Retributive or Reparative Justice, for Whom? – An Urgent Call for Safeguarding Local actors Documenting Human Rights Violations in Myanmar

Introduction

As ongoing atrocities are being committed by the Myanmar military junta, there is a deep disconnect between organizations who claim to adhere to international legal frameworks and local people in Myanmar risking their lives daily to document state crime. Current responses to state crime are wholly inadequate in the Myanmar context and have further perpetuated grave harm to local communities. One flagrant example of the disconnect was a panel discussion[1] on Myanmar’s conflict held at the Foreign Correspondents Club of Thailand in Bangkok in November 2022, as the director of an INGO discussed the steps to document atrocity crimes: “I like to call this a little cooking class. We hand the cake over to justice and accountability mechanisms. We hand the recipe over to them… we hand the ingredients over.… They can read the recipe, follow it, and make their own cake.”[2] This highly offensive discourse propagated by INGO representatives ultimately dehumanizes victims and witnesses of atrocity crimes, and all local actors documenting such atrocity crimes. Personal testimonies are certainly not ‘ingredients’, nor is immeasurable suffering. At the same time, international actors continue to ‘gatekeep’ the process of local actors interacting with the aforementioned accountability mechanisms, thereby impeding the justice seeking process.

This article examines challenges facing civil society organizations (CSOs), community-based organizations (CBOs), and non-government organizations (NGOs), and individuals currently collecting evidence and documenting grave atrocity crimes perpetrated by the military junta, after the coup on 1 February, 2021. Specifically, it raises ethical concerns about how ‘do no harm principles’, or lack thereof, are being implemented by different stakeholders in the process of interacting with international legal mechanisms. International legal mechanisms and institutions designed to primarily seek retributive justice, such as the Independent Investigative Mechanism for Myanmar (IIMM), the International Court of Justice (ICJ), and the International Criminal Court (ICC) rarely consider or respect local voices, perspectives, or safeguarding practices in the process of evidence collection. As such, this article considers the role, and rights, of individuals collecting and documenting evidence of atrocity crimes, and the rights and agency of victims and witnesses. Specifically, I highlight the urgent need for protection of local groups documenting grave human rights violations, and subsequent strategies to seek reparative justice. This process may run parallel to retributive justice mechanisms. However, adequate reparations for harm caused to victims and witnesses should be the key priority, amidst the ongoing humanitarian crisis in Myanmar.

If ‘do no harm principles’ are not developed in conjunction with local actors, and civil society leaders are not consulted in the evidence collecting and documentation process, then the utility of the IIMM is limited. Accordingly, if ‘do no harm’ principles’ are not implemented, then the suffering of victims and witnesses of atrocity crimes will potentially be protracted, prolonged, and compounded. Significantly, it should be recognized that all local stakeholders who are responsible for collecting, analyzing, collating, and submitting evidence become targets of the junta.[3] More safeguards are urgently needed. This is in stark contrast to staff of the IIMM, ICJ, ICC, and other ‘foreign experts’ assisting in collating evidence, who are privileged to work in safe locations and/or their respective home countries.

I write as an advocate for human rights in Myanmar, but more importantly, as an ally for: CSO leaders, members of people’s defense forces (PDFs), members of ethnic resistance organizations (EROs), leaders in the civil disobedience movement (CDM), citizen journalists, women’s rights activists, and human rights investigators. My main motivation for writing this article is rooted in my personal work experiences in Myanmar from 2014-2021. After the 1 February military coup, I worked inside the country with a local team analyzing and documenting evidence of war crimes and crimes against humanity committed by the military junta, until the end of 2021. In the process, I communicated with other stakeholders doing similar work, and strongly believe that serious ethical concerns must be raised regarding the current disregard for the implementation of ‘do no harm principles’ and the protection of local actors.

Recommendations to Safeguard Local CBO, CSO, NGO, and INGO staff conducting human rights violation documentation

Practical assistance, compensation for injuries and casualties, and reparative justice for local CBO, CSO, NGO, and INGO workers and investigators ultimately depend on resources of local employers, donors, and/or INGOs supporting them. Accordingly, reparative justice for staff who die in detention, or are attacked and killed, depends upon their family members and their ability to communicate with the deceased person’s former employers. The following recommendations are meant to support local CBO, CSO, NGO, and INGO staff and their families in Myanmar.

1. Integrated Emergency Funds for legal services, safe relocation, travel, and safe accommodation should be negotiated with employers and donors, and allocated before projects start. All staff should be informed of the process to implement Security/Emergency Contingency plans.
2. Procedures for accessing these emergency funds should be made clear to all employees. Although the security situation changes daily, access to these resources should be clear when staff are hired so they can do their own individual Risk Assessment for themselves and their respective family members.
3. In the event of indiscriminate attack, extra-judicial killing, or detention of any member of an organizations’ staff, at minimum a protocol for ensuring the safety of other staff remaining on the project should be pre-established and communicated. Ultimately, with an understanding that they are free to leave their work when they choose to do so, without penalty or reprisal from their employer.
4. In the event of death of a human rights worker, if respective family members can be safely contacted, integrated emergency funding should be made immediately available to family members to access support services of their choice. These funds should be distributed with discretion via a financial method of the deceased family’s choosing, so as not to endanger other surviving family members.
5. Non-disclosure agreements (NDAs) and confidentiality agreements should be made clear at the beginning of employment. However, if/when staff are detained or killed, NDAs should be reviewed in debriefs with remaining staff, as well as staff who choose to terminate their employment to protect their personal security.

1. Background: Universal Jurisdiction Cases Against Myanmar’s Military Junta

In the current political context, since the military junta seized power on 1 February, 2021, many civil society leaders are concerned about the following cases which are already ‘active’. These are primarily universal jurisdiction cases including the Gambia v. Myanmar, and Argentina v. Myanmar which address alleged genocidal acts against the Rohingya. In November 2019, the Gambia initiated the first case against Myanmar. Until a definitive ruling is reached, judges at the ICJ decided unanimously in December 2019 that ‘provisional measures’ should be put in place to mitigate further harm to the Rohingya. Although Myanmar acknowledged the issuance of these provisional measures, they continue to deny genocide, and submit regular reports (generally every six months) to the ICJ with information about their implementation.[4]  However, very little progress has been made with regard to reaching any meaningful rulings. There have been few positive, or tangible, outcomes for Rohingya communities still in Myanmar, nor in Bangladesh.

