by Wayne Jordash*

Wayne Jordash is one of the most experienced lawyers before international criminal tribunals. He is back from the Rohingya refugee camps in Bangladesh where he met some of the victims he represents in a potential case before the International Criminal Court (ICC). In a vibrant plea, he explains why the ICC Prosecutor was right to seek a ruling allowing her to act and how the judges’ decision advances the Rohingya’s search for justice.

Sitting in Cox’s Bazar, the world’s largest refugee settlement, on 15 October 2018 with two colleagues listening to a group of animated Rohingya women relate their experiences and their hopes for the International Criminal Court (ICC), turned out to be an abject lesson in humility. The women were survivors from a group of 400 known as the Shanti Mohila (Peace Women) that my organisation, Global Rights Compliance, in partnership with Legal Action Worldwide, represent, including for the purposes of the preliminary examination now winding its tortuous way through the corridors of the ICC. The women and girls have suffered terrible sexual and gender-based violence and a wide range of other persecutory type crimes that forced approximately 700,000 of their number into Bangladesh in August 2017, to join another 300,000 that were forced out during previous waves of decade-long, state-sponsored violence.

It was also a stark reminder that pain and anguish are much closer when representing victims, than when defending accused or otherwise working at a distance from the human detail of international crimes. Despite being involved in many international and national judicial processes in a variety of conflicts over the last 20 years, these crimes seem particularly grim to me, especially considering the pitiful chances for any meaningful relief for the Rohingya. There is no room to believe that Myanmar’s military will release its grip of the Rohingya or any realistic hope that their hate, channelled with such destructive intent, might dissipate or diminish anytime soon.

PRECONDITIONS TO REPATRIATION

It perhaps says something about the Rohingya’s continuing tragedy that the safest ‘solution’ on offer for this mass of humanity huddled in Cox’s Bazar is their transportation onto Bhasan Char, a three hundred square kilometre island, four hours off the coast of Bangladesh, that is regularly flooded during the cyclone season and at risk of hostage-taking at the hands of local pirates. As derisory as these plans are, they appear to be the best of a dwindling number of bad options. The principal competitors are a textbook case of the devil and the deep blue sea: repatriation into the apartheid arms of a genocidal regime in Myanmar on the one side or the continued indignity of refugee life on the other – a campsite where fraught humanitarians try but fail to stretch scant resources to meet an avalanche of need.

  “Despite the impoverishment of circumstance, many of the women who gathered under their bamboo-framed UNICEF tent were clearheaded and determined about their future”

Despite the impoverishment of circumstance, many of the women who gathered under their bamboo-framed UNICEF tent to meet their lawyers were clearheaded and determined about their future, including how the ICC might play its part. They had bounded together under the name ‘Shanti Mohila’ with fifteen clear demands that must be met before repatriation. Each is understatedly simple and connotes its own chilling tale of segregation, discrimination and criminal intent: the official recognition of the Rohingya identity; the right to citizenship; freedom of movement in and out of their own villages and towns; the release of their loved ones from detention; the right to practice their religion and so on.

SOMETHING IS BETTER THAN NOTHING

It is instructive that the first of the fourteen demands is a demand for “justice for the torture and atrocities Myanmar committed”. Despite oft repeated claims that the Rohingya community do not know what justice they want, one by one these crouched survivors lifted their heads to express their modest hopes. As I explained the frailties of the ICC and the need to accept that it was no panacea, they summed up why they left their homes and came to Cox’s Bazaar: “my husband was killed and they (the military) burnt my house”; “my son was taken away and I don’t know where he is”; “I was attacked and they cut my son with a knife”. How, they asked, could they not be involved with the ICC?

      “These survivors are not looking for miracles. They know the ICC will not bring back their dead, rebuild their homes or resettle them in a place of safety.”

These plaintive hopes vested in the ICC were not a misguided cry for the improbable or the impractical. These survivors are not looking for miracles. They know the ICC will not bring back their dead, rebuild their homes or resettle them in a place of safety. But it offers something, and at the moment something is better than nothing: a semblance of international attention, a glimmer of humanitarian protection, and a far flung expectation that there is a court where lawyers do not extort bribes and a place where their executors might finally be disarmed.

