Episode #247: Crime and Punishment
“This is an investigation. We are supposed to gather evidence to share it with courts that could be willing and able to exercise jurisdiction over the crimes in Myanmar.” Nicholas Koumjian, the head of the Independent Investigative Mechanism for Myanmar (IIMM), appears on the podcast to discuss his role, as well as the ongoing effort of his team as the conflict in Myanmar rages on.
Koumjian brings a distinguished history of over 23 years working as a prosecutor in a variety of international courts. He was: involved with the International Criminal Tribunal (ICT) in the Yugoslav tribunal; the Deputy General Prosecutor in charge of the Serious Crimes Unit in East Timor; at the state court in Bosnia and Herzegovina in the war crimes chamber; stationed in Kyiv, Ukraine, on a regional anti-corruption program; head a human rights program in Bogota, Colombia; with the Special Court for Sierra Leone in the trial of President Charles Taylor; and finally, the international co-prosecutor at the Khmer Rouge tribunal in Phnom Penh, Cambodia.
Created by the Human Rights Council, IIMM’s mandate is to collect, print, analyze, and preserve data related to serious crimes that have been committed both in Myanmar as well as along the borders. The evidence is then shared with national, regional and international courts in order to promote accountability of what is happening in Myanmar. Their specific mandate involves overseeing documentation related to serious crimes that have been committed both in Myanmar as well as along the borders.
Koumjian’s current posting poses unique challenges that depart from his past work. “This is the seventh international court or mechanism involving international crimes that I have worked in,” he says. “And frankly, none of those faced the information technology challenges that we have now. This is an ongoing conflict. It is [also] very modern [in its use of social media]. Even in 2017, in the clearance operations, we got thousands of videos because the victims, the Rohingya, were able to take their phone and videotape villages burned and dead bodies floating in the river. Another challenge for us is the textual information we have in various languages, usually Burmese.”
Because there are few Burmese speakers on the IIMM staff, it makes it especially challenging to go over the literally millions of pieces of evidence that they have collected—to date, they have amassed over 28 million! For this reason, IIMM has been building a state-of-the-art, IT system capable of organizing and analyzing the vast amounts of evidence. One especially important feature they hope to incorporate includes a kind of search function that can sift through the many variations of Burmese texts, which appear in a number of different fonts and in handwriting, and find a way to translate it as well.
IIMM’s task is made even more challenging by the fact that they do not have anyone on the ground who is actually inside Myanmar. Instead, they interface with many different individuals and organizations both inside and outside the country who voluntarily collect and share information, which is then meticulously vetted to the degree possible given the circumstances. Eyewitness testimonies are particularly important pieces of evidence; it can take several days of conversation to make sure that a correct accounting of what the witness actually saw and heard is recorded. Social media posts, aerial photographs showing the burnings and destruction of villages, and other forms of documentation are also valuable. “Certainly, what we want and what we are striving [for] is that the evidence that we collect is used,” he explains. “We do not want it sitting there unused. When we believe that there is a good opportunity for the evidence to be used, we would try to seek ways in order to encourage that use.” Koumjian also touches upon the balance between keeping IIMM data private to ensure confidentiality, and releasing some into the public space so that more people can be made aware of their ongoing work.
IIMM does not have a prosecutorial mandate. “We are not a court,” Koumjian explains. “We cannot arrest anyone or charge anyone. We have to deal with other courts that have that jurisdiction and are willing to exercise it.” They are charged with investigating alleged crimes that can be traced all the way back to 2011, and in doing so, have found that the atrocities heaped on the Rohingya follow a clear pattern that is consistent with how the military has operated in other conflicts, particularly in Kachin, Chin, and Shan states; Koumjian here makes mention of the notorious “Four Cuts” strategy.
IIMM is currently assisting in three major legal processes regarding the Rohingya. The first involves the case that Gambia has brought forward at the International Court of Justice (ICJ), which addresses whether Myanmar has violated the Genocide Convention. Some of the most important pieces of evidence includes hate speech that appeared on Facebook: during the critical period from July to December 2017, when hundreds of thousands of Rohingya were fleeing Myanmar, IIMM documented over 800,000 instances of the Myanmar military actively promoting enmity and inciting violence against the Rohingya, spread over 43 Facebook accounts. What is more, using keyword searches, 10,000 posts fit the IIMM definition of hate speech. “The findings of this report tie to Facebook accounts controlled by the Myanmar military,” he says. “This is a very significant conclusion, particularly for the proceedings at the International Court of Justice, because that's a case about state responsibility, not individuals.” This evidence is vital for the ICJ, which examines whether Myanmar took all reasonable actions to prevent and punish acts of genocide. For Koumjian, it is essential to ensure that the judges at the ICJ have access to the most comprehensive and accurate evidence, thereby enhancing the prospects for justice and accountability for the atrocities committed against the Rohingya.