The SAC went as far as rejecting the ICJ’s jurisdiction and presenting four preliminary objections to the case in February 2022[5]. However, on 22 July, 2022 the ICJ rejected the military junta’s preliminary objections to the case, brought by the Gambia under the international Genocide Convention. As such, the case will move forward to the merits phase and factual evidence against Myanmar will be presented, regarding genocidal acts committed against the Rohingya.[6] To further challenge the ICJ’s authority, the military junta requested a ten-month extension to file a “counter-memorial” on 14 March, 2023. However, this request was formally rejected by the ICJ on 6 April, 2023.[7]

In the meantime, international humanitarian aid to the Rohingya residing in refugee camps in Bangladesh, as well as in IDP camps in Myanmar’s Rakhine State, has significantly dwindled over the past two years, and the reality ‘on the ground’ has not changed as a result of the ICJ case.[8] This clearly demonstrates the disconnect between international legal proceedings and the reality on the ground for victims of the crime(s) of genocide, crimes against humanity, and war crimes.

Additionally, on 1 June, 2022, the Myanmar Accountability Project (MAP)[9] filed a case with the Public Prosecutor’s Office in Istanbul, Turkey, effectively launching a preliminary investigation into cases of torture committed by the Myanmar military in the notorious Yay Kyi Ai Military Interrogation Center in Yangon[10]. This is significant, as it is the first time that another state government has directly launched an investigation into crimes committed by the military junta.  Secondly, the Ministry of Human Rights of the National Unity Government (NUG)[11] have communicated with the Australian law firm, Gilbert & Tobin, to bring a case before the former Attorney-General Michaela Cash[12] to prosecute crimes committed by the junta during what is commonly referred to as the “Christmas Eve Massacre” in Karenni (Kayah) State, when at least 43 civilians were brutally killed on 24 December, 2021 in Hpruso Township. This probe was launched on 22 March, 2022 and lawyers from Gilbert & Tobin are still liaising with the NUG’s representative in Australia, Dr. Tun-Aung Shwe, as well as the NUG’s Minister of Human Rights, Aung Myo Min.

On 12 October, 2022, the Indonesian Constitutional Court continued deliberations on a petition requesting that the court review a domestic human rights law. Petitioners include prominent figures including: Marzuki Darusman, a former Attorney General of Indonesia, Busyro Muqoddas, Head of Legal Affairs of Muhammadiyah, the largest Muslim charity in the world’s most populous Muslim country and Sasmito Madrim, chairman of Indonesia’s Independent Alliance of Journalists (AJI). Specifically, the petitioners are “arguing that the law concerning Indonesia’s Human Rights Court — where the case against the Myanmar military would be heard – violates the Constitution by stipulating that a trial can only be heard if the crimes are committed “by citizens of Indonesia”.[13] This petition was significant, as it was the first legal case filed against the Myanmar military by an ASEAN country. However, on 14 April, the petition was rejected by the Indonesian Constitutional Court, as they asserted “—universal jurisdiction is not absolute, but must be balanced with international obligations and other interests of the state, so the state can refuse to exercise universal jurisdiction if the global political, social, and economic dynamics or other needs and interests (rapidly changing situation) do not allow”.[14]

On 24 January, 2023 a human rights group also filed a criminal complaint with Germany’s Federal Public Prosecutor General under the principle of universal jurisdiction, in conjunction with 16 complainants from Myanmar. The complaint accuses the military of genocide, war crimes, and crimes against humanity. The federal prosecutor’s office in Germany has not yet commented on the complaint. Before the case can proceed to court, the office will have to decide on filing an indictment.[15] However, if indictments and convictions were to come to fruition, it is unclear how victims and witnesses would benefit on the domestic level in Myanmar. The NUG has applauded these universal jurisdiction cases but has not made any clear statements about how victims and witnesses, or domestic ‘legal mechanisms’ would ultimately benefit if these cases resulted in sentencing of perpetrators.

Notably, INGOs such as the Myanmar Accountability Project (MAP), Fortify Rights[16], Myanmar Witness[17], and the Commission for International Justice and Accountability (CIJA)[18] have been instrumental in advancing these universal jurisdiction cases discussed above, and reportedly, they also communicate in tandem with NUG officials, as well as IIMM representatives. However, the nature and frequency of their leadership teams’ and management staff’s communication with local CBOs/CSOs/NGOs has been called into question, which will be discussed further in Section 2 (D) of this article.

2. Evidence Gathering: Data Collection Procedures & Consultation(s) with Local Communities

Most certainly, there are significant security risks for data collectors operating under an oppressive military regime, which is still in the process of committing war crimes daily. This phenomenon is not isolated to Myanmar alone. Examples of the dehumanizing effects of human rights documentation work (for human rights investigators) are also evident in other conflicts. Furthermore, disinformation and misinformation campaigns surrounding admissible/types of evidence of atrocity crimes have also exacerbated personal risks to human rights investigators. The Commission for International Justice and Accountability (CIJA) addressed this issue regarding evidence packs detailing grave human rights violations in Syria.[19] Moreover, the Syrian Network for Human Rights (SNHR) has also highlighted challenges for the documentation process of crimes including: arbitrary detentions, torture, and other crimes against humanity committed by the Syrian regime. Notably, forced disappearance of evidence collectors/ human rights investigators was highlighted, with little to no recourse for them and their families.[20]

Similarly, there are few safeguards in place for local stakeholders who interact with the IIMM in Myanmar. As of 12 July 2022, “Having made over 120 formal requests for information and assistance and engaged with nearly 200 sources and information providers, the Mechanism’s repository now consists of nearly 3,000,000 information items, including interview statements, documentation, videos, photographs, geospatial imagery and social media material.”[21] As the IIMM approaches its third full year of operations, it is clear that investigators have widened their scope and engaged more stakeholders.  Significantly, this last report is the first briefing from the IIMM which specifically addresses rampant sexual and gender-based violence (SGBV) which amount to war crimes and crimes against humanity, being committed in Myanmar on a mass scale.

