Rohingya Symposium: Victims, Survivors, Advocates–The Multiple Justice Journeys of the Rohingya

[Antonia Mulvey is the Executive Director of Legal Action Worldwide (LAW) and former investigator to the UN Independent International Fact-Finding Mission on Myanmar.]

On 10 December 2019, Human Rights Day, I was sitting in the International Court of Justice in The Hague, listening to Counsel for The Gambia quote an interview I had conducted with a Rohingya woman who had been beaten, stripped naked, tied to a tree and gang raped by nine members of Myanmar’s armed forces, the Tatmadaw. She was eight months pregnant at the time; incredibly she survived to tell her story, but her unborn child died. When I had asked her why she had waited all day to talk to me – she said, “I want justice.”  

Three years later, multiple and intertwining journeys for justice have begun. Many of them have been based upon facts laid out in two reports from the UN Independent International Fact-Finding Mission on Myanmar which recommended that named senior generals of the Myanmar military should be investigated and prosecuted internationally for genocide, crimes against humanity and war crimes.  As of 25 August 2020, this endeavour is clearly underway. There is The Gambia v Myanmar case at the International Court of Justice; an ICC full investigation; a lawsuit filed in Argentina against Aung San Suu Kyi, army chief Min Aung Hlaing and other top officials under the principle of “universal jurisdiction” and there is a UN Independent Investigative Mechanism for Myanmar.

It may be years before the full impact of these important cases and mechanisms are felt but for the Rohingya these are critical steps. On 23 January 2020, when the ICJ unanimously ordered provisional measures against Myanmar for the protection of the Rohingya within Rakhine state and for Myanmar to stop any actions which could constitute genocide, ‘Thank you Gambia’ was heard resonating around the camps in Cox Bazaar, Bangladesh – the mood was electric.  

If we cast our minds back to October 2017 when the gravity of what was happening to the Rohingya was beginning to be understood, it is remarkable that only three years later such significant justice efforts are underway. Some may question the need for these multiple proceedings. Some may question whether one set of proceedings will undermine the other. During the ICJ The Gambia v Myanmar hearing on provisional measures in 2019, lawyers representing Myanmar used the proceedings at the ICC to suggest that there was no genocidal intent since the ICC investigation focuses on the crime against humanity of forced deportation. An incorrect assumption, but it gives an indication of the complexity and potential impact of multiple justice efforts. However, there can be no doubt that these multiple routes which attempt to hold the State and individuals accountable is what Rohingya victims and survivors want. As noted by the ICC Registry when the ICC opened its full investigation, the “victims unanimously insist that they want an investigation by the Court.’

Who are the victims and survivors?

The destruction of the Rohingya community has been ongoing for decades culminating in the 2017 ‘clearance operations’ which resulted in the exodus of more than 700,000 into Bangladesh. However, the displacement of tens, sometime hundreds of thousands of Rohingya, has been a recurring pattern for at least the past 50 years. The first significant displacement taking place in 1978; re-occurring in the 1990s; again in 2012; again in 2016 and then 25 August 2017. In the context of the Rohingya crisis, there are more than 1 million people located in Bangladesh and many more within South Asia and further abroad.

Many Rohingya have spoken out about what has happened to them and many will continue to do so – though this will not be straightforward for all Rohingya. Rohingya women and girls face serious difficulties in sharing their experiences. Rohingya society is highly patriarchal – deeply entrenched gender roles and social practices often leave Rohingya women and girls without a voice. They are often expected to remain at home and raise the family while Rohingya men work and participate in public life. In the context of the 2016 and 2017 ‘clearance operations’ in Myanmar these gender dynamics were leveraged to maximise the damage to the Rohingya community as whole.

