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Home Posts tagged "Myanmar"

A Picture is Worth a Thousand Words

Published on December 4, 2019        Author: 

(Image credit: AFP)

Next week, Aung San Suu Kyi, the Nobel Peace Prize laureate and de facto head of government of Myanmar, will appear in person before the International Court of Justice. She will be defending her country in the case brought by Gambia for breaches of the Genocide Convention due to atrocities against the Rohingya. The Court will be holding oral hearings on provisional measures in the case (for our earlier coverage, see here). According to an AFP report:

Ardent fans of Aung San Suu Kyi are snapping up spots on $2,000 tours to The Hague, in a display of moral support as Myanmar faces charges of genocide over the Rohingya crisis at the UN’s top court in December.

Supporter rallies, billboards and outpourings of praise online followed the shock announcement by the country’s civilian leader last week that she would personally represent Myanmar at the International Court of Justice (ICJ).

The once-lauded democracy champion will be defending the 2017 military crackdown against the Rohingya minority.

One travel operator is organising a five-day tour to The Hague that includes visa and transportation as part of a $2,150 package, said employee Ma July — a prohibitive rate for most in the developing nation.

Social influencer Pencilo and well-known TV presenter Mg Mg Aye are among the 20 or so people to have already signed up.

“I believe this is our duty as citizens,” Pencilo, 29, told AFP Friday, urging any of her 1.1 million Facebook followers who have the means to do the same.

“It’s important the world knows her compatriots are fully behind her.”

– ‘We stand with you’ –

All of this is so deeply disturbing on so many levels that I genuinely find myself bereft of words. But the image above somehow manages to convey it all – Peace Palace, Photoshop, Facebook. For analysis of why Suu Kyi has decided to appear before the Court in person, perhaps due to her total inability to accept a reality that is not to her liking, or perhaps as part of a cynical strategy to buoy support for her party and herself within Myanmar, see here and here. Either way, it will be a sad spectacle, in more ways than one.

 

The Gambia’s gamble, and how jurisdictional limits may keep the ICJ from ruling on Myanmar’s alleged genocide against Rohingya

Published on November 21, 2019        Author: , and

 

On 11 November, The Gambia filed an Application instituting proceedings and requesting provisional measures at the International Court of Justice (ICJ) in relation to the genocide allegedly committed by Myanmar against the Rohingya (for a first analysis of the Application, see this post by Priya Pillai). As notably reported by The New York Times and The Washington Post, the application is at least in part a personal quest for justice by The Gambia’s Minister of Justice and Attorney General, Abubacarr Marie Tambadou, who acts as The Gambia’s Agent and previously worked for the prosecutor of the International Criminal Tribunal for Rwanda. The Gambia’s application is backed by the Organisation of Islamic Cooperation (of which The Gambia is a member) and its legal team is led by the US law firm Foley Hoag (see here). As we will argue below, the peculiar origins of this quest for justice may well be determinative for the establishment of the ICJ’s jurisdiction.

Regarding the atrocities committed against the Rohingya, the UN Human Rights Council’s Independent International Fact-Finding Mission on Myanmar has found ‘that the factors allowing the inference of genocidal intent are present’ (see here, para 1441). While there appears little reason to disagree with the Fact-Finding Mission’s conclusion, in this post we will not examine substantively whether the atrocities complained of constitute genocide. Instead, we will briefly sketch why it makes sense for The Gambia to seize the ICJ while proceedings relating to the Rohingya are already going on at the International Criminal Court (ICC), after which we will address the request for provisional measures.

Different nature of the ICJ and ICC Proceedings

Just three days after The Gambia submitted its application to the ICJ, Pre-Trial Chamber III of the ICC authorized the Prosecutor to investigate the situation in Myanmar/Bangladesh (see here). As Myanmar is not a party to the Rome Statute, and as the position of China and Russia make a UN Security Council referral highly unlikely (see eg here), the Prosecutor has opened an investigation on her own initiative. The investigation ‘geographically’ focuses on Bangladesh, Myanmar’s neighbouring country to which over 742.000 Rohingya refugees have fled (see here). Bangladesh is a party to the Rome Statute, and accordingly provides a jurisdictional link to the Court. Read the rest of this entry…

 

The ICC Pre-Trial Chamber’s Reading of “or” in the Myanmar Jurisdiction Ruling: On the Relevance of Linguistics to Interpretation

Published on October 2, 2018        Author:  and

Linguistics continues to be a blind spot for international lawyers. Despite the self-perception that lawyers work predominantly with language, an in-depth inquiry into the actual science dealing with the phenomenon of language remains, to a large extent, a desideratum. Linguistics can, however, be very helpful in understanding the intended meaning of a word or phrase, as we will try to argue in this post. A good example of its usefulness and significance is provided in the recent decision of the ICC Pre-Trial Chamber on the Prosecutor’s request for a ruling on whether the Court may exercise jurisdiction over the alleged deportation of members of the Rohingya people from Myanmar to Bangladesh. In paras 52 ff., the Chamber had to interpret Article 7(1)(d) of the Rome Statute to establish whether the Article embodies either a single or two separate crimes, in light of the use of the word “or”. As will be be shown, the resulting interpretation of the word “or” demonstrates the usefulness of linguistic knowledge from which international law could draw in the future.

