Testimonies gathered by the UN, various non-governmental organisations, and foreign government fact-finding teams in Bangladesh are being used to get legal justice for the Rohingya
There has been no dearth of investigation teams and reports into the events that transpired in Myanmar. The scale of the horrors in Rakhine has been such that the UN, national and international rights groups, experts sent by foreign governments, and the Rohingya themselves, have been working to document those killed, injured, raped, and the property destroyed, through the testimonies of survivors.
Internal investigations by the Myanmar government have lacked “independence, impartiality and rigor”, according to chair of the UN international fact-finding mission Marzuki Darusman, and international access to northern Rakhine has long been curtailed. The results of a US government investigation last month into the “well-planned and coordinated” military operations against the Rohingya community, for instance, are potentially going to be used as the basis for further sanctions and other punitive action against the Myanmar authorities. Political sanctions aside, The Hague seems to be the only legal recourse left for the Rohingya as they look to the international community for justice.
Last month, the UN released a 440-page report detailing the findings of its independent international fact-finding mission on Myanmar (though it was denied access there). Through refugees' accounts and satellite imagery, it documented 392 villages which were partially or completely destroyed—70 percent of which were in Maungdaw township, where the majority of the Rohingya in northern Rakhine live. As many as 80 percent of the rape survivors interviewed were gang raped, by up to 10 perpetrators at a time. Thousands were systematically slaughtered.
According to the report, the perpetrators were overwhelmingly the Tatmadaw, the Myanmar armed forces under commander-in-chief Senior-General Min Aung Hlaing, and particularly the 33rd and 99th Light Infantry Divisions. The report recommended that Hlaing and other top generals be prosecuted in an international court or a special tribunal on charges of genocide, war crimes, and crimes against humanity, stating that the Myanmar military acted with “genocidal intent”.
National rights groups have been doing their part in documenting the atrocities and violence suffered by the Rohingya. Rights watchdog Odhikar has been taking statements and gathering evidence since the influx following October 9, 2016. “We needed specific documentation that could be shown to the world,” says fact-finding officer Ashequr Rahman to Star Weekend.
“We were looking for specific information, collecting documents and evidential statements—any proof they had,” he says. Odhikar interviewed refugees in the camps as well as, at the height of the influx last year, refugees arriving at points of entry into Bangladesh such as Shah Porir Dwip. “In the months after, we also focused on gathering information on long-term rights violations they faced back in Myanmar which led them to come to Bangladesh.”
By 2017, Odhikar had collected 150 testimonials which, together with the Asian Legal Resource Centre (ALRC) in Hong Kong, it submitted in a report to the International Criminal Court (ICC). It included the story of 20-year-old Khurshida, who was abducted and held captive in a military camp for five days and gang raped in late 2017. Losing consciousness at one stage, she was left for dead outside the camp.
An overwhelming majority of the testimonies in the report are of women. Another case documented is of 30-year-old Somira, who was beaten and raped by soldiers her village in October 2016. Her six-month-old child was thrown into a fire. There are 148 other accounts like this, including the account of an eight-year old boy Waz, who witnessed his home burning with his mother tied inside while his father went missing, in late October 2016. He subsequently fled to Bangladesh with his grandmother.
Taking their stories to the ICC
One of the two submissions to the court has been for the victims of the August 30 massacre at Tula Toli last year, where security forces systematically killed and raped several hundred villagers trapped on a riverbank. An investigation by Human Rights Watch showed the total destruction of a village, seen through satellite imagery, and killings of hundreds, as said by witnesses and survivors of the attack.
Shanti Mohila, a group of Rohingya women represented by a group of international lawyers, has also submitted a formal request to the ICC for an investigation, in May this year. “Our clients are victims of the deportation from Myanmar: they have been forced from their homes, and across the border into Bangladesh, through the violent and coercive acts perpetrated against them by the Myanmar security forces,” says Joe Holmes, one of the lawyers of Global Rights Compliance, representing the Shanti Mohila. “Many have been the victims of sexual violence and other crimes and all have been deprived of the most basic rights such as citizenship and the right to freedom of movement. These deprivations of rights amount to a persecutory course of conduct, driven by discrimination against their ethnic group,” he states.
