Atrocities Documented, Accountability Needed: Finding Justice for the Rohingya through the ICC and Independent Mechanism, By Paul R. Williams & Jessica Levy

By Paul R. Williams* and Jessica Levy

 

Introduction

In late August and early September 2017, the Myanmar military launched a large-scale, coordinated attack against the Rohingya population of Myanmar in the Rakhine, Kachin, and Shan states. Mass killings, arson, and rape, amongst other atrocities, were used in an attempt to decimate and displace the Rohingya.

In March and April 2018, the Public International Law & Policy Group (“PILPG”), a global pro bono law firm, undertook a large-scale and comprehensive documentation mission at the behest of the U.S. State Department in order to produce a factual findings report of the atrocities experienced and observed by the Rohingya refugees currently residing in camps in the Cox’s Bazar district of Bangladesh. PILPG conducted and analyzed 1,024 interviews, which yielded substantial evidence of a “premeditated and well-coordinated operation” that was intended, at least by some of the perpetrators, “not only to expel, but also to exterminate the Rohingya.”[1] With substantial support from an array of international attorneys and international criminal law experts, PILPG conducted an independent legal analysis of the factual findings, which concluded that there are reasonable grounds to believe that genocide, crimes against humanity, and war crimes have been committed against the Rohingya.[2]

PILPG’s findings were corroborated by the United Nation (“UN”)’s “Report of the detailed findings of the Independent Fact-Finding Mission on Myanmar,” which concluded that Myanmar security forces carried out crimes against humanity, war crimes, and attacks with genocidal intent against the Rohingya population in Myanmar.[3] These findings support a resounding call for accountability and prompt the question: how can international law be used to secure justice for the survivors? In this article, we argue that the International Criminal Court (“ICC”)’s inquiry into the deportation of the Rohingya and the UN Human Rights Council (“HRC”)’s efforts to create an Independent Mechanism are currently the most viable, albeit limited, mechanisms the international community can use to “prime the pump” for future comprehensive accountability measures.

 

Atrocity Documentation

To document the alleged atrocities, PILPG organized a team of eighteen investigators from eleven countries, many of whom were former prosecutors and criminal investigators from previous international war crimes tribunals or similar investigatory bodies. Utilizing a rigorous statistical sampling methodology, the investigators were able to capture a diverse range of experiences from different geographic areas within Rakhine State.[4] A randomized selection process for interviewees was instituted so that the results would be appropriately representative and not skewed towards dramatic narratives. Even so, and despite their extensive experience working on the scene of mass atrocities on multiple continents, the investigators were astonished by the brutality of the events endured by so many Rohingya.[5] Twenty percent of respondents reported themselves as having been physically injured in the attacks, nearly seventy percent witnessed their homes or villages being destroyed, and eighty percent witnessed the killing of a family member, friend, or personal acquaintance.[6]

The PILPG report leaves little doubt that the Myanmar military’s attacks, executed in multiple places over a wide geographic area within a short period of time, were part of a coordinated, systematic campaign targeted exclusively against Rohingya Muslims, a community that has lived in Myanmar for centuries but has long been denied citizenship.[7] The interviewees witnessed mass killings, torture, rape, shootings, drownings, and poisonings of water and food supplies. Interviewees also witnessed a number of sadistic acts, including the defilement, dismemberment, and mutilation of family members, pregnant women, young children, and religious leaders.[8] Many reported that bodies and body parts were hung from trees to ensure that all would see.[9] During the attacks, the Rohingya endured a litany of verbal abuses, such as, “This is not your country. If you stay we will rape your women, burn you, leave Bengali!”[10]

Even the Rohingya who escaped the destruction of their villages were targeted during their journeys as well as at the border. Witnesses described Myanmar military personnel firing at fleeing groups from helicopters, naval boats intentionally ramming overcrowded boats transporting refugees in order to drown passengers, and armed forces shooting at refugees as they attempted to cross the river into Bangladesh.[11] The evidence indicates that the goal of the Myanmar armed forces was not merely to expel the Rohingya, but also to kill as many Rohingya as possible and to terrorize those who left into never returning.

