Rohingya Symposium: From Rhetoric to Justice–Ensuring a Gender Perspective in Accountability Proceedings for the Rohingya Genocide

[Akila Radhakrishnan (@akilaGJC) is the President of the Global Justice Center, where she directs GJC’s work to establish legal precedents protecting human rights and ensuring gender equality.]

This August marks not only the 3^rd anniversary of the start of the Rohingya genocide, but also the 6^th anniversary of the start of the Yazidi genocide. Beyond starting in the same month, these two genocides share some key features, not the least of which is that both were conducted along highly gendered lines. In the two we see some similar patterns in the way there were carried out, even where they vary significantly in the details; the separation of men and women, the subsequent fast killings of men and boys, and systematic sexual violence against women and girls.

In 2016, in its analysis of the Yazidi genocide, “They Came to Destroy,” the Independent International Commission of Inquiry on the Syrian Arab Republic (“Syria COI”) found that “ISIS fighters systematically rape Yazidi women and girls as young as nine.”

In 2018, in its analysis of the Rohingya genocide, the Independent International Fact-Finding Mission on Myanmar, found that sexual violence was a “hallmark” of the Myanmar military’s operations against the Rohingya.

And yet, ongoing accountability processes for both genocides risk leaving gendered experiences, including sexual violence, behind.

At first blush, this may seem like hyperbole. The stories of sexual violence, both of the Rohingya and the Yazidi, have been front and center in the press, in UN reports, and in the rhetoric of senior UN staff and ambassadors. In 2018, Nadia Murad, a survivor of ISIS’s system of sexual slavery, was awarded a Nobel Peace Prize for her fight to ensure justice for the Yazidi and for her efforts “to end the use of sexual violence as a weapon of war and armed conflict.” In 2018, Razia Sultana, a Rohingya lawyer, briefed the UN Security Council for its annual open debate on sexual violence in conflict. In 2019, it was Nadia Murad who briefed the Council for this debate, and most recently, just last month, it was Khin Omar, a Burmese human rights activist.

While we may have started the process of closing the gap on recognizing and documenting sexual and gender-based violence in conflict—including as a component of genocide—there remains an enormous gap between rhetoric on sexual and gender-based violence and actual accountability. As Michelle Jarvis, the Deputy Head of the International, Impartial and Independent Mechanism for Syria recently put it in a discussion of the Yazidi genocide, “the suffering of women and girls has been used to underscore the outrages of the conflict, but strangely those voices drop out when it comes to accountability efforts.”

In Myanmar, the seeds for this erasure are already there. Even while acknowledging that some crimes may have occurred, the Myanmar government has consistently and fervently dismissed evidence of sexual violence. In February 2019, Myanmar asserted in its report to the Committee on the Elimination of Discrimination against Women (“CEDAW Committee”) that “[d]espite repeated accusations that Myanmar Security Forces committed a campaign of rape and violence against Muslim women and girls residing in Rakhine State, there is no evidence to support these wild claims” (emphasis added).

During the CEDAW review, Myanmar stated, as it has in other places, that it was willing and able to investigate and prosecute human rights violations in the country, citing its Independent Commission of Enquiry (“ICOE”) as an essential step in the domestic accountability process. This was mirrored at the International Court of Justice (“ICJ”) in December 2019 during the provisional measures hearings where Aung Sang Suu Kyi stated that “[t]here is currently no other fact-finding body in the world that has garnered relevant first-hand information on what occurred in Rakhine in 2017 to the same extent as the [ICOE] and the Office of the Judge Advocate General in Myanmar.” She went on to note that the findings of the ICOE would be the basis for future court martials under Myanmar’s domestic criminal justice system.

The problem for Rohingya women and girls, including transwomen, as well as men and boys who suffered sexual and gender-based violence at the hands of the Tatmadaw? The executive summary of the ICOE categorically dismissed evidence of rape and gang rape: “[t]here were no credible statements on allegations of gang rape committed by Myanmar’s security forces. Although some interviewees mentioned rape cases, these were all second-hand information heard from someone else.” If the ICOE is to be the evidentiary base for domestic accountability proceedings, where does this leave those who were subject to acts of sexual and gender-based violence? While there is little to no transparency around Myanmar’s court martials, it can be assumed that none of the 91 cases the Union Attorney-General’s Office states have been filed on the basis of the ICOE report will include charges of sexual and gender-based violence. And even outside of the cases it may underlie, just the matter of its dismissal and exclusion from the ICOE’s report is a step in the erasure of their experiences.  

This would be less concerning if the release of the report (well its executive summary and limited annexes) had been met with critical responses from the international community that refused to legitimize the report and the narrative it promotes. Beyond the way it dealt with sexual violence, the ICOE and its report have been roundly critiqued by human rights experts, including the FFM, for a range of reasons from their limited and flawed mandate, to questions about their independence, impartiality and methodology, and its findings. However, in looking for openings to address the seemingly intractable situation in Myanmar, most states have chosen an approach of selective acceptance and “constructive” engagement with regards to the ICOE, even as they have yet to see the full report.

