Transcript: Episode #247: Crime and Punishment
Below is the complete transcript for this podcast episode. This transcript was generated using an AI transcription service and has not been reviewed by a human editor. As a result, certain words in the text may not accurately reflect the speaker's actual words. This is especially noticeable when speakers have strong accents, as AI transcription may introduce more errors in interpreting and transcribing their speech. Therefore, it is advisable not to reference this transcript in any article or document without cross-referencing the timestamp to ensure the accuracy of the guest's precise words.
0:06
The people of Myanmar have been caught in a rapid downward spiral with growing suffering fear and insecurity.
Nicholas Koumjian 0:15
Unfortunately, the crimes in Myanmar continue and in fact are intensified.
0:20
Urgent action is needed to reverse this catastrophic situation and to restore peace, democracy and sustainable development.
Nicholas Koumjian 0:27
It's more important than ever for us to continue to try to gather the evidence of the most serious international problems. So that one day there could be some justice.
Host 0:41
Before we get into today's show, I just want to add a quick reminder that any donations given to our nonprofit better Burma will be shared directly with those in Myanmar who need it most. Any and all donations will make such a difference right now. Go to insight myanmar.org/donation If you would like to contribute, or stay tuned to the end of the episode and hear more options with that, let's get into the show.
Brad 2:11
And welcome back. Today, we are very privileged to be able to talk to Nicholas Goujon, the head of the I M, the International Investigative Mechanism from Amazon or the independent investigative mechanism for Myanmar, an organization that I think most of our audience would have heard of, and many people in Myanmar definitely following closely, but an organization that is perhaps not as well understood as it should be. So, Nicholas, thank you very much for joining us. And I'd like to give you the opportunity, first and foremost, to introduce yourself for our audience.
Nicholas Koumjian 2:43
Well, thanks so much for having me. It's a pleasure to be here. My name is he says, Nicolas, come Jen. I'm, I've been appointed in 2019. To had the mechanism. Before that, I had a career originally, I was a prosecutor in Los Angeles for 20 years. And since 2000, so for the past 23 and a half years, I've worked in various international courts as a prosecutor at the ICT why the Yugoslav tribunal and then as the Deputy General Prosecutor, in charge of the serious crimes unit in East Timor. I worked for a year at the state court in Bosnia and Herzegovina in the war crimes chamber. And then I did a little time in Kyiv, Ukraine on a regional anti corruption program and headed a human rights program in Bogota, Colombia. I then worked on the Charles Taylor case at the Special Court for Sierra Leone. And that was the trial of the first trial of a head of state President Charles Taylor, in this case, first trial of a head of state for crimes he committed in that position. And then there for almost six years and in 2013, I went and became the international co prosecutor at the Khmer Rouge tribunal in Phnom Penh, Cambodia, and was there for six years. So I was there all the way up until 2019. When we finally got the trial judgment, in the big case case to two against the former head of state of the Khmer Rouge que Symfon and the former number two in the party, and then Jaya. Soon after that I moved over to this position, dealing with serious international crimes in Myanmar.
Brad 4:44
That's a very impressive resume. And I think the first question that I feel compelled to ask, and I'm not obviously trying to compare sufferings, but how do you feel having having been party to so many investors Allegations in so many different instances of, of war crimes and human rights abuses around the world. How you feel about the conflict in Myanmar? Do you? Do you feel that it stands out to you in any particular way? Or do you feel that it is it is particularly comparable to any specific instances that you've investigated and prosecuted in the past?
Nicholas Koumjian 5:21
Well, I think each situation is somewhat unique. And when you get to a certain level of human misery, and suffering, I think it makes no sense to compare one to another, they're all horrible. This is a different job for me, because it's not a court, I'm not a prosecutor. This is an investigation, we're supposed to gather evidence to share it with courts that could be willing and able to exercise jurisdiction over the crimes in Myanmar. So in that sense, it's quite a different job. But it's also different in that many of the jobs I talked about, the conflicts were long over. I worked in the Yugoslav tribunal, I started in 2000, after the Dayton Peace, I worked in Cambodia, on what 25 years after the crime stopped, I started working there. But now this is a situation where the crimes are ongoing. And so I think there's an additional pressure and additional motivation also in that you want your work to have some effect to prevent crimes. Today, hopefully that something you're doing is going to reduce the suffering and reduce the amount of violence that's occurring.
Brad 6:39
Excellent. I appreciate that insight. So then let's look at at the IMM. So you say that your job is not prosecutorial your job is simply to investigate. And I think that this is a point where some people do get a little bit confused. What is the actual function and and remit of the aim? What what are you doing? And what are you not allowed to do?
