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CPIJ organizes a panel on the Rohingya at the 47th CCIL Conference

By | News, Press Releases

31 October 2018 – The Canadian Partnership for International Justice (CPIJ) hosts a panel at the 47th Annual Conference of the Canadian Council of International Law (CCIL). Titled “The Role of International Criminal Law and the ICC in Responding to the Alleged Crimes Perpetrated against the Rohingya”, this panel organized and financed by CPIJ will allow to discuss the different options available within the field of international criminal law to fight against impunity for crimes allegedly perpetrated against the Rohingya in Myanmar and Bangladesh.

The panel will be moderated by CPIJ Co-Director Fannie Lafontaine and will bring together Co-Researchers Payam Akhavam, professor at McGill University’s Faculty of Law, and Valerie Oosterveld, associate Dean and professor at the University of Western Ontario’s Faculty of Law, as well as Kyle Matthews, Executive Director of the Montreal Institute for Genocide and Human Rights Studies (MIGS) at Concordia University. Prof. Akhavan will discuss the ICC Jurisdiction and the Rohingya Atrocities; Prof. Oosterveld the accountability for sexual and gender-based violence against the Rohingya; and Mr. Matthews will address the use of social media to dehumanize the Rohingya. The conference will take place at 4:00 pm on Thursday, November 1st.

Few other members of CPIJ will also present at the 47th CCIL Conference. Rob Currie and Joanna Harrington will be part of the panel “Extradition after Diab” at 9:05 am on Friday, November 2nd. They will analyze Canada’s place in the international landscape of extradition, as well as the nature and scope of the legal obligations involved and the need of reform notably in the light of the Diab case. Further, prof. Harrington will moderate the panel “Highlights of 2018 from the Canadian Yearbook of International Law”, which will take place at 8:00 am the same day.

The full program of the 47thCCIL Conference can be accessed online here.

Prof. Penelope Simons Hires 6 Research Assistants

By | News, Student News

Welcome back to Melisa Handl, Joshua Ng, Chris Plecash and Ariel Wheway who are continuing their work as research assistants for Professor Penelope Simons at the Faculty of Law at the University of Ottawa for 2018-2019. Welcome to Selena Lucien and Melissa Morton who are joining the team this Fall.

MELISA HANDL

Melissa Handl

Melisa Handl is an Argentine lawyer and a PhD student in the Faculty of Law at the University of Ottawa (Canada). Her research interests include international law, gender, development, qualitative research, and international human rights. Melisa holds a Master of Arts in International Affairs with specialization in “International Institutions and Global Governance” from the Norman Paterson School of International Affairs (Canada). Melisa also holds a Master of Laws from the University of Ottawa with a specialization in Human Rights and Social Justice. Melisa has written extensively on social policy, gendering international human rights, and human trafficking. She has also presided The University of Ottawa Graduate Students in Law Association for two consecutive years. Melisa is interested in Visual Arts and she completed her Art Instructor degree in the Fracassi Academy in Argentina. Melisa is currently investigating whether conditional cash transfers are contributing to greater gender equality in the context of Argentina, and intends to connect a top-down approach to international human rights with the experiences of actual beneficiary women on the ground. She is part of a Canada-Mexico project which involves training Mexican judges on issues related to international human rights; Melisa is in charge of the “Violence Against Women and Gender” workshop. She is working with Professor Simons on corporate accountability, gender, and the extractive industry and specifically, writing about gendering the United Nations Guiding Principles on Business and Human Rights from a socio-legal feminist methodology.

MELISSA MORTON

Melissa Morton

Melissa Morton is a third year JD student at the University of Ottawa. Before law school, Melissa had a range of jobs, from working in an accounting firm, to a social media start-up, and then in corporate immigration. She also completed a Bachelor of Arts, double majoring in Political Science and Law with a concentration in Transnational Law and Human Rights. During her free time, Melissa volunteers with a local dog rescue and enjoys experimenting with recipe-free cooking (which, admittedly, often goes awry). She also enjoys travelling, with a recent trip to Japan inspiring her to set a new goal to move to Tokyo for a year in the future. Melissa is working as a research assistant with Professor Simons on corporate accountability for human rights in the context of resource extraction.