Moreover, nothing in PILPG’s investigation supports the Myanmar government’s claim that its forces were carrying out a legitimate, proportionate counter-insurgency campaign following the attacks in late August on police posts by the Arakan Rohingya Salvation Army (“ARSA”), a small, renegade militant group widely denounced by the vast majority of Rohingyas.[12] Rather, the speed, patterns and widespread nature of the attacks suggest substantial tactical and logistical advance planning.[13]

The PILPG Report demonstrates strong evidence that three most serious atrocity crimes known to humanity were systematically carried out against hundreds of thousands of defenseless civilians because of their Rohingya identity. The need for accountability is undeniable. As one investigator recalled, “After explaining the purpose of the interview, [the Rohingya refugees] would say, ‘this is good, we need justice, not just food.’”[14] If the international community does not make serious strides to hold the perpetrators accountable, it would be not only a moral failing but also a license for further cruelty and conflict within Myanmar and beyond.

 

Seeking Justice

Whether or not there will be accountability for these crimes is likely to depend on the action or inaction of the international community. International pressure prompted Myanmar to create a commission to investigate allegations of human rights abuse in the Rakhine state.[15] This means that prosecutions could hypothetically occur within the domestic arena. However, the culture of impunity within Myanmar makes it highly unlikely that the state will use its domestic legal system to hold the perpetrators responsible for the atrocities they committed.[16] Myanmar officials have routinely denied that such atrocities occurred,[17] and two Reuters journalists were recently tortured and unjustly imprisoned for trying to investigate one of the massacres.[18]

Prosecutions could also in theory occur at the international level through a special tribunal or through a trial at the International Criminal Court. However, because Myanmar is not a State Party to the Rome Statute governing the ICC, the Court does not have jurisdiction to prosecute those who committed atrocity crimes within Myanmar’s borders without a self-referral or referral by the United Nations Security Council (“UNSC”). Additionally, the creation of an ad hoc tribunal would also likely require UNSC action, as it is highly improbable that there would be an endogenous push from Myanmar to create such a body. UNSC action is unlikely in the current political environment because China retains a permanent seat on the Council and has repeatedly vetoed UN proposals regarding human rights in Myanmar.[19]

Nonetheless, these challenges have not prevented lawyers and practitioners from working to build a foundation for future accountability efforts. First, in September 2018, the ICC Prosecutor announced the opening of a limited-scope investigation into whether the crime against humanity of deportation was committed by forcefully displacing the Rohingya population from Myanmar into Bangladesh.[20] As Bangladesh is a State Party to the Rome Statute, this process holds potential as a route for international criminal prosecution because “an element of this crime (crossing the border) took place” in Bangladesh.[21] Second, states can offer financial and technical assistance for the newly established Independent Mechanism to Collect Evidence in Myanmar (“Independent Mechanism”), which will collect, consolidate, preserve, and analyze evidence of violations of international humanitarian law.[22]

Although these two efforts are limited in scope, they do provide a foothold for individuals and institutions to begin to combat impunity. Preserving the possibility for future accountability is crucial for securing an eventual end to discrimination against the Rohingya and other ethnic groups in Myanmar as well as creating lasting peace and genuine democratic change in the state. Past peace processes have demonstrated the importance of integrating justice into any post-conflict resolution, and rather than abandoning hope of accountability in the face of UNSC inaction, the international community can and should embrace the preparatory steps offered by the ICC and the recently-established Independent Mechanism.

 

ICC Investigation into Deportation

The Rome Statute grants the ICC jurisdiction over situations in which: (1) the alleged crime occurred on the territory of a State which is party to the Statute, (2) the alleged perpetrator is a national of a State Party, or (3) the UNSC refers the situation to the Prosecutor under Chapter VII of the UN Charter.[23] At the request of the Prosecutor, a Pre-Trial Chamber can rule on whether or not the situation facing the court falls under the court’s jurisdiction.

On April 9, 2018, in accordance with Article 19(3) of the Rome Statute,[24] Chief Prosecutor Fatou Bensouda filed a Request to determine “whether the Court may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh.”[25] In reviewing the request, the Pre-Trial Chamber invited the People’s Republic of Bangladesh and the Republic of the Union of Myanmar to submit their observations.[26] While authorities from Bangladesh confidentially submitted a reply to the ICC’s inquiries,[27] neither Myanmar’s Permanent Mission to the UN nor its diplomatic representatives in Europe accepted the delivery of the request. [28] Instead, they publicly denounced the request as “meritless” given that the country is not a State Party to the Rome Statute.[29]