Nicholas Koumjian 7:05
Thank you. Well, we were created by the UN Human Rights Council. And that was after a report was received by the council by the International by the fact finding mission that the UN had sent there. And it had recommended that a tribunal be established or the case be referred to the ICC, but by the Security Council, but recognizing that that was politically unlikely, they also said, Then, a mechanism should be created. And that's what the Human Rights Council decided to do. They gave us the mandate, to collect evidence to print to analyze it and preserve it. And then to create files that we could share with national, regional or international courts in order to promote accountability. In other words, criminal prosecutions, for those responsible for the most serious international crimes in Myanmar. So we don't have any powers to prosecute ourselves. We're not a court. We can't arrest anyone or charge anyone, we have to deal with other courts that have that jurisdiction and are willing to exercise it. So in terms of our mandate, the in terms of territory, it's whatever happens inside Myanmar, but nothing that happens to people once they leave me and Mark, the crime happened to a refugee in a camp in Bangladesh or anywhere else in the world. It doesn't fall within our mandate. In terms of time period, the council decided that our mandate would begin in 2011. So we're to collect evidence in the most serious international crimes since 2011. But the mandate is ongoing. So when the coup happened in February 2021, we said that the coup itself is not within our mandate, because it didn't fit that other part of our jurisdiction, the subject matter. The subject matter of our jurisdiction is international crimes, which is defined in our Terms of Reference, as war crimes, crimes against humanity and genocide. Respect for elections, unconstitutional, change violations of the Constitution of Myanmar, very serious subjects, but not with not serious international crimes within our mandate. But we said at the time that based upon the unfortunate history of Myanmar in the history of political violence, by those usurping power, we wouldn't be watching carefully. And it didn't take us very long to conclude based upon facts such as we saw about six weeks into In post coup, the regime started to use violence, lethal violence against demonstrators in different in different places. At the same time, we also saw systematic targeting of specific groups of individuals, such as journalists, healthcare workers, NLD supporters. So based upon that, preliminary evidence, we said, we felt that our mandate was involved, it fit on a subject matter mandate. And we would be collecting that evidence. So since the coup, we have been collecting evidence of crimes that are ongoing in Myanmar.
Brad 10:42
So there's quite a lot there that I think we should look at a little bit more specifically. So one of these questions is you say international crimes specifically. So as you point out, we're talking about crimes against humanity, genocide, war crimes and things of this nature. Murder is a domestic crime, it's not an international crime. Many murders do not necessarily constitute an international crime. So if the military comes in and decides to murder protesters, terrible, but at what point, are you able to say this offense has now crossed over the boundary into international crime?
Nicholas Koumjian 11:21
Or you're correct, of course, that not every murder constitutes an international crime, even if it takes place in the midst of a very serious armed conflict. So for example, a spouse kills their spouse because of jealousy, that's not going to be an international crime, no matter under what circumstances whether it happens in Nazi Germany or in Myanmar now. But a murder can be either a war crime or a crime against humanity. It's a war crime, if it occurs, and is relevant to the context of an armed conflict. If the murder occurred because of it's related to the armed conflict, then it could be a war crime, you can't murder kill non combatants. That's the war. It also couldn't be a crime against humanity, if it takes place in the context of a widespread or systematic attack on a civilian population. So that's why I said that we started recognizing that the post coup violence could be within our mandate, when we saw what we concluded was both a widespread and systematic attack on the civilian population, because of the mass arrests of these groups that I talked about, because of the use of political violence. These clearly were, in our view, all related to the widespread and systematic attack on a civilian population.
Brad 12:57
Interesting. And so you say that, it seems that you yourselves as an entity have the ability to independently say, in our opinion, the threshold for international crime has been met. And therefore we have decided that our remit allows us to investigate these these offenses. So then the question is, is you say you can't prosecute the courts have to prosecute? Do you have the ability to make a recommendation for a prosecution to a court or to a prosecutor? Do you have the right to petition a legal body to take action? Or do you simply have to sit on the compiled evidence and hope passively, that someone in the international legal system chooses to take action?
Nicholas Koumjian 13:40
So that's a very good question. And it's rather complex, because I'd say that our mandate from the council and our Terms of Reference are a bit ambiguous about that. Certainly, what we want, what we're striving is that the evidence that we collect is used, we don't want it sitting there unused. So 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. I think that's maybe the best way that I can answer your question.
Brad 14:21
Okay, so that there seems to be a little bit of lack of clear definition, but the understanding, let's say, between different entities that things can get things can move forward.