Given the amount of open-source data the IIMM has now collected, ethical considerations for local actors responsible for collecting and submitting evidence are critical at this stage. The identities of local actors are often identifiable on video/audio clips, so local human rights investigators attempt to coordinate with citizen journalists to ascertain the risks of collating evidence. Specifically, citizen journalists and human rights investigators who work for local media outlets are at high risk. However, currently there is no protection mechanism in place. Moreover, updates regarding the IIMM’s procedures for victim and witness protection provisions are still opaque. The 12 July, 2022 report circulated to the UN Human Rights Council’s Fifty-first session, included three short paragraphs in Section IV “Operations and Administration Support” regarding witness protection, support, and physical security.[22] However, the information provided does not explicitly mention the role of local stakeholders’ interaction with victims and witnesses; nor do these sections explain how the Mechanism will implement safeguarding procedures in the future, insofar as it vaguely stipulates that ‘standard operating procedures’ are being developed for witness protection efforts.

As such, there is an urgent need for safeguarding practices to be developed, along with local leaders/data collectors, to ensure that every effort is being made to protect local people assisting with the evidence gathering process. The observations below are based upon my personal work experience in Myanmar, and they are in no way an ‘exhaustive’ list of barriers and challenges for all stakeholders involved in gathering evidence and data collection to submit to the IIMM.

A. Designing Data Collection Methods/Techniques

In Myanmar, prior to data collection, few trainings can be conducted because phone and internet services are very limited, and some leaders of local organizations struggle to communicate. If they are able to connect, it is often under a different organization name (or personalized alias names), rather than the name which was commonly known prior to the coup, causing some mistrust between leaders and staff of local organizations. ‘In-person’ trainings are also risky due to lack of safe venues, along with the phenomenon of dalan (informers) who routinely inform the SAC of any ‘suspected’ CSO/NGO activity. In-person meetings also depend upon each individual organization’s security protocol.

In some cases, to avoid risks of in-person training, trainings have been conducted via Zoom with national staff, also including line managers and/or ‘foreign experts’ working abroad. In these instances, digital security training prior to the main training with regard to ethics of data collection and data collection tools are often rushed or non-existent, and participants are left to educate themselves about the risks. For CSOs with limited staff and/or those who do not have an IT specialist on staff, this presents serious challenges, as data collection also requires a functional data storage system. Although there is no ‘set protocol’ for data storage in Myanmar, it suffices to say that it is extremely fragmented, and it has become increasingly challenging for CSOs/NGOs to share/collate/validate information with other stakeholders. Google products are still widely used, simply because they are most affordable, although they are reportedly relatively easy to hack. Closed Signal and Viber groups are sometimes used, however they are inadequate for storing large amounts of data.

B. Data Collection Procedures in the Field and Challenges Faced

When in the field, in some cases, data collectors use basic phone recorders during interviews, and then audio recordings are saved on SIM/SD cards which are later transcribed from local ethnic languages, to Burmese, and finally to English. Work in the field is often ‘low-tech’ to evade security forces if phones are examined or seized at checkpoints, or in case of detention. However, in case these SD cards are lost, it is difficult for local teams to ‘back up’ data. Prior to data collection, CBO, CSO, and NGO leaders are not always consulted before independent local investigators or teams from local organizations go into the field to collect personal statements/depositions, rather it’s ‘individual to individual’ or personal referral. So local investigators come to meet with said ‘individuals’. In some cases, this is because seeking ‘permission’ from village heads or community leaders prior to interviews is a risk because focal points cannot always verify if they are public/people’s administration appointed, or SAC appointed. Alternatively, working through CDM teachers and doctors is more effective in terms of ‘reliable’ evidence, however, it is a higher risk and sometimes endangers CDM staff. In some cases, CDM staff were arrested after talking to data collectors.

Significantly, there are also risks for victims and witnesses during data collection. For example, when victims and witnesses are seen with ‘outsiders’, a person of another ethnicity, a person speaking another language besides the local dialect, or a person from a different township, there are risks. When human rights workers/investigators enter villages to collect testimony/depositions, they may endanger local people they wish to interview. In some cases, interviewees were arrested after NGO field staff left[23], after evidence collection, and there was no recourse for them. Since some victims and witnesses have been arrested after talking with local CSOs or independent investigators, they are reluctant to talk with any outsiders, unless they know them personally, or another trusted community member can verify their identity.

Additionally, it is not always realistic to implement gender sensitive policies and practices. Many CSO/NGO staff who go into the field are men, for security reasons, so incidents of conflict related sexual violence (CRSV) and sexual and gender-based violence (SGBV) are unreported in some cases. In other cases, male village heads or religious leaders recount SGBV cases based upon reports from locals, so evidence may be incomplete or inaccurate, as it is second-hand or mis-construed as ‘hearsay’. When CSO/NGO women staff do go into the field, they often face reprisal if local authorities discover that they have discussed/learned anything about the occurrence of SGBV in the community. As such, they become targets themselves, and may also be implicated in ‘victim blaming’ which is a common practice in some communities.

C. Submitting Raw Data and ‘Evidence Packs’ to the IIMM and other Stakeholders

Due to the severity of crimes being committed by the military junta on a daily basis, the IIMM is currently pushing for evidence to be submitted as quickly as possible. As a result, the quality of evidence may be affected, and furthermore, several organizations and individuals have become ‘gatekeepers’ with regard to local stakeholders’ ability to communicate with, liaise, and submit evidence to the IIMM. For example, a few national NGOs and several INGOs directly communicate with the IIMM, and in some cases, INGO staff act as gatekeepers for local CSOs/ NGOs to submit evidence to the IIMM directly. As a result, there is more confusion among CSOs/NGOs about how evidence packs are created by the IIMM and what must be included in each evidence pack.

