By any measure, last week was a banner one when it comes to moving towards accountability for crimes against the Rohingya in Myanmar. The week started with The Gambia filing a case against Myanmar in the International Court of Justice. Then, on Wednesday, human rights groups filed a case against Myanmar officials in Argentina. And the next day, judges at the International Criminal Court (ICC) authorized the prosecutor to open an investigation into events that originated in Myanmar. These developments are in addition to other fact-finding and investigatory mechanisms already established by the United Nations.
Given the rapid pace of events and the range of actors involved, as well as the plethora of other news stories vying for interested readers’ attention, I thought it might be helpful to lay out a brief description of the main developments and highlight some salient points. I’ll presume a general knowledge of the events that have transpired in Myanmar leading to widespread gross abuses of human rights against the Rohingya—a Muslim minority in Buddhist-majority Myanmar—including killings, rapes, and property destruction, as well as over 700,000 refugees entering Bangladesh since August 2017 alone.
U.N. Independent International Fact-Finding Mission on Myanmar (IIFFMM)
The U.N. Human Rights Council set up the Independent International Fact-Finding Mission on Myanmar (IIFFMM), headed by three lawyers and human rights specialists from Indonesia, Australia, and Sri Lanka, in March 2017. Its mission was to “establish the facts and circumstances of alleged recent human rights violations by military and security forces and abuses in Myanmar, in particular in Rakhine State.” The mission focused on events in Myanmar since 2011 and while it had a mandate that covered the whole country, it looked primarily at areas in the country’s north. By its count, the IIFFMM conducted over 1,200 interviews with victims and witnesses, but because Myanmar did not cooperate in the investigation or allow investigators into the country, these interviews took place elsewhere, including in refugee camps in Bangladesh. (As a side note, in September, President Donald Trump issued the first report under the newly enacted Elie Wiesel Genocide and Atrocities Prevention Act, where he noted that “ the United States Government provided publicly available satellite imagery and pertinent information” to the IIFFMM.)
Over its lifespan, the IIFFMM issued a number of reports concerning events in Myanmar. The primary report was issued in September 2018, and found “reasonable grounds to believe” that crimes against humanity, genocide, and war crimes had been committed against the Rohingya, and other ethnic minorities. The IIFFMM then updated this report in September, with additional evidence drawn from the interim period, and described further indications of crimes against humanity, genocide, and war crimes. The mechanism also issued two additional important reports: one on sexual and gender-based violence (and the gendered impact thereof); and one on the economic interests of the Myanmar military (the Tatmadaw).
The IIFFMM ceased operations in September, at which point it handed its evidence over to the U.N. Independent Investigative Mechanism for Myanmar.
UN Independent Investigative Mechanism for Myanmar (IIMM)
The U.N. Human Rights Council established the Independent Investigative Mechanism for Myanmar (IIMM) in September 2018, and it became operational in August following the appointment of American attorney Nicholas Koumjian as its head. The IIMM is charged with collecting evidence of serious crimes and preparing files for prosecution, although it is not itself a court. The evidence it collects can be shared with other national or international courts that may be prosecuting relevant crimes, or held in the event that a future court is established to try relevant cases.
As the recipient of the evidence and analysis from the IIFFMM, the IIMM begins with a wealth of material on which to build, but given its relative youth, has not yet issued any major updates on its activities. In his initial statement to the Human Rights Council, Koumjian emphasized that the IIMM covers the entirety of Myanmar since 2011 and has no end date, but that with finite resources he will “seek to select cases that are appropriately representative of the suffering inflicted upon the various peoples of Myanmar.”
A draft resolution adopted by a committee of the U.N. General Assembly last week (and soon to move to a vote before the entire General Assembly), in addition to urging Myanmar to give safe passage for the Rohingya back to Myanmar, called both for adequate resources for the IIMM, and also asked the IIMM to “swiftly advance its work.”
The International Court of Justice (ICJ)
On Nov. 11, The Gambia brought a case against Myanmar in the ICJ. One question some might have is: Why the ICJ? It’s true that the ICJ is more well known for solving actions between states that involve things like maritime boundaries or territorial disputes. But the ICJ, which was established in 1945 by the U.N. Charter, is also the court of recourse under the Genocide Convention, and it is that treaty that The Gambia is claiming Myanmar is violating. Both Myanmar and The Gambia have ratified the Genocide Convention, and crucially, Myanmar has not lodged any reservations to the ICJ’s jurisdiction over the treaty as some countries have done.
That brings us to another question: Why is The Gambia—a nation on an entirely different continent—bringing this case? The answer is part politics, and part personal. First, the politics. Theoretically, any of the 150 other states that are parties to the Genocide Convention could have brought a complaint against Myanmar, and while there may be multiple reasons that other states did not do so, part of the reason that The Gambia did is that it is a member of the Organization of Islamic Cooperation (OIC). The OIC has been particularly supportive of bringing a case against Myanmar because the Rohnigya are Muslim.
Why The Gambia was chosen from among the 57 OIC members to be the standard-bearer brings us to the personal side of the equation. The Minister of Justice and Attorney General of The Gambia, Abubacarr Tambadou, worked as a prosecutor for a number of years at the U.N. International Criminal Tribunal for Rwanda, where he prosecuted cases concerning that county’s genocide. Because of this expertise, he took a leading role within the OIC in regards to the Myanmar situation, resulting in The Gambia bringing the case. Reportedly, the OIC is also helping to fund the case, in which The Gambia is represented by the law firm Foley Hoag LLP.
The application by The Gambia charges Myanmar as a state with violating the Genocide Convention in numerous ways, including committing, failing to prevent, and failing to punish genocide, and also failing to pass domestic legislation to enact the provisions of the Genocide Convention (as the Convention requires). As a remedy, The Gambia requests cessation of the genocidal acts, prosecution and punishment of those responsible, and reparations for the victims.