Nicholas Koumjian 14:33
So for example, one of the partners that we're currently sharing information with and perhaps it would be interesting and a bit via explain the three processes that we're sharing information with now, but one of them is the federal district court in Argentina. And that was a court is taking up the case of the where they received a petition from victims in this case, Rohingya for victims of clearance operations in 2016 17, and Myanmar, and these victims were not in Argentina, they were in the UK and in Bangladesh. And originally the lower court, the district court said, we're not going to take this up because it's not connected to Argentina and the ICC, the International Criminal Court is already working on it. It then went on appeal. And one of the things that we did is that we wrote a letter to the appeal chamber, explaining our mandate, and saying that we are available, and would welcome any request that we share evidence with the process in Argentina. And the appeal chamber cited that, in its judgment, saying that, because the allegations were that these were crimes against humanity, they found that under the Argentine constitution, it was required for the court to investigate even without any tie to Argentina. That's a bit unusual. Most countries don't exercise jurisdiction in such a broad way for crimes outside their territory with no ties to their, to the territory. But I think that has a lot to do everything to do with the history of Argentina, where they went through the Dirty War in the 1970s and 80s, where 1000s of Argentines were arrested without due process, tortured, many tortured, many killed. And I think many of the Argentine's feel that the world acquiesced in that they turned a blind eye, and they don't want to do the same. So they, the appeal chamber cited our letter in its decision saying, you know that it is possible for us, obviously, it's extremely difficult to investigate a crime halfway around the world in a different language than spoken in your country. But they started that we were available to help. And we have been helping them since then.
Brad 17:07
Excellent. Excellent. And so you, I mean, you mentioned how difficult it is to investigate these crimes. So this raises another obvious question, does the IMM actually have staff on the ground inside Myanmar collecting and documenting physical evidence? Or is your investigative process dependent on people outside of the IMM, voluntarily doing doing that investigative work and sending that evidence back to you?
Nicholas Koumjian 17:40
We don't have any one based inside the country. And we do engage with many different kinds of individuals and organizations that share information with us. And we've collected a very, very broad variety of information. Obviously, one of the key bits of information is eyewitness testimonies. And we have talked to hundreds of individuals about what they themselves witness. Ideally, when possible, we try to take a written statement with a affirmation from the witness. And but this is very detailed, it usually takes us at least several days of conversation, because we want to make sure we get it absolutely right. And it's a correct accounting of what the witness actually saw and heard, and remembers now about these events. And we also collect a whole lot of very different information I won't, for for reasons of maintaining the confidentiality of our investigation. I won't talk about all of it. But for example, social media information. And we recently released a report about hate speech on Facebook, that we were able to tie to accounts controlled by the Myanmar military. We look at aerial photographs that can be very valuable and analysis of those by experts showing things like the burnings and destruction of villages. And there's many other types of information that we collect. My IT people told me last year, that at that time, our total collection in terms of items and an item is them by our definition, or the definition they use. It could be a photograph, it could be a video, or it could be a text and the text could be a post on social media, or it could be a 500 page report from an NGO. But the total number of those items that we had collected as of last year, was 28 million. So it's obviously we've collected a whole lot of different kinds of information and in It creates, again for us it does create challenges to how do we properly analyze that evidence and put it together in a way that will be helpful to courts.
Brad 20:11
Because that's the other thing that I wanted to ask is what is it that you that you do? So first and foremost, do you have to take these items as they're presented to you? Do you have to take them through a verification process? Because I know there are certain bodies like, I think Myanmar witness, for example, who do have a very extensive internal verification process and contextualization process. But do you otherwise have to go through that process? And then afterwards, I assume you catalog this evidence? But what what can you tell us about the way that you process this information?
Nicholas Koumjian 20:48
What I can say is that it's you know, I talked about working at, I'd worked at this is the seventh international court or mechanism involving international crimes that I've worked at plus the 20 years in Los Angeles. And frankly, none of those did we have the information technology challenges that we have now, because times were so different. This is the first conflict. Again, it's an ongoing conflict. So it's very modern. But even in 2017, in the clearance operations, we have 1000s of videos because people victims, Rohingya, were able to take their phone and videotape, villages main burned and another x bodies, we've seen bodies floating in the river. So the quantity of information and the amount of data that's available, and that often a lot of very valuable data we get from the internet. And this didn't exist in the quantities that it now exists in. So one of the real challenges for us is most of the textual information we have is in me and more languages, usually Burmese. We have Burmese speakers, but a limited number. And when you have the millions of items that we're talking about, it's still very challenging. So one of the things we tried to concentrate from the very beginning, was on building a IT system that would enable us to properly research what we have, and draw relationships between information that we have. So one of the things that challenges is, again, with all the information in Burmese, can you make it searchable, it's in different kinds of fonts, different kinds of I forget what they're called, but ways of writing the symbols in the computer encodings using headings. And I think more alrighty section does an excellent job of making that accessible, we're still building it up, we're still making it even more accessible, we're still working on improving automatic translations that we have to try to really make it possible to have our analysts who don't speak Burmese be able to review Burmese language materials. So all of these are very challenging. The hate speech report, which was one of the few things that we released publicly, because it's a criminal prosecution, generally, all our information, we keep confidential for a variety of