Notwithstanding Myanmar’s obstinance, however, a Pre-Trial Chamber of the ICC concluded on September 6, 2018, that the court does in fact have jurisdiction over the alleged crime of deportation.[30] The Pre-Trial Chamber reasoned that “acts of deportation initiated in a State not Party to the Statute (through expulsion or other coercive acts) and completed in a State Party to the Statute (by virtue of victims crossing the border to a State) fall within the parameters” of the Rome Statute. The Chamber concluded that it “has jurisdiction over the alleged deportation of members of the Rohingya people from Myanmar to Bangladesh, provided that such allegations are established to the required threshold.”[31] This is a finding of limited jurisdiction; the decision noted that the Court does not have automatic nor unconditional erga omnes jurisdiction.[32] The notable implication of this is that of all the atrocity crimes committed, only the crime of deportation falls under this jurisdictional claim. The Pre-Trial Chamber did not find that Court would have jurisdiction over the crimes that occurred solely in Myanmar, but rather over those in which “at least an element” of the crime were within the jurisdiction of a state that is party to the Rome Statute.[33] Because the victims had traveled from Myanmar into Bangladesh, a state that is party to the Rome Statute, the ICC had jurisdiction over the crime of deportation.[34]

To ground its limited jurisdictional finding, the Chamber began by considering Article 7(1)(d) of the Rome Statute, which classifies “[d]eportation or forcible transfer of population” as a crime against humanity. The Chamber interpreted the Rome Statute’s use of the disjunctive “or” as defining deportation, referring to displacement to another state, and forcible transfer, referring to displacement to a different location within the same state, as two distinct crimes. This interpretation, the Chamber explained, is also consistent with international law, with the purpose of the Statute, and with prior jurisprudence of the Court.[35]

The Chamber further held that Article 12(2)a of the Rome Statute grants the Court jurisdiction if “at least one legal element of a crime within the jurisdiction of the Court or part of such a crime is committed on the territory of a State Party.”[36] Given that the crime of deportation is “inherently transboundary” and takes place in at least two states, the Chamber held that the Court has jurisdiction when at least part of the act is carried out in a state party to the Statute.[37]

Notably, in making a determination on the question of jurisdiction, the Chamber was not required to rule on the evidence. Rather, the Chamber authorized Prosecutor Bensouda to begin a preliminary examination, which she did in September 2018.[38] The ongoing inquiry seeks to determine whether or not there is enough evidence to merit a full investigation into the forced deportation of the Rohingya population.[39]

Finally, it is worth noting that the principle of complementarity means that cases are only admissible before the ICC if a national legal system is “unwilling or unable” to prosecute.[40] A core reason that the proceedings are taking place at the ICC in this situation is because Myanmar’s domestic courts are declining to proceed with prosecutions. As Matt Pollard, Senior Legal Advisor for the International Commission of Jurists, has noted, Myanmar’s judicial institutions “lack the independence, capacity and often also the will to hold perpetrators of human rights violations to account” and the government’s efforts appear designed to “deter and delay justice” rather than secure it.[41]

 

Creation of an Independent Mechanism

The second avenue through which international actors are seeking to hold the perpetrators of the atrocities committed against the Rohingya accountable is the UN’s effort to create an independent mechanism for the collection of evidence for future proceedings. In September 2018, the UN Human Rights Council adopted Resolution 39/2 on the “Situation of human rights of Rohingya Muslims and other minorities in Myanmar.”[42] The resolution not only called for “a full and independent investigation of the reports of systematic and widespread human rights violations and abuses committed,”[43] but also established an Independent Mechanism for the preparation of evidence for future legal proceedings.[44] The Independent Mechanism was formed 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…”[45] The Independent Mechanism will build upon the work done by the UN Independent International Fact-Finding Mission on Myanmar (“IIFFMM”), whose mandate has been extended until the new Independent Mechanism is operational.[46]

The impetus to create the Independent Mechanism for Myanmar has its roots in the creation of a similar mechanism for Syria, which is formally titled “The International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011” and colloquially referred to as the “IIIM for Syria.” The General Assembly established the IIIM for Syria in December 2016 in order to “collect, consolidate, preserve and analyse evidence of violations of international humanitarian law and human rights violations and abuses and to prepare files in order to facilitate and expedite fair and independent criminal proceedings…”[47] The subsequent report of the Secretary General on the implementation of the resolution established the full terms of reference for the Syrian body, including the Mechanism’s mandate and methodology.[48] The Secretary General has not yet issued an analogous report on Myanmar’s Independent Mechanism. However, such a report is likely forthcoming given that the HRC Resolution 39/2 specifically requested that the Secretary-General expeditiously appoint staff and allocate resources to operationalize the mechanism.[49]