Further, there is much confusion about types of admissible evidence[24]. Specifically, some CSOs and NGOs are unsure how to collate and analyze evidence collected directly from members of people’s defense forces and local militias. Video and audio recordings procured directly from people’s defense forces and citizen journalists may be viewed as the most reliable by local CSOs, however, gaining consent from victims pictured in the files is not possible in that circumstance. As such, citizen journalists play a vital role in collecting evidence and providing context for local CSOs and human rights investigators. In many cases, NGOs and CSOs rely on citizen journalists to verify/validate evidence. In other cases, they rely on citizen journalists simply to collect and share evidence, mainly video footage, photos, and audio recordings. Many informal arrangements about evidence sharing exist in this regard. However, to ensure that citizen journalists’ safety is considered, local media outlets should take precautions when procuring such evidence. Encryption software as well as pseudonyms are often used, but not consistently, as reported by many CSO coalitions. Further, INGOs rarely ask permission to use evidence collected by citizen journalists, which is unethical; this point was shared with me by many local CSO/NGO leaders.

D. INGOs’ Problematic Role as “Gatekeepers” in evidence collection and submission

As mentioned in Section 1, INGOs such as the Myanmar Accountability Project (MAP), Fortify Rights, Myanmar Witness, and the Commission for International Justice and Accountability (CIJA) have been instrumental in advancing universal jurisdiction cases against the military junta, and reportedly, they also communicate in tandem with NUG officials, as well as IIMM representatives. However, the nature and frequency of their leadership teams’ and management staff’s communication with local CBOs/CSOs/NGOs has been called into question.

Many INGOs are now acting as ‘gatekeepers’ in terms of sharing information directly with the IIMM. According to some local CSO leaders[25], the NUG’s Ministry of Human Rights also has direct communication with INGO representatives who routinely liaise with the IIMM, but these informal arrangements are opaque. Although some individuals in the NUG’s Ministry of Human Rights do indeed have close relationships with individual CBO/CSO/NGO leaders working to collect evidence, there is still a stark lack of transparency regarding what raw data will be shared, and at what stage, with the IIMM. Although individual local organizations have strict confidentiality policies in place, including measures to protect their own staff, leaders of local organizations must be made aware of how their organizations’ efforts are being utilized to further the IIMM’s mandate.

Additionally, some INGOs contract out some aspects of human rights documentation work, such as transcription and translation of interviews with victims and survivors, as well as collation of raw data (i.e. raw video footage) to private consulting firms. Although these independent contractors may work under ‘non-disclosure agreements’ (NDAs), their technical role in collation of evidence packs is done in isolation, and local stakeholders are not often consulted. In the process, the quality of evidence is altered, as these private contractors may be collating hours of video footage and massive numbers of photo images captured by citizen journalists inside the country, lacking some of the local context. This decontextualizes specific pieces of evidence and proves problematic when evidence packs are collated.

INGOs’ main ‘function’ and utility in the context of international jurisprudence is launching universal jurisdiction cases. However, their ability and willingness to meaningfully contribute to technically strengthening locally led organizations (CBOs already gathering evidence of atrocity crimes) has been minimal, despite their claims to have conducted ‘local advocacy’. Rather, INGO leaders become ‘gatekeepers’ in the process of evidence collection, documentation, analysis, and submission. As a result, the focus (and in some cases financial resources) are often shifted away from local leaders and local expertise. Specifically, there are deep disconnects between INGO leaders/staff and CBO/CSO partners regarding the cultural nuances of discussing/conveying the gravity and systemic patterns of human rights violations and ethical considerations at every stage of the data collection/analysis/evidence submission phase(s). As a result of this ‘gatekeeping’, there are additional challenges and risks for local human rights investigators. According to local sources, human rights investigators must strike a balance between communicating with their employers (some of whom are expat INGO staff) about ‘quality of evidence’ and demands of their work. Simultaneously, local human rights investigators are forced to be self-reliant and must raise concerns regarding their own personal security to their employers, and potential for endangering victims and witnesses in the evidence gathering process, as noted above in Section B of this section. Challenges for local INGO staff are unequivocally compounded, as they must strike a balance between the following tasks: being hypervigilant regarding personal security, safeguarding the rights of victims and witnesses, meanwhile reporting to expat supervisors who are distanced from the ground situation.  Balancing all these factors may even cause some personal conflicts of interests. Accordingly, local INGO staff (based inside Myanmar) of the aforementioned organizations assisting with universal jurisdiction cases are at high risk of detention by the military junta, police, and military intelligence officers.

3. “Occupational Hazards” for Human Rights Workers and Investigators

‘Dehumanizing’ Effects of Human Rights Documentation Work

In the process of collecting, analyzing, and documenting evidence of grave human rights violations, it is commonplace for CSO, NGO, and human rights lawyers to ‘compartmentalize’ in order to psychologically cope with the tasks at hand. However, if these occupational hazards are not fully acknowledged by employers, as well as staff of INGOs and the IIMM to whom evidence is being submitted, then the process becomes fundamentally dehumanizing for all stakeholders on the ground who are doing the bulk of the work to report, document, and submit such evidence. Quality of evidence is also affected based upon the aforementioned personal security risks, as well as consultation with local communities in the process of evidence collection. Yet again, if local communities are not carefully consulted in the data collection phase, then victims and witnesses themselves may also become ‘dehumanized’ and retraumatized in the process, as their depositions simply become tools to be used to operationalize the IIMM. The lived experiences and agency of victims and witnesses who have survived atrocity crimes must be considered, and when individuals and communities are not consulted about how evidence is collected and used, their agency is not respected and harm/suffering may be perpetuated. When witnesses, victims, and community leaders are further harmed in the data collection/documentation process, they are ‘dehumanized’ by the process itself.

Human rights investigators take calculated risks and conduct informal risk assessments during the process of data collection and documentation, however, ‘do no harm principles’ and safeguarding practices should be developed prior to implementing any new projects. Likewise, employers of independent human rights investigators must adhere to labor laws. With an understanding that the human rights situation in Myanmar is dire, it is still unreasonable to request human rights investigators to work 24/7 without paid leave, sick leave, access to health care services, or appropriate compensation. Unfortunately, in efforts to record and document human rights violations, many employers neglect the health and safety of their own staff, thereby violating the most fundamental of labor laws. As such, this pattern perpetuates the cycle of human rights violations, as opposed to combatting it.

