28 Aug Rohingya Symposium: Concluding Comments – “And Miles to Go…”
The contributions in the symposium this past week have brought up multiple issues and perspectives, pointing to challenges in the quest for justice and accountability for the Rohingya, and the role of international law. Rather than go over what has been highlighted already, here are a few reflections, linked to the international legal developments and the wider context.
There is little doubt as to the need for justice and accountability for the atrocities committed against the Rohingya, and that there have been important international legal developments in the past year. With legal proceeding at the International Criminal Court (ICC) and at the International Court of Justice (ICJ), and with the Independent Investigative Mechanism for Myanmar (IIMM) up and running, what now?
There are still aspects that warrant attention as these institutions proceed with their work, with some overlaps. In relation to the ICJ case – as we have seen brought up in the symposium – there are a number of questions of international law that will be considered, many for the first time as a result of this case. While it will be litigated by the parties involved, much will depend on the approach and legal strategies they adopt, and there may yet be the need for further support and advocacy.
One such instance relates to proceedings instituted by The Gambia before a federal court in the U.S., seeking information from Facebook. Pressure is being brought to bear on Facebook to cooperate and share evidence, which may be key to the ICJ proceedings. While there were initial reports that Facebook was in fact cooperating with the mechanism, this was then dispelled, only for subsequent reports that Facebook has now provided some data to the mechanism. This leads us to the scope of evidence before the ICJ and the role of fact-finding – which is not the same as that before an international criminal tribunal. The Statute and rules of the ICJ provide a significant degree of latitude to the court in the manner of appreciation of evidence, as well as the source of evidence, commensurate broadly to domestic civil proceedings. It is worth noting that there are evidence gathering efforts that have been ongoing for the various proceedings, which need to be undertaken with care, and with a view to avoiding duplication and re-traumatization of survivors, given the multiplicity of legal proceedings.
Another overlooked aspect of the ICJ case is the possible involvement of other parties. There were indications that the Maldives may intervene but there has been no further movement on that front. It is also debatable whether this is the best course of action – while indeed symbolic and a show of support – this may in fact have the effect of slowing down the legal process.
That brings us to another facet to take into consideration – time. The last case involving the Genocide Convention at the ICJ – Bosnia and Herzegovina v. Serbia and Montenegro – took fourteen years to conclude (while the case of Croatia v Serbia, which was dismissed, took sixteen years). At the ICC, getting to the investigation stage has taken less time than in many other situations – perhaps in part due to the more limited scope of the situation. Each of these proceedings is aimed towards different ends – the one relates to the responsibility of the state, and the other is targeted at individual criminal responsibility. The question of time and procedure is different for each of these courts, in keeping with their mandates and legal results.
This is of significance to the survivors currently in Cox’s Bazaar and the rest of the Rohingya diaspora, who await greater clarity regarding the meaning of these legal processes, as well as the implications in regard to their situation. A recent article has talked of the confusion and anguish of survivors, when they understand that these international courts cannot mandate citizenship or ensure their return home. Questions of repatriation, nationality and citizenship are all bound up with the calls for justice by the Rohingya – and it is not easy to separate these legal strands. There need to be greater efforts to address questions of accountability and justice, and their inextricable linkage to the denial of fundamental human rights in Myanmar.
Harnessing universal jurisdiction as a means of accountability is also important, not just in relation to the case currently in the legal system in Argentina. While the Syria mechanism will or already has contributed to cases before domestic courts, such as in Germany, the fact is that these jurisdictions have the legal infrastructure – legislation as well as prosecutorial will – to move forward with such cases. Other jurisdictions including in the global south as potential sites for this type of litigation need to be explored further – an area of further discussion and work.
The role and responsibility of the UN Security Council as well as other UN institutions has been covered in the symposium. It is worth reiterating that there is still the need for a full referral to the ICC by the Security Council, as a matter of principle, policy and precedent. While acknowledging the difficulties given the dysfunction that plagues the council, not advocating for this also lets the council off easy in the disregard of its duties. Another geopolitical grouping that wields influence is ASEAN. While the principle of non-interference guides much of what ASEAN does, constant engagement and the need to address the terrible atrocities in Myanmar should not be relegated to the back-burner.
As a last point, we of course cannot forget the very real impact of the global pandemic we are in the throes of currently. This affects the refugee community adversely and has implications for the work of the international courts. The next set of submissions at the ICJ have already been postponed, and Covid-19 will in all likelihood slow down the work of the ICC and the IIMM. In light of these challenges, we must not lose sight of the fact that three years on, much has been achieved, but there is still a lot that remains to be done.