Symposium on Myanmar and International Indifference: The Slow Turning Wheels of Justice – Even for Genocide

[Dr Melanie O’Brien is Associate Professor of International Law at the University of Western Australia and President of the International Association of Genocide Scholars (IAGS). She is also a 2022 research fellow at the Sydney Jewish Museum.]

Two years ago, in August 2020, thirteen blog posts were written in a Rohingya Symposium here on Opinio Juris. These posts covered, inter alia, the need for accountability, the Security Council, the problematic fact that Myanmar’s periodic reports to the International Court of Justice (ICJ) had not been made public, the need for a gender perspective in accountability, and whether justice is possible in Myanmar. In my post in that symposium, I examined the potential impact and implications of the ICJ and International Criminal Court (ICC) cases on the crime of genocide, looking at the case The Gambia has brought against Myanmar in the ICJ, and the ICC Prosecutor’s investigations into crimes against the Rohingya, using Bangladesh as territorial jurisdiction.

When invited to contribute to this year’s symposium, two years on, what struck me about the ICJ and ICC cases was how little has happened since August 2020. I cannot offer a new analysis extending from my 2020 blog post about the substantive crime of genocide. Instead, I will explore where these international cases currently sit, demonstrating how the slow wheels of international justice do not help genocide victims.

Where are the ICJ & ICC cases now?

The ICJ has issued its preliminary measures judgment, which dismissed the jurisdictional objections by Myanmar, determining that the case can proceed to the merits phase. However, this is the extent of progress in either court. We await The Gambia’s memorial (filed by the deadline of October 2020, but not yet publicly available), and Myanmar’s counter-memorial (due 24 April 2023). Myanmar’s extension was requested due to Covid-related reasons (ironic, given the ruling military junta has done nothing to curb the spread of Covid throughout Myanmar, and healthcare workers have been targeted by the Tatmadaw in its post-coup violence). Myanmar’s periodic reports as required under the ICJ’s provisional measures order have still not been made public. So, we know there will be a merits component to this case, but we still do not know what the arguments are, and we are a long way from a judgment on the merits, which we can anticipate not being before late 2024 at least.

There have been no updates provided in the ICC investigation since 2019, when the Bangladesh/Myanmar situation was assigned to Pre-Trial Chamber III and then in November 2019, PTC III authorised the Prosecutor to investigate. The Prosecutor, Karim Khan, has issued one press release regarding the situation, relating to a five-day visit to Bangladesh in February 2022, in which the Prosecutor met with Bangladesh government officials and visited refugees in Cox’s Bazar. The Prosecutor “announced his intention to undertake additional visits to Bangladesh in order to further support and advance the work of his Office in relation to this investigation”. Little detail was provided other than:

“During the visit, Prosecutor Khan emphasised that the investigation being conducted by his Office into crimes within the Court’s jurisdiction allegedly committed against the Rohingya from Myanmar would be a priority during his tenure. He confirmed to all stakeholders that he had allocated additional resources to the investigative team and was seeking to accelerate the collection and analysis of evidence, which had previously been impacted by the COVID-19 global pandemic.”

His visit was also recorded in a handful of tweets. The visit is obviously promising. However, there was no update provided on the status of the investigation to date, and no arrest warrants have been issued — almost three years after the investigation was authorised and despite the fact that in September 2020, two Tatmadaw soldiers were transported to The Hague to provide perpetrator testimony about their crimes against the Rohingya.

This is all in contrast to the Ukraine investigation, which has had 11 press releases since February 2022 and has also seen highly visible investigation teams on the ground. The visit to Bangladesh was in the first week of the Russia-Ukraine war, and given the ICC’s mobilisation on and in Ukraine since then, we may question whether the Rohingya investigation has now fallen to the backburner. The Prosecutor has already visited Ukraine twice, in March and June 2022. Additional funds also poured in for the Ukraine investigation (although Khan did state that funds would not be earmarked for Ukraine only), and ICC state parties have referred the situation to enable faster investigation, as well as creating joint investigation teams on alleged crimes committed in Ukraine. None of this has occurred in the Bangladesh/Myanmar situation, leaving the impression of a hierarchy of cases and therefore a hierarchy of victims.

International Justice as Deterrence — or Not

While international justice scholars are generally supportive of the international justice system and the concept, they are also sceptical of the capacity of international justice to act as a deterrent to atrocity crimes. Scholars have criticised poor legal reasoning as a hindrance to deterrence, jurisdictionally narrow provisions that render “deterrent value… essentially non-existent”, and of course the focus on ‘big fish’, which may mean ‘little fish’ perpetrators are most likely not deterred by the threat of international justice.