Personal Security Risks

Based upon difficulties pertaining to training prior to data collection, travel, actual field work, data security, and data storage, human rights investigators are at extremely high risk of arrest and/or attack by the police, military intelligence officers, and military junta soldiers. In most cases, when detained, human rights investigators are sent to interrogation centers, commonly known as ‘torture centers’. As evidenced in local, regional, and international media, many human rights workers have died in the interrogation centers. Especially notorious is Yay Kyi Ai Military Interrogation Center in Yangon. Currently, security forces detain human rights investigators initially at such interrogation centers, instead of sending them directly to the closest prison (e.g. Insein in Yangon or Obo in Mandalay).

Locating detainees in interrogation centers (or primary police stations) is incredibly difficult even when organization leaders, friends, or family members are aware of where a detainee is being ‘held’, as transfer of detainees is often rapid and frequent. However, in most cases, only the ‘arrest’ is known, and the detainee becomes a ‘missing person’ or case of ‘forced disappearance’ with no way to communicate with his/her family.

Additionally, family members of those detained are also at high risk of arrest or attack, themselves – reaching far beyond ‘nuclear family’ targets. Consequently, human rights investigators still living with family members often hide the nature of their work, so as not to endanger other family members. In other cases, they relocate so they are not living in the same location as their family. However, such accommodation is often at the expense of the employee and not of the employer, and being away from assets/property can lead to ‘hold and secure/seize’ by the SAC/ local authorities. Local NGOs and CSOs simply do not have enough funds to provide emergency funds for legal fees or safe accommodation, so their staff depend on their own personal networks.

Impacts on Mental Health

Whether human rights investigators work in the field or remotely, they often suffer severe mental health effects based upon the nature of their work. Collecting and analyzing first-hand depositions and testimonies, and photo and video evidence for long periods of time often results in post- traumatic stress disorder (PTSD), vicarious trauma, and secondary trauma. In Myanmar, there is a great deal of stigma about discussing and seeking treatment for mental health. However, during this particular coup, many local Myanmar health organizations have finally spoken out [26]about the necessity of breaking this stigma and openly discussing the adverse effects on all people actively working on documenting human rights violations. As a result, some human rights investigators and activists are beginning to speak out about their experiences.

However, others maintain the silence, since mental health issues are understood as commonplace and simply an occupational hazard of the job. Such issues are viewed by some as ‘par for the course’ in contributing to documenting human rights violations, and the process of seeking justice. Significantly, some bear their mental health concerns alone because they simply do not want to expose the nature of their work to friends and family, for fear of endangering them in the process.[27]

Consequently, there are few ‘treatment’ options for anyone doing work related to human rights documentation. Although there are private practitioners, individual religious leaders who offer counseling, and some online and in person counseling services, there are additional security risks in openly discussing this type of work. Further, although some services are free of charge, to speak to mental health professionals with advanced credentials to treat complex PTSD, fees are often expensive and thus cost prohibitive for most CSO/NGO workers.

4. Safeguarding Practices and ‘Do No Harm Principles’

Although INGOs and UN bodies pride themselves on ‘do no harm principles’ and HR trainings about their implementation, in reality, due to the circumstances of the coup and scarcity of information, ‘do no harm principles’ are rarely considered. This is partly because of the speed, scope, and complexities of the escalation of armed conflict, evolving regional political negotiations, and the speed at which human rights investigators are expected to work, to counter the culture of impunity and submit evidence to the IIMM. As a result, the process of human rights documentation in Myanmar has become inherently ‘dehumanizing’ for some stakeholders, thereby compromising the legitimacy of the process itself. Therefore, developing concise ‘do no harm principles’ that can be practically implemented by local stakeholders is crucial, to ensure that security/contingency plans are in place. Based on conversations with local stakeholders, I provide 8 core principles, and 5 safeguarding practices below.

 Basic ‘Do No Harm Principles’

1. Open lines of communication between CSO leaders, national NGO staff, INGO staff, and sector specific coordination/working groups must be maintained to ensure transparency about the process of evidence collection and submission. More importantly, clear expectations for staff in the field and working remotely (collecting, analyzing, and collating evidence) should be discussed prior to the beginning of any new project, ensuring that safeguarding protocols are in place. (Refer to next section on Safeguarding Practices).

2. Any person/organization who collects, analyzes, and processes evidence should be clear about where and to whom it is being submitted, so they are able to carry out their own Risk Assessment, and also try to ensure their own anonymity.

3. Local communities must be consulted prior to gathering evidence from victims and witnesses of crimes to ensure that they are not re-traumatized or further endangered by talking to ‘outsiders’. Also, victims and witnesses must be clearly asked for their consent, and informed about how the evidence will be used, and with whom it will be shared.

4. Any person/organization who analyzes and collates evidence should be monetarily compensated, given the risks involved. However, victims and witnesses cannot be compensated for giving testimonies, as it would be considered obstructing the judicial process.

5. Psycho-social support should be made available to CSO/NGO staff collecting and analyzing evidence, paid for by their employers.

6. Citizen journalists should be consulted before the evidence they collect is shared, and they must be informed where and to whom the evidence will be submitted. Media outlets who rely heavily on citizen journalists should also provide some emergency funds to them.

7. INGOs must seek permission to use and share evidence collected by local organizations and should not act as ‘gatekeepers’ with the IIMM, rather they should take the lead in supporting local organizations and their staff to continue their work.

8. Although evidence collected may be submitted to the IIMM, all staff should be clear about which other stakeholders will view the evidence, including: international donors, other national NGOs, and the NUG. Raw data and briefings may be used by other local stakeholders for early warning systems in Signal and Viber groups, however, those who gather the evidence should be consulted.

