Constructing a Case against Myanmar: New Developments and a Question on Evidence

[Jing Min Tan is a Research Assistant at the Centre of International Law, National University of Singapore.] 

Things have been moving relatively quickly in the case(s) against Myanmar, and it finally is beginning to look like international law might have a holistic solution to the Rohingya Crisis. The ICJ issued a Provisional Measures order against Myanmar in January 2020 to comply with its obligations under the Genocide Convention, while the Pre-Trial Chamber at the ICC held in November 2019 that the Court had jurisdiction over all crimes, so long as part of the conduct was committed on the territory of a State Party (Article 15 Decision, para 61). The Independent Investigative Mechanism for Myanmar (IIMM) has been set up to collect, consolidate, preserve and analyse evidence of serious crimes, having received a massive amount of evidence from the Independent International Fact-Finding Mission on Myanmar (IIFFM). Meanwhile, a case has commenced against Myanmar’s leader Aung Sang Suu Kyi before Argentinian courts, based on universal jurisdiction. And this week, two ex-soldiers of the Tatmadaw army gave a video testimony supporting the account of egregious, systematic human rights abuses before the ICC. This blogpost will briefly elaborate on the two soldiers’ evidence and examine its legal implications for the proceedings pending before the ICC and ICJ.

The evidence

In a chilling video testimony recorded by the Arakan rebel militia, the two soldiers, Pvt Myo Win Tun and Pvt Zaw Naing Tun admitted to being involved in executions, mass burials, destruction of villages, and rape of civilian women. They described participating in ‘clearance operations’ of the Rohingya which entailed ‘indiscriminate’ shooting, and digging mass graves in which they dumped bodies of men, women and children. Their evidence is consonant with the accounts of witnesses and survivors who lived in the area that the soldiers’ units were operational. Buthidaung and Maungdaw Townships, to which the men’s evidence relates, are sites of alleged commission of crimes, including sexual violence and destruction of property (OTP Request for authorisation). It is also severely damaging to Myanmar’s claims that the crackdown on Rohingya was part of a just war in response to Arakan insurgency, and that the Rohingya burned down their own villages to garner international sympathy.

What’s significant about the video is that, whereas previous witness testimony has come from victims, this is the first piece of evidence obtained from alleged perpetrators. Evidence from such perpetrator witnesses, if it stands up to cross-examination before a court, would be highly valuable in providing insight into how the Tatmadaw conducted such ‘clearance operations’, and may supply evidence as to the requisite mens rea of intent for a conviction of genocide. The two soldiers are in custody in the Netherlands, though it is unclear whether they are at the hands of the ICC or the Dutch government – see here and here. It is as yet unclear whether ICC OTP officials have had opportunity to question the soldiers.

Whither the ICJ and ICC proceedings?

With cases in full swing before the ICJ and ICC, it is worth examining the legal implications of this crucial development. It is rare that more than one set of international proceedings concerning the same subject matter are conducted parallel to one another. The scope of the proceedings before the two courts is different – the ICC investigation concern crimes against humanity, while The Gambia instituted proceedings before the ICJ for Myanmar’s breach of obligations under the Genocide Convention. Myanmar is not signatory to the Rome Statute, but neighbouring Bangladesh is, and the latter is the basis for the ICC’s jurisdiction over the Rohingya Crisis. This limits the ICC to investigating conduct with a cross-border element, such as deportation and ‘other inhumane acts’. Does that mean that the substance of the ICC and ICJ proceedings will be entirely different? As Rachel Behring points out, maybe not. The PTC stretched the limits of the territorial scope of the investigation by deciding that the ICC has jurisdiction over crimes committed at least in part on the territory of Bangladesh. This means that the OTP can investigate any crime that is believed to have been or continues to be, committed partially on the territory of Bangladesh (Article 15 Decision, para 124). This is difficult reasoning, for it blurs the distinction between conduct and consequences. Further, in its submitted request to the PTC, the Prosecutor stated that further crimes (in addition to crimes against humanity) could be identified during an authorized investigation (para 86). Notwithstanding controversy, the PTC decision opens the possibility of the ICC trying Myanmar officials for novel forms of genocide, such as ‘deliberately inflicting conditions of life calculated to bring about physical destruction (art 6(c) Rome Statute) by forcing the Rohingya to escape to Bangladesh’s overcrowded refugee camps.

The filmed confession is compelling evidence in support of the requisite intent for a charge of genocide, given Pvt Myo Win Tun’s account of his commanding officer’s order to ‘exterminate’ the Rohingya. But would it be enough to support the particular form of ‘conditions of life’ genocide that the ICC may have jurisdiction over? In short, the answer is that it’s too early to tell. Recall that for ICC to have jurisdiction, the conduct complained of must take place on the territory of Bangladesh, not Myanmar. Assuming the soldiers give the same evidence as in the video before the ICC, further corroborative evidence is needed to construct a case that senior Tatmadaw commanders conspired to commit genocide with a cross-border element. As horrifying as the solders’ orders to ‘kill all you see’ sound, they are not enough to support the argument that Myanmar officials had genocidal intent by way of forcing Rohingya into destitute refugee camps, or in the alternative, committing ‘conditions of life’ genocide through forcible transfers, deportation or any other cross-border conduct.