In addition to support from the Secretary General, the Independent Mechanism for Myanmar will likely rely on the financial and technical assistance of UN Member States. The IIIM for Syria, which depends on voluntary contributions, could only begin functioning once it received the $8 million of funding the EU and thirty-eight countries provided.[50] Similarly, the Independent Mechanism for Myanmar must either generate a comparable fund or secure UN appropriations. As the Special Rapporteur on the Situation of Human Rights in Myanmar noted, “any delays will only contribute to the lapse of time in which information will become unavailable.”[51] If the international community cannot yet provide justice for victims, it must at least support a mechanism that can act now to secure the evidence necessary for any accountability proceedings in the future.

 

Future Efforts

At the October 23, 2018, meeting of the UN General Assembly, the Special Rapporteur reminded the General Assembly that the creation of an Independent Mechanism, albeit extremely important, is still only “an interim step” in addressing the Rohingya crisis.[52] Accountability will require the further step of criminal prosecution, either at the ICC or another credible tribunal. The Special Rapporteur thus advocated for the international community to apply universal jurisdiction or create an ad hoc tribunal if the UN Security Council decides not to refer the case to the ICC or pass a resolution creating a different judicial mechanism.[53] Marzuki Darusman, the Chair of the Fact Finding Mission made the same plea at the next day’s meeting of the Security Council, asking the UNSC to refer the situation to the ICC or to create an ad hoc tribunal.[54]

The legacies of former tribunals and international courts have illustrated how international criminal prosecutions can play an important role in delegitimizing the institutions and individuals responsible for atrocities, balancing communal responsibility and collective guilt, providing victim catharsis, and deterring future atrocities.[55] ICC Prosecutor Bensouda’s inquiry and the HRC’s Independent Mechanism are core steps in international law’s path towards accountability, but they are ultimately limited in scope. The jurisdiction of the former is narrowly tailored to the crime of deportation, and the latter is limited in mandate to evidence collection and analysis. Fortunately, neither process is mutually exclusive with other accountability steps such as an UNSC referral or new tribunal. Supporting these two initial steps is therefore crucial in demonstrating not only the acute need for accountability but also the positive consequences of its achievement, both of which will prime the pump for more comprehensive measures down the line.

* Paul R. Williams is the Rebecca I. Grazier Professor of Law and International Relations at American University.  He holds a Ph.D from Cambridge University, J.D. from Stanford Law School, and B.A from UC Davis.  Professor Williams is a co-founder of the Public International Law & Policy Group (“PILPG”), a non-profit group that provides pro bono legal assistance to states and governments involved in peace negotiations, post-conflict constitution drafting, and war crimes prosecutions.  Over the course of his legal practice, Professor Williams has assisted with over two dozen peace negotiations and post conflict constitutions.  Professor Williams has advised governments across Europe, Asia, as well as North and Sub-Saharan Africa on state recognition, self-determination and state succession issues, and on drafting and implementing post-conflict constitutions.

Jessica Levy is a Research Fellow on Justice, Peace, and Security at the Public International Law & Policy Group.  She specializes in post-conflict security reform and transitional justice.  She graduated summa cum laude from Harvard University with a A.B. in Social Studies and Philosophy and will enter Harvard Law School in the fall of 2020.

[1] PILPG, Documenting Atrocity Crimes Committed Against the Rohingya in Myanmar’s Rakhine State: Factual Findings & Legal Analysis Report 50-51 (2018), http://pilpg.org/rohingya-report, archived at https://perma.cc/NKR2-S6W7.

[2] Id. at vii.

[3] Human Rights Council, Rep. of the Detailed Findings of the Indpt. Int’l Fact-Finding Mission on Myanmar, ¶¶ 1511, 1514, 1441, U.N. Doc A/HRC/39/CRP.2 (2018), https://www.ohchr.org/Documents/HRBodies/HRCouncil/FFM-Myanmar/A_HRC_39_CRP.2.pdf, archived at https://perma.cc/9NTV-FULP [hereinafter HRC Report on the IIFFMM].

[4] See PILPG, supra note 1, at iv-v.

[5] See PILPG, Rohingya Report Launch – Press Conference 12/3/18, YouTube (Dec. 3, 2018), https://youtu.be/fHRTuwQX1IM?t=1553.

[6] See PILPG, supra note 1, at vi.

[7] Id. at 5.

