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Rohingya

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

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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.

A chance at justice for the Rohingya?

By | CPIJ in the Media, News | No Comments

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/

 

The ICC has jurisdiction over the alleged deportation of the Rohingya people

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Today, the Pre-trial Chamber I of the International Criminal Court (“ICC”) ruled on the Prosecutor’s request regarding jurisdiction on the deportation of Royingha people from Myanmar to Bangladesh. This ruling follows most of CPIJ’s observations submitted as Amici curiae in June 2018.

In its decision, the Chamber first determined that “it has the power to entertain the Prosecutor’s request under article 119(1) of the ICC Rome Statute (“Statute”), as well as pursuant to the principle of la compétence de la compétence”. It then decided that the Statute “contains two separate crimes” (forcible transfer and deportation) and that “the Court may exercise its jurisdiction if either an element of a crime mentioned in article 5 of the Statute or part of such a crime is committed on the territory of a State that is party to the Statute”.

The Chamber therefore ruled that “the Court has jurisdiction over the crime against humanity of deportation allegedly committed against members of the Rohingya people” because “an element of this crime (the crossing of the border) took place on the territory of a State party to the Statute (Bangladesh)”. It also recognized that “the Court may also exercise its jurisdiction with regard to any other crime set out in article 5 of the Statute, such as the crimes against humanity of persecution and/or other inhumane acts”.

The dissenting Judge Perrin de Brichambault was of the view that “articles 19(3) and 119(1) of the Statute are inapplicable and that the principle of la compétence de la compétence cannot serve as an alternative basis for the Chamber to provide a ruling”. He “believed that the Court cannot rule on its jurisdiction” at this stage, “but that it remains open to the Prosecutor to present a request for authorisation of an investigation to a Pre-Trial Chamber.”

This decision followed most of the analysis proposed in the CPIJ’s Amici Curiae observations, submitted to the ICC on June 18, 2018. These observations, in support of the Prosecutor’s arguments, concerned three distinct issues. First, the scope of article 19(3) and the powers of the Prosecutor to seek a ruling on jurisdiction before a formal situation has been assigned to it. Second, the scope of the ICC’s territorial jurisdiction under article 12(2). Third, the scope of the crime of deportation under article 7(1)(d) of the Statute.

Relevant documents:

CPIJ holds its first General Assembly with two guests of honour

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The first General Assembly of the Canadian Partnership for International Justice (CPIJ) was held in Montreal on 11 June 2018. Besides fruitfully brainstorming on the Partnership’s development, CPIJ had the pleasure to welcome two guests of honour, namely the Honourables Bob Rae and Irwin Cotler. As Canada’s Special Envoy to Myanmar, Mr. Rae has developed extensive expertise on the Rohingya situation, which he was pleased to share with CPIJ under Chatham House Rules. CPIJ particularly enjoyed this discussion as it was only a few days away from presenting its Amici Curiae observations pertaining to this situation to the International Criminal Court (ICC). Later that day, the Partnership met with Irwin Cotler, who discussed his work as a member of independent international experts panel designated by the Secretary General of the Organization of American States (OAS). The panel was asked to determine whether there was reasonable grounds to believe that crimes against humanity have been committed in Venezuela. In its final report presented on 29 May 2018, the experts answered in the affirmative and recommended notably that the OAS Secretary General invite States Parties to the Rome Statute to refer the situation of Venezuela to the ICC. In brief, CPIJ’s first General Assembly was a frank success, and was productive, stimulating and enjoyable for all.

CPIJ Co-Director Fannie Lafontaine Discusses her Role as an Independant Observer, the G7 and the Rohingya at Midi-Info

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Fannie Lafontaine

July 2018– On July 2 2018, the Canadian Partnership for International Justice (CPIJ) Co-Director Fannie Lafontaine was interviewed by journalist Manon Globensky on Radio-Canada, during the Midi-info radio program. Prof. Lafontaine talked about her role as an independent observer of the Montreal police department investigation into allegations of criminal acts perpetrated by police forces against native people. Later, she discussed two issues in which she was involved with CPIJ, namely the G7 Summit and the Rohingya situation in Myanmar and Bangladesh. In April 2018, Prof. Lafontaine together with CPIJ members met Ambassador Isabelle Hudon, Co-President of the Gender Equality Advisory Council, and submitted recommendations to advance gender equality and women’s empowerment in the context of the Canadian G7 Presidency in June 2018. Also, concerning the Rohingya situation, “the International Criminal Court [ICC] is not competent in regard to crimes perpetrated in Myanmar because Myanmar is not a State Party. However, Bangladesh is. Therefore, the legal question is: does the fact that Rohingyas are deported from a State non Party to the Court to a State which is Party makes the ICC competent?” Prof. Lafontaine explains. Last 18 June, many CPIJ members submitted an Amici Curiae to the ICC, in which they argued that the Court was competent with respect to this situation. the Amici can be accessed online here.

CPIJ members submit Amici Curiae to the ICC concerning the Rohingya situation

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June 2018 – On 18 June 2018, members of the Canadian Partnership for International Justice (CPIJ) submitted Amici Curiae observations to the International Criminal Court (ICC) on legal issues arising from the Prosecutor’s request for a ruling on jurisdiction concerning the Rohingya being deported from Myanmar to Bangladesh.

The Prosecutor’s request under Article 19(3) of the Rome Statute is the first of its kind. She asked the Court to determine if it has jurisdiction over the situation of the Rohingya, who are currently being deported from Myanmar (a non State party to the Rome Statute) to Bangladesh (a State party). The cross-border nature of this crime, involving a country who is not a party to the Court, raises important legal questions about to the Court’s ability to adjudicate the matter.

The Amici Curiae provided the Court with observations, in support of the Prosecutor’s arguments, on three distinct issues. First, the scope of Article 19(3) and the powers of the Prosecutor to seek a ruling on jurisdiction before a formal situation has been assigned to it. Second, the scope of the ICC’s territorial jurisdiction under Article 12(2). Third, the scope of the crime of deportation under article 7(1)(d) of the Rome Statute. The full text of the observations can be found on the ICC website.

“We are proud to contribute to the development of complex judicial issues which are at the very heart of the Court’s work,” said Fannie Lafontaine, the Director of CPIJ. “In this case, it will be very important for the Court to provide clarity on its jurisdiction over cross-border crimes when a non-State party is involved.”

Members of CPIJ had submitted a request for leave on 25 May 2018 to provide these observations. The request was subsequently granted by the Court in a decision that recognized the extensive collective experience of CPIJ’s members in the field of international criminal law, human rights law, refugee law, migration and humanitarian law, as well as their previous interventions before domestic and international courts.

The Amici Curiae is signed by Fannie Lafontaine, Amanda Ghahremani, Jennifer BondRobert J. CurrieJulia GrignonMark KerstenFrançois LarocqueFrédéric MégretValerie OosterveldFrederick John PackerPascal ParadisDarryl RobinsonPenelope SimonsÉrick Sullivan, Alain-Guy Tachou Sipowo, Mirja Trilsch and Jo-Anne Wemmers.

 

For media requests, please contact:

Fannie Lafontaine
Fannie.Lafontaine@fd.ulaval.ca
1-418-656-2131 #3859
(English, French, Spanish)

 

Amanda Ghahremani
aghahremani@ccij.ca
1-514-915-0920
(English, French, Spanish)