The Legacy of the Rohingya Overdocumentation Myth: Lessons for Ukraine

[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.]

At the recent Ukraine Accountability Conference on 14 July in the Hague the Prosecutor of the International Criminal Court (ICC) warned against overdocumentation in Ukraine. In doing so, he used the Rohingya crisis as an example stating, “we saw [in Cox’s Bazar] the cost of overdocumentation”. I have previously written about the myth of the overdocumentation of the violence against the Rohingya, and instead advocate for the use of the term “overconcentration”.

The perpetuation of this myth of overdocumentation in the Rohingya context is harmful. It suggests that we already know all we need to know about the violence experienced by the Rohingya, when in fact, we still know very little.

It was in the first half of 2018 that the phrase “overdocumentation” started to be used. Consultants commissioned by the UK Department for International Development visited Cox’s Bazar to report on the state of documentation. From that point onwards, the Rohingya situation could not be discussed without concerns being raised about the number of reports, interviews and missions that had taken place in the weeks and months that followed the 2017 clearance operations. Documentation all but stopped. As such, within nine months of the clearance operations the story of what had happened to 700,000 Rohingya in August 2017 stopped developing. That unsophisticated and incomplete narrative, largely produced by human rights actors and not legal experts, is the one now accepted as the historical record and continues to shape the pursuit of justice for the Rohingya.

This article will outline the ways in which the overdocumentation myth has impacted, and continues to impact, accountability for the Rohingya in the hope that the lessons from the Rohingya situation can be applied to the Ukraine.

From a conflict-mapping perspective, there are significant disparities in the scope of operations that took place in 2017. The most comprehensive account of the violence against the Rohingya publicly available, International Independent Fact-Finding Mission for Myanmar report (FFM Report), states that the FFM was able to verify through interviews and other information that operations took place in a total of 54 separate locations, and received first-hand accounts of additional operations in a further 22 locations (para 880). However, community records made by the Arakan Rohingya Society for Peace and Human Rights (ARSPH), based in the camps in Cox’s Bazar suggests that operations are likely to have taken place in over 120 locations. 

As well as information gaps, many of the publicly available reports demonstrate methodological issues that call into question their accuracy and reliability. The most common problem is an inconsistent approach to village and hamlet names, with some reports not acknowledging locations at all. This is a notoriously challenging aspect of documenting the violence as there are close to 1,000 hamlets in Rakhine state which have both Burmese and Rohingya names and no consistent transliteration into English. Witnesses will most usually use the Rohingya name which is not found in official documents as they all use English transliterations of Burmese names.

Adding to the complications, there are villages that sound very similar such as Shil Kharli (Burmese: Chein Khar Li) and Chilkali (Burmese: Koe Tan Kauk/Chein Khar Li). Furthermore, there are many hamlet names that are used in multiple locations such as names that are loosely translated as “North Village, South Village, East Village”. Without a consistent methodology for using names of locations there can be no confidence that accounts of locations are where they say they are. 

Finally, and most concerning, five years on, there exists no credible estimate of how many people were killed in the 2016/17 operations. Numbers vary widely from 3,000 to 25,000. For example, one commonly cited report states that 35,000 Rohingya people were thrown into a fire, and separately states that 24,800 were murdered. It is unclear how, or if, there is any overlap of these categories, but news sources regularly quote 25,000 as the total number of people killed in the operations.  

Five years and tens of millions of dollars later the Rohingya community still does not have a credible number of how many people were killed in the 2017 clearance operations. 

The absence of a credible number of deaths was relied on by Myanmar at the International Court of Justice (ICJ) in the Provisional Measures hearings in 2019 stating:

There are some other striking omissions in the Application. Nowhere does the Application specify the number of deaths, the total number of deaths, and compare this with the size of the population that was allegedly attacked, and that crossed the border into Bangladesh.

para. 47

Counsel for Myanmar continues on to say that Myanmar will be arguing that the figure of 10,000 used by the FFM Report is an exaggeration. Despite almost three years having passed since this argument was made, this problem has not been rectified and there is no publicly available, credible information on the number of deceased.

The myth of overdocumentation continues to impact accountability for the Rohingya and the historical narrative of what happened to the Rohingya in August 2017. Perhaps most concerning, The Gambia rapidly commenced proceedings at the ICJ based on this belief that sufficient evidence existed to establish that Myanmar had violated its obligations under the Genocide Convention. Notably, the Gambia seized the ICJ before any criminal convictions had been rendered for the crime of genocide, which is what the ICJ has primarily relied upon in previous cases in which a party had alleged a violation of the Genocide Convention.

Should The Gambia be unsuccessful with the current evidence-base and the ICJ eventually determines that Myanmar did not violate the Genocide Convention, that ruling will be the final word. This will have a devastating impact on the victim community and their faith in legal proceedings. Furthermore, if in the future there are individual criminal convictions for the crime of genocide, the principle of res judicata will prevent any further proceedings against Myanmar at the ICJ and the record will remain uncorrected.

While the Independent Investigative Mechanism for Myanmar (IIMM) and the ICC are still investigating the violence against the Rohingya, findings will only become part of the public record if criminal proceedings are commenced. At this point, no criminal proceedings are likely in the foreseeable future.

From a victim’s perspective, dissatisfaction with the incomplete historical narrative caused ARSPH to commence organising their own victims’ hearings to take place in Cox’s Bazar on the fifth anniversary of the 2017 operations in August 2022. The assassination of ARSPH Chairman, Mohib Ullah, in September 2021 ended those plans. While the situation in Bangladesh now is too insecure to suggest reviving ARSPH’s plans to hold victims’ hearings, this should be prioritised in the future when circumstances permit.

In situations of mass atrocities such as the clearance operations against the Rohingya, and now what we see with the Ukraine, there is compulsion to start producing answers immediately. The reality is these situations are most frequently protracted, complex and involving hundreds of thousands of victims and potential witnesses. It is unlikely that answers will be fully known for many years to come, but the conclusions drawn today will shape the future trajectory of accountability.  

It is well accepted that the frenzy of documentation in the initial weeks and months which followed the atrocities against the Rohingya certainly led to the overconcentration of these efforts on a small percentage of the affected community. The myth of the over documentation continues to adversely affected accountability efforts as serious gaps remain in our understanding of events.