We are used to lamenting the shortcomings of the ICC and the unfulfilled promises of international justice and accountability writ large. Undoubtedly, I have been one of the biggest culprits. Of course, much of the critique is justified and proportionate to the ICC’s well-publicised failures over the last two decades and the impunity that continues to be relished by the strong. The unconscionable delays, the failure to articulate and to pursue achievable aims, the unwillingness of states to provide adequate funds, the vast expenditure without corresponding results and the hubris of the first Prosecutor have hardly covered the Court in glory.

However, these survivors provide a reminder that some do not enjoy the luxury of these intellectual critiques. Theirs is the grinding reality of basic need: security, a modicum of support and some kind of acknowledgment that might deter on-going crimes and identify those that had chased them out of their homes.

LAW CAN BE BOLD AND INNOVATIVE

      “We should applaud the ICC Prosecutor for responding to this reality with a bold and innovative request”

And so we should applaud the ICC Prosecutor for responding to this reality with a bold and innovative request for a ruling on jurisdiction concerning the mass deportation of the Rohingya from Myanmar to Bangladesh. On the 6 September 2018, the Pre-Trial Chamber of the ICC, by a majority, found that the Court may exercise jurisdiction over the crime of deportation because a legal element of the crime – the crossing of an international border – took place on the territory of Bangladesh, a State Party to the Rome Statute.

The ICC judges may also take their fair share of credit. They followed the law where it took them, brushing aside claims of overweening sovereignty (of non-party states) and (unconvincing) floodgates arguments. In ruling that the ICC may exercise territorial jurisdiction over the crimes against the Rohingya when at least one legal element or part of any crime occurs within the jurisdiction of the Court, the ICC opened the door, not only to the crime of deportation (as requested by the ICC Prosecutor) but also (expressly) to persecution (if it is associated with the deportation) and inhumane acts (if it has a basis in conditions existing in Bangladesh) and (impliedly) to genocide (again, if it has a basis in Bangladesh).

The ICC Prosecutor’s move was a valuable reminder that bold advocacy and the ICC matter and both offer the potential for enhanced access to justice and better outcomes overall. Before this decision, there were no obvious routes to domestic or international accountability. There is no real prospect that the Myanmar military regime will investigate its own in any meaningful way or that Aung San Suu Kyi can be shamed into even a mild critique of their genocidal conduct or the apartheid regime that continues to brutalise the Rohingya and other ethnic minorities within Myanmar. The understandable call for a UN Security Council referral of the situation to the ICC was always doomed to failure. Myanmar is not a State Party to the Rome Statute and China views its future as resting upon the continued rise of the Yuan and not the extension of the international justice system, especially not so close to its own backyard.

MORE THAN A FEW SCALPS AT THE ICC

Of course, despite representing a major advance in the Rohingyas’ search for justice and accountability, only the wildly optimistic would place any faith in the prospect of any accused being in front of the ICC in the foreseeable future. The cumbersome nature of the ICC’s processes, the absence of any cooperation from Myanmar or access to its territory and the linkage evidence in its possession, and the unlikelihood of obtaining the suspects, do not bode well for meaningful accountability in the next decade. But the ICC prosecutor’s request and the decision were a welcome reminder of the power of jurisdictional imagination and the inexcusable impotence of liberal handwringing and despair. We cannot continue to criticise the ICC or lament the collapse of international justice whilst failing to make smart use of the international legal infrastructure that exists to protect and enforce fundamental rights.

     “Of course, a Court that even in the most favourable of circumstances will try a mere 5-10 accused sometime in the next 10 years, is incapable of being a solution for the Rohingya’s overall justice needs.”