[8] Id. at 28-30, 33-44.

[9] Id. at 35, 42, 48, 49.

[10] Id. at 32 (citing Questionnaire No. 2WRK30).

[11] Id. at 47-48.

[12] Id. at 50.

[13] Id. at 50-51.

[14] Id. at 92.

[15] See Simon Lewis & Poppy McPherson, Myanmar appoints panel to probe Rohingya abuses, Reuters (July 30, 2018), https://www.reuters.com/article/us-myanmar-rohingya-panel/myanmar-appoints-panel-to-probe-rohingya-abuses-idUSKBN1KK2EM, archived at https://perma.cc/HN9N-M6RV.

[16] See HRC Report on the IIFFMM, supra note 2, ¶¶ 1573–77.

[17] See Hannah Beech and Saw Nang, Myanmar Rejects U.N. Findings: ‘No Ethnic Cleansing for Genocide in our Country, N.Y. Times, Mar. 14, 2018, https://www.nytimes.com/2018/03/14/world/asia/un-myanmar-rohingya-genocide.html, archived at https://perma.cc/5DP9-WL39.

[18] See Tom Lasseter, How Two Young Reporters Shook Myanmar Reuters  (Aug. 8, 2018), https://www.reuters.com/investigates/special-report/myanmar-reporters-democracy/, archived at https://perma.cc/JLH8-H5HW.

[19] For example, China voted against the Fall 2018 Human Rights Council resolution calling for a IIIM for Myanmar. See U.N. Human Rights Council Res. 39/2, U.N. GAOR, 39th Sess., U.N. Doc A/HRC/RES/39/2 (2018).

[20] See ICC Office of the Prosecutor, Statement of ICC Prosecutor, Mrs. Fatou Bensouda, on opening a Preliminary Examination concerning the alleged deportation of the Rohingya people from Myanmar to Bangladesh, September 18 2018, https://www.icc-cpi.int/Pages/item.aspx?name=180918-otp-stat-Rohingya, archived at https://perma.cc/5A44-6JC3.

[21] Press Release, ICC, ICC Pre-Trial Chamber I rules that the Court may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh (Sept. 6, 2018), https://www.icc-cpi.int/Pages/item.aspx?name=pr1403, archived at https://perma.cc/SD2N-AJN2.

[22] U.N. Human Rights Council Res. 39/2, U.N. Doc. A/HRC/RES/39/2, ¶ 22 (Sept. 27, 2018).

[23] See Rome Statute of the International Criminal Court arts. 12–14, (July 17, 1998), U.N.T.S. 2187, No. 38544.

[24] Id. art. 19(3) (“The Prosecutor may seek a ruling from the Court regarding a question of jurisdiction or admissibility.”).

[25] Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute, ICC-RoC46(3)-01/18-1, ¶1 (Apr. 9, 2018), http://www.legal-tools.org/doc/4af756/pdf/, archived at https://perma.cc/SH6L-4GL8.

[26] Decision Inviting the Competent Authorities of the People’s Republic of Bangladesh to Submit Observations pursuant to Rule 103(1) of the Rules of Procedure and Evidence on the “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute,” ICC-RoC(3)-01/18-3 (May 7, 2018), https://www.icc-cpi.int/CourtRecords/CR2018_02487.PDF, archived at https://perma.cc/P6JC-X73K; see also Decision Inviting the Competent Authorities of the Republic of the Union of Myanmar to Submit Observations pursuant to Rule 103(1) of the Rules of Procedure and Evidence on the “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute”, ICC-RoC46(3)-01/18-28 (June 21, 2018), https://www.icc-cpi.int/CourtRecords/CR2018_03206.PDF, archived at https://perma.cc/SGD7-D48S.

[27] See Observations of the People’s Republic of Bangladesh Pursuant to Rule 103(1) of the Rules of Procedure and Evidence on the “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute,” ICC-RoC46(3)-01/18-14 (June 11, 2018).

[28] See Registry’s Report on the implementation of the Decision Inviting the Competent Authorities of the Republic of the Union of Myanmar to Submit Observations pursuant to Rule 103(1) of the Rules of Procedure and Evidence on the “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute,” ICC-RoC46(3)-01/18-31, ¶ 4 (July 5, 2018), https://www.icc-cpi.int/CourtRecords/CR2018_03571.PDF, archived at https://perma.cc/PB4Y-AY4V.