reasons, first, for the safety and security of those that provided us the information and for their privacy. And also for reasons that we don't want to tip off perpetrators. So they hide that evidence in the future or somehow evade arrest or somehow corrupt our system, a system of our gathering evidence. But we always said that if things can be made public, we want people to know what we're doing. We don't want to be hiding it. So a couple reports, we did make public with a few redactions that were necessary, again for the safety and privacy of individuals and to avoid tipping off perpetrators. And one of them was a report that we did on hate speech and fake on Facebook. And for that report, we looked at 43 accounts that Facebook had taken down in 2018. And we looked at these reports just over a six month period, but just in that six month period, they had posted over 800,000 items. So what our team did, and we had a team of Burmese speakers, and they use certain keywords and search for them. And from those keyword searches they identified over 10,000 posts that fit our definition for this A project of hate speech. And the definition used for this project was, Is this something that was intended or would have the effect of creating fear or hatred of the Rohingya or cause people to want to discriminate or commit violence against them. And in the report, and we provide many examples, fully translated of posts that we identified as hate speech. So readers can can make their own judgments of, of our judgement that these were, in fact, promoting fear and hatred of the Rohingya. But then, we looked at other data that we had about those posts, some of which we were able to reveal, and so on which we needed to keep secret for other reasons that I've mentioned already operational reasons. But we were able from these, this other data to identify that these posts were, in fact, coming from accounts controlled by the Myanmar military. So I think that's a very significant conclusion, particularly for the proceedings at the International Court of Justice, because that's a case about state responsibility, not individuals, but was the state responsible. And because what we've showed is that this very critical six months time period of July through December 2017, when hundreds of 1000s of Rohingya were fleeing the country, villages were being burned. People were being killed in the 1000s, women were being raped, that at that very that very time, the Myanmar military was promoting hatred against this group. So one of the provisions of the Genocide Convention that's at issue in the case of Myanmar versus Gambia versus Myanmar, at the International Court of Justice is, did the state take all unreasonable actions to prevent and punish genocide? And so I think the judges, we believe will be very interested in this report.
Brad 27:07
And I'm glad that you mentioned the ICJ because this is another very big question that comes up is, is it possible to have an actual international trial when we look at human rights violations? When we look at war crimes, we'll look at genocide, the first thing that everyone thinks of is the International Criminal Court in The Hague. But of course, Myanmar is not a signatory to the Rome Statute. And although as far as I understand the, the Security Council of the United Nations can refer a case to the ICC, because China and Russia are permanent members, it's very unlikely for that to happen, such as my understanding. So what international mechanisms do exist either for a case to be brought against individuals who are responsible or organizations who are responsible for the crimes? And where would that take place?
Nicholas Koumjian 28:01
Okay, thanks for that. Very good question. You're right, that under the provisions of the Rome Statute, the statute for the International Criminal Court, the court only has jurisdiction over crimes that are happening in the territory of states that have signed the treaty and Myanmar has not, or against nationals of that state that had signed the treaty. And again, Myanmar has not signed the treaty. So if a national of that state commits crimes anywhere else, it still could be prosecuted, but Myanmar has not signed the treaty. There's one exception to that. And that is that the Security Council can refer a case to the International Court even without the consent of that state. And then happened, for example, with Darfur, where it's a province in Sudan, where many believed and genocide was ongoing against some of the ethnic groups by militias tied to the military. And that case was referred by the Security Council to the International Criminal Court, which ended up one of the things it has done is it it issued a indictment and arrest warrant against the Omar Al Bashir at the time the President of Sudan and also referred the situation in Libya during the revolution there and the war that occurred in Libya. So that case is still under investigation still has ongoing investigations by the International Criminal Court. And it hasn't referred to situation since then. And I think your analysis of the political realities of who's on the Security Council and the likelihood of referring Myanmar are accurate, but the ICC is investigating Myanmar. It's investigating a case involving Myanmar. So how did that happen? Well, Myanmar is not a State party but Bangladesh. is a state party to the International Criminal Court. And the prosecutor has sent a question some years ago to the pre trial chamber to the judges of the court saying, you know, we've looked at this situation, and it appears that individuals were forcibly deported from Myanmar from Rakhine state over the border onto the territory of Bangladesh state party. A one of the elements of deportation over a state border is that you cross the border. So the prosecutors argument was an element of this crime crossing the border occurred on the territory of Bangladesh. So can we investigate what happened and the pre Trial Chamber found that this was a valid argument, and that the prosecutor could investigate? What happened to the Rohingya to cause them to be forcibly deported over the border, which requires them to in fact, investigate what crimes are or other things happen to the Rohingya that made them, force them to leave their homes and cross the border into Bangladesh. So there is an ongoing investigation by the International Criminal Court of the events in Rakhine State. It goes back, I think the pre trial champion even gave them jurisdiction, before archers in before 2011. They're looking at events even further back. But it's all tied to the Rohingya, it's limited to what causes people to cross the border into Bangladesh. But that's an investigation that's ongoing. It's very active, we are cooperating with that our teams are in weekly contact. And I think 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 International Court of Justice case about the responsibility of the state, the International Criminal Court case, and the case in Argentina. That's three different processes. That's quite impressive and actually unusual for these international crimes. However, all three of these processes are limited to the situation in Rakhine state with the Rohingya. So there is not yet a process about, for example, the post coup violence.