We hope that we are not seen as using a case featuring harrowing events as a mere façade for legal-intellectual exchanges. We suggest that a narrow technical approach is justified, particularly, in such important cases where so much depends on interpretation (e.g., the exact contours of jurisdiction of an international court).

Linguistics, semantics, pragmatics

International lawyers’ relationship with linguistics has been somewhat selective. In recent writing, some have used elements of corpus linguistics or discourse analysis to gain insights into international law. However, other modern aspects of studying meaning as a phenomenon in language seem to continuously escape international lawyers’ attention. For example, there is a certain tendency to refer to Wittgenstein’s Philosophical Investigations (1953) and his argument that words are defined by how they are used without putting his work in context (see e.g. recently Klabbers, International Law, Cambridge University Press 2017, p. 56). The progress that linguistics has made in the decades following the 1950s, in particular with regard to the semantics-pragmatics divide, is left aside as a consequence. Read the rest of this entry…

 

An Independent Mechanism for Myanmar: A Turning Point in the Pursuit of Accountability for International Crimes

Published on October 1, 2018        Author: 

Last week, the Human Rights Council voted to establish an “independent mechanism” to collect, consolidate, preserve and analyse evidence of violations of international humanitarian law and human rights in Myanmar.

To those following international efforts to bring perpetrators of war crimes, crimes against humanity and genocide to justice, this watershed moment could herald a paradigm shift in how atrocities in situations such a Syria, Myanmar and Yemen are addressed.

The need for such a mechanism, at its core, stems from the need to bolster investigations and trials into the most serious crimes – both at the national and international levels.

Much has been written about the need to leverage the impact of the International Criminal Court in situations where it has jurisdiction, including a recent Human Rights Watch report, Pressure Point: The ICC’s Impact on National Justice – Lessons from Colombia, Georgia, Guinea, and the United Kingdom, which takes a stab at addressing this question.

The report proposes a range of measures by international partners of the International Criminal Court, international organizations, and civil society groups to assist national authorities to carry out effective prosecutions of international crimes, such as legislative assistance, capacity building, advocacy and political dialogue to counter obstruction.

These measures, however, overlook the more technical and evidentiary challenges that forestall national proceedings into war crimes and crimes against humanity. Most national judiciaries either lack the full capacity to conduct war crime trials in accordance with universally adopted standards, are too strapped for resources to comb through voluminous materials from human rights NGOs or victim groups regarding widespread atrocities, or lack the legal expertise to qualify criminal conduct as international crimes.

Read the rest of this entry…

 
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The Prosecutor’s Request for a Ruling on the ICC’s Jurisdiction over the Deportation of Rohingya from Myanmar to Bangladesh: A Gender Perspective

Published on April 18, 2018        Author:  and

On 9 April 2018, the ICC’s Office of the Prosecutor requested a ruling of a pre-trial chamber on the ICC’s jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh.

While Geoff Curfman in his Just Security post has already aptly commented on the Prosecution’s approach, this post seeks to examine the Prosecution’s request from a different angle, namely a gender perspective.

Background: Sexual violence against Rohingya

Documentation efforts in refugee camps in Bangladesh are exposing the grave nature and vast scale of sexual violence perpetrated against Rohingya in Myanmar, forcing many to flee. Human Rights Watch, for example, stated that it “found that Burmese security forces raped and sexually assaulted women and girls […]”. The report of the OHCHR’s Fact-finding Mission on Myanmar declared that there is “ample and corroborated information on brutal gang rapes and other forms of sexual violence against women”. Finally, Special Representative on Sexual Violence in Conflict, Pramila Patten, told the Security Council that every woman or girl she had spoken with during her visit to Rohingya encampments in Bangladesh “ha[d] either endured or witnessed sexual violence”, including seeing women literally being raped to death. Approximately 80% of those forced into Bangladesh since 25 August 2017 are women and children, and while sexual violence has not be limited to women and girls, it is understood they appear to comprise the majority of victims of sexual violence in this context.

Sexual violence and the Prosecution’s Request: Deportation as a blessing in disguise for gender justice Read the rest of this entry…