Of particular concern is the brutal sexual violence which has been meted out against the Rohingya community; including gang rape and mass gang rape; mutilation of genitals and ‘branding’ through biting victims of sexual violence. Thus ensuring that the victims and their families would always be reminded of what had happened to them. Many of these crimes took place in public or in front of close family members including fathers, husbands and children – the impact of witnessing such crimes has been underestimated and needs to be further explored and acknowledged. Sexual violence against men and boys including rape and sexualised torture was far more common than initially thought. It also needs to be recognised and acknowledged. All of these acts were used by the Tatmadaw to attack the very fabric and soul of the Rohingya community – to destroy it physically and mentally. Nevertheless, these victims and survivors continue to seek justice and have astonishing courage in speaking out. But what is their role in the international proceedings taking place?

Under international law, persons who, individually or collectively, have suffered harm are ordinarily recognised as victims. A specific perpetrator need not be identified for status of victimhood to be conferred. However, the role of victims in international proceedings has not always been straightforward – or even guaranteed. The Nuremburg Trials saw only minimal victim involvement pertaining to their provision of evidence. While outreach measures and measures for victim and witness protection were established in the context of the International Criminal Tribunals for the former Yugoslavia and for Rwanda, they were only involved insofar as they provided evidence to proceedings.

In this respect the ICC process, which allows for victim representation in proceedings is a marked improvement. The Rome Statute itself expressly guarantees that the ‘views and concerns’ may be presented to the Court where appropriate, non-prejudicial and where not inconsistent with the rights to a fair trial. As such, while not a party to proceedings (not even proceedings related to reparations), victims and survivors can nominally contribute.

There are, however, further qualifications; the trend toward common legal representation for victims and selection of representation by the Court Registry inherently restrict the choice of individual victims, and groups of victims in presenting their views during proceedings. Notwithstanding the ability of experienced advocates appearing on behalf of victims before the court, it is highly unlikely that the myriad of views and concerns for the victims of mass atrocities can adequately be reflected by one (or even two, three or four counsel). This is particularly concerning in the context of the Rohingya. Not only do the potential victims in proceedings number in the hundreds of thousands, but aforementioned cultural practices may further restrict the ability of women and girls to speak out about their experiences and thereby contribute to proceedings.

Such barriers are likely to also impact the meaningful participation of young people, older people, LGBTQIA persons, the disabled and many more.

This is not to suggest that all victims should automatically be able to participate as a party to proceedings – the experiences of the Extraordinary Chambers in the Courts of Cambodia in the Duch case demonstrate how an over-abundance of victim representation can unduly delay proceedings and ultimately lead to reduced representation in future criminal proceedings. Criminal proceedings inherently require restrictions on victim participation to ensure a fair and efficient trial.

This underscores the need for renewed thinking around victim participation, and in particular, how to better communicate the wide-ranging, sometimes conflicting, views of thousands of victims in legal proceedings. Ensuring that the voices of survivors of sexual violence – who face significant stigmas associated with victimhood must be a touchstone in assessing whether meaningful participation has taken place.

What next?

Despite the huge trauma inflicted upon their community, Rohingya women and men, including survivors of sexual violence, have demonstrated their resilience by shifting from victim, to survivor, to advocate. While Rohingya women have traditionally remained at home, the past three years have seen an incredible number of survivors of sexual violence speak out about what they experienced, overcoming huge cultural stigma and embedded gender norms. For many widows including those who lost male family members, stigma and social pressures preventing their speaking out are reduced.

A recurring theme in their words is the demand for justice. These women recognise that sexual violence was used against the Rohingya community – and that they are able to contribute to their community’s response.  Not only women, on 10 December 2019 at the ICJ in the Hague, just a few rows away from Daw Aung San Suu Kyi, sat Yusuf, a male survivor of sexual violence, who spoke boldly to the international community that week about what had happened to him. Where there are opportunities to bring about real change for their communities, Rohingya survivors of sexual violence have shown enthusiasm for speaking out.

There are doubtlessly areas where more work must be done to ensure Rohingya voices can meaningfully contribute to the international proceedings underway. That the Rohingya community has sufficient information about the proceedings and can understand the consequences of the decisions made, is vital. The power of the Rohingya community to act as agents of change and to address the horrific crimes they have experienced is immense: they need our help to harness it.