On 15 December 2020, a group of leading scholars and experts from Canada, the USA, and Ireland involved in the global campaign to end Myanmar’s genocide of Rohingyas held a legal roundtable, jointly organized by the Free Rohingya Coalition and FORSEA.
You can access the full live panel recorded here: https://www.facebook.com/watch/?v=830482987771607
Leading scholars’ consensus was loud and clear: neither ICJ nor ICC, in and of themselves, will deliver Rohingyas on their own from their decades-long hell – namely Myanmar’s institutionalized persecution of their community – protected under the Genocide Convention. In their assessment, Myanmar is persecuting this targeted ethnic group, within their historical and demographic pocket along the Bangladesh-Myanmar borderlands with the discernible intent to physically destroy them in whole or in substantial part.
Among the panelists were Gregory Stanton, past-President of the International Association of Genocide Scholars and the founding President of Genocide Watch whose 10-stage-model of genocide is widely used by scholars and activists to understand genocidal destruction of national minorities around the world; a US legal expert on genocide prevention Dr. Katherine Southwick who previously worked in the Prosecutor’s Office at the International Criminal Tribunal on former Yugoslavia and who now serves as an independent advisor to the US Holocaust Memorial Museum in Washington, DC, Michael A Becker, former Associate Legal Officer at the ICJ who now teaches international law at Ireland’s Trinity College, Dublin and who specializes in the international commissions of inquiry and fact-finding missions, and Professor John Packer at the University of Ottawa in Canada who served as a legal assistant to the first UN Special Rapporteur on the human rights situation in Myanmar in 1992-1993.
Dr. Maung Zarni, FORSEA co-founder and a UK-based non-resident fellow with the (Genocide) Documentation Center of Cambodia moderated the discussions which were broadcast LIVE on the Free Rohingya Coalition Facebook page.
In his introductory remarks, the Burmese host called the panel’s attention to the fact that Bangladesh has embarked on the widely condemned “coercive relocation” of targeted 100,000 Rohingya refugees to an unsafe and isolated island of Bhasan Char. Zarni attributed this widely criticized move by Dhaka to the latter’s frustrations over Myanmar’s palpable lack of any genuine political will to repatriate nearly 1 million Rohingya survivors who fled the past waves of genocidal purges and communal destruction by Myanmar government troops over the last 40 years. More pertinent to the discussion, he pointed out the absence of positive impact, or behavioral, or policy shift among Myanmar leaders as the result of international legal efforts to hold to account both Myanmar as a state party to the Genocide Convention and individual leaders such as the senior and command generals and civilian and religious leaders such as Aung San Suu Kyi and the Saffron-robed monk Wirathu.
With admirable clarity, Michael Becker, formerly a legal officer at the ICJ, gave a very likely time frame for the various stages of The Gambia vs Myanmar, the genocide case against Myanmar. The former ICJ legal staff raised the possibility of Myanmar resorting to tactics designed to delay the ICJ case, for instance, repeating its tried and failed challenge of the Court’s jurisdiction over the case, or dismissing and discrediting Gambia’s evidence of genocidal intent which so far rested primarily on the 4-reports of the United Nations Human Rights Council’s International Independent Fact-Finding Mission, presenting the “alternative facts” gathered by its own official International Commission of Enquiry established by Aung San Suu Kyi, Myanmar Agent in the ICJ case.
Becker also cautioned against third country interventions in the Gambia vs Myanmar in support of the Gambia, such as has been declared by Canada, the Netherlands, and the Maldives, all state parties to the Genocide Convention. In his view, Myanmar can manipulate these interventions to its advantage to prolong the proceedings.
The two other legal experts, John Packer and Gregory Stanton expressed concern about William Schabas's reliance on the ICJ judgments in the Bosnia v Serbia and Croatia v Serbia case. In the Bosnia v Serbia case the ICJ ruled that the state of Serbia (under Milosevic) did not directly commit genocide in Bosnia. But Serbia had failed to fulfill its duty to prevent the Srebrenica genocide against Bosnian Muslims (Bosniaks).
In Stanton’s view the Serbian state’s support and direct involvement in the mass murder and destruction against Bosnian Muslims – not just in the infamous Srebrenica genocide but in many different locations – should have prevented the ICJ from reaching that “no violation” ruling. In the Bosnia v Serbia case, the ICJ held that unless genocide - the intentional destruction of a national, ethnic, racial or religious group - was the only intent for a pattern of state actions, the ICJ could not find genocide. If there was another intent - such as "ethnic cleansing" (forcible deportation) - the ICJ could not find the state in violation of the Genocide Convention. The ICJ ignored the fact that the same acts could have two or more intents, both genocide and forced displacement; not either one or the other. The two intents are not mutually exclusive.