Koumjian next addresses a case in front of the International Criminal Court (ICC). A challenge has been that Myanmar is not a signatory to the Rome Statute (a topic taken up in previous episodes with Isabel Todd, Matthew Wells, Peter Morris, and Hunter Marsten), which means that the case would not normally fall within the ICC’s jurisdiction, as it is confined to crimes committed within the territories of signatory states and/or by their nationals. However, an exception was made in this case because Bangladesh, which is a signatory state, was directly affected by the mass exodus of Rohingya fleeing Myanmar. The prosecutor argued that the crime of forced deportation, which involves crossing an international border, occurred partly on the territory of Bangladesh. The pre-trial chamber of the ICC accepted this argument, allowing the investigation to proceed. This investigation encompasses events leading up to and including the forced deportation of the Rohingya from Rakhine State to Bangladesh. “It's very active,” Koumjian says, “and we are cooperating with that. Our teams are in weekly contact. It’s important for people in Myanmar not to give up hope, because there are many situations in the world that don't have any such processes going on. But now for Myanmar, there are three ongoing processes!”
The third concerns the Argentine Federal District Court's involvement in the Rohingya crisis. A petition to take up this case was made by some victims of clearance operations in 2016-2017 in Myanmar who at the time of the petition were living in the UK and Bangladesh. Initially, the lower court in Argentina declined to take up the case due to a lack of connection to Argentina. However, upon appeal, the court reversed its decision. The appellate chamber—with a supporting letter from the IIMM explaining their mandate and expressing willingness to share evidence with the Argentine process—agreed with the contention that the case involved crimes against humanity and under the Argentine constitution, required investigation despite the lack of direct ties to Argentina. This broad exercise of jurisdiction is influenced by Argentina's history during its “Dirty War,” where many felt the world turned a blind eye to their suffering and now seek to prevent similar complacency. “It's extremely difficult to investigate a crime halfway around the world in a different language than spoken in your country,” says Koumjian. “But they started that we were available to help, and we have been helping them since then.”
IIMM was already overwhelmed with its existing responsibilities when the Burmese military launched a coup in 2021. Koumjian explains that initially, it was not something that fell within their jurisdiction. “We said that the coup, itself, is not within our mandate, because it did not fit the subject matter of our jurisdiction [which] is international crimes, defined in our terms of reference as war crimes, crimes against humanity and genocide. [But then] about six weeks into the post-coup [period], the regime started to use lethal violence against demonstrators in different places. At the same time, we also saw systematic targeting of specific groups of individuals, such as journalists, healthcare workers, and NLD supporters. So based upon that preliminary evidence, we felt that our mandate was involved as it fit on the subject matter [of international crimes].” This dramatically altered the trajectory of their work. “Since the coup, we have been collecting evidence of crimes that are ongoing in Myanmar,” he says. “There has been so much violence post-coup that this is taking up a great deal of our time and efforts.” At that point, their team divided into two: one group continued to look into and share evidence with the three ongoing international justice processes regarding the Rohingya genocide, and a second gathered data about everything else that was relevant, including the post-coup atrocities.
A growing concern has been a number of aerial bombings that seem to have no clear military target. Deliberately bombing a target of no military value, or if civilian casualties would knowingly exceed a target’s military value, are war crimes. However, it is not just the military they are looking into, but the actions of all armed groups involved in the conflict. Koumjian explains that they focus on “command responsibility”: how those with authority take—or not—all necessary and reasonable measures to prevent or punish conflict-related crimes. “Our mandate is not limited to the Myanmar military, and unfortunately, it is not only the Myanmar military that is committing crimes,” he says. “Our message to any armed group out there committing crimes, or assassinations of non-combatants, is that we are watching. We will do everything possible to see that there is accountability, and that those responsible for crimes are held to account.”
Koumjian adds that there have been several attempts by other countries to hold Burmese leaders accountable for their actions. For example, in Germany, a complaint was filed against Myanmar's military officials; however, the German prosecutor chose not to open an investigation, citing the lack of a direct connection to Germany…even though this connection is not strictly required under German law. In Turkey and the Philippines, similar complaints have been filed, but as of now, there have been no decisions regarding these cases, and their outcomes remain uncertain.
“If you do not prosecute them, you get more of these crimes occurring,” Koumjian says in closing. “We hope that we do act as a deterrent force. Part of our mandate is to preserve evidence because we know that international justice can be a very slow process… But still, it is clearly very important. It's so much better than having no justice! It’s very important to establish that historical record. Very important that young people in that country learn more and understand better about what actually happened before they were born, but not that long ago, and that affected their parents, and grandparents, so that they understand them better, and so that it never happens again. And so that is what we hope to be contributing to in our work in Myanmar. We can break the cycle of impunity that has led to such crimes happen over and over again in Myanmar's history.”
We also share the following message directly from the Independent Investigative Mechanism for Myanmar:
The IIMM encourages anyone who has information about serious crimes committed in Myanmar to contact the Mechanism through its secure and confidential channels. The testimonies of witnesses and survivors of crimes are vital for the Mechanism’s work to build criminal cases against perpetrators. Equally important are people with knowledge of illegal orders or policies. The Mechanism welcomes any type of information in any language, and it does not need to be sent in a specific format or template.
For any confidential and sensitive communications or sharing of information, please either: a) download the Signal app to set up a Signal account and send the Mechanism a secure message via Signal at +41(0)76 691 12 08; or b) create a Proton Mail account and contact the Mechanism via Proton Mail at contact@myanmar-mechanism.org. For additional information on sharing information securely and confidentially, please visit the IIMM website.