A/HRC/42/66
42.
As part of the its collection of information, documentation and evidence, the
Mechanism will also collect witness and victim testimonies and undertake investigations in
the field. While the actual scope and needs of these activities will be developed
subsequently, an initial priority will be to ensure that the Mechanism has the expertise
necessary to handle sexual and gender-based violence crimes. The Mechanism will
therefore prioritize the recruitment of investigators, analysts and legal officers with
specialized training in or experience handling of cases of sexual and gender-based violence.
It will also provide specialized training to all staff dealing with victims of sexual violence,
and prioritize the handling of these cases.
43.
As a core function, the Mechanism will ensure that the information, documentation
and evidence that it collects and preserves, and the analyses produced by it, conform with
relevant United Nations rules, regulations, policies and procedures. This will
require comprehensive and sustainable security and cybersecurity protocols to best ensure
the effective reception, cataloguing, storage and sorting of documents, materials or other
evidentiary elements.
6.
Consultations and cooperation
44.
The Mechanism recognizes that it can benefit in many areas from the experience of
international courts or comparable international accountability mechanisms, and has
already engaged in consultations with some relevant entities that have been generous in
their assistance. The Mechanism believes it will particularly benefit from the experiences of
these entities in the areas of development of information technology systems; the
development of protocols regarding witness interviews, confidentiality and protection; and
the standardization of the frameworks for the transfer of information, documentation and
evidence from information providers.
45.
Necessarily, all such systems and protocols will be tailored to fit the actual
circumstances and needs of the Mechanism, which will differ in important respects from
that of international courts or tribunals or other international accountability mechanisms. In
particular, the many different languages that are spoken in Myanmar will pose specific
challenges, including in hiring or contracting with competent and independent interpreters
and translators. In addition, database search systems must be capable of accommodating the
various scripts in which these languages are written.
III.
Key challenges
46.
The Mechanism is conscious that building a prosecutable criminal case requires
presenting credible evidence that proves each element of the crime to the high evidentiary
standards required in various jurisdictions for a criminal conviction (for example, proving
each element beyond a reasonable doubt or to the “intimate conviction” (conviction intime)
of the judges). When convictions depend on inferences from circumstantial evidence, the
inference consistent with guilt must be the only reasonable inference. Furthermore, the
Mechanism emphasizes that the evidence must not only prove that a crime has been
committed; it must also establish the elements of the applicable mode of responsibility –
including proof that the accused person held the required mental state to satisfy the mens
rea element of the crime, as well as proof that the accused person’s acts or omissions fulfil
the actus reus elements necessary to make them criminally responsible.
47.
Taking into consideration the need for the Mechanism to collect evidence of such
high standards, the Mechanism will have to ensure that it has the necessary policies,
protocols, procedures and methologies in place, and recruits and retains well-trained and
experienced investigators and analysts to ensure that its investigations are of the quality
demanded by its mandate.
48.
The distance of the seat of the Mechanism from relevant witnesses and the locations
of alleged crimes poses a logistical and operational challenge that the Mechanism will seek
to address with innovative and cost effective operational structures and processes. The
Mechanism will seek the cooperation of States in the region, including Myanmar.
49.
Where such cooperation is not available, the Mechanism will proceed with its
investigative efforts and prepare case files, drawing on the experience of international
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