Rohingya Symposium: Justice Out of Reach–The Need to Better Connect Accountability Proceedings to Atrocity Survivors

[Shannon Raj Singh is a member of Guernica 37 International Justice Chambers and a Visiting Fellow of Practice at the Oxford Programme on International Peace and Security.]

The seat of the International Criminal Court, in the rain-soaked Hague, is located approximately 8,000 kilometers from Cox’s Bazar, as the crow flies. For many Rohingya victims of atrocities located in the refugee camps there, that distance is simply insurmountable.

But geographical distance is simply the most physical manifestation of the Court’s inaccessibility for Rohingya victims and survivors. Since September 2019, internet access in the camps has been shut off, isolating more than one million people from information about the outside world, whether that information be about judicial proceedings in The Hague, or basic sanitation pertaining to the Covid-19 pandemic. The internet ban in Cox’s Bazar is matched by one in Rakhine State, described by human rights advocates as the longest internet shutdown in history.

The implications of this inaccessibility has served to exacerbate issues that are already well-known to those working in international criminal law. Yet the criticism of the “distant justice” served by The Hague’s international criminal tribunals has perhaps never been more acute than for the Myanmar-related proceedings underway today. It is perhaps for this reason that on 4 August, the attorneys representing three groups of Rohingya victims filed a request before the ICC’s Pre-Trial Chamber III, seeking to initiate a feasibility assessment for the Court to hold hearings outside of The Hague, in a venue more accessible to the victims the Court is intended to serve. The victims do not specify where exactly the hearings should be held: at this early stage, the possibility of almost any regional venue in Southeast Asia would presumably be an improvement over the status quo.

Specifically, the victims in the Court’s Situation in Bangladesh/Myanmar proceedings have argued that Hague-based trials are not mandatory, noting that Rule 100(1) of the ICC’s RPE permits the Court, in the interests of justice, to decide to sit “in a State other than the host State, for such period or periods as may be required, to hear the case in whole or in part”. Further, article 3(3) of the Rome Statute provides that the Court “may sit elsewhere, wherever it considers it desirable, as provided in this Statute”. Similar requests have been previously submitted in a host of other matters before the ICC, including in Bemba, Ongwen, Ntaganda, Muthuara & Kenyatta, and Ruto & Sang; all of them have been rejected. Often, this this decision has been taken on the basis of security concerns, as well as a desire to prevent further trauma to affected communities, politicization of the Court’s work, and to avoid logistical headaches and resource constraints. But in at least some of those cases, the concerns expressed came from the victims themselves – unlike in the case of the Rohingya.

According to both the victims and the Court’s Registry, there is “massive confusion” within the Rohingya community as the various accountability mechanisms and judicial proceedings in process today. This can hardly be surprising: even those with regular access to internet and information routinely confuse the mandates and proceedings underway at the ICC, ICJ, and other institutions pursuing justice for atrocities committed in Myanmar.

Victims’ advocates argue that this confusion has contributed to a palpable sense of disillusionment within the Rohingya community as to the efficacy of international justice, particularly given the lack of information about the pace of proceedings. And though perhaps such disillusionment is nothing new among victims’ groups, in a conversation with Kate Gibson, one of the Legal Representatives of Victims, she explained that it is particularly concerning at this very early stage in the proceedings, which she describes as the “beginning of a marathon” in terms of accountability for the Rohingya.

Confusion among victims’ groups may also have been inadvertently heightened by the perceived efficiency of proceedings before the ICJ over the past twelve months. Shortly on the heels of The Gambia filing its application under the Genocide Convention, the ICJ issued its Provisional Measures Order, finding that the Rohingya are a protected group and that Myanmar has the immediate obligation to take all measures within its power to prevent the commission of acts of genocide against them. Though the expeditiousness with which the ICJ issued its Provisional Measures Order is obviously a welcome development, Gibson believes that this may have contributed to a sense among victims that their needs were at last being prioritized by the international community. She notes the extreme difficulty of managing the expectations of victims, particularly when communication is fraught and irregular. With people unable to confirm or correct information online, conversations in Cox’s Bazar are like a “massive game of telephone,” with messages increasingly distorted as they are passed on. Thus, despite the Court instructing the Registry to create “a system of public information and outreach activities with the affected communities”, reliable information is anything but regular, and rumors run rampant through the camps.

The possibility of holding international criminal hearings closer to victims is not a new one, yet its serious consideration – for both the ICC, and for other institutions pursuing justice for the Rohingya –  is long overdue. The cottage industry established in The Hague around international criminal justice is a pleasure for practicing international law professionals, who can move between institutions as their careers advance, but is failing to serve those for whom it was established: the survivors of atrocity crimes around the world. The fact that holding hearings outside of The Hague is specifically contemplated by the Statute and the Rules – yet has never been accomplished – is in itself an indication that the Court has failed to live up to its envisioned potential in terms of access to justice. 

Further, addressing the accessibility of hearings is just one of a series of major reforms necessary to ensure that international criminal justice is an effective means of addressing atrocity crimes by its most fundamental metric: its significance to the victims and survivors who experienced them. In addition to locating hearings in a venue where they are accessible to affected communities, international proceedings must prioritize their status as both recipients and conveyors of information. The ICJ, for example, has ordered Myanmar to periodically report on its actions to prevent genocide against the Rohingya, yet inexplicably refuses to release the contents of these reports to the Rohingya themselves. At its heart, this position reflects an outdated view of victims as passive participants in international criminal trials, who are expected to be satisfied with opportunities to express their views as its own reward, without truly having the ability to influence the course of proceedings. And even when courts permit expressions of the “views and concerns” of victims, ICC judges have at times displayed a concerning tendency to make their own determinations as to their best interests, while disregarding the interests of victims as articulated by the victims themselves.

Between the current pandemic, the internet shutdowns, their status as stateless refugees, and their precarious vulnerability to further harm, the Rohingya present unprecedented challenges for victims’ outreach, communication, and access to justice. This can be viewed as a burden – imposing a web of logistical challenges and hurdles – or it can be viewed as an opportunity to make reforms that are long past due. As international courts are forced to make difficult choices about how to spend limited resources in the midst of a pandemic, and how to improve and streamline their practices, it is essential that they reframe victims as fundamental participants in their proceedings.

Remarkable innovation has been made around the rights and needs of victims as international criminal justice has progressed. Early tribunals had no legal representation for victims: now the views and concerns of those most affected by atrocity crimes are routinely heard on issues of significance throughout the proceedings. The first trials placed victims and witnesses in grave danger in exchange for their testimony: today’s tribunals are able to afford significantly greater protection and care, both physical and psychological, for their participation in criminal trials.  And while security – including of witnesses and victims – has been cited as one of the primary reasons for shying away from in situ hearings, the same spirit of innovation should provoke us to consider how the limited resources available in international criminal justice could be redirected to facilitate the participation of victims in regional proceedings that are both accessible and secure. Shrinking the distance between proceedings and affected communities would be a remarkable and tangible manifestation of the importance of centering these proceedings around the victims, rather than the other way around.

Further, as Gibson points out, the concept of holding hearings in a venue more accessible to the Rohingya is not something dreamt up by creative legal professionals. In this case, the request has come directly from the victims themselves. Perhaps it’s time we listened.