Asia, compared to other regions of the world, has had the least engagement with mechanisms of international justice and accountability. It has no regional legal institutions, and has amongst the fewest states per region that are signatories to the Rome Statute (19 at last count). There is a weak track record of pursuing accountability, at the domestic, regional or international level, exemplified by the status of transitional justice initiatives in South Asia.

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There is a gamut of legal mechanisms to ensure individual accountability and state responsibility for international crimes. Nationally, these could include prosecution in criminal courts, special war crimes courts, commissions of inquiry; regional mechanisms include inter-governmental commissions, and in the longer term, a regional court; international mechanisms include the International Criminal Court (ICC), ad-hoc or hybrid tribunals such as the Extraordinary Chambers in the Courts of Cambodia (ECCC), the Special Tribunal for Lebanon (STL), the International Criminal Tribunal for the former Yugoslavia (ICTY) and others; evidence preservation institutions such as the International Independent & Impartial Mechanism for Syria (IIIM Syria), the Independent Investigative Mechanism for Myanmar (IIMM); international or mixed truth commissions, as well as International Commissions of Inquiry; and the International Court of Justice (ICJ) for state responsibility.

 

Specifically in the case of Myanmar, since 2017, war crimes and violations of international human rights law have been committed by the Myanmar military, which has been well documented by members of the Coalition. There are multiple initiatives in regard to establishing accountability that need to be moved forward, with greater coordination. These include the findings of the Independent International Fact-Finding Mission and findings of the Special Rapporteur on Myanmar, the ICC case with Bangladesh as the basis of jurisdiction, focusing on deportation as a crime against humanity, and to keep the pressure up for a United Nations Security Council (UNSC) referral to the ICC.

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These have been some successes so far, including at the ICC, ICJ and the use of ‘universal jurisdiction’, which members of the coalition have been supporting.

 

On 11 November 2019, an application was filed by The Gambia at the International Court of Justice initiating proceedings against Myanmar under the Genocide Convention; on 13 November 2019, a member of the Coalition – BROUK – initiated proceedings on the basis of universal jurisdiction in Argentine courts; and on 14 November 2019, a pre-trial chamber of the International Criminal Court approved the commencement of the investigation phase by the Prosecutor into crimes committed against the Rohingya, asserting jurisdiction via Bangladesh.

 

Immediately following these developments, in December 2019, hearings at the International Court of Justice commenced related to provisional measures – or interim measures of protection – for The Gambia v Myanmar from 10 – 12 December 2019. On 23 January 2020, the decision by the International Court of Justice on provisional measures for The Gambia v Myanmar was unanimous and in favour of The Gambia. Four specific measures were ordered, including compliance with the obligations under Article 2 of the Genocide Convention, the preservation of evidence, as well as reporting back to the court after four months, and thereafter every six months till the case is concluded.

 

In this collective push towards justice and accountability, the use of multiple legal forums to initiate cases for the violations of international law in Myanmar are key, and the coalition will continue to coordinate to enhance the effectiveness of these strategies.