Tangled skeins towards accountability: Myanmar and international justice

On 27 September 2018, in the closing days of its 39th session, the United Nations Human Rights Council passed resolution A/HRC/39/L.22 relating to the situation of the Rohingya and other minorities in Myanmar. This significant development is not isolated and is part of complex and interconnected initiatives, all of which increase the possibility of accountability for crimes in Myanmar. The confluence of these multiple strands for accountability have implications for, and beyond, Myanmar.   

The HRC has approved the establishment of an “…ongoing independent mechanism to collect, consolidate, preserve and analyse evidence of the most serious international crimes…” since 2011 in Myanmar, and will prepare files for national, regional or international courts or tribunals. This is based in large part on a similar mechanism established for atrocities in Syria. The resolution, sponsored by the European Union and the Organization of Islamic Cooperation, passed with thirty-five votes in favor, seven abstentions and three against. Unsurprisingly, China, Burundi, and the Philippines voted against the resolution, with Japan and Nepal among the abstentions. The resolution however had the support of a majority of HRC members, including Afghanistan, the U.K., Switzerland, DRC, Mexico, Panama, and Peru. 

The basis for the resolution is the report of the Independent International Fact-Finding Mission, presented to the UN HRC on 18 September. The FFM report found patterns of the “gravest crimes” under international law, including “the inference of genocidal intent”, based on the evidence gathered and analysis. The need to preserve evidence and prevent the re-traumatization of survivors was a critical point made by the FFM. The passage of the resolution builds upon recommendations of the FFM, to take other concrete steps towards accountability. The establishment of such an independent mechanism is a precursor to the adjudication of evidence before a court, with international legal standards. The determination of the legal forum for prosecutions is however still an open question, with the International Criminal Court or an ad-hoc court, as options. While ad-hoc courts have been established previously – such as for Rwanda, the former Yugoslavia and Sierra Leone – the creation of the ICC was in part to obviate the need for temporary international tribunals. 

It is also important to recall though that at present, a pre-trial chamber of the International Criminal Court has determined that it has jurisdiction over the crime against humanity of deportation, based on the crossing of an international border between a state party to the court (Bangladesh) and a non-state party (Myanmar). The decision has given the green light to the prosecutor to formally commence her preliminary examination. While admittedly limited in scope to deportation and associated crimes, it is nonetheless a step in narrowing the accountability gap and is a legal precedent for jurisdiction over non-party states. This comes at a time of continued scrutiny, as well as attacks on the ICC. The U.S. President and national security adviser have denounced the court in no uncertain terms. The withdrawal of the Philippinesfrom the ICC, which is yet to take effect, has shone a spotlight on the role of the ICC in Asia in particular. At the same time however, there is a discernible emboldening of actions by the institution, as well as by other states. These include the prosecutor potentially opening a case into actions of U.S. service members in Afghanistan, as well as the recent referral of Venezuela to the ICC, by six states – a first in the short history of the court. Messy and complicated as these developments are, they indicate the continuing relevance of the institution as a tool in the legal arsenal to address impunity, affirmed by the HRC resolution. 

In the passage of the resolution, the HRC has not abdicated its responsibility – significant in itself, when its legitimacy is also being questioned, and has included the withdrawal of the U.S. recently. The HRC has also passed the baton onto the General Assembly for further action. This is not to detract from the responsibility of the Security Council for a comprehensive referral to the ICC, for all crimes in Myanmar. In addition to extending the mandate of the FFM and ensuring continuity, the resolution connects the other ongoing initiatives – placing the onus on the mechanism to use the information collected by the FFM, and to cooperate with the ICC. This is the next logical step that takes the work of the FFM forward.

There is a confluence of legal developments at this point – the FFM, the newly established evidence mechanism and the ICC – which indicate a greater possibility for accountability and justice related to Myanmar. While attempts for international accountability in relation to Sudan and Syria have faltered, the multiple reinforcing initiatives distinguish this case and suggest a reason to be more hopeful. While there is still a long path ahead, the HRC resolution sets in motion the painstaking task of consolidating and validating evidence – a critical step for any future legal process.