SELENA LUCIEN

Selena Lucien

Selena Lucien is a third-year law student at the University of Ottawa. Prior to law school, Selena was awarded the Studio [Y] Innovation Fellowship at MaRS Discovery District where she founded the Small Claims Wizard to facilitate and simplify access to the Ontario Small Claims Court. Her venture was presented at Stanford Law School and incubated at the Legal Innovation Zone. During law school, Selena wrote a memorandum to the Minister of Foreign Affairs that outlines guiding principles to help construct policies to govern the ethical design and regulation of autonomous vehicles. She presented her findings at the Global Affairs Canada’s A.I and Human Rights Symposium. Currently, as a recipient of the Alex Trebek Innovation Award, Selena is building an intelligent contract analysis module. Selena is also working with Professor Simons on corporate accountability issues and specifically the Act of State doctrine, comparative fiduciary duty, and emerging transnational legal principles. Selena received her graduate degree from the London School of Economics.

JOSHUA NG

Joshua Ng

Joshua Ng is a third year law student at the University of Ottawa. During law school, Josh has worked at a community legal clinic serving clients appeal their denials of social assistance benefits. He has also gained political experience working in the office of the Minister of Justice and Attorney General of Canada. Prior to law school, Josh worked as a government relations consultant in Vancouver as well as a researcher at a think tank in Washington DC. He holds a Bachelor of Arts and a Master of Public Administration both from Queen’s University. Josh is working with Professor Penelope Simons in the area of corporate accountability, specifically in the extractive sector and with respect to violations of the human rights of women and vulnerable groups.

CHRIS PLECASH

Chris Plecash

Chris Plecash is a third year J.D. student at the University of Ottawa. Before entering law school, he reported on federal politics and government for Ottawa’s Hill Times newspaper from 2011 to 2015, and later served as a legislative assistant to a Member of Parliament. Last year, he was awarded the McCarthy Tetrault Technology Law Award for academic achievement in tech law studies. Chris majored in Political Science and Philosophy as an undergraduate at the University of Western Ontario, and holds a Master’s in Philosophy from York University, where he focused on bioethics.  He is currently working with Professor Simons on a project related to domestic criminal liability for Canadian corporations purchasing natural resources that have been extracted and sold in violation of international humanitarian law and international criminal law.

 

ARIEL WHEWAY

Ariel Wheway

Ariel Wheway is a 4th year student in the joint Juris Doctor and Master of Arts program at the University of Ottawa and Carleton University. She is the current president of the International Law Students Association at the University of Ottawa, as well as a member of the International Criminal Court moot team. Ariel also works for the United Nations Special Rapporteur on the Right to Adequate Housing and is currently conducting research on access to justice for housing-related issues. Ariel is working with Professor Simons on corporate accountability issues, specifically regarding women in mining and how the issue of gender and women’s rights are treated in the policies of resource extraction companies.

 

If you are a student working with a member of the Partnership, you could be featured on CPIJ’s website. See here for details.

Prof. Joanna Harrington Hires 3 Research Assistants

By | News, Student News

We wish to give a warm welcome to Megan Ferguson, Kathleen Renaud and Daniel Waring, who are joining the CPIJ as research assistants to Professor Joanna Harrington at the Faculty of Law at the University of Alberta for 2018-2019.

MEGAN FERGUSON

Megan Ferguson

Megan is a second year J.D. student at the University of Alberta where she is the Assistant Band Director for the annual “Law Show” that raises money for charity. Megan also works as a soccer referee, and before entering law school, she was a professional classical musician, performing in various ensembles in Western Canada. As an undergraduate, she participated in the “Witnessing Auschwitz” international conference in 2016, with her conference paper later published in a book released by the Auschwitz-Birkenau State Museum. Megan will be working with Professor Harrington on extradition law reform. She holds a Bachelor of Music focusing on tuba performance and composition from the University of British Columbia.

 

 

 

KATHLEEN RENAUD

Kathleen Renaud

Kathleen is a third year J.D. student at the University of Alberta where she is the Vice-Chair of the Women’s Law Forum. This past summer, she worked for West Coast LEAF, assisting on a number of interventions in the Canadian courts. Her past experience includes work with the Department of Justice, the Vancouver Holocaust Education Centre, and the European Commission in Brussels. Kathleen will be working with Professor Harrington on the right to an effective remedy for victims who have been successful before an international human rights body. She holds an M.Phil. in History from the University of Cambridge and will be articling with Singleton Reynolds in Vancouver after graduation.