Safeguarding Practices for CBO/CSO/NGO workers and Human Rights Investigators

1. Digital Security Training[28] is crucial, even if it is an intensive short course. Secure data storage and procedures regarding who is ultimately responsible for maintaining data storage systems, and clear communication about any changes to the system (in case of any member of the team being arrested), are also crucial. If data collectors have no internet access, then briefing sessions should be held via other means (in person or via phone) as appropriate, based upon individual risk assessments.
2. Security Protocol & Emergency Contingency Plans should be developed prior to the start of any new project. These plans should be routinely updated and staff should receive briefings and be consulted in the process.
3. Protocol for putting Security/Emergency Contingency Plans into action should be made clear to all staff and stakeholders involved, and these plans should be routinely updated based upon the ever-evolving security situation. Specifically, focal people responsible for putting these plans into action should be made known to staff, so they know the best way to contact them in case of emergency.
4. Integrated Emergency Funds for legal services, safe relocation/travel/ and safe accommodation should be negotiated with employers and donor/s and allotted before projects start, and all staff should be informed of the process to implement Security/Emergency Contingency plans. The procedure for accessing these emergency funds should be made clear to all employees. Although the security situation changes daily, access to these resources should be clear when staff are hired so that they can do their own individual Risk Assessment for themselves and their respective family members.
5. Clear Exit Strategies [and their corresponding procedures] should be developed and trained. In the event of indiscriminate attack, extra-judicial killing, or detention of any member of an organizations’ staff, protocol for ensuring the safety of other staff remaining on the project should be established, with an understanding that they are free to leave their work when they choose to do so, without penalty from their employer. Further, clear protocol about employers informing family members of employees who are detained (or killed) should be developed at the beginning of any project.

5. Seeking Reparative Justice for Victims, Witnesses, and Human Rights Workers and Investigators

At its core, reparative justice includes identifying ‘types of compensation and appropriate reparations’ to remedy harm for survivors of mass atrocities, who are seeking redress. Clear definitions of types of reparations and their equitable distribution among victims, witnesses, and their communities, are widely debated among stakeholders. Regardless, stakeholders generally agree that monetary support is needed in light of the ongoing humanitarian crisis. Also, to avoid impeding the justice seeking process, safeguards should be put in place for all CSO/NGO workers who interact with victims and witnesses so as not to alienate or endanger them for their vital work, thereby mitigating occupational hazards as much as possible. I have provided several recommendations below regarding what reparations might include in the future. This is not an exhaustive list, nor would it be complete without more careful coordination and consultation with more local stakeholders, beyond my current network. As such, these are guidelines which I hope will raise more questions with regard to ‘do no harm principles’ and their implementation.

Recommendations

For Humanitarian Relief Organizations: to support Victims & Witnesses of Ongoing Atrocity Crimes

The recommendations below highlight humanitarian relief organizations’ capacity to mitigate further harm to civilians, and their potential to begin the process of providing reparations for victims and witnesses of atrocity crimes.

Humanitarian relief organizations should procure humanitarian aid for IDPs and host communities, by developing action plans to have unfettered access to conflict affected areas. Also, relief organizations should procure funds for education in emergencies (EiE) for IDPs, as well as deliver emergency medical services and protection for humanitarian workers and healthcare workers. Specifically, some of these aims could be accomplished in the following ways:

1. Liaise more closely with ethnic resistance organizations (ERO) service provision structures under both political and armed wings, to identify the ‘safest’ transport routes for the delivery of humanitarian aid, in coordination with local defense forces (LDFs) and people’s defense forces (PDFs) in mixed-administration areas.

2. Provide emergency health care services specifically for survivors of conflict related sexual violence (CRSV) and sexual and gender-based violence (SGBV), including medical and psychosocial support services, by routinely consulting with more local women’s organizations, and women’s coalitions, including cross-border networks. These networks can quickly carry out rapid needs assessments for survivors of SGBV, IDPs, and their host communities. Then, the aforementioned local women’s organizations could more effectively coordinate with other humanitarian partners to: a) implement IDP relief programs, b) advocate for emergency support services, especially for survivors of SGVB, CRSV, and c) address the urgent needs of children at high risk of forced recruitment into armed groups and/or trafficking.

3. Develop more ‘reporting mechanisms’ and strategies to coordinate with CBOs/CSOs/NGOs advocating for victims’ and witnesses’ rights, including: developing early warning-early response systems in the form of Signal and Viber groups, in areas with internet connectivity.

4. Consult and coordinate with CDM leaders in IDP communities’ leadership structures to assist with rapid needs assessments for the delivery of humanitarian aid and emergency support services.

5. Coordinate with Education in Emergencies (EiE) consortia through cross-border networks to procure more sustainable funding and utilize informal money transfer systems (Hundi) strategically, so as not to endanger CDM teachers, volunteer teachers, or their respective family members.

6. Liaise with the NUG’s Ministry of Human Rights, Ministry of Women, Youths, and Children Affairs, Ministry of Foreign Affairs, Ministry of International Cooperation, and Ministry of Communications, Information, and Technology to discuss the ‘progress’ of universal jurisdiction cases and their respective ministry’s communication with local stakeholders as well as the IIMM. The focus of these consultations and discussions should include developing and routinely updating protocols to safeguard local data collectors, and the rights of victims and witnesses of atrocity crimes.

