24 Aug Symposium on The Impact and Implications of International Law: Myanmar and the Rohingya–An Introduction
[Priya Pillai is an international lawyer, head of the Asia Justice Coalition secretariat, and a contributing editor at Opinio Juris.]
It has been three years since the forced exodus of the Rohingya from Myanmar was at its zenith, as a result of international crimes committed in Rakhine state. With close to a million individuals forced to flee to Bangladesh and other countries in the region, August 2017 and the months immediately after marked another step in the pattern of atrocities and waves of displacement, the roots of which are decades old. Since then, there have been reports of civilians killed and ongoing conflict in Rakhine state, that continue even now.
There has been little initiative or willingness in the domestic legal system in Myanmar to address the crimes against the Rohingya. As a result, there has been significant focus upon accountability in the international sphere, with substantial gains recently.
To start with, the United Nations Independent International Fact-Finding Mission on Myanmar – constituted as a result of a resolution by the Human Rights Council – released detailed reports into the situation in Myanmar and the Rohingya, providing a firm basis for the establishment of the Independent Investigative Mechanism for Myanmar (IIMM) in 2018. The mandate of the IIMM, which has commenced its work, is to “…collect, consolidate, preserve and analyse evidence of the most serious international crimes and violations of international law committed in Myanmar since 2011…”, with a view to the use of this evidence in criminal proceedings.
Simultaneously, proceedings commenced at the International Criminal Court in 2018 at the initiative of the Prosecutor. For the first time in such a scenario, the jurisdiction of the court was affirmed over a non-state party (Myanmar) as a result of crimes committed and continuing on the territory of a state party (Bangladesh). This was followed by the authorization to proceed with the investigation in November 2019. Separately, there is also a case making its way through the legal system in Argentina, on the basis of universal jurisdiction.
At the same time, impelled in part by concerted efforts of the Rohingya community, civil society organizations and states, The Gambia filed an application before the International Court of Justice based on the Genocide Convention. As part of the application, the request for provisional measures was successful, with the ICJ issuing a unanimous order in favour of The Gambia in January 2020. The measures ordered by the court included the requirement that Myanmar report back on implementation, as well as preserve evidence.
These are all momentous steps, each unique in their own way. And now that the dust has settled, with proceedings well underway, it is timely to reflect upon their impact, and the potential implications – in regard to international law, and, more importantly, upon the situation of the Rohingya themselves.
The symposium we have curated at Opinio Juris, in coordination with the Asia Justice Coalition, seeks to highlight some implications of these international legal proceedings, and the issues that need further examination, strategizing and advocacy.
Our contributors in this symposium address some fundamental questions, such as the
discussion regarding “peace v justice” in the context of Myanmar, where supporting the democratization process seems to have come at the cost of further marginalization of the Rohingya, and a lack of accountability for international crimes. This also necessitates an in-depth look at the domestic legal system and response by Myanmar, to assess more comprehensively the gaps and need for international accountability processes.
While much attention is being paid to the legal proceedings at the two international courts, the points of commonality between these very distinct cases are parsed, in particular, as they relate to the crime of genocide under international law. The gendered nature of the crime of genocide, and a more detailed assessment of erga omnes obligations, arising from the ICJ case are also examined in the symposium. Legal arguments that support the public release of the report submitted by Myanmar to the ICJ in May of this year are presented detail, making a persuasive case for public disclosure. This brings us to focusing on and centering the experiences of survivors of these atrocities in legal proceedings, and what this would entail, explored in further detail. Another area in need of particular attention and action is the role and responsibility of the UN Security Council. The silence of the UN Security Council in addressing the atrocities against the Rohingya has been deafening, with lip service paid to the exhortations of ‘never again’ and the responsibility to protect. Charting a path forward for action by the UNSC is necessary, and some of those options are laid out. The role of the international community is well worth exploring further – areas that need greater clarity of thought as well as collective action – highlighted in some detail.
With this brief overview, it’s time to get started. We look forward to your engagement and to continuing the discussion over the course of this week – and beyond!
Here is a list of contributions, with links:
Jenny Domino, “Is Justice for the Rohingya Possible Within Myanmar?”,
Melanie O’Brien, “The Rohingya Cases before International Courts and the Crime of Genocide”,
Kingsley Abbott, Michael A Becker & Bruno Gelinas-Faucher, 25 August 2020, “Why So Secret? The Case for Public Access to Myanmar’s Reports on Implementation of the ICJ’s Provisional Measures Order”,
Param-Preet Singh, “A Strategy for Strong Security Council Action on Myanmar”,
Laetitia van den Assum, “Some Thoughts about the Role of the International Community”,
Priya Pillai, “And Miles to Go…”