Last week, the Human Rights Council voted to establish an “independent mechanism” to collect, consolidate, preserve and analyse evidence of violations of international humanitarian law and human rights in Myanmar.
To those following international efforts to bring perpetrators of war crimes, crimes against humanity and genocide to justice, this watershed moment could herald a paradigm shift in how atrocities in situations such a Syria, Myanmar and Yemen are addressed.
The need for such a mechanism, at its core, stems from the need to bolster investigations and trials into the most serious crimes – both at the national and international levels.
Much has been written about the need to leverage the impact of the International Criminal Court in situations where it has jurisdiction, including a recent Human Rights Watch report, Pressure Point: The ICC’s Impact on National Justice – Lessons from Colombia, Georgia, Guinea, and the United Kingdom, which takes a stab at addressing this question.
The report proposes a range of measures by international partners of the International Criminal Court, international organizations, and civil society groups to assist national authorities to carry out effective prosecutions of international crimes, such as legislative assistance, capacity building, advocacy and political dialogue to counter obstruction.
These measures, however, overlook the more technical and evidentiary challenges that forestall national proceedings into war crimes and crimes against humanity. Most national judiciaries either lack the full capacity to conduct war crime trials in accordance with universally adopted standards, are too strapped for resources to comb through voluminous materials from human rights NGOs or victim groups regarding widespread atrocities, or lack the legal expertise to qualify criminal conduct as international crimes.