Justice for the Rohingya: Global obligations to hold Myanmar accountable for atrocity crimes
As part of Peacemakers Trust's initiative since 2017 towards justice and peace for Rohingya people, in early 2020 Peacemakers Trust director, Catherine Morris, in her capacity as Associate of the University of Victoria (UVic) Centre for Asia Pacific Initiatives (CAPI) worked with Canadian Senator Marilou McPhedran, CAPI Director Victor V. Ramraj, UVic Faculty of Law Dean Susan Breau, and University of Ottawa Faculty of Law Professor John Packer to initiate and convene an online roundtable held 21 May 2020. The round table explored potential Canadian responses towards justice for Rohingya people who have suffered atrocity crimes committed by the Myanmar military, including allegations of genocide that are now in the International Court of Justice (ICJ) in the case of Gambia v. Myanmar. A major focus of the roundtable was on systematic sexual violence as a method of genocide against the Rohingya.
The report of the Roundtable is entitled, Justice for the Rohingya: The Role of Canada (pdf). The virtual roundtable drew together dozens of scholars and experts from times zones around the world including Canada, Myanmar, Australia, Bangladesh, Korea, the United Kingdom, the United States, and elsewhere.
This project follows Peacemakers Trust's previous work on the situation of the Rohingya. See a press release (.pdf). This followed a 9 December 2019 announcement by Canada and the Netherlands: "..In order to uphold international accountability and prevent impunity, Canada and the Netherlands hereby express their intention to jointly explore all options to support and assist The Gambia in these efforts. On 10-12 December 2019, the ICJ held hearings on provisional measures. On 23 January 2020, the Court issued its Decision on Provisional Measures On 28 January 2020, the Court set filing deadlines for The Gambia to file its Memorial 23 July 2020 and for Myanmar to file its Counter-Memorial by 25 January 2021. On 25 June 2019, Peacemakers Trust joined an open letter (Eng .pdf; français .pdf) to Canada's Minister of Foreign Affairs urging Canada to initiate proceedings against Myanmar in the International Court of Justice. See Peacemakers Trust's 2017 briefing note on international law duties of neighbouring States to refugees and asylum seekers.
Canada's obligation to hold Myanmar accountable for genocide
by Catherine Morris, BA, JD, LLM
Press Conference, West Block, Parliament of Canada, Ottawa, 13 June 2019, 10:30 am
Joint briefing note by Peacemakers Trust and LRWC, 13 June, 2019 | Full text .pdf (summarized at the press conference).
Canada currently has an opportunity to fulfil its international law obligation to seek accountability of Myanmar for its ongoing genocide against Rohingya people. Canadian Senators have only a few days before Parliament rises later this month to pass a non-partisan motion* urging the Government of Canada to pursue the matter before the International Court of Justice (ICJ) under Article IX of the Genocide Convention. Passing this motion will demonstrate that Canada stands firmly united in taking strong action against this genocide. If passed within the next few days there remains an opportunity to pass a similar motion in the House of Commons.
Canada's leadership to date
In October 2017, the Prime Minister sent a Special Envoy, Hon. Bob Rae, to Bangladesh on a fact finding mission to assess reports of massive atrocity crimes against Rohingya Muslims that were leading to the exodus of hundreds of thousands of Rohingya people into Bangladesh. Bob Rae's April 2018 report provided several recommendations including humanitarian assistance to Rohingya refugees and creation of an international, impartial and independent mechanism (IIIM) to gather and preserve evidence of atrocity crimes that will be useable in future in international courts.
Canada took a non-partisan stand in September 2018 when the House of Commons adopted a unanimous resolution calling the situation of the Rohingya a "genocide." Canada was the first country to do so.
UN Human Rights Council: Fact Finding Mission and IIIM for preservation of evidence
In March 2017, the UN Human Rights Council launched an Independent International Fact Finding Mission (FFM) on Myanmar. Myanmar's military and civilian authorities refused to cooperate with the FFM or to provide the FFM or other UN officials with access to Myanmar. Its 24 August 2018 report confirmed systematic, severe, widespread, and brutal human rights violations by officials in Myanmar, including war crimes, crimes against humanity against Rohingya, Shan and Kachin peoples, and genocide against the Rohingya people. The FFM found evidence that Myanmar authorities at the highest level have contributed directly to genocide and other atrocity crimes, have blocked all independent investigations, and have overseen the destruction of evidence.
