Interview with Kingsley Abbott
The Daily Observer interviews Kingsley Abbott, Senior Legal Adviser, Global Redress & Accountability, International Commission of Jurists. Rezaur Rahman Lenin and Quazi Omar Foysal contributed to the Law Talk.
Many mechanisms mandated for investigating any particular situation of human rights violation can be seen in recent time. Syria and Myanmar can be seen as an example. Are there any challenges to having multiple mechanisms as such?
Kingsley Abbott: The establishment of these mechanisms is a positive development and shows that states are willing to adopt progressive solutions in the global fight against impunity where the road to accountability for victims is otherwise blocked.They also play a key role in establishing facts for the public record, which contributes towards reparation for victims and their right to know the truth about the violations they have suffered.However, the operation of these different mechanisms will raiseseveral challenges.For example, in the context of Myanmar, if the International Criminal Court (ICC) moves to a full investigation, there should be some coordination between the ICC and the Independent Investigative Mechanism for Myanmar (IIMM),asit is possible they will end up investigating some of the same issues in the same locations. At the same time and in parallel, there will likely be ongoing documentation by civil society and others.
All these different groups which may beoperating in the same space should coordinate as much as possible to ensure that avoidable harm is not caused to the victims and witnesses, and anyone else connected to these investigations, and that any future accountability processes are not compromised through the production of multiple statements, unnecessarily.Other challenges will includeensuring there is effective outreach so that witnesses and victims understand the different roles and functions of the FFM, IIMM and ICC; the security of victims and witnesses who agree to cooperate with these bodies; and practical issues such making sure accurate interpretation and translation is available to ensure that any testimony is reliable and that victims and witnesses are fully aware of their rights and can give their fully informed consent as to how their information will be used.
Would you apprise the readers about the ICC- preliminary examination?
KA: The ICC's decision to open a preliminary examination is particularly welcome as Myanmar has so far been unwilling and unable to exercise its duty to investigate and prosecute the crimes under international law committed against the Rohingya.In these circumstances, it usually falls to the ICC, as a court of last resort, to investigate and prosecute any crimes listed in the Rome Statue that have been committed.But it was originally feared that Myanmar's failure to ratify the Rome Statute, and the fact that the United Nations Security Council has not yet referred Myanmar to the ICC,might prohibit the ICC's consideration of the situation.
However, last year the ICC's Pre-Trial Chamber issued a judgment which held that, as a matter of law, the ICC has jurisdiction over those crimes listed in the Rome Statute where only one element, or part of a crime, occurred within the territory of a State Party to the Rome Statute.Regarding the Myanmar situation, this ruling opened the door for the ICC to look at those crimes, such as the Crime against Humanity of Deportation (the forced transfer of a person across an international border) and related crimes, where one element, or part of a crime, allegedly occurred within the territory of Bangladesh.The ICC's preliminary examination is the first step the ICC takes to determine whether there is a reasonable basis to proceed with an investigation pursuant to criteria established by the Rome Statute, taking into account a range of issues including jurisdiction, admissibility and the interests of justice.
However there is a still a long way to go.
First, the Prosecution must determine whether it has satisfied the conditions for a full investigation. If so, it has to request the authorization of the Pre-Trial Chamber to proceed to a full investigation. Then, if following a full investigation,it determines that crimes listed in the Rome Statute have been committed, and those crimes may be linked to certain individuals, the Court would have to issue arrest warrants that thenhave to be executed. Once executed,which is not always easy or possible, accused persons would then have to be transferred to the ICC in the Hague to stand trial - all of which takes time.It bears noting that the scope of the ICC's mandate regarding Myanmar is limited to those crimes where one element or part of the crime was committed inside the territory of Bangladesh. As such, the UN Security Council should still refer the whole Myanmar situation to the ICC so that all Rome Statute crimes that may have been committed within the territory of Myanmar can be fully investigated.
The establishment of an IIMM just after the FF-M Report is very welcoming by many Including Rohingyas. What are the positive aspects of such mechanisms?
KA: Independent investigative bodies like the Fact Finding Mission for Myanmar (FFM) monitor and document human rights violations, and produce useful recommendations for the state in question (in this case, Myanmar), third states, UN bodies and other relevant actors which provide a roadmap for the cessation of violations, access to remedies and reparations for victims and non-repetition, among other things.
One of the recommendations of the FFM was for the creation of the IIMM, which has a much broader mandate than that of the FFM, as it extends to the collection of evidence for use in criminal proceedings.In particular, it was created in order to "collect, consolidate, preserve and analyse evidence of the most serious international crimes and violations of international law committed in Myanmar since 2011, and to prepare files in order to facilitate and expedite fair and independent criminal proceedings, in accordance with international law standards, in national, regional or international courts or tribunals that have or may in the future have jurisdiction over these crimes, in accordance with international law."Under its mandate, the IIMM could potentially share evidence with the ICC and national jurisdictions willing to exercise universal jurisdictionsubject to certain conditions and safeguards.
It is evident that international community is very obsessed with the individual criminal responsibility for human rights violation which amounts to international crimes. How can we invoke state responsibility of Myanmar for such violations?
KA: The prosecution of individuals for crimes under international law is one of the pillars of transitional justice and forms an important element in the global fight against impunity.But Myanmar also has a state duty to respect and to protect the human rights of all persons within its jurisdiction arising out of the 1945 Charter of the United Nations, human rights treaties, and general and customary international law.
Such responsibility is engaged for the many systematic and widespread human rights violations that Myanmar has allegedly have committed under international human rights law, including extrajudicial killings, torture and ill treatment, and systematic discrimination.Myanmar has a duty to provide remedies and reparations to victims of rights violations.While mechanisms to addressstate responsibility for these violations may be limited in practice, various means do exist, including civil suits in certain jurisdictions, the use of the various United Nations human rights mechanisms and in the diplomatic arena.
Is there any way leading to the ICJ for such invocation?
KA: Regarding the International Court of Justice, it has previously held that, as a matter of law under the Genocide Convention, States themselves canbe held to have committed the international crime of genocide if the elements of genocide are proven to a high evidential standard and that the genocide was committed through its organs or persons whose acts engage its responsibility.Two past cases which have considered the issue involved the exercise of the Court's "contentious jurisdiction" - where it settles disputes of a legal nature between states.
In neither case did the International Court of Justice find that a state had committed genocide, but in one case (Bosnia and Herzegovina v Serbia and Montenegro), the Court held that Serbia and Montenegro failed to prevent or punish genocide, including through its failure to cooperate with the International Criminal Tribunal for the former Yugoslavia (ICTY).If a similar case wasinitiated before the International Court of Justice concerning the situation in Myanmar and its obligations under the Genocide Convention - which it has ratified - much would depend on the factual record that can be established.
While such a proceeding would be challenging, the mere threat of such an action could have a deterrent effect on Myanmar.The International Court of Justice also has an advisory jurisdiction where public (governmental) international organizations such as certain United Nations organs may request an advisory opinion on an issue of law.