Three Ways to Improve Victim Participation in the Rohingya Context

[Eva Buzo is an Australian lawyer, and the Executive Director of Victim Advocates International. She lived in Cox’s Bazar between November 2017 and September 2019.]

There has been a flurry of discussion about the way in which the Rohingya community, particularly in Cox’s Bazar, Bangladesh, is receiving information about the various accountability mechanisms. On 7 June 2020 the Registry of the International Criminal Court (“ICC”) reported “massive confusion” amongst victims when it came to the different courts and mechanisms purporting to address the crimes in Rahkine state. In August 2020 three groups of victims filed a request to the Pre-Trial Chamber asking the Court to order the Registry to conduct a feasibility study into moving the seat of the Court to Asia to address the issue of distant justice, precisely to try to find a way to close the gap

It is a positive development that the difficulties of ensuring the meaningful participation of victims are being recognised. In the Rohingya context ensuring victims are satisfied with the accountability processes will be extremely challenging with many lamenting the need to “manage expectations”. Setting aside the high stakes of the outcomes themselves, the number of victims who have an interest in the proceedings is extremely high. The focus of the ICC investigation means there are over 800 000 people who would qualify as a victim, given that any person forcibly deported from Myanmar to Bangladesh in 2016 or 2017 would fulfil the criteria and be entitled to participatory rights. While the International Court of Justice (“ICJ”) does not have a mechanism for victim participation, the focus of the proceedings on potential violations of the Genocide Convention would mean victims who are the subject of the proceedings would reach into the millions and be scattered around the world. These are numbers the size of small cities.

Recognising these challenges, this article aims to provide practical recommendations of what action can be taken now to better involve the victim community in an equitable and systematic way.

Develop a long-term engagement plan

Any strategy to facilitate the participation of victims must take a longitudinal approach. The community will be receiving information about the different proceedings for many years. Understanding the workings of the ICJ, ICC and Universal Jurisdiction proceedings is complicated. However, that shouldn’t deter actors from developing a vision that builds the competencies of different victim groups within the community over time. International accountability processes are measured in years, if not decades. As such, there is ample time to commence chipping away at the massive confusion reported by the ICC Registry.

In addition to the length of time, the practical opportunities for victims to contribute to proceedings will evolve. Some victims have already participated by giving statements, signing petitions, taking part in the ICC’s Article 15 procedure, meeting with various teams who visit the camps or having submissions filed on their behalf by their Legal Representative of Victims (“LRV”). If a trial commences, or if parties to the ICJ proceedings are granted leave to call witnesses, some individuals will appear before the courts. At the ICC, some victims may have their interests represented through their LRV. If there is a conviction at the ICC there will be sentencing hearings and reparations. Victims, as individuals and as a community, need support to connect all these opportunities to influence proceedings and limit the feeling of repetition, abandonment and tokenism.

Coordination and diversification amongst actors

The victim community needs consistent access to accurate information about how the accountability proceedings are progressing. In a population of over one million, this is a daunting task and therefore must be provided in a coordinated way to ensure the community has equal access to information and duplication is avoided.

Some groups, by virtue of their visibility to external actors, have the benefit of regular contact with the various mechanisms. The ICC Office of the Prosecutor and Registry, as well as the IIMM visited the camps in 2019 and took meetings with a number of groups. During COVID-19, visits from accountability mechanisms switched to video calls with people living in the camp. Other groups have relationships with LRVs and/or NGOs which support their ongoing engagement. Due to the visibility of these groups, they are the key entry point for actors conducting outreach and they receive regular information. Most of these groups, although not all, are male-led, and comprised of members who are literate and speak English. They are, however, a small fraction of the total population and are not an intersectional representation of the Rohingya community.

COVID-19 has dramatically exacerbated the information gap between the literate and illiterate members of the community. While outreach and information teams have been unable to travel, literate members of the community have been able to stay up to date with developments and information online. However, this is only a very small, again, predominantly male, section of the community. As a result, information is regularly delivered to some small sections of the community while the vast majority relies on second or third-hand information.