As such, the ICC’s preliminary examination into the Rohingya situation provides a significant opportunity for focused advocacy and legal confrontation. Of course, as recognised by the women of Shanti Mohila, as a Court that even in the most favourable of circumstances will try a mere 5-10 accused sometime in the next 10 years, it is incapable of being a solution for the Rohingya’s overall justice needs. There is much more to be done to confront this barbarous regime and pursue the truth, genuine access to justice, redress, guarantees of non-recurrence, and respect for the rule of law. These objectives rest on something more than the diminutive prospects of a few military scalps at the ICC.

THE TOOLS OF A SEMI-WORKABLE INTERNATIONAL SYSTEM

   “We cannot complain of inadequacies unless we have engaged, as legal entrepreneurs, with the law that exists and the entirety of the tools at our disposal.”

We must also be bold and productive. Whilst insisting on a more efficient and effective ICC, we must accept that without fundamental reform and significantly more resources it will never be able to conduct more than a handful of symbolic trials, usually many years after the events. We can, nonetheless, draw on its normative reach, such that it is, to optimise and energise the struggle for accountability across the international human rights system. Unlike the immediate post World War II period, we do have a semi-workable system of judicial and quasi-judicial mechanisms that may be harnessed to build our resistance to the Yangon based criminals and others that globally threaten to dismantle the rule of law. We cannot complain of inadequacies unless we have engaged, as legal entrepreneurs, with the law that exists and the entirety of the tools at our disposal.

In this respect, although there is plenty to deride in the dysfunction of the UN Security Council and its response to the on-going brutalisation of the Rohingya, there is some cause for quiet satisfaction at the responses elsewhere. The Human Rights Council’s tireless Special Rapporteur on the situation of human rights in Myanmar, Ms Yanghee Lee, is an eloquent illustration of the importance of speaking truth to a soporific international community. The September 2018, UN Independent, Fact Finding Mission’s Report on Myanmar (calling for the investigation and prosecution of senior generals of the Myanmar military for genocide, crimes against humanity and war crimes) was unusually forthright and clear in the UN’s willingness to identify the features of the apartheid regime and use “genocide” to describe the ongoing events within Myanmar. The Human Rights Council’s creation of the Ongoing Independent Mechanism with its mandate to prepare for criminal proceedings in future courts is a sad indictment of the failure of the Security Council but also an eloquent demonstration of how other parts of the human rights system can strain to resist the global drift into authoritarianism and indifference.

NO JUSTIFICATION FOR A LONG PRELIMINARY EXAMINATION

   “The ICC Prosecutor must finish what she started. She must move swiftly to open a full investigation that is ambitious and transparent.”

And the ICC Prosecutor must finish what she started. She must move swiftly to open a full investigation that is ambitious and transparent. There is no justification for an interminable preliminary examination cloaked in mystery. As pointed out by the ICC Judges, the victims have the right to an expeditious process “to know the truth, to have access to justice and to request reparations”. These rights are even more critical to the dignity of those who have been systematically targeted by a regime so divorced from the rule of law. The opening of the investigation, the arrival of the investigators and associated ICC outreach stretched over time, will provide valuable opportunities for the survivor community, including the women of the Shanti Mohila, to be heard and for their voices to be amplified.

Of course, these prospects hardly excite, especially when compared with the heady days of the mid 1990’s when courts were springing up around the globe and global accountability seemed really possible. But, as the ICC Prosecutor has recently shown, all is not lost. It is surprising what can be done when judicial actors link arms with survivor groups and help them push for access to justice and inclusive legal participation by testing the limits of the law. As those resilient survivors of the Shanti Mohila made clear to me, as the rains began and cast a long shadow over the place they now call home, these efforts may not be much, but they are something and something is better than nothing: if not peace or security, then at least some recognition and a little truth.

*Wayne Jordash QC has appeared as a defence lawyer before contemporary international tribunals for Rwanda, Sierra Leone, the former Yugoslavia and Cambodia. He was a member of Libya’s team at the ICC, works with the Ukrainian Prosecutor General’s Office and (along with LAW) is the legal representative of victims before the ICC for the group of Shanti Mohila women and girls, and the managing partner of Global Rights Compliance LLP.

**This article was originally published here.