A chance at justice for the Rohingya?

Following Canada’s declaration that crimes against the Rohingya constitute ‘genocide,’ Payam Akhavan asks: Do the refugee camps in Bangladesh hold the key to prosecutions by the International Criminal Court?

By: /
September 26, 2018
Kutupalong refugee camp. Photo by Yousuf Tushar.

“A wild elephant killed him,” an aid worker explained.

Having survived the scourge of the notorious Tatmadaw, the Myanmar military that slaughtered his people and drove them into exile, the 12-year-old boy — Shamsu Uddin — was trampled to death by the enormous beast as he slept.

Just two years ago, in 2016, Kutupalong was a wildlife refuge where endangered animals roamed freely in pristine forests. Now, it is the largest refugee camp in the world, an ocean of misery comprising some 700,000 Rohingya who have fled Myanmar’s Rakhine State to face an uncertain future in neighbouring Bangladesh. The mere existence of this city of sorrow is mute testimony to what the United Nations High Commissioner for Human Rights has described as a “textbook example of ethnic cleansing.” 

As I walked through the camp in June, reflecting on the cruel irony of the boy’s fate, there were countless other children just like him, wandering in the dirt roads amidst the makeshift bamboo and tarpaulin shelters on the deforested hills they now called home. Their playful smiles masked the unspeakable horrors they had witnessed. Their experience was captured by that most potent of words, “genocide,” invoked by UN reports and, as of last week, Canadian parliamentarians alike, to condemn these monstrous atrocities. In terms of concrete action, what is most significant in the House of Commons’ September 20 motion is the call for punishment of the perpetrators before the International Criminal Court (ICC). But, as Canadian officials will no doubt see, the process to get there is long and complicated. 

My visit to Kutupalong some months earlier was in pursuit of justice against seemingly impossible odds. I was there at the invitation of the Bangladesh government, gathering facts, speaking to people on the ground, trying to see what could be done. Some time before, I had hosted Bob Rae, Prime Minister Justin Trudeau’s special envoy to Myanmar, for a lecture at McGill University. In the Q&A, students had asked what Canada could do to ensure accountability. The fundamental question that emerged from those exchanges was: Does the ICC have jurisdiction over these crimes, and if so, on what basis? 

The discussion was sadly an all too familiar ritual for those of us who toil in the human rights world. The vows of “never again,” the expressions of regret, the lectures on lessons learned, the condemnation of genocide, the calls for justice at The Hague; these exhausted moral mantras are soon overtaken by new abominations, and the cycle of recrimination and remorse repeats itself again and again — Bosnia, Rwanda, Congo, Darfur, Iraq, Syria, and now, Myanmar.

Places we never knew existed are now seared into our consciousness as sites of grief and rage, mourned and condemned for a time, only to be forgotten in the fleeting attention span of the news cycle. The calls for accountability after the fact may be all that we can pursue given the power realities of global politics, but what does justice mean against the overwhelming gravity of such atrocities? Is it ever possible to punish genocide? There is nothing like listening to survivors to remind us of both the inadequacy and utter necessity of struggling for whatever measure of justice can be achieved. In the case of Myanmar, that struggle takes place within the manifest constraints of that feeble court in The Hague that we invariably look to in desperation as a beacon of hope.

It is easy to despair and give up, but talking to the people in Kutupalong reminded me of the power of empathy, or rather, of how indifference makes us an accomplice to injustice. The impact of meaningful engagement is easily forgotten in our privileged corner of the world, far removed from the realities that most convincingly demonstrate the consequences of our choices. Sometimes our role models are found in the most unlikely places.

"The impact of meaningful engagement is easily forgotten in our privileged corner of the world."

When the mass-exodus of the Rohingya began in late August 2017, the hapless survivors arrived in Bangladesh traumatized, starved and dehydrated. Many of them had terrible wounds, caused by bullets and machetes, while some had missing limbs because of land mines. There were no international relief agencies to receive them. It was the poor local farmers who took it upon themselves to help as best as they could with their meager supplies of food, clothing and medicine. Some cooked whatever rice they had and brought it to the desperate refugees in Tuk-Tuk rickshaws. Others hosted them in their modest homes. These accounts of selfless generosity were humbling. They put to shame the narcissistic currents of xenophobia and apathy in the prosperous Western world; our indifference to the suffering of others. The example of these compassionate first responders was an inspiration, a reminder that when confronted with suffering, there is no room for despondence, that we must do what we can, however inadequate it may be.

