Justice in Myanmar

Myanmar and the International Criminal Court of Justice

Words by Adrienne Ringin

The desperate plight of the Rohingya in recent months has rightly evoked international outrage. On 1 May 2018, UNICEF reported that since August 2017, approximately 655, 000 Rohingya had fled Myanmar to neighbouring states. Vivid recounts of mass extrajudicial killings, arson, rape, torture and mutilation have prompted the international community to finally condemn Myanmar’s leaders for the systemic abuse of a people within their nation’s borders. While the spike of the crisis appears to have passed, the attempt to hold the perpetrators accountable has only just begun.

On 9 April 2018, International Criminal Court Prosecutor Fatou Bensouda requested a determination from the judges as to whether the ICC has the jurisdiction to open a probe into the crisis in Myanmar. The determination is necessary as Myanmar is not a signatory to the Rome Statute which would have automatically granted the ICC jurisdiction. An investigation could have been launched had Myanmar accepted the ICC’s jurisdiction (Rome Statute Article 12(3)) or if the United Nations Security Council referred the situation to the ICC (Rome Statute Article 13 (b)) but both of these avenues remain unemployed. Prosecutor Bensouda’s argument is unique as it attempts to utilise the Rome Statute membership of Bangladesh and the crime of deportation to justify the jurisdiction of the ICC. The success of this endeavour will be revealed eventually. In the interim, advocates have an opportunity to turn their minds to the legal requirements of the crimes with which the perpetrators could be charged with.

The ICC’s jurisdiction, found in Article 5 of the Rome Statute, is limited to the “most serious crimes of concern to the international community as a whole” – genocide, crimes against humanity, war crimes and the crime of aggression. The UN’s Special Rapporteur to Myanmar Yanghee Lee, told the Human Rights Council in March that she was ‘increasingly of the opinion that the events in the Rakhine State bear the hallmarks of genocide’. Indeed, accounts of the act perpetrated against the Rohingya are strikingly similar to those acts perpetrated against the Tutsi population of Rwanda in 1994 and the Muslim population of Srebrenica during the Yugoslavian conflict – both atrocities later branded as genocide.

But what does it entail to charge an individual with the crime of genocide? So far, the international community has demonstrated a great reluctance to use this term, preferring to use the watered down ‘ethnic cleansing’ which is encapsulated under ‘crimes against humanity’. This is because genocide holds an elevated place in the hierarchy of crimes; it is considered the most egregious resulting in great caution around its use. This distinction is evident in the complex legal definition which consists of three separate requirements, each featuring numerous elements and thresholds. A further complication is the fact that the ICC has never convicted an individual of genocide : limited resources, lack of state support and selectivity of the cases so far presented are some reasons why this is the case.  It is therefore likely that the pursuit of a genocide charge will adhere to the case law stemming from the International Criminal Tribunals of Rwanda and the former Yugoslavia respectfully, with the judgements of Akayesu, Kayishema and Ruzindana, Krstic, and Blagovoc and Jokic the most informative.

Article 6 of the Rome Statute uses the definition of genocide from the Convention on the Prevention and Punishment of the Crime of Genocide. It states that:

‘For the purpose of this Statute, ‘genocide’ means any of the following act committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such:

  1. Killing members of the group;

  2. Causing serious bodily harm or mental harm to members of the group;

  3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

  4. Imposing measure intended to prevent births within the group;

  5. Forcibly transferring children of the group to another group’

The three separate requirements are the ‘acts’ requirement, the ‘group’ requirement and the ‘dolus specialis’ or ‘special intent’ requirement. The ‘acts’ requirement is set out in the subparagraphs of the definition featuring subtle nuances which prevent this requirement from being straightforward. For example, Akayesu ruled that intent and knowledge must be displayed to qualify as ‘killing’ while Kayishema and Ruzindana found that ‘conditions of life’ has been said to include instances of rape, lack of hygiene, medical care, excessive work and physical exertion. There is a real possibility that one or more of these acts could be found to apply to the Rohingyan crisis.

The protected groups are the ones enumerated explicitly in the list. These terms remain  mostly undefined, allowing case-by-case determinations to be made using both subjective and objective criteria (as determined in Nahimana) but using the broad parameters established in Akayesu. ‘National’ groups people with a common legal bond based on a common citizenship, while ‘ethnical’ is considered to be more cultural. ‘Racial’ applies to those bound by common descent, with ‘religious’ binding people through common theistic beliefs. The list has been interpreted as exhaustive resulting in social and political groups being excluded. The Rohingya would likely qualify as a national, ethnical or religious group.

The ‘dolus specialis’ is the requirement which distinguishes the crime of genocide from the crime against humanity. It is also the requirement which is usually the downfall of the prosecution as it is incredibly hard to obtain evidence of an individual’s specific intent to destroy, in whole or in part, a group. Direct evidence, such as government documents ordering one of the above acts, is rare. Tyrannical governments learnt the lessons of the Holocaust in that respect. Prosecutors are therefore forced to rely on circumstantial evidence such as speeches, the presence and conduct of officials at killings and the nature and scope of control. Additionally, a determination of genocidal intent can only be made where it is the ‘only reasonable inference from the totality of the evidence’ . Where another inference is plausible, the special intent cannot be established, obliterating the chance of a conviction of genocide.

The choice to pursue genocide in this situation would be precarious but not impossible. Of course, there are additional challenges that would need to be overcome due to the imperfect system of the ICC, such as the reliance placed on states to transfer the accused to the Court. It is also important to continue to support the victims during these legal deliberations. Bangladesh, which hosts most of the refugees, is about to enter into its monsoon season. Agencies are anticipating flooding in the refugee camps, resulting in more chaos and uncertainty for those who have already suffered enough.

