21st SESSION OF THE ASSEMBLY OF STATES PARTIES
6 December 2022
Name of the Event: Myanmar: Exploring Options for Justice
Report by: Sindija Beta, Legal Team, PILPG
Highlights:
The Burmese Rohingya Organisation UK is bringing 6 Rohingya women from Bangladesh to Buenos Aires to allow them to testify at the universal jurisdiction case in Argentina.
The ICJ case on the Rohingya is important because it is one of the few genocide cases initiated under the Genocide Convention, it is so important for the Rohingya, and the analysis of the interpretation of genocide will have an impact on future cases.
Since the 2021 coup in Myanmar, the IIMM has begun collecting and analyzing evidence from violations committed in Myanmar, including those against other ethnicities and groups beyond Rohingya. They have found clear evidence of crimes against humanity.
The atrocities committed in Myanmar are a result of systematic and long-term impunity prevalent within Myanmar and among the international community’s attitude to the situation.
Speakers:
Moderator: Carmen Cheung Ka-Man, Executive Director, Center for Justice and Accountability
Tun Khin, President, Burmese Rohingya Organisation UK
Priya Pillai, Head, Asia Justice Coalition Secretariat
Akila Radhakrishnan, President, Global Justice Center
Nicholas Koumjian, Head of the Independent Investigative Mechanism for Myanmar
Karim Khan, Prosecutor, International Criminal Court
Chantal Daniels, International Cooperation Advisor, Office of the Prosecutor, International Criminal Court
Summary of the Event:
This year marks the five-year anniversary of the Rohingya crisis and almost 2 years since the coup. Violence against protesters in Myanmar continues to take place, yet there is hope for accountability, particularly, due to the establishment of institutions for addressing the crisis and the positive progress made on some of the accountability cases launched before justice mechanisms.
Karim Khan opened the event by saying that what the world has witnessed in Myanmar is a scandal. We see terrible suffering among communities, however, the ICC only has jurisdiction over part of the crimes. Bangladesh has been the trigger to the jurisdiction of the Court and has given refuge to millions of Rohingya. He emphasized that the cooperation with Bangladesh has been meaningful and noted that, even during COVID-19, the team of the Office of the Prosecutor visited the camps to conduct interviews. Karim Khan went to Cox’s Bazar in February and had a positive engagement with senior officials from Bangladesh, and the Office of the Prosecutor currently has premises in Cox’s Bazar to be able to conduct interviews. Nonetheless, the ICC is not the only institution working in the field and should not be. He highlighted the Independent Investigative Mechanism for Myanmar (IIMM) and pointed out that the IIMM is required to cooperate with the ICC and ICJ, which the ICC is effectively returning by ensuring transparency between organizations. Karim Khan advocates that different stakeholders should sit down at least once a year, including with different actors and vulnerable groups, to talk about how to collectively, as the international community, coordinate to reach better results.
Prosecutor Khan then turned to the overdocumentation as a major concern of the Office. . There is a need for an office of coordination for humanitarian assistance to coordinate how best to support conflict situations. He mentioned Ukraine and the establishment of a Dialogue Advisory Group to cooperate with different actors as a positive example of such cooperation. The ICC is trying to build an architecture of international intelligence to most effectively ingest information, identify patterns, and find reliable evidence. Another pertinent question he raised was working together with the people on the ground - landmark decisions of the Special Court for Sierra Leone were successful because the Sierra Leone Court was close to the community. He highlighted the importance of the ICC being close to the community and that the establishment of a local facility with contribute to that. Moreover, he discussed the need to enhance the idea that you do not need to be a State Party to take action on international justice and accountability, particularly referring to the involvement of ASEAN.
The first panelist for the discussion was Tun Khin who spoke about the complementarity of the case in Argentina and the ICC. The Argentine case has tremendous challenges related to language and culture barriers, as well as the distance between Argentina and Myanmar. He underlined that humanity needs to prosecute perpetrators and establish justice for the victims no matter what. At first, Argentina's court was hesitant to move forward due to a number of reasons, nonetheless, on appeal, the Court was satisfied with the arguments put forward by the Burma Rohingya Organisation. The Argentine hesitancy was due to the fact that the ICC was looking at the crimes too, however, they approached the ICC and explained the case, which led to progress in Argentina. In December 2021, the Court launched an investigation in Argentina. This was an important movement for addressing impunity for the Rohingya and showed the strength and hope for a better future. Tun Khin noted that his organization requested the victims to be able to take the floor during the proceedings - it is important for the victims to address the Court directly. As such, they decided to bring women from Bangladesh to Argentina to allow them to see the face of justice, which will be an extraordinary event. Because of this event, Mr. Khin pointed out, a strong message will be passed to the Myanmar military that international justice sees no limits and continues despite frontiers. For Argentina, on the other hand, it will be a unique opportunity to be in direct contact with victims of the Rohingya genocide. He said that the women are very excited about traveling to Buenos Aires on their journey for justice. Expecting that, in the near future, the Rohingya group will be in Argentina for this purpose.
