A/HRC/42/66
been committed by specific individuals can only be assessed once they are thoroughly
analysed by qualified criminal lawyers. The past experience of international courts and
comparable international accountability mechanisms suggests that it is likely that such
evidence will not by itself be sufficient to build criminal case files that establish all
elements of the applicable criminal offenses. Evidence collected by entities undertaking
human rights investigations and reporting typically provides important leads with regard to
relevant witnesses, and can also be very useful in helping to establish whether international
crimes have been committed against a particular group and, on occasion, the identity of
direct perpetrators. By themselves, however, such investigations and reports often fall short
of proving all elements of the charges to the standard of beyond reasonable doubt. This is
particularly true in the case of indirect perpetrators, namely, those that ordered, planned,
instigated or financed a particular crime, or of superiors who, having knowledge of the
crimes and the ability to take necessary and reasonable steps to prevent them, failed to do
so. Thus, it is anticipated that it will be essential for the Mechanism to conduct its own
investigative interviews and to collect further evidence in various forms.
16.
A further challenge is posed by the fact that, while the seat of the Mechanism is in
Geneva, it will be essential for the Mechanism to conduct a significant portion of its
operational and investigative work in the south-east Asian region closer to where the crimes
were committed and where numerous witnesses and most physical evidence are likely to be
located.
17.
In preparing case files, the Mechanism will also ensure that it proceeds in an evenhanded fashion, and seeks the truth impartially. This would include collecting exculpatory
evidence, including evidence of any efforts made by those in leadership roles to prevent
crimes or to punish those responsible for crimes, as well as any evidence that has an impact
on the credibility of witnesses.
18.
The Mechanism recognizes that such investigations will be very challenging. It lacks
police or judicial power to use its own authority to compel cooperation from individuals or
entities. The Mechanism will seek the cooperation of the Government of Myanmar, and of
States both in the region and elsewhere, in order to gain access to crimes scenes, witnesses
and relevant physical and electronic material. The Mechanism will pursue, within the limits
of its mandate, all available avenues to obtain relevant evidence, and strive to be innovative
in pursuing such evidence. It will seek to recruit a team of highly experienced and
innovative professionals with a variety of skills that can make use of all available strategies
and technologies to overcome these challenges.
D.
Cooperation
19.
The Mechanism acknowledges the important work of the fact-finding mission over
its years of operation, and its contribution towards seeking accountability for the crimes
commited in Myanmar. The Mechanism is grateful for the efforts of the fact-finding
mission to ensure the seamless transfer of the information, documentation and material in
its possession to the Mechanism.
20.
In implementing its mandate, the Mechanism will engage with States, regional and
intergovernmental organizations, United Nations entities, civil society and other
stakeholders to obtain further evidence of crimes and other relevant information and
documentation pertaining to its mandate. It will also establish modalities and protocols for
such cooperation and information-sharing.
21.
The Mechanism will engage with States, regional and intergovernmental
organizations, civil society and other stakeholders in order to encourage them to support its
activities and to contribute appropriate resources, including specialized personnel or
services, that would assist in the fulfilment of the Mechanism’s mandate. In doing so, the
Mechanism will take every precaution to ensure that its independence and its impartiality
are fully preserved.
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