work of the UN Human Rights Council on the promotion of truth, justice, reparation and guarantees of non-recurrence, including through the appointment of a Special Rapporteur to address situations where there have been gross violations of human rights and serious violations of international humanitarian law.

The Principles against Impunity & the situation in Myanmar

Nearly all of the principles contained within the Principles against Impunity are applicable to the situation in Myanmar, which is a near textbook case of a State failing to meet its obligations to provide justice for violations. In January 2018, the International Commission of Jurists (ICJ) published a baseline study on the obstacles to accountability in Myanmar, which identified a raft of impediments, including:

1. provisions in national laws enable impunity, including by shielding security forces from criminal prosecution for serious rights violations in open civilian courts;
2. when proceedings take place in military or police courts, they are usually inaccessible to victims and the public and often result in acquittals or weak penalties not commensurate with the seriousness of the crimes;
3. unsystematic and uncoordinated investigations, often undertaken by several bodies including ad hoc commissions, fall short of international law and standards;
4. victims are not provided with effective remedies and reparations; and
5. the judiciary lacks independence, impartiality and accountability.

How these obstacles sometimes work in unison to obstruct justice is well illustrated in the tragic case of the killing of journalist, Ko Par Gyi, who died in military custody in September 2014. 

Myanmar’s inability and unwillingness to provide justice for serious rights violations, including the persecution of the Rohingya minority, has prompted international action to pursue accountability, including the establishment of the Independent, Investigative Mechanism for Myanmar, an investigation of the International Criminal Court and a request for Argentina to exercise universal jurisdiction.  The Gambia has also brought proceedings against Myanmar before the International Court of Justice alleging violations of the Genocide Convention.

To highlight just a few of the Principles against Impunity relevant to Myanmar:

Principle 1 of the Principles against Impunity recognizes that “[i]mpunity arises from a failure by States to meet their obligations to investigate violations; to take appropriate measures in respect of the perpetrators, particularly in the area of justice, by ensuring that those suspected of criminal responsibility are prosecuted, tried and duly punished; to provide victims with effective remedies and to ensure that they receive reparation for the injuries suffered; to ensure the inalienable right to know the truth about violations; and to take other necessary steps to prevent a recurrence of violations.”

Part II, concerning the right to know, records that everyone has the right to know the truth about past events concerning the perpetration of heinous crimes – and that States must take appropriate action, including measures necessary to ensure the independent and effective operation of the judiciary, to give effect to the right to know. They also set out standards for commissions of inquiry and preservation of records.

Principle 19 sets out the general rule that “States shall undertake prompt, thorough, independent and impartial investigations of violations of human rights and international humanitarian law and take appropriate measures in respect of the perpetrators, particularly in the area of criminal justice, by ensuring that those responsible for serious crimes under international law are prosecuted, tried and duly punished.” “Serious crimes under international law” are defined earlier as “…grave breaches of the Geneva Conventions of 12 August 1949 and of Additional Protocol I thereto of 1977 and other violations of international humanitarian law that are crimes under international law, genocide, crimes against humanity, and other violations of internationally protected human rights that are crimes under international law and/or which international law requires States to penalize, such as torture, enforced disappearance, extrajudicial execution, and slavery.”

Of particular relevance to Myanmar at this juncture, when a number of international justice efforts are underway, is Principle 20, which recognises that while “[i]t remains the rule that States have primary responsibility to exercise jurisdiction over serious crimes under international law,” where national courts are unwilling or unable to provide justice “international and internationalized criminal tribunals may exercise concurrent jurisdiction.”

Arguably the most consequential of the Principles against Impunity are Principles 22 to 30, which set out that “States should adopt and enforce safeguards against any abuse of rules such as those pertaining to prescription, amnesty, right to asylum, refusal to extradite, non bis in idem, due obedience, official immunities, repentance, the jurisdiction of military courts and the irremovability of judges that fosters or contributes to impunity.”  For example, with respect to amnesties, the Principles against Impunity prescribe certain boundaries “[e]ven when intended to establish conditions conducive to a peace agreement or to foster national reconciliation.”  These include that no one shall benefit from such measures until a State has met its obligations under Principle 19 (see above) “…or the perpetrators have been prosecuted before a court with jurisdiction – whether international, internationalized or national – outside the State in question…”

Principle 29 affirms that military courts must not be used to prosecute anyone, including members of the security forces, for human rights violations, “which shall come under the jurisdiction of the ordinary domestic courts or, where appropriate, in the case of serious crimes under international law, of an international or internationalized criminal court.”

Principles 31 to 34 deal with the right to reparation, which is also comprehensively covered in the UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.

Principle 36 sets out that “States must take all necessary measures, including legislative and administrative reforms, to ensure that public institutions are organized in a manner that ensures respect for the rule of law and protection of human rights,” including by taking steps to “…assure the independent, impartial and effective operation of courts in accordance with international standards of due process” and establish civilian control of military and security forces.  Principle 36 is critical.  History has shown that after a period of conflict or political transition, an independent and impartial judiciary is paramount, not only to place checks and balances on any Government but also to guarantee the rights of victims of violations and provide them with access to justice.  This also has the impact of rebuilding faith in the country’s institutions.

Last, Principle 38 requires that “[l]egislation and administrative regulations and institutions that contribute to or legitimize human rights violations must be repealed or abolished” and that “[l]egislative measures necessary to ensure protection of human rights and to safeguard democratic institutions and processes must be enacted.”

Every conflict and country in transition has its own unique features which must be factored into the development of an appropriate response.  However, the question of what role accountability for serious human rights violations plays should not be treated as a novel question to be considered afresh each time a new situation arises.  Rather, the Principles against Impunity, which reflect decades of global experience, should be relied on as authoritative guidance for anyone working on peace and justice anywhere in the world, including in Myanmar.