Understandably, members of the victim community who have had regular engagement with the various mechanisms have a better understanding of the different accountability processes than those who have not. As such, building on the above point of a long-term plan, they would benefit from outreach and information that builds on their knowledge-base rather than duplicates efforts. Equally as important, the vast majority of the community who has not had access to information and outreach need to have messages tailored to meet them at their level.

To complicate matters, accountability mechanisms with outreach teams have specific mandates and are often not in a position to comment on other accountability mechanisms, meaning their outreach will be specific and limited. Relevantly, the ICJ does not have outreach capabilities. Victims, however, are largely wanting information on all accountability options, and benefit from understanding more broadly how they all relate to one another. This is a gap where I/NGOs can step in and support the work of the outreach teams.

With the various complicating factors, there is a need for the actors working in this space to coordinate with one another to ensure information is distributed accurately and evenly amongst the community. Both UN and NGOs working on the humanitarian response have an established “Communicating with Communities” working group which they use to strategically coordinate messaging. For humanitarian actors, funding is often contingent on participating in the coordination structures. It would benefit both the accountability institutions and the I/NGOs working in this space to learn from these systems and replicate similar structures that suit their purposes. By doing this, actors can avoid heading down the same path that led to the earlier “overdocumentation” of the Rohingya crisis.

In addition to the coordinated delivery of information, in an ideal situation the wider victim community would have the opportunity to communicate back to mechanisms. Logistically, the sheer size of the Rohingya victim community makes that virtually impossible, but in lieu of that, the regular opportunity to ask questions and discuss their views on the process would enhance the community’s experience.

Define Participation with the Community

“Victim participation” is not a static concept. In some situations, such as at the ICC, there is a procedural framework that enables victims to participate through their LRVs, while the ICJ has no formal mechanism that allows for victim participation. There are, however, a wide range of opportunities for victims to be included in proceedings which can help address the concern that international justice is a eurocentric process that delivers distant justice removed from victim communities. An opportunity therefore exists to engage with the community to define their expectations of how they envisage they would be included in the accountability processes.

It is critical that an intersectional approach is adopted when defining participation. The Rohingya community is a large, diverse collection of individuals with varying interests and experiences of the violence committed against them. As such, the impact of intersecting identities including gender, class, religion, citizenship status and sexual orientation must be at the forefront of any understanding of participation. For example, few discussions about Rohingya and access to justice have recognised that some members of the Hindu Rohingya community in Cox’s Bazar, have expressed a desire not to participate in the ICC process as it is believed the ICC investigation and eventual proceedings may delay their return to Myanmar. Instead, the focus has widely been on the community’s fervent dedication to justice. The purpose of this point is not to dispute the community’s dedication to justice, rather it is to highlight the value of an intersectional approach when trying to understand how different parts of the community may want to participate.

The participation expectations of the victim community are likely to be modest so long as the consultation is framed appropriately. In March 2020, the Arakan Rohingya Society for Peace and Human Rights (“ARSPH”) issued a press release asking the ICC to move to Bangladesh stating,

We need to open the court in Bangladesh because we are genocide survivors and less experience about Europe, it is our neighbour country, we shall feel free and better, it will [sic] less expensive no need more cost for the travel, we have disabled witness and painful applicants, we can deal with the judge easily, we would like to get the experiences from the cases and our Rohingya can go to listen in open court, we can hear and learn more how to solve the problem and hope it will be useful for our future life.

ARSPH views physical access to the ICC as an opportunity to learn, watch and make representations to the judges. For victims with disabilities, it is seen as the only means of access. These are reasonable components of participation, some of which could realistically be facilitated.

For the ICJ proceedings, without any formal opportunities to participate, simple gestures such as ensuring internet access or organising public screenings of the hearings in the camps with translation and post-hearing debriefs may be go some way to ensuring that the community feels a part of the process.

Conclusion

Meaningful participation in accountability processes is not only a right enshrine in the Rome Statute, but can be a critical component of a victim’s healing from the atrocities they have experienced. Its importance should not be underestimated. While concerns have been raised about how the Rohingya community understands the accountability processes, the risk of disappointing the community in the future can be mitigated. Defining expectations with a broad cross-section of the community; recognising that there is time to build on the extremely challenging situation; and ensuring a coordinated effort between actors in the space are three practical measures that can begin now to ensure the victim community is not struggling with the same challenges in five years’ time.