The Gambia also requests so-called “provisional measures,” i.e., court-mandated actions that Myanmar must take during the pendency of the litigation to prevent further irreparable harm. The provisional measures The Gambia requests include requiring Myanmar to take all actions within its power to prevent genocide and its underlying acts such as killing, rape, and destruction of property, and to not destroy or “render inaccessible” evidence. The ICJ will hold hearings regarding these provisional measures December 10-12.
Myanmar has stated that it will respond formally to The Gambia’s application. Nevertheless, proceedings before the ICJ are known to be lengthy, frequently taking years to reach a judgment. Moreover, the ICJ lacks an effective enforcement mechanism for recalcitrant states.
The Argentinian Case
On November 13, a group of Rohingyan and Latin American human rights groups brought a case against a number of Myanmar officials, including Aung San Suu Kyi, in an Argentinian court under that country’s “universal jurisdiction” laws. The theory of universal jurisdiction laws is that certain crimes, such as genocide, are so grave as to be crimes against all peoples, and thus should be able to be tried anywhere. The case alleges genocide and crimes against humanity. Significantly, the attorney leading the case, Argentine lawyer Tomas Ojea, was U.N. Special Rapporteur for Myanmar between 2008 and 2014.
A government spokesperson for Myanmar has stated that no response will be forthcoming to this case.
On Nov. 14, three judges sitting on one of the ICC’s Pre-Trial Chambers authorized the Prosecutor, Fatou Bensouda, to open an investigation into the situation in Bangladesh/Myanmar, following her request to do so.
When attacks against the Rohingya began, many thought first of the ICC as an avenue of redress. After all, the thinking goes, these types of crimes are exactly the sort of thing that motivated the establishment of the ICC. But this idea quickly ran into jurisdictional problems because Myanmar, where the events in question took place, is not a party to the Rome Statute that established the ICC. Without it being a party, and with other methods of giving the ICC jurisdiction over events in Myanmar (e.g., a UN Security Council referral) blocked for political reasons, that avenue of redress would appear to end there. So how did the court get past this seemingly insurmountable obstacle?
In April 2018, the prosecution filed a request for a ruling on a novel theory of jurisdiction for the crime against humanity of deportation as perpetrated against the Rohingya. Deportation is defined as forcibly transferring people to another country, and the other country in these circumstances is Myanmar’s neighbor, Bangladesh. Bangladesh—importantly—is a party to the Rome statute. The prosecution argued that because the crime of deportation is completed in the second country to which a victim is forcibly transferred, under the territorial jurisdiction of the ICC this was sufficient to grant the court jurisdiction. The chamber that ruled on the question agreed, and then suggested that the prosecutor could go even further. In their decision, the judges stated that the same rationale that led them to the decision that deportation that ended in Bangladesh was within the territorial jurisdiction of the court could apply to other crimes if an element or part of that crime was committed in Bangladesh, or another state party to the ICC. They suggested two examples: persecution, and a catch-all crime of “other inhumane acts”. (International law—and the Rome Statute—criminalizes “other inhumane acts” that are of similar gravity to identified crimes against humanity so as to prevent loopholes.)
Armed with this decision, the Prosecutor filed a request to open an investigation into the situation in Myanmar/Bangladesh in July, and it was that request that the court ruled on last week allowing the investigation to proceed. As part of the decision, the judges found that there is a “reasonable basis” to believe that the crimes against humanity of deportation and persecution occurred, but emphasized that the investigation is not necessarily limited to those crimes as long as the additional crimes were also committed at least in part in Bangladesh or in the territory of another state that is a party to the Rome Statute (and are linked to the situation described in the decision). As regards the temporal jurisdiction, the investigation can encompass events that occurred beginning in June 2010 (when Bangladesh became a party to the Rome Statute) and moving forward indefinitely.
Any cases the prosecution brings would be against individuals purported to be liable for the crimes committed (note the difference with the ICJ, where the proceedings are not criminal in nature and the government as a whole is implicated). For convictions, the prosecution would need to prove guilt beyond a reasonable doubt, but first they would have to get any accused persons to The Hague, which could be difficult under current circumstances.
Myanmar has responded to the court’s decision by rejecting the claim of ICC jurisdiction over the case. A government spokesman stated the decision is “not in accordance with international law.”
Moving forward, there will likely be interplay between these various institutions, some of which is already evident. As mentioned, the UN Fact-Finding Mission (IIFFMM) handed off its evidence to the UN Investigatory Mechanism (IIMM). The decision at the ICC, and the filings before the ICJ and the Argentinian court, all cite to evidence accumulated by the IIFFMM. As the IIMM ramps up, it will likely begin sharing additional evidence it accumulates with the ICJ, the ICC, and with other bodies where cases might be possible.
While last week’s events are promising developments regarding accountability for past and ongoing crimes, they should not overshadow the importance of Myanmar instituting measures to prevent additional crimes and mistreatment. In the final report of the IIFFMM in September, the authors not only identified evidence of crimes that had occurred up to that point, but also stated that: “many of the factors that contributed to the killings, rapes and gang rapes, torture, forced displacement and other grave human rights violations by the Tatmadaw and other government authorities that the Mission documented in its 2018 report are still present” and warned that “there is a serious risk that genocidal actions may occur or recur.”
In 1946, in advance of the promulgation of the Genocide Convention, the U.N. General Assembly passed a resolution adopting genocide as a crime, and stated that denying the right of existence to entire groups “shocks the conscience of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and to the spirit and aims of the United Nations.” The government of Myanmar should remember these principles, and act now to remedy this situation.