The testimonies submitted include as signatures the thumbprints of 400 Rohingya women and children, many of whom are illiterate. One of the members of Shanti Mohila told the Washington Post, “It feels good to be a leader in this... I am proud to be one of the women taking action to get justice for my people. Justice takes a long time. I know that. But one day, we will get it. We will get it for our children.”
Widespread and systematic sexual and gender-based violence were characteristic of the violence in Rakhine, and some researchers have solely focused on this. At least 80 percent of the Rohingya refugees in the camps in Bangladesh are women and children. Razia Sultana, a Rohingya lawyer practicing in the Chittagong court, was the chief researcher for two reports for the Kaladan Press Network. The first was the testimonies of 21 Rohingya women who fled to Bangladesh after October 9, 2016, and the second, those of 36 refugees, including eight rape survivors, in late 2017. The latter report noted, “troops were committing similar patterns of sexual violence to the previous year—only on a much larger scale.” According to her research, government troops raped over 300 women and girls in 17 villages in Rakhine, but states that the overall number is likely to be much higher.
An unprecedented ruling
As the crimes against the Rohingya constitute war crimes, what options are open to them under international law? Myanmar is not a party to the Rome Statute, the treaty which created the ICC. The court only has jurisdiction over crimes committed on member states' territory or crimes which have been referred to it by the United Nations Security Council (UNSC).
Due to the UNSC's workings, so far Myanmar has not been referred directly to the ICC for investigation as China, a permanent member, would veto. The other course of action possible was setting up an ad hoc tribunal, as was done in the case of Rwanda and the former Yugoslavia, but which too requires UNSC support, where China would again be an obstacle.
This has required international lawyers and the war crimes court to get creative. In April this year, prosecutor Fatou Bensouda asked for the court's ruling on whether the ICC had jurisdiction over the deportation of the Rohingya people from Myanmar to Bangladesh, a possible crime against humanity. The pre-trial chamber at the court also sought the Bangladeshi government's opinion as well as amicus curiae (“friend of the court') submissions.
Bangladesh subsequently responded “confidentially”, concurring with the prosecutor's arguments regarding territorial jurisdiction as well as the forced displacement of the Rohingya from Myanmar. In June, 26 non-governmental organisations in Bangladesh submitted amicus curiae observations to the court. These included reports of various human rights organisations and collected witness accounts of the killings, rapes and other brutality. “We managed to substantiate and reinforce the prosecutor's argument to the court,” says Barrister Manzoor Hasan, executive director at the Centre for Peace and Justice at BRAC University, who among others submitted these observations to the ICC.
Bangladesh is a member state of the ICC and both submissions and the court's prosecutor successfully argued that as the crime of deportation was not complete until the victims crossed the border into Bangladesh, the crime extends to Bangladeshi territory. Last month the ICC, in what has been called “an unprecedented ruling”, said it had legal jurisdiction. It then launched a preliminary investigation, which could lead to a full criminal investigation by the court.
Now, the floor is the ICC's. According to Barrister Hasan, “The court will do their own evidence gathering and taking of statements, as it needs to be watertight.” Holmes agrees, adding, “Whether other statements and evidence can be relied upon in the ICC or any other forum will depend upon a number of factors, including the possibility of evidence contamination where, for example, vulnerable victims or witnesses have been asked to repeat their accounts to too many people or too many times.”
But has all the information gathered so far been useless? “The evidence and testimonies collected by NGOs has allowed us to cross the first hurdle [getting the cases to the ICC]. There are two more steps to overcome,” says Barrister Hasan. “Legally, from an international accountability point of view, this is the only way forward for the Rohingya.”
There may, however, be other avenues left. “The ICC’s recent decision opens up the first clear pathway to justice for the Rohingya, however it is not necessarily the only one. Whilst the decision is certainly a bold and welcome one, the ICC’s procedural machinery is slow moving and it will likely take several years before a trial can begin,” says Joe Holmes to Star Weekend. “Additionally the ICC is likely to focus narrowly on those most responsible and will necessarily be restricted in the number of victims to which it can bring justice. It may be that the Rohingya seek to pursue other avenues for justice as a result.”
*This story has been updated to include comments from the Global Rights Compliance.