Conclusion

Due to intensified fighting among armed actors throughout Myanmar, it is abundantly clear that ongoing conflict will continue to adversely impact communities. The military junta’s airstrikes on Pa Zi Gyi, Kanbalu Township, Sagaing Division on 11 April, 2023[29], and A Nang Pa, Hpakant Township, Kachin State on 23 October, 2022[30] clearly demonstrate their extreme brutality. The airstrikes on Pa Zi Gyi village targeted an opening ceremony of a public administration team office, led by local residents. The majority of attendees were civilians, including many women and children. The attack at A Nang Pa targeted civilians and leaders of the Kachin Independence Organization (KIO) and Kachin Independence Army (KIA) at a music concert commemorating the 62^nd anniversary of the KIO. In the aftermath of these airstrikes in both Sagaing Division and Kachin State[31], the military junta blocked all medical services and humanitarian relief to the area(s). As humanitarian access was denied, it is not possible to verify the exact number of casualties and injuries. However, independent human rights investigators and media outlets claim that these incidents resulted in the highest number of civilian casualties since the coup, especially innocent women and children.[32]

The military junta’s repeated airstrikes on schools, religious buildings, and health care facilities throughout the country underscores their egregious disregard for the concept of the rule of law. Out of respect for all martyrs of the people’s ‘Spring Revolution’ as well as my close friends who continue their respective work in the pro-democracy/resistance movement, I sincerely hope the ethical considerations explored in this article give rise to conversations about how local knowledge and expertise can be respected (and safeguarded) in the context of international jurisprudence. Thus far, the international community has indeed failed Myanmar. For this to change, close consultation with local CSOs, CBOs, NGOs, and individuals who are directly or indirectly involved in evidence collection and processing of data (which is ultimately submitted to international legal mechanisms) is crucial, ensuring that people are not further harmed in the process. Respecting and advocating for the rights of victims, witnesses, and advocates working to document human rights violations should be the central focus of these consultations. Until all relevant stakeholders are meaningfully engaged in discussions about these ethical considerations and safeguarding practices, and concede to effectively implement ‘do no harm’ principles and practices, efforts to seek justice for victims and witnesses of atrocity crimes will likely be in vain. Therefore, concerted efforts must be made to ensure that safeguarding local actors involved in documenting human rights violations in Myanmar is central to the justice seeking process.

NOTES:

[1] “Myanmar’s conflict: tracking and reporting the people’s war”. Myanmar Witness. Panel Discussion, Foreign Correspondents Club of Thailand. https://www.youtube.com/watch?v=zQEkujzOyZw. November, 2022.

[2] “Finding Room for compassion in Myanmar’s toxic media space”. Myanmar Now. https://myanmar-now.org/en/news/finding-room-for-compassion-in-myanmars-toxic-media-space/. 15 May, 2023.

[3] According to the Assistance Association for Political Prisoners Burma (AAPPB), as of 14 June, 2023 there are 19,001 people in detention, many of them political prisoners, including citizen journalists and many CSO/NGO leaders who contribute to the process of documenting human rights violations. https://aappb.org/. Also see:  “Myanmar’s jailing of journalists enters harsh new phase” Committee to Protect Journalists (CPJ). https://cpj.org/2022/12/myanmars-jailing-of-journalists-enters-harsh-new-phase/. 13 December, 2022 and “Atrocities in Myanmar: Documenting the Junta’s Attacks on Civilians”. United States Institution of Peace (USIP). https://www.usip.org/publications/2023/03/atrocities-myanmar-documenting-juntas-attacks-civilians. 1 March, 2023.

[4] “Briefing Paper: Myanmar’s case at the International Court of Justice” Special Advisory Council for Myanmar (SAC-M). SAC-M-Briefing-Paper-ICJ-ENGLISH.pdf.

[5] “International Court Rejects Myanmar’s Claims, Will Hear Myanmar Genocide Case” The Diplomat. https://thediplomat.com/2022/07/international-court-of-justice-rejects-Myanmar-claims-will-hear-rohingya-genocide-case/. 23 July, 2022.

[6] “Top UN Court rejects Myanmar Objections in Rohingya Genocide Case” https://www.rfa.org/english/news/Myanmar/icj-ruling-07222022062409.html. Radio Free Asia, 22 July, 2022.

[7] “Extension of time limit: Counter Memorial-Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar). International Court of Justice. https://www.icj-cij.org/sites/default/files/case-related/178/178-20230406-ORD-01-00-EN.pdf. 6 April, 2023.

[8] “The Gambia v. Myanmar: An Analysis of the ICJ’s Decision on Jurisdiction under the Genocide Convention”. American Society of International Law. https://www.asil.org/insights/volume/26/issue/9. 21 September, 2022.

[9] The Myanmar Accountability Project (MAP) is an INGO based in the UK. They are “working discretely with civil society within Myanmar to build criminal cases against individual members of the Myanmar security forces”: https://the-world-is-watching.org/ .

[10] “Rights Group Files Torture Case against Myanmar junta in Turkey”. https://www.voanews.com/a/rights-group-files-torture-case-against-Myanmar-junta-in-turkey/6517695.html. VOA News, 6 April, 2022.

[11]  The National Unity Government (NUG) of the Republic of the Union of Myanmar is the interim civilian government, as reflected by the November 2020 general elections. The NUG was formed on 16 April, 2021 by the Committee Representing the Pyidaungsu Hluttaw (CRPH), composed of a group of elected lawmakers, cabinet members, and parliamentarians, who were ousted after the military coup on 1 February, 2021. Some members are working inside Myanmar, while others operate in exile. https://www.nugmyanmar.org/en/.  **Note: This article does not include an exhaustive list of ministries which interact with the IIMM or civil society groups doing human rights documentation work.

[12] “Myanmar junta leaders may face war crimes probe in Australia”. The Sydney Morning Herald. https://www.smh.com.au/world/asia/Myanmar-junta-leaders-may-face-war-crimes-probe-in-australia-20220321-p5a6lv.html. 22 March, 2022.

[13] “All Eyes on Indonesia’s Constitutional Court which could be on the verge of making history”. Jakarta Post. https://www.thejakartapost.com/opinion/2022/10/11/all-eyes-on-indonesias-constitutional-court-which-could-be-on-verge-of-making-history-.html. 12 October, 2022.

[14] “Court Rejects Petition on Human Rights Court”. The Constitutional Court of the Republic of Indonesia. MKRI. https://en.mkri.id/news/details/2023-04-14/Court_Rejects_Petition_on_Human_Rights_Court. 14 April, 2023.