What about the ICJ proceedings? We haven’t heard much from the UN’s ultimate judicial body since its Provisional Measures order of 23 January 2020. Following an extension of the time limits given to The Gambia and Myanmar for submission of their memorials (see here), one can imagine Gambia’s legal team frantically scrambling to make sense of new evidence, including this one, as it comes to light. As has been repeatedly warned by commentators, the road to justice before the ICJ will be long – further interim hearings could include preliminary objections, admissibility and jurisdiction.

A spanner in the works – tainted evidence

Myanmar claims that the men’s evidence was extracted under duress. The Arakan Army claimed they were deserters (at one point in the video, Pvt Myo Win Tun – a Shanni minority himself – says, “I was racially discriminated against,”), but a Tatmadaw spokesperson argues they were arrested and sent to The Netherlands, and insists that they must be returned. It cannot yet be confirmed whether there is any truth to Myanmar’s allegations. If the evidence was indeed extracted by duress or other impropriety, is there anything in the ICJ or ICC statutes to bar admissibility?

Much ink has been spilled over the (some say overly) liberal evidentiary regime of the ICJ (see here and here). Art. 30(1) of the ICJ statute provides that the Court shall ‘lay down rules of procedure’ for itself, while art 48 states that the court shall “make all arrangements connected with the taking of evidence”. In the Corfu Channel case, the ICJ rejected the UK’s argument that violations of law for obtaining evidence were justified, essentially holding that the UK had violated Albania’s territorial sovereignty by conducting a minesweeping operation in its waters. However, the Court neglected to make a broader statement about whether such evidence was admissible, and proceeded to admit evidence concerning the minds that had been unlawfully swept by the UK. The ICJ in Belgium v Senegal confirmed that the prohibition of torture was part of customary international law (CIL) and jus cogens, but Myanmar would have to adduce evidence that the duress amounted to torture (although it is not clear what would amount to torture under CIL – it is likely the threshold would be higher than that required for ‘inhuman or degrading treatment’ under art 3 ECHR). And while the ICJ is not obliged to consider the UN Convention Against Torture unless the parties cite it in their submissions, it would be remiss to neglect art 15, which provides for an automatic exclusionary rule for evidence obtained by torture. However, as recognized by Reisman and Freedman, international tribunals must “balance the needs of a good faith plaintiff to secure evidence for its case against the rights of the defendant to the integrity of its own processes of confidentiality and secrecy”, while respecting the sovereignties of states. The fact that the evidence in this case is allegedly obtained by Arakan Army officers and not agents of The Gambia may lead the proceedings into another lacuna of the law.

As for the ICC, art 69(4) of the Rome Statute provides that the ICC “may rule on the relevance or admissibility of any evidence, taking into account, inter alia, the probative value of the evidence and any prejudice that such evidence may cause to fair trial”. The Lubanga case set out a three-stage test for the admissibility of evidence: (1) whether the evidence is prima facie relevant, (2) whether the evidence prima facie has probative value, and (3) weighing the probative value of the evidence against its prejudicial effect. The Trial Chamber in Lubanga also clarified that art 69(7) is the lex specialis on admissibility and thus should apply where appropriate. Art 69(7) provides that “evidence obtained by means of a violation of this Statute or international recognized human rights” is inadmissible if

1. The violation casts substantial doubt on the reliability of the evidence; or
2. The admission of the evidence would be antithetical to and would seriously damage the integrity of the proceedings.

It has been pointed out that the deliberate choice to include subparagraphs (a) and (b) points to the fact that the exclusionary rule in art 69(7) is neither automatic nor mandatory. The inclusion of subpara (b) in particular, illustrates that the court ought to have regard to principles of due process and fairness, independent of whether the impropriety of how the evidence was obtained affects its reliability. However, art 55(1)(b) of the Rome Statute also sets out that a person “shall not be subjected to any form of coercion, duress or threat, to torture or to any other form of cruel, inhuman or degrading treatment or punishment”. Art 55(1) affects persons affected by an investigative measure, but it is unclear if Pvt Myo and Pvt Zaw can even be considered such persons, since the alleged coercion would have taken place prior to coming within the scope of ICC investigations. Art 55(1)(a) further protects a person’s right to silence. Recognizing that CIL is binding on the ICC (art 21(1)(b) Rome Statute), and the abovementioned ICJ judgment in Belgium v Senegal, it might be argued that the mandatory exclusion of evidence obtained by torture is also part of CIL. But as Petra Viebig notes in his book Illicitly Obtained Evidence at the International Criminal Court, even such a rule might have an exception. In Prosecutor v IENG Thirith before the Extraordinary Chambers in the Courts of Cambodia, the Prosecution sought to admit statements obtained during interrogations at the torture facility S-21, as evidence of the command structure of the Khmer Rouge. The co-investigating judges acknowledged that they were bound by art 15 of the CAT, but nevertheless admitted the statements into evidence, arguing that art 15 should be interpreted teleologically. Despite the criticisms that this decision has received, it may nevertheless be the thin end of the wedge that would allow admissibility of Pvt Myo and Pvt Zaw’s evidence.