Brad 32:43
Interesting. And so if if, as you say the the International Criminal Court appears to be somewhat politically hamstrung, does there exist? Anything else that like under the guise, for example of I don't know, responsibility to protect, or simply a sovereign state being a signatory to the Rome Statute? Is there any mechanism that allows or requires a sovereign state, for example, to carry out prosecutions against these crimes, if that state is satisfied that the crimes occurred?
Nicholas Koumjian 33:15
There's not a provision international law, but there are various national laws that give states the possibility of investigating international crimes that are committed outside of their borders. So these are usually called universal jurisdiction, or you uj cases, many, many states require a tie to the country in some way, such as the perpetrator being on the territory of their country, or even some require that the perpetrator resides on their country, others just that they're passing through, it's enough to arrest them. And some countries also require and or that one of the victims is a national, of their own country. So these laws exists in for example, we've seen many prosecutions of persons for crimes in Syria, and in Iraq, occurring on European soil. First, hundreds or 1000s of people from these countries from Western Europe, went to fight in these crimes, many of them joined ISIS, for example, and committed many crimes. And many have returned. Others were members of the security forces or other forces in Syria or Iraq and fled that violence and were residing in Europe. And so there were a number of prosecutions in in Western European states and places like Spain and Sweden and Germany, of people for crimes that happened in Syria or Iraq. The France recently indicted the president of Syria for crimes that he committed in Syria. So it depends upon the laws of those individual countries. There have been attempts to bring cases involving the post coup violence to different states. We know and it's been publicly reported that complaints were filed in Germany. And Germany did reject one of those Cates cases involving post coup violence. There was no particular tie, they pointed out to Germany, although that's not required. It then is discretionary with the Germans under the German law, but in that case, the prosecutor chose not to open an investigation. And there have been other complaints filed in places like Turkey and the Philippines, that there hasn't been any public decision yet on those complaints. But that's certainly a possibility. It's also a possibility that someday a perpetrator is found on the territory of another state that would be willing to prosecute them.
Brad 36:12
Interesting. And so then the next question becomes not so much Where could the prosecution take place? But, and I know, you say you've collected millions of items of evidence, but I still have to formally ask the question, is there in your opinion, and I don't expect you to be able to comment on domestic legislation. But is there in your opinion, sufficient evidence to prove beyond a reasonable doubt, not only that crimes occurred, but that there is criminal culpability on the part of specific individuals, or on the part of specific armed organizations as a whole?
Nicholas Koumjian 36:52
Well, there wouldn't be a case where a court would have be making a judgment, would an organization as a whole be responsible for crimes? I don't think I can't see that occurring in the modern law. I mean, it's true that in the post world war two cases, there were some attempt to punish people for being members of the Nazi Party, because of the crimes of that organization. The cases, the guilt of an individual, I'm not going to say with anything about individual cases, such guilt exists, partly because it's up to the courts to make that final determination, even a prosecutor, which I'm not now would only be looking at, could it be possible to prove beyond a reasonable doubt, then they can have namely, and can properly filed the case and leave it to the judges to decide that. But what I would say is that, you know, it's it's difficult to prove individual responsibility. But that's why we look at such broad categories of evidence. And of course, there's 1000s, of potential perpetrators. So there's different levels of evidence against all of these individuals. It's possible in the case of particularly a direct perpetrators, someone who committed murder or arson or something themselves, that that person could be convicted on the testimony of a single individual. And most legal systems, if a court can believe one individual if they believe them beyond a reasonable doubt, a woman says they were raped, or witnesses, I saw these, this commander order the, for example, the burning of two prisoners. And there was that video, horrible video that came out a few months ago from think originally, the incident happened in November of last year, or a couple of PDF fighters were had been captured. They were tied, they were bound put between two trees and a fire was built underneath them. And that, obviously, is a war crime crime against humanity. And if the individuals are identified who are responsible for that even the testimony of a single witness that can identify them, could be sufficient to prove a case. When you go to the kinds of international cases, particularly case at the International Criminal Court, they're unlikely to be looking at individual perpetrators, they're likely to look at those at higher levels of responsibility. So those become more complex cases. But then the evidence can be that there's just so much of this violence going on that there is evidence that nothing has been done to prevent it. Nothing has been done to curtail it. People haven't been punished. Commanders haven't been removed from their positions. That rhetoric to the troops is has not told them not to commit crimes, but rather, in some ways encouraged it. And they can be held responsible. Those are complex cases. But that's the mean the kind of case that a court like the International Criminal Court would be looking for, not a direct perpetrator, person who personally killed a rape, but rather, is there are there people at higher levels of responsibility, who are responsible for giving orders or for failing to punish and prevent those crimes, what we call command responsibility.
Brad 40:44
Interesting, and so so then we would probably be then looking at the leadership of, of the Myanmar military, and or the leadership of the military back to sort of puppet government. But I assume that you would not at all be able to comment on any individuals within those organizations and whether or not there's a likelihood that there'll be prosecution against them.