Stanton argued that the court could repeat that same incorrect reasoning in Gambia’s genocide case: Myanmar’s Canadian lawyer William Schabas, also a past President of the International Association of Genocide Scholars, was pushing the same but false reasoning that prevailed in the Bosnia v Serbia case. According to this only intent theory of genocidal intent, if deportation was the "real" intent, it precludes the other intents, for instance, the intent to destroy the victim group.
Indeed, a multiplicity of intents and motives are typically present in human deeds, virtuous or criminal. To argue that when one intent is present, other intents cannot be equally present is nonsensical.
Stanton and colleagues have previously published research findings on the disingenuous uses of the term “ethnic cleansing”, a euphemism the late Milosevic used to deny genocide charges in the Bosnian case. The term is used to "bleach the atrocities of genocide" and to paralyze forceful action to stop genocide.
Stanton recalled a personal conversation in Sarajevo with the Prosecutor of the ICTY, Carla del Ponte, wherein, to his deep moral outrage, he learned that the ICTY did not share directly case-relevant evidence in the ICTY's possession with the ICJ in the Bosnia v Serbia case "because they didn't ask for it." The ICTY had obtained unredacted records of communications within the top Serbian military command in order to establish individual criminal responsibility of Serbian military and political leaders such as Milosevic. But the ICTY did not share the records with the ICJ despite the fact that the Bosnia v Serbia case was underway in the ICJ, and the two courts are located in the same Dutch city – the Hague. The ICJ, the most powerful court in the world, could have ordered the ICTY to turn over the records. But it did not.
Professor John Packer, on his part, expressed his palpable discontent over the fact that the ICJ, the international court of, for and by the (UN member) states, has not factored in or made provisions for the victims of Myanmar’s international state crime in alleged violations of the Genocide Convention, a binding inter-state treaty.
He pointed out that the essence of this international legal effort at the ICJ and the ICC will need to be justice for the wronged communities.
Besides the ICJ has enormous power that it does not use to ensure that victims are properly represented in the Gambia vs Myanmar genocide case. The panelists agreed that while the ICC makes dedicated efforts to hear victims’ voices and accord them a meaningful role in the criminal proceedings neither the ICJ nor even the Gambia legal team has made any efforts for keeping the victims fully informed, for instance, about Myanmar’s 6-monthly reports which the ICJ has ordered throughout the duration of the court proceedings.
Packer reminded Rohingya viewers – and their activist supporters that the Gambia vs Myanmar is primarily about the state of Gambia and what its lawyers decide as to their priorities. This fact in turn necessitates a wider Rohingya-focused campaign to seek justice, as the victims see fit.
Panelists did not comment much on the International Criminal Court’s full-investigation into Myanmar’s crimes related to the crime of deportation of large scale Rohingya across the ICC-signatory state of Bangladesh, nor the Universal Jurisdictions case filed at an Argentinian court, using the Pinochet Precedent. Stanton pointed out that the genocide is “not even on the agenda of the ICC” insofar as its investigation of Myanmar’s crimes. Even if the indictments and arrest warrants are issued against Myanmar perpetrators there are some practical and political issues in terms of Interpol’s involvement with Myanmar perpetrators.
Having weighed in on this vital issue of justice in the wider, beyond-judicial sense, Dr. Katherine Southwick urged human rights campaigns to leverage these international legal accountability efforts beyond the physical confines of the courts in the Hague. She stressed both the moral and legal obligations of various states and even the Security Council. The specialist on the international rule of law argued that while Myanmar is clearly the perpetrating state other UN member states which are hosting sizeable Rohingya populations need to uphold various legal and moral principles in dealing with large-scale refugee populations on their soil. Some of the host countries such as Bangladesh (and Malaysia) ought to start local integration schemes, instead of trampling on the rights of Rohingyas both as refugees and human persons.
Additionally, she argued that even the persistent calls for various UN instruments to refer Myanmar to the Security Council are morally important if only such calls – and expected vetoes by China and Russia – shine the light on the unconscionable failures of Russia and China. With John Packer, she is completely in favor of Third Party intervention in the Gambia vs Myanmar case at the ICJ by as many state parties to the Genocide Convention (out of nearly 150 in total) as can be persuaded.
The panelists were also painfully aware that the current Security Council and its veto system has largely failed victim communities around the world, from Palestinians and Khmers of Khmer Rouge Cambodia to present-day Uyghurs, in addition to Rohingyas and many others. For leading UN member states such as the USA and China themselves have acted criminally or provided blanket impunity to their pet clients, or proxy states when the latter commit international state crimes (for instance, the case of the officially Jewish state of Israel against the Palestinians) since the Holocaust ended 70 years ago.