Geneva, 20 June 2022 – The Independent Mechanism for Myanmar is closely following events surrounding the recent announcement by the Myanmar military that it intends to carry out death sentences imposed on four individuals by military courts following non-public trials. Imposing a death sentence, or even a period of detention, on the basis of proceedings that do not satisfy the basic requirements of a fair trial may constitute one or more crimes against humanity or war crimes.
The Myanmar military announced on 3 June 2022 that it intends to execute four individuals who have been sentenced to death by a military court. The available information strongly suggests that under international law, fundamental rights of the convicted persons were blatantly violated in these proceedings. One of the most fundamental attributes of a fair trial is that it be held in public to the greatest extent possible. Exceptions based on national security or other considerations must be limited to the extent that they are strictly justified. Yet it appears that there were no public proceedings nor are the judgments publicly available. The secrecy of proceedings is itself a violation of one of the most basic principles of a fair trial, and casts doubt on whether any of the other fair trial guarantees have been respected, such as the requirement that the tribunal was impartial and independent.
Imposing a prison or death sentence in such circumstances could constitute crimes against humanity or war crimes. The crime against humanity of persecution is the severe denial of a person’s fundamental rights under international law when committed on discriminatory grounds, such as a person’s political affiliation. Imprisonment as a crime against humanity is committed when a person is detained without due process of law, including in violation of fundamental rules of international law. It is also a war crime to impose sentences and carry out executions without a judgement by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable. National laws or procedures relied upon to justify a conviction and sentence must not violate international law.
In particularly egregious situations, such as those presented in the Nuremberg case of Altstötter et al., the imposition of the death penalty following proceedings that blatantly violate basic fair trial rights – including holding such proceedings entirely in secret and without proper records – can lead to the inference of a “mock trial” that “is not a judicial proceeding but a murder.” The participation of those involved in such proceedings is not excused on the basis that they were merely following domestic law. Even judges and prosecutors, as in the Altstötter case, can be found guilty of war crimes and crimes against humanity for their roles in such proceedings.
The Mechanism will continue to monitor and collect evidence in relation to these cases, and any other cases involving the imposition of the death penalty in circumstances that appear to violate fundamental fair trial guarantees.
The Independent Investigative Mechanism for Myanmar (The Mechanism) is mandated to collect evidence of the most serious international crimes committed in Myanmar and to prepare files that can facilitate prosecutions of those responsible in national or international courts
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 UN Human Rights Committee, General Comment No. 32 (Art. 14), CCPR/C/GC/32, para. 29 (“the judgment, including the essential findings, evidence and legal reasoning must be made public”).
 United States v. Alstötter et al. (“The Justice Case”), United States Military Tribunal at Nuremberg, Law No. 10 1946-1949, v. III (1951), Opinion and Judgment, p. 1164.