Nicholas Koumjian 41:06
That's correct. And I shouldn't mention that, you know, our mandate is not limited to the Myanmar military. And unfortunately, there's the the indications and the news that we have. It's not only the Myanmar military, that's committing crimes, and we're very concerned. So, you know, our messages to any armed group out there, committing crimes, committing assassinations of non combatants are watching, you know, that's within our mandate. We're trying to collect that evidence. And we hope that all potential perpetrators will understand that there's no free ride, there will be we'll do everything possible to see that there is accountability, and that those responsible for corporate crimes are held to account.
Brad 41:54
I think that's a very important message to to amplify, because I also obviously come across a lot of these allegations and these reports, and in some cases, I've been personally contacted by victims of not the military, but rather of organizations that are fighting against the military. And I think a lot of people trick themselves into thinking that, well, if I'm fighting for a right cause, then the ends justify the means. And that's a very dangerous psychological trick to succumb to. So it's it's very comforting to hear that that you are sort of openly looking at at violations that are being committed, regardless of the political affiliation of the peoples doing it.
Nicholas Koumjian 42:41
Yes, and if anyone has information about such crimes and wants to share it with us, we welcome that. And perhaps this is a good moment for me to bug. People, there is information on our website for how you can contact us. So our website is double i, m m.un.org. And there you'll see information about how to contact us safely on using the signal lab or using proton mail. Again, just a caution. protonmail is only safe if you're using a protonmail account to send to our protonmail account, don't use a regular Gmail account or Yahoo account, then it's no longer safe.
Brad 43:33
Absolutely. And you said you had three processes of information sharing.
Nicholas Koumjian 43:38
Right. So I think I have mentioned all three, but those are the International Court of Justice. Which originally and it's interesting, that doesn't fall exactly within our basic mandate, because the basic mandate, as I said, In the beginning, is prepare files to facilitate criminal cases for accountability. And the ICJ is not a criminal case, but a case about state responsibility. But our Terms of Reference do have a provision that says, if it's consistent with our mandate, we can consider other uses of the evidence on a case by case basis. And when I first spoke to the council, just after being appointed, I said that we would look at in any such request, is it in the interest of justice, could it deter future crimes and help victims? And clearly we thought that this very important case at the International Court of Justice was in the interest of justice, and it's important for victims and for the whole world, that the judge is in that important case of the best evidence. So that's one of the three cases. The other two are the ongoing investigation by the International Criminal Court. And the third is the ongoing investigation by the Argentine District Court
Brad 44:54
is okay, I understand. And I'm wondering, I don't know whether you're able to necessarily He quantify this but as a curiosity, is it possible for you to estimate of all of this evidence that you've collected this this massive volume? Can you approximately estimate? What percentage of that relates to the Ranger crisis? What percentage relates to other pre coup crimes? And what percentage focuses on the post coup conflict?
Nicholas Koumjian 45:25
I don't think I can give those percentages of actual evidence. But what I would say is, and this may be partial answer to your question from the beginning, very beginning and clearly the Rohingya crisis was the primary motivating factor that led to our creation. It was the response that crisis of the deportations in 2017 in Rakhine State. But the council asked the fact running mission to to look all at the whole history of me and more since 2011, and crimes all over the country, and the fact finding mission itself. While I concentrated probably on the Rohingya crimes on the Rakhine State crimes, it said that these were consistent with crimes that had been and the way the military had been operating in other conflicts, particularly in Kachin and Shan states. And this four cuts strategy was consistent with how the Rohingya and others were treated. So that's why the council decided to give us the mandate to cover the entire country. And it told us to particularly look at it chin and Shan states also, obviously, since the coup happened, there's so much violence post coup, that's taking up a great deal of our time and efforts. Felt so But from the beginning, we divided our team and we divided into two teams, and one team is working on. We call it team two on the Rohingya issue only. And they have also the responsibility of sharing with those three ongoing processes that are looking at the Rohingya. And the other team Team One looks at everything else, which in these days, none. The majority of what they concentrate on is the post coup violence, unfortunately, a new, very serious crime every month, it seems his is coming to their attention. The work of the two teams is quite different. Because it's much easier for the Rohingya team to contact the victims. Many of the victims are in Bangladesh, and Bangladesh, as they have chosen to make it public. They've been very cooperative with us. So we're able to take many testimonies of the victims in Bangladesh. While it's much more difficult for the post coup and for the other non Rohingya issues, we have spoken to people in different places around the world, we do have entered into many screenings and interviews with people about the post coup violence, but it's different challenges that team to face and team one.