Bob Rae's report also added Canada's reputation and weight to the international advocacy that led the UN Human Rights Council to adopt in September 2019 an IIIM to gather and preserve evidence of genocide and other atrocity crimes that will be useable in impartial and independent tribunal. While progress has been made towards creation of the IIIM, it is not yet in operation, and there is no international tribunal available for submission of the evidence. The FFM's Chairperson, Mr. Marzuki Darusman, said on 14 May 2019 that Myanmar has failed to take sufficient steps to protect human rights or to address the forcible exile of more than a million Rohingya civilians. He said simply, "The situation is at a total standstill."
The International Criminal Court has taken a step, but not on genocide
Myanmar has not ratified the Rome Statute of the International Criminal Court (ICC). This means that only the UN Security Council can refer the situation to the ICC. However, in September 2018 the ICC did accept jurisdiction over the crime of deportation of Rohingya people to Bangladesh, based on the fact that the deportations have taken place partly in Bangladesh, which is a State Party to the Rome Statute. The ICC Prosecutor started her investigation in Bangladesh in early March.
This investigation covers only the crime of deportation of hundreds of thousands of Rohingya people into Bangladesh.
However, this investigation does not cover war crimes, crimes against humanity, or genocide in Myanmar.
Security Council inaction
The UN Security Council has failed to take action. Despite considerable advocacy from States and civil society organizations, all efforts to persuade the Security Council to refer the matter to the ICC have failed. On 6 November 2018, the Security Council considered the situation in Myanmar and managed to prevent China's veto only by resorting to a weaker, non-binding Statement that avoids the terms "ethnic cleansing," "crimes against humanity," "war crimes" or "genocide." Instead, the unanimous Statement "strongly" condemns the "violence" and expresses "grave concern over reports of human rights violations and abuses." Given China's veto power, the Security Council is highly unlikely to take up recommendations of referrals to the ICC or the creation of an adhoc court similar to the tribunals set up to address atrocity crimes in the former Yugoslavia, Rwanda and Sierra Leone.
Referral to International Court of Justice (ICJ) under the Genocide Convention Article IX
In the absence of cooperation by Myanmar and every Permanent Members of the Security Council (including China) there is no possibility of a referral to the ICC regarding the full range of atrocity crimes, including genocide, committed by Myanmar and its authorities. Other measures must be urgently pursued, including referral of the matter to the ICJ under Article IX of the Genocide Convention. The Organization of Islamic Cooperation (OIC) in March 2019 decided to proceed with plans to take Myanmar to the International Court of Justice under the Genocide Convention Article IX. However, no concrete action has been taken.
Canada has a unique opportunity to lead the way in the growing interest in taking the matter to the ICJ. Support by all Parliamentarians in the House of Commons and Senate of Canada would provide impetus for Canada to take immediate action.
Canada is legally obligated to act
International law is clear that prevention and accountability for the crime of genocide is the concern of the international community as a whole and that when genocide occurs in any State, it is the duty of all other States to ensure prevention and accountability of perpetrators. This means Canada has an international obligation to seek accountability for genocide. Prevention of ongoing genocide requires prompt action to call an immediate halt to Myanmar's impunity.
To ensure that Canada takes all possible measures to comply with its international obligations, the Senate must now take immediate, non-partisan action to ensure the passage of Motion No. 476 without further delay and to seek cooperation of the House of Commons to pass a similar resolution.
I conclude with the words of a Rohingya peace worker living in Bangladesh who was able to travel to the UN Human Rights Council in March 2019 to plead for action from the international community. Lawyers' Rights Watch Canada worked with other civil society organizations and the UN Special Rapporteur on the Situation of Human Rights in Myanmar to provide her with an opportunity to address the Human Rights Council. Here are her words:
Salam alaikum. My name is Hamida Khatun, I come from Buthidaung in Burma. I am Rohingya. I had to memorise my speech today because, like many Rohingya women, I cannot read or write. I was denied an education. In August 2017 I fled Burma to Bangladesh when my village was attacked. My Rohingya brothers and sisters were killed. My husband and mother were killed. I am the only Rohingya woman that could leave Bangladesh to tell you what happened to hundreds of thousands of us. I am here on behalf of Shanti Mohila, a group of Rohingya women who also fled the violence who have come together to raise our voices. The name Shanti Mohila means peace women and we want peace in Myanmar. I have three requests of the international community: First: Justice including compensation; Second: To return home in safety and security including citizenship; Third: Access to education.