 

DANIEL WARING

Daniel Waring

Daniel is a second year J.D. student at the University of Alberta where he is Vice-President External of the Francophone Law Students Association and Vice-President of OUTlaw, a student group that raises awareness for LGBT equality. This past summer, he worked at the Office of the Minister of Labour in the Government of Alberta, researching and writing briefing notes and interacting with stakeholders. Past experience includes internships with the Organization of American States and the NATO Association of Canada. Daniel will be working with Professor Harrington on the definition of a victim within the context of transnational criminal law. He holds an M.A. in Latin American and Caribbean Studies from the University of Guelph.

CPIJ Co-Researcher Penelope Simons Receives the 2018 Walter S. Tarnopolsky Award

By | News, Press Releases

CPIJ Co-Researcher Penelope Simons

26 October 2018 – CPIJ Co-Researcher Penelope Simons is the recipient of the 2018 Walter S. Tarnopolsky Award. The International Commission of Jurists, who awards this prize, thereby highlighted her “background and commitment as an individual who has made a significant contribution to human rights.”

The Tarnopolsky Award is named after the judge and renowned scholar Walter S. Tarnopolsky, who was a pioneer in the development of human rights and civil liberties in Canada. It is awarded annually to a Canadian resident who made an outstanding contribution to human rights at a national or international level.

Renowned expert in the field of corporate responsibility, Professor Simons fights tirelessly against corporate complicity in human rights violations. She does not hesitate to question the statu quoand pursue accountability for corporations and reparation for victims at the national and international level. Her innovative publications and constant promotion of access to justice for vulnerable persons make her a strong advocate in the field of international human rights law.

The award will be presented to Professor Simons at the conference “70 Years On… Is Humanity Ready for a World Court of Human Rights?” hosted at the Human Rights Research and Education Centre (HRREC) on October 31st. It is possible to register online for the event by sending an email to HRREC@uOttawa.ca.

CPIJ funds the attendance of 9 students to the 47th CCIL Conference

By | News, Student News

22 October 2018 – The Canadian Partnership for International Justice (CPIJ) will fund the attendance of 9 students to the 47thConference of the Canadian Council on International Law (CCIL), which will be held in Ottawa on November 1 and 2, 2018.

This major annual event, whose 2018 edition is themed “International Law at the Boundaries”, will allow students to deepen their knowledge of international law while also encouraging dialogues with experts, law practitioners and academics. Following the Conference, students will write blogposts in relation to their attendance.

Congratulations to all recipients!

CPIJ Co-Researcher Julia Grignon receives prestigious Paul Reuters Prize on International Humanitarian Law

By | News, Press Releases

18 October 2018 – CPIJ Co-Researcher Julia Grignon received yesterday the prestigious Paul Reuters Prize on International Humanitarian Law (IHL). This award was granted to crown her doctoral thesis named “L’applicabilité temporelle du droit international humanitaire”, defended in 2012 and published in 2014.

CPIJ Co-Researcher Julia Grignon

The Paul Reuters Prize was created in 1983 through to a donation made by Paul Reuters, honorary professor at University of Paris, to the International Committee of the Red Cross (ICRC). It is usually awarded every three years to recognize an outstanding work in the field of IHL.

Doctor of Laws from Geneva University, Prof. Grignon teaches at Laval University since 2013. She is the co-director of the International Criminal and Humanitarian Law Clinicas well as a member and co-founder of the Interdisciplinary Research Center on Africa and the Middle-East. Further, she is member of the Jean-Pictet Competition Committee since 2008 and is editor and author of the book “Hommage à Jean Pictet par le Concours de droit international humanitaire Jean-Pictet”, published in 2016.

The Paul Reuters Award Ceremony will take place on October 24that the ICRC Humanitarium, in Geneva. The event will be followed by a conference named “Role of academia in promoting and developping IHL” and a reception. It is possible to attend the event by registering online here.

 

Be Featured on CPIJ’s Website

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Student training is an important goal of the Canadian Partnership for International Justice (CPIJ), as shown by the multiple activities we organize and fund. This is why CPIJ develops new sections of its website to highlight student implication with CPIJ members. For students, it is a great opportunity to have their implication acknowledged, while also making networking easier for them.

The “Our Students” section (under the “About us” tab) provides an overview of some CPIJ students.

On the other hand, the “Student News” section shares student-related news, notably pertaining to their hiring, projects, scholarships, events, or any other topic of interest.