During my trip earlier this year, after meetings with the border guards and refugee agency officials, I was told that my next meeting would be with a group of women who wished to share their stories. It was with some apprehension that I entered the room, my heart racing with dread. I knew that what I was about to hear would be deeply disturbing. I also knew that I would probably be seen as the outside saviour by those desperate for hope. I was acutely aware that beyond listening with empathy, there wasn’t much I could do to heal their wounds.

Just two years earlier, I had visited the Yazidi camps in northern Iraq, listening to the heartbreaking account of two teenage sisters who had been enslaved by their ISIS captors. It reminded me of Bosnia and Rwanda in the 1990s when I worked with the UN. Across these divergent contexts, the accounts of sexual violence against women and girls were disturbingly similar; the weaponization of male narcissistic rage to humiliate, degrade and destroy. In meeting these anguished women, it was not lost on me that the Rohingya are by and large traditional Muslims, and that I found myself in their midst during the sacred month of Ramadan.

The meeting room at the Kutupalong reception centre was full of women, their faces covered by black niqabs. With only their eyes visible, it was difficult to gauge their facial expressions, but the piercing stares conveyed the enormity of their suffering. Mindful that they may not feel comfortable with a man, I didn’t pose any questions, letting them choose what they wished to share with me. I was soon surprised. In a striking display of defiance, they stood up one by one, walked towards me in sequence, and removed their head cover so I could see their face. With an astonishing dignity, they told their stories, bearing witness to the truth, an attempt to reclaim their voice, and their humanity. The horrors they conveyed were beyond words. “They threw my baby in the fire,” one of the women told me, speaking through the translator. The tears streaming from her eyes spoke the universal language of unbearable anguish. It didn’t take long to notice that several of them were pregnant, visibly in their third trimester.

I confirmed later that as I had suspected, these were mostly children conceived as a result of rape. The women told me their stories because they wanted the world to know what had befallen them. They expected the UN to punish the perpetrators. I didn’t have the heart to tell them about the political cynicism that time and again left survivors with no justice. It was time for us to leave. I didn’t know how to say goodbye, what to promise them to give them a bit of hope. One of the women had an infant in her arms. I caressed his little head, smiling at his mother, trying to pretend that somehow, everything would be fine. 

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The author, Payam Akhavan, during his visit to the Kutupalong refugee camp. Photo by Yousuf Tushar.

Back at home, in the conference circuit of the human rights academics and activists, those of us in the business of global justice were marking the 20th anniversary of the adoption of the ICC Statute. Upon the conclusion of the Rome Diplomatic Conference in July 1998, this pivotal moment was hailed as a triumph for international law, the beginning of the end for an entrenched culture of impunity in global politics. The ICC was built on the relatively successful precedents of the ad hoc International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR), established by the UN Security Council in 1993 and 1994 respectively.

Twenty years later however, with only a handful of “small fish” convicted, the court has proved to be a disappointment to those who envisaged a robust institution with teeth. The lack of political support by the erstwhile champions of a rule-based international order — demonstrated recently by US National Security Advisor John Bolton’s scathing attack against the ICC — and the attendant resource constraints are compounded by a bureaucratized and inefficient institution that is perceived even by its most vocal supporters as being in need of a significant overhaul.

Yet, for those in pursuit of global justice, the ICC is often the only available option where, as in Myanmar, the prospect of national trials occurring is slim to none. Of course, the states with the most appalling human rights records — such as Syria and Sudan — are least wont to sign the court’s statute, because to do so invites scrutiny of political and military leaders who devise and act in furtherance of criminal policies such as “ethnic cleansing” and genocide. 

Myanmar (also) does not recognize the ICC’s jurisdiction, which should not come as a surprise. The only way around this limitation is for the UN Security Council to refer a situation based on its enforcement powers under Chapter VII of the UN Charter — the basis for establishment of the ICTY and ICTR in the 1990s, and the referral of Sudan and Libya to the ICC in 2005 and 2011 respectively. In fact, Canada’s House of Commons is calling for the referral of Myanmar on this same basis. But given the spread of myopic nationalism, the consequent retreat of multilateralism, and the intensifying power struggles among the Council’s permanent members (China, France, Russia, the UK and the US) — each wielding a veto power — there is little prospect that this will happen.

This is where the location of Kutupalong is decisive for the pursuit of justice.