Will Canadian senators now act unanimously to respond to her plea by passing Motion 476?
* On 11 April 2019, Hon. Marilou McPhedran made the following Motion No. 476:
That the Senate urge the Government of Canada without further delay to invoke the Genocide Convention and specifically to engage with like-minded States to pursue the matter before the International Court of Justice in order to hold Myanmar to its obligations and to seek provisional measures and ultimately reparations for the Rohingya people;
That the Senate urge Canada to exert pressure on Myanmar to allow for unobstructed access to Rakhine State by independent monitors in order to investigate the international crimes committed and to afford protection to remaining Rohingya;
That the Senate urge the Government of Canada to continue to assist the Government of Bangladesh through multilateral aid in addressing the humanitarian needs of the Rohingya refugees, with particular focus on the needs of women and children, including education; and
That a message be sent to the House of Commons requesting that house to unite with the Senate for the above purpose.
 Catherine Morris, BA, JD, LLM is an adjunct professor in the Faculty of Law, University of Victoria. She serves as UN Liaison Director of Lawyers Rights Watch Canada (LRWC) a committee of lawyers who promote international human rights, the integrity of legal systems and the rule of law globally through research, education and advocacy. LRWC is an NGO in Special Consultative Status with the Economic and Social Council (ECOSOC) of the United Nations (UN). Ms. Morris is also the managing director of Peacemakers Trust, a Canadian charitable organistion for conflict transformation and peacebuilding. Contact: Catherine Morris, 250-477-0129; firstname.lastname@example.org.
 Hon. Bob Rae, "Tell them we're human" What Canada and the world can do about the Rohingya crisis https://www.international.gc.ca/world-monde/issues_development-enjeux_developpement/response_conflict-reponse_conflits/crisis-crises/rep_sem-rap_esm.aspx?lang=eng.
Canada's response to the Rohingya crisis in Myanmar and Bangladesh, Government of Canada, n.d., at https://www.international.gc.ca/world-monde/issues_development-enjeux_developpement/response_conflict-reponse_conflits/crisis-crises/myanmar.aspx?lang=eng
 UN Human Rights Council, Report of the Independent International Fact-Finding Mission on Myanmar, A/HRC/39/64, 24 August 2018, para 50, 93 at: https://www.ohchr.org/EN/HRBodies/HRC/MyanmarFFM/Pages/ReportoftheMyanmarFFM.aspx
 Hon Bob Rae, "Tell them we're human" What Canada and the world can do about the Rohingya crisis, Government of Canada, https://www.international.gc.ca/world-monde/issues_development-enjeux_developpement/response_conflict-reponse_conflits/crisis-crises/rep_sem-rap_esm.aspx?lang=eng
 Myanmar has not done enough to resolve the nation's internal-conflicts or protect human rights, including those of over a million ethnic Rohingya civilians who have been forced into exile, according to FFM Chairperson Marzuki Darusman, UN News, 14 May 2019, at: https://news.un.org/en/story/2019/05/1038501
 Edith M. Lederer, The Associated Press, UN condemns violence against Rohingyas after China opposes stronger resolution, CTV, 6 November 2017, available at: https://www.ctvnews.ca/world/un-condemns-violence-against-rohingyas-after-china-opposes-stronger-resolution-1.3665933
 Sebastiano Cardi, President, United Nations Security Council, Presidential Statement S/PRST/2017/22, 6 November 2017, available at: https://www.un.org/press/en/2017/sc13055.doc.htm (scroll down).
 Michael A Becker, The Situation of the Rohingya: Is there a role for the International Court of Justice?, EJIL: Talk!, 14 November 2018, at https://www.ejiltalk.org/the-situation-of-the-rohingya-is-there-a-role-for-the-international-court-of-justice/
 International Court of Justice, Case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Judgment, 26 February 2007
 Myanmar: Oral Statement to 40th Session of the UN Human Rights Council: Statement of Rohingya peace advocate, Hamida Khatun, Joint Statement of LRWC and ISHR, 11 March 2019, at https://www.lrwc.org/myanmar-oral-statement-to-40th-session-of-the-un-human-rights-council-statement-of-rohingya-peace-advocate-hamida-khatun-joint-statement-of-lrwc-and-ishr/