How to be featured on CPIJ’s website?

Students can send to CPIJ by mail the following information:

To be featured on the “Our Students” section:

  • Full name of the student;
  • Photo;
  • Name(s) of CPIJ member(s) the student is collaborating with;
  • Link towards an external website or short bio (including the student’s field of study, professional and academic interests, and nature of the link with CPIJ member).

To be featured on the “Student News” section:

  • Full name of the student;
  • Photo(s);
  • Name(s) of CPIJ member(s) the student is collaborating with;
  • A short news concerning, for example, a hiring, presentation, project, or scholarship. If it is a hiring, it would be interesting to include a short bio of the hired student.

For any question of additional information, please contact:

Catherine Savard

CPIJ Assistant coordinator

internationaljustice.sshrc@gmail.com

Murdered Honduran Activist Berta Cáceres Deserves Open Justice

By | CPIJ in the Media, News | No Comments

Cáceres’ assassination in 2016 was one in over 130 targeted killings of environmental defenders in Honduras since the 2009 coup d’état

By Amanda Ghahremani and Leah Gardner | The HuffPost

The long awaited first trial for the murder of renowned Indigenous environmental defender Berta Cáceres was set to open on 17 September 2018 in Tegucigalpa, Honduras. Cáceres’ assassination in 2016 was one in over 130 targeted killings of environmental defenders in Honduras since the 2009 coup d’état, including various members of her organization, the Civic Council of Popular and Indigenous Organization of Honduras (COPINH). Her case has become emblematic of this tragic state of affairs, and of the struggles facing human rights activists around the world.

Two and a half years into the process to prosecute eight men accused of carrying out Berta’s murder, lawyers for her family made what was likely a painstakingly difficult decision to request the recusal of the three-judge Tribunal hearing the case. This drastic step, taken on the day the trial was set to begin, alleges abuse of authority and obstruction of justice by the judges, in part for failing to sanction prosecutors for withholding evidence.

Garifuna women protest demanding justice in the case of the murder of the Lenca indigenous leader Berta Caceres, in Tegucigalpa, on May 25, 2017. (Orlando Sierrs/AFP/Getty Images)

The victims’ lawyers submitted several other constitutional injunctions before the hearing, one of which requested that the public have greater access to the trial through a live audio transmission of the proceedings; a request that had been previously denied. The court rejected this request once again on Friday.

It is no surprise that live streaming is important to the victims in this case. Beyond a mere technical issue, diversified access to judicial proceedings lies at the heart of the concept of open justice — the idea that courts should be open, public, and accessible — and meaningful victim participation.

Honduran legislators have acknowledged the importance of open justice by guaranteeing the right to a public trial and providing some victims legal standing before the court. Honduras has also incorporated international treaties into national law through its constitution. These treaties oblige States to hold public, open trials in adequate facilities. According to the UN, the purpose is to ensure “the transparency of proceedings” and to provide “an important safeguard for the interest of the individual and of society at large.”

Before her murder, Berta was recognized around the world and throughout Honduras for her work to protect the Gualcarque River, sacred to the Lenca people, from a hydroelectric project. These same people will be deeply affected by the outcome of the trial and deserve access to the courtroom. There is also a massive transnational solidarity movement of environmental and human rights activists who are closely following this public-interest case.

Unfortunately, the Tribunal will record audio of the trial as a matter of protocol, but not for public diffusion. It is unclear when, if ever, the public would have access to the trial recordings. The inability to hear what is going on in the courtroom in real-time substantially decreases the value of a recorded hearing by impeding contemporaneous observation and participation by victims and the public. This is especially important after the first day of trial proved there were insufficient seats for many members of Berta’s community, who were forced to wait outside.

Providing overflow rooms can help rectify this inaccessibility, but there are many legitimate reasons why victims may be unable to physically attend court, including travel costs, safety concerns, psychological trauma, and the inability to adjust schedules to an unpredictable judiciary. A live broadcast would ensure access for the greatest number of people.

A live transmission is also easily attainable with advances in technology. Countries like Mexico, Brazil, Guatemala, Canada, the United Kingdom, South Africa, and India, have all moved towards live broadcasting proceedings that are in the public interest. This practice is also prevalent at the Inter-American Court, the European Court of Human Rights, and various international criminal tribunals.