Brad 48:25
It's interesting, though, that you have made those internal divisions and our inner processing differently. Okay, so let's then look at the changes that have been happening because of course post coup. The reality in Myanmar has been has been shifting and I imagine your your work, even with regards to UK, as you say in Bangladesh, it's a little bit more accessible. But even investigating pre coup crimes, I imagine has become suddenly much more difficult to do in in the turmoil. So how how have changes affected your work specifically, like a couple of months ago, we saw the conscription law, where pretty much all of the the military aged men and women and I believe they've retracted now the requirement for women to do their military service. But all of the military aged men are expected to to present themselves to the military authority for for potential drafting. Has that had a an impact on your work?
Nicholas Koumjian 49:28
No, I always say that the coup has created both challenges and opportunities for us. And the challenges are quite obvious. We have all of this violence. These new massacres and detentions and tortures and burnings. Every month facing more and more crimes to potentially investigate. That's extremely challenging. But it's also created opportunities because a whole lot of people want to talk to us now. They weren't willing or weren't able to talk to us previously. For example, we've seen quite a few defections from the security services. And this gives gives us an opportunity to speak to individuals who are on the inside and may have received orders and can talk about what those orders were or what kind of reporting was going on. So this is extremely valuable evidence in the kinds of investigations that that we are doing. The conscription I can't say I've noticed a huge difference in our work, but I think it has the potential. And I'm sure it will eventually also create more opportunities for us because, as you pointed out, many are fleeing the country. Like many of the policies of the the junta, there's a backfire element. They tried to conscript people and for many, the choice will lead them to leave the country and abandon the places that the hunter controls similar to some of the hunters policies, such as executing generals who surrender, I think this is likely to only increase the number of defections willing to speak out against the commander's
Brad 51:31
and just sort of on this point, and I certainly don't want to make it seem as time pushing for a specific answer, even though I do obviously have a very pro revolution bias. But the revolution has tried to drive defections. And one of the ways that defections are being driven is through the PR value of voluntarily maintaining international human rights standards, let's say a lot of PDF groups and iOS have said voluntarily, that they're going to apply the principles of the Geneva Conventions, some of which Myanmar was never a signatory to some of which it was. But of course, as you say, your prosecutions are also your your investigations do include other organizations, revolutionary organizations, who have clearly committed pretty egregious and serious crimes. So I'm, I don't want you to feel like I'm fishing for a specific response. But I am wondering whether you as an investigator, would you say that it is fair and reasonable to assert that the revolutionary forces across the board, whether it's the PDF, whether it's the LDF whether it's the CEOs have demonstrated a higher standard of restraint and better treatment of civilians and better treatment of enemy combatants than the military has? Or is that just a popular belief that everybody wishes were true, but the unfortunate reality does not hold that up.
Nicholas Koumjian 53:02
And one of the things I would say is that, you know, we have seen, I've seen those public statements that you're talking about, and even commitments by the end ug, and by some yo Yos to investigate certain potential crimes that were committed by their forces. We've heard that such investigations are ongoing or have occurred. And this is exactly what parties are obligated to do in an armed conflict. This is part of the response, what we call, again, command responsibility, a person who has authority over a subordinate and the ability to punish that person, if they have knowledge that or belief that crimes had been committed, they have a responsibility to take all necessary and reasonable measures to prevent or punish those crimes. So it is true that in pretty much every army in the world, some crimes are going to be committed by soldiers. It's important that commanders, again, take all necessary and reasonable measures to prevent and punish such crimes.
Brad 54:16
Fair enough. And I appreciate that. That insight there. And the other thing is, because the perspective that you may have from within the country is, is quite unique. We do on this podcast, we do talk to strategists, we do talk to military analysts, we do talk to people who are dealing with satellite photography, and we talk to people who are on the ground. We get a lot of different perspectives, but the type of information that you're dealing with is quite different. And so I'm curious as to whether or not you can offer any insights into how you perceive this conflict as proceeding. Are you seeing increases in violence or egregious violence? Are you seeing a general decrease? Are you seeing more of an isolation of incidents to certain regions and general stability and others? What What trends are you able to see from the types of data that you analyze?
Nicholas Koumjian 55:11
Well, as we've reported to the council, unfortunately, we see the crimes, we have seen increases in almost all of the crimes. We're particularly concerned with increases in aerial bombings. And I think, you know, that's probably a direct result of some of the successes of the CIOs. And the desperation of the junta forces, they're resorting more and more to aerial bombings that seem to have no clear military target. And, you know, bombing is, can be a war crime when the area being bombed, does not have military value, or that the the expected civilian casualties would exceed any military value. And it seems like sometimes then, what's being bombed is simply the biggest structure, whether that's a pagoda or a school or a hospital. And these clearly could amount to war crimes and crimes against humanity. So in that respect, unfortunately, I don't have any optimistic report. I think the violence is getting more and more concerning, getting worse. I think it's more and more important that we get all the assistance we can to try to end the violence or make sure that we're collecting the evidence so that people can be held to account trying to deter crimes. You know, I do hope that and I do believe that it's probably true that some crimes didn't happen already. Because commanders and soldiers know that we exist, you never can prove that you can ever can prove what didn't happen. But you know, you prosecute crimes all over the world, in every city in the world, you prosecute and murder and sexual assaults. That doesn't mean the next year, you'll get you'll have none. But certainly almost everyone would believe that if you didn't prosecute them, you get more, you would have more of these crimes occurring. So we hope that we do act as a deterrent force. But part of our mandate is to preserve evidence because we know that international justice in particular, can be a very slow process. I mentioned in the beginning of our conversation that I came to this job from being the international co prosecutor for the Khmer Rouge tribunal. When I left in 2019, we convicted the former head of state and the former number two of the party of very serious crimes, including genocide and murders as a crime against humanity. And exterminations. And these were for crimes that were completed in 1979. So 40 years after the crimes, those convictions took place. Now that is too long to wait on justice. delayed is justice denied. But still, it's clearly was very important. It's so much better than having no justice. Very important to establish that record that historical record, very important that young people in that country, learn more and understand better about what actually happened not that long ago, 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's what we hope to be contributing to in our work in Myanmar.