Take action

While it is imperative to work towards a legal solution, also consider making a pledge to count your voice among those who stand against violations of international law.

It’s not just about ‘Change the Date’

26 January is a day of mourning

Words by Adrienne Ringin

As evidenced by the thousands who flocked to rallies in the major cities, changing the date of ‘Australia Day’ is a significant issue for all Australians. January 26th is not a day to recognise national unity;  It’s day to remember Australia’s first peoples who never signed a treaty or ceded their land. It’s day to remember the violence of colonisation which tore cultures and families apart. It’s a day of mourning.

Support for the campaign to Change the Date has increased over recent years. Indigenous voices and allies have been effective at raising awareness throughout all facets of society. Backing from athletes, musicians and even government parties has been attained with various local councils (Yarra, Darebin and Moreland) demonstrating their support by moving citizenship ceremonies to an alternate day. Such success is the result of serious targeted campaigning from dedicated individuals. As understanding increases, it is possible that in the near future, January 26th will be a day commemorated for the right reasons.

Continual advocacy for this particular issue is important but as January 26th has passed for another year, now is the time for all who care about the state of equality in this country to shift energy and re-engage with some other crucial campaigns which have been lost from the public view while the Change the Date campaign was prominent. If the same passion and fervour are ignited for the following issues, there is a greater chance that real, systemic and lasting change will follow.

Indigenous Imprisonment Rates

According to the 2016 Census, there are 786, 689 Aboriginal and Torres Strait Islanders currently residing within the territorial borders of Australia. This equates to only 2 per cent of Australia’s entire population. In the correction system however, Aboriginal and Torres Strait Islanders account for 27 per cent of the prisoner population with 76 per cent having experienced previous imprisonment.

This overrepresentation continues in the juvenile justice system. Between 2015-2016 there were 5,500 ten to seventeen-year-olds under youth justice supervisions which includes supervision orders and detention. Aboriginal and Torres Strait Islander children were the majority of both of these categories: Indigenous children made up 49 per cent of those under supervision and 59 per cent of those in detention. Australia made international headlines when the restraint mechanisms used on Dylan Voller were made public, and the Royal Commission into the Protection and Detention of Children in the Northern Territory revealed further stories of systematic abuse and neglect of children in detention.

The inquiries into this state of affairs over the years have been numerous, and in October 2016 George Brandis announced yet another investigation, the Inquiry into Indigenous Incarceration. The final report was tabled in Parliament in March this year but does not reveal anything that was not already well known – Aboriginal and Torres Strait Islander men are 14.7 times more likely to be imprisoned than non-Indigenous men while Aboriginal and Torres Strait Islander women are 21.2 times more likely. What we now must ensure is that the thirty-five recommendations from this inquiry are actually enforced and adequately funded rather than consigning this most recent report to the pile.

Constitutional Recognition and Treaty

In stark contrast to its contemporaries such as the United States, Canada and New Zealand, Australia is one of the very few former colonies which does not have a treaty with its First Nations people. Constitutional protection is similarly not afforded. Two separate but associated movements have gathered momentum lately which seek to rectify the position.

The First Nations National Constitutional Convention was a historic event which saw Indigenous leaders from across Australia present a united consensus demanding constitutional recognition – The Uluru Statement from the Heart. This would be realised through a constitutionally enshrined Indigenous representative body providing a voice to Parliament on Indigenous issues. Constitutional recognition allows for permanence and stability, feats not possible through a legislated body which can be scrapped with a change of government. Malcolm Turnbull’s dismissal of such a body featured spurious mistruths including that such a body would create a third chamber of government (wrong: it’s a voice to the parliament not in the parliament), that it would not have the backing of the Australian people (false: even conservatives approve the plan) and that it undermines equality (incorrect: it gives an Indigenous voice to Indigenous issues). This movement needs supporters to prove Malcolm Turnbull wrong.

The Convention also saw the resurgence of the call for a Makarrata Commission. A Yolngu word which has multiple connotations, it is often employed to mean ‘treaty’ but also ‘captures the ideas of two parties coming together after a struggle and healing the divisions of the past’. This movement has been around since the 1970’s, but the success of the Convention has stirred it again. The difficulty of this movement is the uncertainty around what a treaty would entail as well as the ongoing ramifications should one be enacted. This uncertainty has led past campaigns to stall but now is the time for its revival with passionate, informed supporters.

Black Lives Matter: Australia

This movement is just as crucial here as it is in the United States. The tragic death of Elijah Doughty and the subsequent sentence imposed illuminates that access to justice in Australia can still depend on the colour of your skin. Elijah’s death is one in a long line of Aboriginal deaths that have been met with reports of ‘suspicious’, unknown’, ‘accidental’ or ‘inevitable’; where murder has been changed to manslaughter; where the murderers enjoy the privilege of remaining unnamed ‘for their protection’; where Black witnesses are tagged as unreliable. It’s time to change this narrative; it’s time to care about all of us.

Change the Date is a visible campaign and one of great importance to this nation but each of the campaigns mentioned also need support. Each work to rectify the damaged state of equality which Australia finds itself in. While there is no single element which will immediately improve Indigenous Justice in Australia, by uniting on these fronts, there is a greater possibility that improvement will be felt in the near future.

Take action

Interested in creating change? Sign the petition and show your support for the Uluru Statement from the Heart.  .

You can also ‘like’ the BlackLivesMatterAU Facebook page to keep up to date on that story here.

Get involved with Amnesty International Australia’s Indigenous Justice campaigns.