Seven of the accused on the murder of indigenous environmental activist Berta Cáceres sit in court on Sept. 17, 2018 in Tegucigalpa. (Orlando Sierrs/AFP/Getty Images)

The Tribunal’s failure to take steps to provide overflow rooms or allow live streaming must be viewed in the larger context of this case. In addition to allegations of abuse of authority and withholding evidence, lawyers for the victims, members of the media, and the victims themselves have been repeatedly attacked and targeted in highly dangerous smear campaigns aimed at criminalizing and intimidating them.

The day the trial was set to begin, a prominent freelance journalist for the Guardian, and the only English-language reporter covering the trial on the ground, Nina Lakhani, was targeted online in a smear campaign by a fake group with alleged links to the Honduran intelligence, which falsely claimed she was involved in violent insurgency. Lakhani was previously targeted after publishing an article in which a former soldier claimed that Berta’s name had appeared on a U.S.-trained special forces hit list. At the hearing, three security guards informed her that the courtroom was closed to the public before she was eventually allowed to enter.

The Honduran judiciary had an opportunity last week, with the world watching, to demonstrate its willingness to ensure open courts and meaningful access to justice. Live streaming the court proceedings would have gone a long way towards greater transparency and public confidence in a judiciary facing serious allegations of misconduct. Sadly, the Tribunal failed to act.

Amanda Ghahremani is the Legal Director of the Canadian Centre for International Justice (CCIJ), a Canadian non-profit that supports survivors of international crimes to seek legal redress. Leah Gardner is currently a volunteer lawyer at CCIJ. The authors were in Honduras as members of an international legal observation mission to monitor the Berta Cáceres murder trial.

Source: https://www.huffingtonpost.ca/amanda-ghahremani/berta-caceres-murder-trial_a_23547813/

Neighbors Refer Venezuela to Criminal Court in ‘Historic’ Rebuke

By | CPIJ in the Media, News | No Comments

By Ernesto Londoño and Marlise Simons | The New York Times

President Nicolás Maduro, center, in Caracas this week. The crisis in Venezuela “demands collective action,” the president of Peru said. (Photo Miraflores Press Office)

 

Five Latin American countries and Canada on Wednesday urged the International Criminal Court to consider prosecuting senior officials in Venezuela for extensive human rights abuses, the first time that member nations have referred another member to the tribunal.

In a region where leaders tend to avoid criticizing one another publicly, the step by Argentina, Chile, Colombia, Paraguay and Peru represented an extraordinary rebuke of President Nicolás Maduro.

Governments in the region have become increasingly alarmed about the economic and political crisis in Venezuela. Acute shortages of food and medicine have prompted millions to migrate, largely to neighboring countries.

The referral gives The Hague-based tribunal a renewed sense of urgency to investigate abuses in Venezuela.

“The leaders of these six countries have taken a historic step today, unprecedented in the history of the Americas, creating a crucial milestone in the interests of justice, accountability, non-repetition and reparation to the victims of the Venezuelan dictatorship,” said Luis Almagro, the secretary general of the Organization of American States, in a statement.

Here are some facts about the referral to the international court and what it could mean for Venezuela:

Why did the other countries refer Venezuela?

Venezuelan migrants walking to Colombia this month. (Photo by Federico Rios Escobar for The New York Times)

They’re overwhelmed by the unrelenting exodus of Venezuelans, which has accelerated amid soaring inflation. The United Nations estimates that 1.6 million Venezuelans have left since 2015 and that as many as 1.8 million could migrate this year.

In recent years Venezuela’s neighbors have had an open-door policy, but it has come at a political cost as communities feel increasingly besieged by migrants, many of whom arrive with no savings and with serious health problems.

“The magnitude of this exodus is unprecedented in our region,” President Martín Vizcarra of Peru told the United Nations General Assembly on Tuesday, noting that his country has taken in some 450,000 Venezuelans. “It demands collective action by the international community.”

How unusual is this step?

“The magnitude of this exodus is unprecedented in our region,” President Martín Vizcarra of Peru told the United Nations General Assembly. (Photo by Richard Drew/Associated Press)

Highly. The court has never opened a case brought by one government against another, and governments in Latin America for decades have adhered to an unspoken rule: Stay out of the messy internal affairs of neighbors. But several have begun to see Venezuela’s economic unraveling as a growing regional threat. The tide of migrants has led to spikes in crime and strained the health and education systems of other countries.