Unlike Myanmar, Bangladesh is a party to the ICC Statute. Thus, the ICC has jurisdiction if crimes against humanity have been committed on the territory of Bangladesh. Some creative lawyering led to the conclusion that although the underlying crimes of murder, torture, rape, and wanton destruction of towns and villages occurred on the territory of Myanmar, the mass-expulsion of the Rohingya across the boundary with Bangladesh through these coercive acts qualified as the crime of “deportation,” which was in fact completed on the territory of Bangladesh. Kutupalong is not only the most significant source of witness testimony for a potential investigation; its very existence is a basis for the court’s jurisdiction, at least over some if not all of the crimes.

In fact, Myanmar’s pretext for mass-expulsion has been that the Rohingya are in fact “illegal” Bengali immigrants rather than nationals of Myanmar. Thus, in April of this year, ICC Prosecutor Fatou Bensouda made an unusual request to a pre-trial chamber, asking for an opinion as to whether the court had jurisdiction over the crime of deportation based on the territory of Bangladesh. On September 6, a decision was rendered, declaring that the court did in fact have jurisdiction over deportation (and related crimes) based on the territory of Bangladesh, and calling for an expeditious preliminary examination of the evidence with a view to an investigation. 

The House of Commons’ motion welcomes this decision, which may be the only viable option given the likely failure of the UN Security Council to make a Chapter VII referral. Meanwhile, following the decision, the ICC prosecutor has declared her intention to conduct a “preliminary examination” as a prelude to a formal investigation. Given the resource constraints and problems of efficiency faced by her office, perhaps the Government of Canada should consider contributing investigative resources to expedite what could otherwise be a prolonged and time-consuming process.

"Kutupalong is not only the most significant source of witness testimony for a potential investigation; its very existence is a basis for the court’s jurisdiction."

It may be tempting for the cynic to dismiss these efforts as purely symbolic and ineffective. Nobody would disagree that it is far from an ideal situation where the perpetrators could be promptly arrested and prosecuted. It is noteworthy however, that Myanmar has gone to great lengths to challenge the court’s jurisdiction, issuing press statements resembling a legal brief, and even seeking to make surreptitious submissions to the court through front non-governmental organizations seeking to demonize the Rohingya as “terrorists.” There have also been official statements to the effect that Myanmar’s willingness to repatriate refugees is inconsistent with a policy of “ethnic cleansing.” It is notable that beyond deportation, the ICC decision also includes denial of the right of return of refugees as an additional crime against humanity, also based on the territory of Bangladesh. Surely, the Myanmar leadership is aware that even if arrest warrants cannot be executed on its territory, the indictment of the most senior ranks of the Tatmadaw for crimes against humanity will be a significant long-term liability.

To make matters worse for Myanmar, a UN independent fact-finding mission concluded in late August not only that the crimes against the Rohingya constituted genocide, but also that six senior Tatmadaw officials were suspects. This includes the commander-in-chief of the Myanmar armed forces, Senior-General Min Aung Hlaing, and the former commander of the western region, Major-General Maung Maung Soe, who is also subject to targeted sanctions under Canada’s Special Economic Measures Act, in addition to similar EU and US lists. In fact, his recent dismissal has led to speculation that it may be linked with his international stigmatization and Myanmar’s pariah status.

It remains to be seen whether and how such naming and shaming, combined with the ICC process, will impact Myanmar’s behaviour, especially if it achieves any degree of deterrence against the “ethnic cleansing” of the up to half million Rohingya that remain in the country, or the prospects, however unlikely, of the voluntary repatriation of at least some proportion of the refugees in Kutupalong. But we owe it to the survivors in Kutupalong to at least try and do what is feasible.

Hannah Arendt famously said of the 1946 Nuremberg judgment that the crimes of the Nazis “explode the limits of the law;” that for genocide, no punishment is enough. Yet, despite the enormity of the crimes against the Rohingya, it would seem that some justice is better than no justice at all, and it remains to be seen what effect historical truth and the vindication of international law will have on the future of this tormented people.

As I read the decision of the court establishing its jurisdiction, anticipating an investigation and arrest warrants in the coming months, and two weeks later, the House of Commons’ motion, I wondered what this would all mean to those back in Kutupalong. Was it at least a ray of hope for future generations, a small redemption of the humanity of those who, robbed of everything they once had, can only hope to reclaim a semblance of their dignity? My mind wandered back to a striking image upon my arrival at the camp. There, amidst the misery and squalor, was a surreal sight, a tower of joy: children on a makeshift wooden carousel, circling in bliss, touching the sky, dreaming of other worlds.

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Kutupalong refugee camp. Photo by Yousuf Tushar.

The comments in this article are only those of the author in his personal capacity and do not necessarily represent the view of either the ICC or the Bangladesh government.