The Independent Investigative Mechanism for Myanmar (IIMM) seeks to collect and preserve evidence, as well as prepare files for future cases before criminal courts. It was set up by the United Nations while other accountability options were lacking. But Myanmar is now facing a barrage of attempts to make it face justice for an alleged genocide against its Rohingya people. The International Criminal Court (ICC) in The Hague has approved an investigation, rights groups in Argentina are bringing a case under the principle of universal jurisdiction, and the small West African state of Gambia has just brought a high-profile case before the International Court of Justice (ICJ).
Nicholas Koumjian, head of the Mechanism, thinks that the various recent judicial activities related to Myanmar “increase the relevance of the Mechanism” and its mandate set out by a UN Human Rights Council Resolution of 27 September 2018. “Our mandate is to share our files with national, regional or international courts that would be able and willing to hold individuals accountable in proceedings that meet international standards,” Koumjian told Justice Info. “The Resolution of the Council recognizes the importance of preserving evidence of serious international crimes, as past experience has taught us that it can often take many years for serious proceedings to begin.”
The Resolution focuses on individual criminal accountability and requests the Mechanism to cooperate with any ICC investigation. The ICJ, on the other hand, deals with disputes between States, rather than criminal responsibility of individuals. Asked whether the Mechanism might still be able to help the ICJ, Koumjian stressed it was early days but “while our mandate concentrates on criminal cases, the Terms of Reference allow the Mechanism to consider requests to use its information for other purposes on a case by case basis. So, should we receive a request from the ICJ for information or assistance, we certainly would carefully consider it.”
He also points out that the mandate is not limited to alleged crimes against the Muslim minority Rohingya, but covers serious international crimes and violations of international law committed anywhere in the territory of Myanmar since 2011. The UN’s Fact Finding Mission, he noted, found that what happened to the Rohingya in Rakhine state in 2017 was consistent with a pattern of what had happened in other parts of the country.
First mission in Bangladesh
Although it was created in September 2018, the Mechanism has only been operational since August this year, leading some NGOs to express frustration at the slowness. In November, it conducted its first mission to the refugee camps in Cox’s Bazaar, Bangladesh, to which some 740,000 Rohingya fled a crackdown by the Myanmar army in 2017. The mission was led by Koumjian. “I wanted to see the conditions, meet with victims and their representatives and hear their expectations and concerns,” he told Justice Info. “I wanted to explain our mandate to them, explain what they could expect and what would be unrealistic to expect from us.”
“We have right now about a third of our staff and many more coming on board in the first six weeks of next year,” Koumjian says. The Mechanism is analyzing the evidence it has received from the UN Fact-Finding Mission on Myanmar, and “reaching out to other evidence providers, preparing protocols on how we would operate, both internally and how we deal with outside entities and parties, and reaching out to governments whose cooperation would be necessary for how we would be able to conduct our activities”.
Myanmar’s government is not cooperating. “So far they have chosen not to engage with us,” explains Koumjian. “We certainly will keep trying. The Resolution asks us to do that, and we will do that, and things can change,” he believes.
Koumjian says the Mechanism has begun the process of “reaching out to others who already have evidence, whether they be NGOs, businesses or other types of entities” but that this is “rather complicated, as it requires negotiating agreements to collect the evidence that others have and meeting their concerns about how the material will be used and what we can promise in terms of confidentiality”. Then, he says, “all of the material collected will be put into a very sophisticated database which we're still in the process of building and which requires some very advanced software and hardware, making it easy to analyze and assuring that the information is secure and not at risk of any electronic theft”.
Being based in Geneva presents challenges given the distance from witnesses and crime sites, but Koumjian also sees some advantages. Geneva is home to the UN Human Rights Council, and most governments including Myanmar have representatives there, he says. “There are many NGOs and UN agencies that are headquartered in Geneva, so it does have advantages.”
He says the Myanmar body will also learn lessons from the other Mechanisms for Syria and Iraq. “I've talked to the heads of both Mechanisms, who have been generous in sharing their advice and experiences. We probably speak more with colleagues from the Syria Mechanism because we're located in the same city,” he told JusticeInfo. “I think in some ways our start-up phase has benefited because we've learned some lessons from what they went through.” These include “the importance of building the IT system first, and we’ve benefitted by considering the different internal protocols they have shared with us.”
A recent report by the Ferencz International Justice Initiative makes recommendations to civil society organizations wishing to engage with the Independent Investigative Mechanism for Myanmar. Managing expectations is key, the report says: “The IIMM represents one important but discrete step toward justice and accountability by preparing case-files for future prosecutions; the IIMM is not mandated to prosecute perpetrators itself. CSOs and other justice champions will need to continue to advocate for an independent court(s) to try these cases. Working effectively with the mechanism will be a long-term endeavor, and should be viewed as a new, additional opportunity for human rights engagement that complements — not replaces — ongoing work.”
It raises fears that the Myanmar Mechanism may not have enough resources for witness protection. “As the IIMM may offer few resources for security and witness protection, civil society organizations, international NGOs, and governments should establish appropriate programs and security infrastructure to ensure that engagement with the IIMM does not endanger witnesses and victims’ communities,” reads the report.
Asked how he thinks the success of this Mechanism could be measured, Koumjian told Justice Info this “certainly is going to be a challenge”, since the responsibility for actual prosecutions will be in the hands of able and willing courts. But for him, the work of the Mechanism could be measured by the quality of evidence gathered and building of case files.
“The most important thing we do is probably not easily measurable,” he continued, “and that is bringing attention to what's happening. People in Myanmar, particularly those in authority, are certainly aware that the world is watching what they're doing, and that there are these various efforts for accountability. And our mandate goes on. We would have jurisdiction over anything that happened tomorrow, or next year during the elections. So I hope we're deterring at least to some extent international crimes from happening. We may already have saved lives.”