[15] On 24 January, 2023, an INGO, Fortify Rights, filed a criminal complaint with Germany’s Federal Public Prosecutor General under the principle of universal jurisdiction, in conjunction with 16 complainants from Myanmar. https://www.dw.com/en/myanmar-military-accused-of-war-crimes-case-filed-in-germany/a-64495150.  24 January, 2023. Also see: “Rohingya and coup survivors launch legal complaint in Germany against junta” https://www.theguardian.com/world/2023/jan/24/rohingya-and-myanmar-coup-survivors-launch-legal-complaint-in-germany-against-junta. 24 January, 2022, and “New universal jurisdiction case filed in Germany for crimes committed in Myanmar before and after the coup: On complementarity, effectiveness, and new hopes for old crimes”

https://www.ejiltalk.org/new-universal-jurisdiction-case-filed-in-germany-for-crimes-committed-in-myanmar-before-and-after-the-coup-on-complementarity-effectiveness-and-new-hopes-for-old-crimes/. 7 March, 2023.

[16] Fortify Rights is an INGO based in the United States, focusing on human rights investigations in Myanmar, Bangladesh, Thailand, and Malaysia. They published a report entitled “Nowhere is Safe: the Myanmar Junta’s Crimes Against Humanity Following the Coup ‘d’état”, detailing direct chain of command responsibility of the military junta for atrocity crimes committed during the first six months of the military coup in Myanmar. https://www.fortifyrights.org/mya-inv-2022-03-24/.  24 March, 2022. They have assisted with universal jurisdiction cases involving the Rohingya as well as the Christmas Eve Massacre in Karenni/Kayah State. https://www.fortifyrights.org/mya-inv-rep-2022-02-15/.  15 February, 2022.

[17] Myanmar Witness is an INGO registered in the UK that collects, collates, and maps open-source data of human rights violations in Myanmar. Their recent reports have specifically covered the military junta’s airstrikes. Reporting on the 23 October airstrike in A Nang Pa, Kachin: https://www.myanmarwitness.org/reports/the-concert-bombing. 26 October, 2022, and additional airstrikes in Kayin State: https://www.myanmarwitness.org/reports/airstrikes-on-residential-areas-in-lay-kay-kaw. 27 October, 2022. They submit evidence via interlocutors to the IIMM.

[18] The Commission for International Justice and Accountability (CIJA) is a NGO comprised of international legal experts  which has collected data regarding crimes committed by the Burmese military, as well as the police, and government ministries from 2018-2022. One of their latest reports detailing atrocities committed against the Rohingya was released in an exclusive Reuters report: https://www.reuters.com/investigates/special-report/myanmar-rohingya-warcrimes-investigation/. 4 August, 2022.

[19] CIJA released a podcast via BBC which details the disinformation and misinformation campaigns: “Mayday Podcast: the Evidence Gatherers” Commission for International Justice and Accountability (CIJA). https://cijaonline.org/news/2021/4/9/mayday-the-evidence-gatherers  6 April, 2022. CIJA’s own contributions to prosecuting members of the Syrian Regime include the case of Anwar Raslan: https://cijaonline.org/news/koblenz-syria-verdict-anwar-raslan. 13 January, 2022.

[20] “The Syrian Network for Human Rights Received a Letter from the UN Working Group on Enforced or Involuntary Disappearances about its Dispatch of Cases, provided by the SNHR this year, against the Syrian Regime”. https://snhr.org/blog/2022/09/26/snhr-receives-notification-from-the-un-working-group-on-enforced-or-involuntary-disappearances-that-it-submitted-eight-cases-provided-by-snhr-this-year-to-the-syrian-regime/. 26 September, 2022.

[21] Human Rights Council Fifty-first session. “Human rights situations that require the Council’s attention. Report of the Independent Investigative Mechanism for Myanmar” 12 July, 2022.

[22] Section IV. “Operations and Administrative Support” of the Report of the Independent Investigative Mechanism for Myanmar, 16 July, 2022.

[23] This information was shared with me by local colleagues, NGO leaders, and third parties. For security reasons, they are anonymous.

[24] “Documenting Human Rights Violations in Myanmar: the potential for truth-telling and accountability”. Netherlands Institute for the Study of Crime and Law Enforcement. https://nscr.nl/en/documenting-human-rights-violations-in-myanmar-the-potential-for-truth-telling-and-accountability/. 20 November, 2022.

[25] Information in this section was shared with me by local colleagues and CSO leaders involved in collecting and collating evidence of mass atrocity crimes. For security reasons, they are anonymous. Several of them were arrested in 2021, and at the time of writing, they remain in detention.

[26] “Mental Health in Myanmar Pre and Post Coup” Tea Circle Oxford. https://teacircleoxford.com/post/mental-health-in-myanmar-challenges-pre-and-post-coup/. 28 June, 2021.

[27] “Trauma Haunts Journalists, Human Rights Workers in Myanmar” Aljazeera News, https://www.aljazeera.com/news/2022/3/5/trauma-haunts-journalists-human-rights-workers-in-myanmar. 5 March, 2022.

[28] One resource in circulation: “Digital Security Guide for Activists and Civil Society in Repressive Regimes”. DIGIACTI 2022. Digital Security Guide for Activists and Civil Society in Repressive Regimes_28072022.pdf.

[29] “Myanmar’s military bombs village ceremony killing scores of civilians”. Radio Free Asia. https://www.rfa.org/english/news/myanmar/sagaing-air-strike-04112023045350.html. 11 April, 2023

[30] “The Concert Bombing”. Myanmar Witness. https://www.myanmarwitness.org/reports/the-concert-bombing.26

October, 2022.

[31] “A Nang Pa fatalities expected to rise as Myanmar military blocks victims’ access to medical care” Myanmar Now. https://myanmar-now.org/en/news/a-nang-pa-airstrike-fatalities-expected-to-rise-as-myanmar-military-blocks-victims-access-to-medical-care/. 28 October, 2022.

[32] “Children’s Bodies crushed into pieces in Myanmar military airstrike on Kanbalu Township”. Myanmar Now. https://myanmar-now.org/en/news/childrens-bodies-crushed-into-pieces-in-myanmar-military-airstrike-on-kanbalu-township/. 12 April, 2023. And “Military stymies rescue efforts at scene of Myanmar strike that killed at least 80”. Radio Free Asia. https://www.rfa.org/english/news/myanmar/rescue-04122023172026.html. 12 April, 2023.