Tun Khin also noted that his organization pushed for IIMM to engage with the Argentinian judicial authorities and requested to share evidence with the Argentine Court. This cooperation has made great progress and they expect it to continue and deepen. Moreover, the Argentine Court asked the US government to share all available information with Argentina on the genocide, especially, the information that led the US Government to determine that a genocide had taken place in Myanmar. The US Secretary of State responded to the request by visiting Argentina to meet about this topic. Burmese Rohingya Organisation UK hopes to allow more victims to give their testimonies in any form possible and Mr. Khin thanked Bangladesh for being supportive of bringing 6 women to Buenos Aires.
Then, Priya Pillai spoke about the Rohingya case at the International Court of Justice (ICJ) and where it is headed. She explained the proceedings before the ICJ and the legal development for the situation in the fall of 2019. She highlighted that the provisional measures were issued unanimously and even the judge acting on behalf of Mynamar agreed with the measures, including requiring Myanmar to report to the ICJ on compliance with the Genocide Convention. Now, we are at a critical juncture where there is a green light to move to the merits stage - 24 of April 2023 for Myanmar to submit a counter-memorial. Moreover, the Maldives, the UK, Canada, and the Netherlands decided to intervene in support of the Gambia. Canada and the Netherlands, particularly, decided to intervene on sexual violations. Ms. Pillai noted that it is an important case that we should be following because it is one of the few genocide cases initiated under the Convention, because it is so important for the Rohingya, and because of the analysis it will have of the interpretation of genocide.
Next, Nicholas Koumjian discussed the perspectives of the IIMM in supporting accountability efforts. Myanmar could serve as a good place to study a model of the options and possibilities of international justice and also the limitations of international justice and weaknesses. Nonetheless, he said that complexities of different processes are prevalent. Firstly, the ICC has limited jurisdiction due to a lack of UNSC referrals and Myanmar not being a party. Secondly, the ICJ due to the need to accurately interpret the obligation to prevent and punish genocide and due to the question of how to enforce its decision. This is extreme complexity and very important because it affects other places around the world. Thirdly, the pure universal jurisdiction case in Argentina is complex because of the lack of ties to Myanmar.
Mr. Koumjian then turned to the mandate of the IIMM, which is to collect evidence. The mandate covers the entire territory of Myanmar and covers all crimes, including those committed since 2011 in the border areas of Myanmar and the long-standing conflicts. Other minorities in Myanmar, not Rohingya, have also suffered from the violations but do not have a case for them before justice mechanisms. And then, with the 2021 coup, the situation for the IIMM changed because the IIMM started to monitor the current situation closely and found clear evidence of crimes against humanity. Every week there is a new major instance and massacre, for which they have collected evidence, Mr. Koumjian emphasized. However, there is no forum where to share it. The IIMM has been actively cooperating with the ICC to make sure they do not step on each other’s toes. He underlined that the IIMM cannot arrest or charge anyone so they cannot do anything about the violations committed in the framework of the coup, which is why cooperation with the ICC is important. Furthermore, they do not have the authority to compel evidence - all data they have has been shared voluntarily and with the source’s consent to share the information. They also seek consent from the sources about sharing with other processes.
Lastly, Akila Radhakrishnan spoke about the accountability gaps in the Myanmar situation and what are the options for addressing them. Rohingya are breaking a persistent cycle of impunity in Myanmar for the past 60 years. She emphasized that there is a need to address the multiplicity of crimes occurring in the country noting the implicit and explicit structural impunity that has characterized Myanmar. She provided an overview of the history of Myanmar and how the military has always had a structural role in the government. Ms. Radhakrishnan discussed how ethnic actors and women groups have been calling for action for a long time at the UN and elsewhere, yet with no results. She argued that Myanmar's impunity is structural and is at both domestic and international levels likewise saying that impunity is the rule, not the exception. At the international level, she noted that there has never been a UN Security Council on Myanmar and that civil society calls have been ignored by the international community. She argued that international political dynamics have shielded the perpetrators from real consequences despite the existence of crimes against humanity, genocide, and war crimes. Ms. Rahakrishnan called for more to be done to ensure that all those harmed by the military have pathways to justice and the need to open cases beyond the Rohingya.
During the question and answer session, the audience raised issues such as the reduced appetite for addressing the Myanmar situation and what practical steps to take now, the failure of the international community to address the problems, which have led to gross violations of human rights, as well as options for meaningfully engaging the local communities. In response, Ms. Pillai referred to the ASEAN states as examples of the limited interest in the situation now and how China is a major obstacle to accountability. Mr. Khin referred to the horrendous circumstances in which the Rohingya live in Bangladesh and the importance of opening more universal jurisdiction cases for Myanmar. Speaking on behalf of the ICC, ms. Daniels pointed out that there is a dire need to raise awareness among the communities about what the international mechanisms are and what they can offer. Mr. Koumjian then discussed legal versus political steps that are required to address the situation calling for more political action to address the crisis, however, noting the necessity to separate judicial authorities from political discussions. Ms. Radhakrishnan then brought up how the international community should listen to the voices of the victims and what are their priorities.