For example, a statement released by the Myanmar-based EU ambassadors and heads of mission in January 2020 equivocated both the ICJ proceedings and the ICOE’s conclusions as “important first steps towards acknowledging the severity and scale of violence that occurred” and that they hoped that “Myanmar will use these opportunities to make further progress on its democratic transition.” The statement contained no language that recognized any of the shortcomings of the ICOE’s report, including its dismissal of sexual violence. Similarly, the July 2020 Human Rights Council Resolution on the Situation of human rights in Myanmar, notes the ICOE’s analysis that war crimes and serious human rights abuses have occurred, and urges the government to set out its plan to implement the recommendations. In a slight improvement, the Resolution does call for Myanmar to release the report in full and notes the “limits of its terms of reference and modus operandi.” These examples are emblematic of the conversations around the ICOE report by states, as well as certain high-level UN actors, which by legitimizing the report and its recommendations, signal the international community’s comfort with the erasure of gendered experiences in pursuit of “solutions.”

And with accountability for sexual and gender-based violence out of the picture domestically for these reasons, as well as the structural barriers that make any domestic pursuit to hold the military futile, the hope now rests with the various ongoing international processes, including at the ICJ, the International Criminal Court (“ICC”) and potential cases under the theory of universal jurisdiction, including in Argentina. Here too, a close eye needs to be kept on the gaps between the rhetoric and the translation of gendered experiences into actual justice.

At the ICC for example, any cases that move forward (absent a full referral by the Security Council or Myanmar’s ratification of the Rome Statute with retroactive jurisdiction, both of which are distant possibilities at the moment), will be based on a narrow jurisdictional remit where at least one element of a crime took place in Bangladesh (or in any other state party to the Rome Statute). As a result, crimes of sexual and gender-based violence, where all elements of the crime occurred in Myanmar, as likely to only be included as context or drivers for other crimes, for example, as coercive acts for the purposes of the crimes against humanity of deportation or persecution. While not insignificant, without more, the ICC likely cannot bring justice and accountability for the specific crimes of sexual and gender-based violence that occurred in Myanmar against the Rohingya.

The ICJ case presents more promise, but it also faces some serious obstacles absent a commitment to a comprehensive gender perspective in The Gambia’s case strategy and an openness to more progressive gender jurisprudence by the Court. As the Global Justice Center has explored elsewhere, while Akayesu ushered in the understanding that sexual violence can be a constitutive act of genocide, its uptake in cases that have followed has been more limited. In addition, recognition has rarely translated to a gender perspective that informs not only genocidal acts themselves, but also genocidal intent, and other obligations under the Genocide Convention, such as the overarching duties to prevent and punish genocide. This is the consequence of the over privileging of killing as the genocidal act, with non-killing acts—which are more likely to be directed against female members of a protected group—cast out of the continuum of genocidal violence. This privileging also previews another major issue with respect to the ICJ case—the Court’s own narrow jurisprudence on genocide, which has emphasized physical destruction and an analysis of numbers killed. This also includes, as explored elsewhere in this symposium, limitations that the court has placed on how sexual violence can be characterized as a genocidal acts.

These limitations are of course not fatal—the ICJ has only reached the merits on two genocide cases—both in the context of the Balkans, with very different facts that the Rohingya genocide. However, there is a concern that attempts to cleave closely to the court’s established—albeit narrow—jurisprudence, will perpetuate, rather than expand legal interpretations of obligations under the Genocide Convention. This can already been seen in Myanmar’s arguments during the provisional measures hearings, which sought to focus the discussions of genocidal intent on physical destruction (to the total exclusion of biological destruction) and on limited information with regards to the number of individuals who were killed. In addition, and in a continuation of their erasure of sexual violence from their narrative about the Rohingya genocide, Myanmar seemingly ignored all evidence and allegations of sexual violence in their provisional measures presentations. In one of the most powerful moments at the provisional measures hearings, one of The Gambia’s Counsel, Phillipe Sands, called out Myanmar, and in particular, its agent, Aung Sang Suu Kyi, for this silence. (This may have prompted Myanmar’s one mention of sexual violence during the provisional measures hearings where Myanmar’s counsel hollowly stated that it is a “a phenomenon that regrettably occurs in many parts of the world and that we condemn unequivocally.”)

These gaps and risks highlight the ease with which the stories of the sexual and gender-based violence which have been at the center of narratives about the Rohingya genocide can be left behind in the pursuit of justice. There is no question that sexual and gender-based violence played a significant role in the commission of the Rohingya genocide, however this understanding is no guarantee that without careful monitoring and the systematic application of a gender perspective by all actors involved in these efforts will translate to actual accountability for these crimes. This needs to include conscientious efforts by the international community to investigate their own actions and rhetoric (for example the legitimization of the ICOE), as well as steps to support and broaden accountability efforts, including a full referral to the ICC and the creation of an ad-hoc tribunal. Women and girls deserve no less.