“This is a significant, historic event,” said Fernando Cutz, a former senior White House official who worked on Latin America policy in the Obama and Trump administrations. “Ten years ago, it would have been impossible to think of the region turning on one of its own.”

What’s the gist of the referral?

Protesters during clashes with the Venezuelan police last year. (Photo Meridith Kohut for The New York Times)

In a letter signed by the six heads of state this week in New York, on the margins of the United Nations General Assembly, the countries asked the international court’s top prosecutor, Fatou Bensouda, to investigate human rights abuses committed by the Venezuelan government since February 2014. During that month, the government used harsh tactics to clamp down on mass protests.

The letter notes that human rights experts have documented abuses that include arbitrary detentions, extrajudicial killings, torture and sexual crimes.

Isn’t the International Criminal Court already investigating Venezuela?

“Hunger!” and “Dictatorship” are scrawled on a security door in Caracas. (Photo by Meridith Kohut for The New York Times)

Yes. Ms. Bensouda announced in February that her office had launched a “preliminary examination” into allegations of large-scale human rights abuses in Venezuela. That step can lead to a formal investigation and criminal charges.

The court said it is investigating allegations that security personnel have used excessive force against demonstrators, detained members of the political opposition and subjected prisoners to “serious abuse.”

The court was established in 2002 as a tribunal of last resort for war crimes, genocide and crimes against humanity. Since its inception, it has indicted only Africans and has won only a handful of convictions.

How long will an investigation take?

Venezuela issued new currency in response to runaway inflation. People waited in long lines last month in Caracas to get the bills. (Photo Meridith Kohut for The New York Times)

It’s unclear. Court investigations have tended to last for years, and experts said it would be highly unlikely for charges to be filed any time soon.

“Time frames at the I.C.C. are measured in years, not months,” said Todd Buchwald, a former senior State Department official who oversaw global criminal justice matters from 2015 to 2017.

But the sense of urgency conveyed by neighboring countries may prompt the court to make the case a priority.

People visiting a so-called red spot in Caracas, where voters presented a special identity card to receive boxes of food. (Photo Meridith Kohut for The New York Times)

“It does telegraph to the prosecutor these states are keen to provide access to people who have fled” and may have relevant information, said Joanna Harrington, a law professor at the University of Alberta who specializes in international criminal law.

Several of Venezuela’s neighbors have sought to isolate Mr. Maduro’s government as he has become increasingly authoritarian in recent years.

They also have tried to create rifts within Venezuela’s ruling party.

The threat of being prosecuted in The Hague “will most likely galvanize those in the inner circle to pull together,” said Mr. Cutz, the former White House official. But it could prompt others on the periphery of power to turn on the government, he added

President Trump described the crisis in Venezuela as a “human tragedy,” but he also challenged the authority of the International Criminal Court. (Photo Chang W. Lee/The New York Times)

Washington has long called on Latin American leaders to take a harder line against Venezuela. But Wednesday’s referral to the court is not a move the Trump administration can endorse.

During his speech to the United Nations General Assembly on Tuesday, President Trump described the crisis in Venezuela as a “human tragedy.” But in the same address he also lashed out at the International Criminal Court, saying that “as far as America is concerned,” the court has “no legitimacy and no authority.”

This echoes comments made this month by John R. Bolton, the national security adviser, who called the court “ineffective, unaccountable, and indeed, outright dangerous.” Mr. Bolton’s criticism was in response to a preliminary review of allegations of abuses in Afghanistan, which may include acts committed by American military or intelligence personnel.

The State Department would not specify whether the United States supports efforts to hold Venezuelan officials accountable at The Hague.

“We encourage thorough and transparent investigations into all credible reports of abuses,” the State Department said in a statement. “The crisis in Venezuela will only be resolved through the restoration of democratic governance, realistic economic policies, the rule of law, and respect for fundamental human rights and freedoms.”

Source: https://www.nytimes.com/2018/09/26/world/americas/venezuela-international-criminal-court.html

A chance at justice for the Rohingya?

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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 Payam Akhavan | OpenCanada

Kutupalong refugee camp. Photo by Yousuf Tushar.

 

26 September 2018 –“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.

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 conveyed the deeper meaning of her words. 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.

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, there it falls under ICC 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.

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, 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.

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.

Source: https://www.opencanada.org/features/chance-justice-rohingya/