The ‘never again’ refrain around genocide consistently appears as mere rhetoric delivered alongside no action against perpetrators of genocide such as the Tatmadaw (the Myanmar Royal Military, the military junta in power). Genocide recognition is supposed to be significant, and result in action against perpetrator regimes. Genocide is supposedly the “crime of crimes”, its gravity triggering global action to protect victims. The Rohingya Genocide has been recognised politically, in academic research reports, by UN investigators, and by academic associations. It is significant that the ICJ and the ICC are in play, but more broadly, little action has been taken to prevent and stop the Rohingya Genocide or to bring justice against the perpetrators, who remain in power in Myanmar.

This is not helped when international court cases take years to progress. How can such court cases deter current genocides when investigations and cases span years? In fact, we have seen that the Tatmadaw’s violence has not ended, but rather, with the coup, it has escalated, now being applied to majority Bamar populations as well as minority groups. What we see here, embodied in the Rohingya genocide, is that the slow pace of international justice hinders — or even completely obliterates — the deterrence of international courts. When perpetrators know that investigations are delayed and a trial is years away, they can easily infer that such a trial is not a threat to their criminal behaviour. This perception will only be strengthened if perpetrators witness court attention directed away from their crimes and onto another atrocity situation.

Of course, there are also the practicalities of international justice that we well know are not a deterrent for perpetrators. These are the practicalities and logistics of jurisdiction. We all know, as do the perpetrators, that the ICC has a very low chance of success of arrest warrants being carried out against perpetrators in non-state parties (which Myanmar is). As the potential surrender of the former Sudanese President Omar al-Bashir demonstrates, it is not impossible — but it is a substantial challenge with a low likelihood of success, and only if there is a regime change to an ICC-friendly government. In the case of Myanmar, the National Unity Government (NUG), a civilian government established to challenge the military junta, has openly stated that if it comes to power, it will support the ICC and surrender persons subject to ICC arrest warrants. The NUG has lodged a declaration with the ICC accepting the jurisdiction of the ICC. However, whether the NUG ever takes over as government, or is recognised as the legitimate government of Myanmar remains to be seen.

The greatest deterrence is certainty of apprehension and the related certainty of punishment. The slow pace of investigations and cases and unlikely surrender of perpetrators from non-state parties mean there is little to no certainty of apprehension and subsequent punishment, and thus perpetrators are not deterred from committing atrocity crimes.

In terms of state accountability, as much as we respect and rely on the ICJ, we know that states are able to blatantly ignore rulings of the ICJ, without repercussions. Even if the UN Security Council received a request to enforce an ICJ ruling against Myanmar, a judgement enforcement resolution is unlikely to pass, as history to date has demonstrated, with China unwilling to pass a resolution triggering action against Myanmar. Thus, Myanmar can actively participate in the ICJ case, while knowing that it ultimately can continue its hermit state attitude to international law, ignoring an ICJ judgment as it has ignored recommendations from the Human Rights Council (see my chapter in Genocide and Victimology).

Where are the Rohingya now?

Any Rohingya who remain in the Rakhine state in Myanmar are in detention, with over 135,000 Rohingya detained for a decade. Meanwhile, almost one million Rohingya refugees languish in refugee camps in Bangladesh, with hundreds of thousands more in limbo as refugees in other countries such as Malaysia, India, Pakistan, and Saudi Arabia. Some have been there since 2017, some since 2012, and some even longer. The conditions in the camps have stagnated. The international community has lost interest, attention diverted elsewhere, particularly in 2022. Improvements to the camps and the services provided have stalled. With no education and employment opportunities in the Bangladesh camps, multiple generations have no opportunity for development. They remain living in tarpaulin and bamboo shelters, with no permission to build and live in permanent dwellings. Multiple fires have occurred in the camps, putting Rohingya lives and safety at risk.

After the coup, Rohingya wondered what options they had to return. The Rohingya I interviewed in the camps in 2019 were invested in the international court cases, supportive of and seeking accountability. They want nothing more than to return to their homes in Myanmar (perhaps unaware that their homes have continued to be burned, and also built over, their once existence denied by the Tatmadaw and erased from maps). But every single one of them is adamant that they will not return without their rights. As long as the Tatmadaw remains in power in Myanmar, this will not happen, and we cannot expect or force the Rohingya to return to a country where they will be persecuted. And without any state action or substantive international justice outcomes, the Tatmadaw is likely to stay in power for the foreseeable future. If there is no action against the Tatmadaw, the Rohingya will remain in limbo, their lives stagnating, a generation or more lost.