Brad 58:51
I think it's a very righteous cause. And I'm very hopeful that you succeed with that. That said, I am very conscious of your time. And I'm deeply, deeply appreciative of the fact that you've decided to share it with us and with our listeners. But before we finish the episode, we do, by tradition, always invite our guests to leave us with any final thoughts that you may have, whether it's specifically about the Myanmar situation, or more broadly about the type of work that you do, and the reasons behind it. But if you have any message that you would like to communicate with our listeners directly, I would invite you to do that now.
Nicholas Koumjian 59:24
I would just say that it's a privilege to try to work on these issues that are so important. And I want to express my gratitude and the gratitude of my whole team for the bravery and the commitment of those that have shared information with us. I promise you, we are working hard doing what we can to try to make their efforts to collect that information have effect to make it as effective as possible. I think we're also very fortunate that we have a talented and committed team Some of whom have themselves, family were suffered in, in, in this conflict. So we're looking in the long term, but also in the short term to try to be as effective as possible. We want our evidence to make a difference. We hope for peace and we hope for justice.
Host 1:00:39
For whatever reason, even as the conflict and Myanmar continues to worsen, it somehow continues to be shut out of the Western media news cycle. And even when the foreign media does report on the conflict, it's often presented as a reductionist, simplistic caricature that inhibits a more thorough understanding of the situation. In contrast, our podcast platform endeavors to portray a much more authentic, detailed and dynamic reality of the country and its people, one that nurtures deeper understanding and nuanced appreciation. Not only do we ensure that a broad cross section of ideas and perspectives from Burmese guests regularly appear on our platform, but we also try to bring in foreign experts, scholars and allies who can share from their experience as well. But we can't continue to produce this consistency and at the level of quality we aim for without your help. If you would like to join in our mission to support those in Myanmar who are being impacted by the military coup, we welcome your contribution in any form, currency or transfer method. Your donation will go on to support a wide range of humanitarian and media missions, aiding those local communities who need it most. Donations are directed to such causes as the Civil Disobedience movement CDM families of deceased victims, internally displaced person IDP camps, food for impoverished communities, military defection campaigns, undercover journalists, refugee camps, monasteries and nunneries education initiatives, the purchasing of protective equipment and medical supplies COVID relief and more. We also make sure that our donation Fund supports a diverse range of religious and ethnic groups across the country. We invite you to visit our website to learn more about past projects as well as upcoming needs. You can give a general donation or earmark your contribution to a specific activity or project you would like to support, perhaps even something you heard about in this very episode. All of this humanitarian work is carried out by our nonprofit mission Better Burma. And the donation you give on our insight Myanmar website is directed towards this fun. Alternatively, you can also visit the Better Burma website betterburma.org and donate directly there. In either case, your donation goes to the same cause in both websites except credit card. You can also give via PayPal by going to paypal.me/betterburma. Additionally, we can take donations through Patreon Venmo, GoFundMe and cashapp. Simply search better Burma on each platform and you'll find our account. You can also visit either website for specific links to these respective accounts or email us at info at betterburma.org. That's betterburma. One word, spelled b e t t e r b u r m a.org. If you'd like to give it another way, please contact us. We also invite you to check out our range of handicrafts that are sourced from vulnerable artists and communities across Myanmar, available at alokacrafts.com. Any purchase will not only support these artists and communities, but also are nonprofits wider mission. That's aloka crafts spelled A L O K A C R A F T S one word alokacrafts.com Thank you so much for your kind consideration and support.
Nicholas Koumjian 1:03:55
We can break the cycle of impunity that has led to such crimes that over and over again in Myanmar's history, those who have committed these serious international crimes have been able to get away with it and we want to stop
1:04:07
The Myanmar military offensives throughout the country are designed not only to target its opponents but also to punish any communities it deems to be supporting them. I reiterate calls to the military to cease violence, including by imposing a moratorium on executions to free all political prisoners to ensure access to a humanitarian aid and return Myanmar to democracy based on respect for human rights and the rule of law.