[29] See Antoni Slodkowski, Myanmar to ICC: Rohingya jurisdiction request ‘should be dismissed, Reuters (August 9, 2018), https://www.reuters.com/article/us-myanmar-rohingya/myanmar-to-icc-rohingya-jurisdiction-request-should-be-dismissed-idUSKBN1KU1NG, archived at https://perma.cc/DW2T-GNLL.

[30] Decision on the “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute,” ICC-RoC46(3)-01/18, ¶ 73 (Sept. 6, 2018), https://www.icc-cpi.int/CourtRecords/CR2018_04203.PDF, archived at https://perma.cc/4WZZ-7PLP.

[31] Id.

[32] Id. ¶ 49. As recognized in the ICJ’s 1970 Barcelona Traction Judgment, public international law distinguishes between two categories of obligations: those that are erga omnes or owed “‘towards the international community as a whole’ which are the ‘concern of all States’ and for whose protection all States have a ‘legal interest’” and those that exist only “vis-à-vis another State.” Obligations Erga Omnes, in Max Planck Encyclopedia of Public International Law (1992) 757-758.

[33] Decision on the “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute,” ICC-RoC46(3)-01/18, ¶ 74 (Sept. 6, 2018), https://www.icc-cpi.int/CourtRecords/CR2018_04203.PDF, archived at https://perma.cc/4WZZ-7PLP.

[34] Id. ¶ 73.

[35] Id. ¶ 52.

[36] Id. ¶¶ 53–55, 57–59.

[37] Id. ¶ 73 (“. . . the Chamber is of the view that acts of deportation initiated in a State not Party to the Statute (through expulsion or other coercive acts) and completed in a State Party to the Statute (by virtue of victims crossing the border to a State) fall within the parameters of article 12(2)(a) of the Statute. It follows that, in the circumstances identified in the Request, the Court has jurisdiction over the alleged deportation of members of the Rohingya people from Myanmar to Bangladesh, provided that such allegations are established to the required threshold.”).

[38] Int’l. Criminal Court, Report on Preliminary Examination Activities ¶ 30 (2018), https://www.icc-cpi.int/itemsDocuments/181205-rep-otp-PE-ENG.pdf , archived at https://perma.cc/XP45-YKEG.

[39] Id. ¶ 41.

[40] Rome Statute of the International Criminal Court art. 27, (July 17, 1998), U.N.T.S. 2187, No. 38544.

[41] Matt Pollard & Frederick Rawski, Myanmar: Creation of UN Mechanism a Step Toward Accountability, International Commission of Jurists  (September 27, 2018), https://www.icj.org/hrc39-myanmarres/, archived at https://perma.cc/WHD4-J5WL.

[42] U.N. Human Rights Council Res. 39/2, U.N. Doc. A/HRC/RES/39/2 (Sept. 27, 2018).

[43] Id. ¶ 3.

[44] Id. ¶ 22.

[45] Id.

[46] Id. ¶¶ 23, 30.

[47] G.A. Res. 71/248, ¶4 (Dec. 21, 2016).

[48] U.N. Secretary-General, Implementation of the resolution establishing the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Aram Republic since March 2011, ¶¶ 10–11, 12–22 U.N. Doc. A/71/755 (Jan. 19, 2017).

[49] U.N. Human Rights Council, Resolution adopted by the Human Rights Council on 27 September 2018 39/2. Situation of human rights of Rohingya Muslims and other minorities in Myanmar, U.N. Doc. A/HRC/RES/39/2, at 25, 28 (Sept. 27, 2018).

[50] Independent, Impartial and Independent Mechanism: Funding, United Nations, https://iiim.un.org/funding/.

[51] Statement by Ms. Yanghee Lee, Special Rapporteur on the situation of human rights in Myanmar at the 73rd session of the General Assembly (Oct. 23, 2018).

[52] Id.

[53] Id.

[54] Meetings Coverage, Security Council, Head of Human Rights Fact‑Finding Mission on Myanmar Urges Security Council to Ensure Accountability for Serious Violations against Rohingya, U.N. Meetings Coverage SC/13552 (Oct. 24, 2018), https://www.un.org/press/en/2018/sc13552.doc.htm, archived at https://perma.cc/KN5M-YPBS.

[55] Paul R. Williams, Lisa K. Dicker & C. Danae Paterson, The Peace vs. Justice Puzzle and the Syrian Crisis, 24 ILSA J. Int’l & Comp. L. 417, 431–434 (2018) (discussing the benefits of the justice-first approach).

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