If they were to return to Myanmar, they would live next door to the perpetrators. You cannot simply just return to the previous status quo and expect everything to proceed. You cannot simply forgive and forget when you have had that level of victimisation. There has to be a process of holding those perpetrators accountable.
Toby Cadman is an international law specialist in the field of international criminal and humanitarian law, international human rights law, extradition and mutual legal assistance, anti-corruption, whistle-blower protection, business and human rights, international commercial law, arbitration, and international climate justice law. He is also the Co-founder of the Guernica Group and Joint Head of Chambers at Guernica 37 International Justice Chambers.
Interviewed by Ge Jaimie Jin (2023)
The interview was conducted in the spring of 2023 and has been edited for clarity
What international legal schemes are available for the Rohingya refugees to seek justice? Is the ICC the one that has the most potential to pursue accountability in their case?
You have the ICC, which is now accepted as having jurisdiction over the basis of forced deportation of refugees into Bangladesh. When discussing criminal jurisdiction at the international level, the ICC is effectively the only option. However, the challenge will be getting Burmese military leaders before the court in The Hague.
There are cases in national jurisdictions under universal jurisdiction for individuals to be prosecuted in a different country. Again, it is unlikely that the military leaders will travel to countries where they are at risk of being arrested. So, whilst in theory there is that possibility, in practice there are very few practical solutions.
You also have the International Court of Justice (ICJ), but it is important to recognise that the proceedings there for breaches of the Genocide Convention are not criminal jurisdiction. It is the state that is being held liable for breaches. It is nonetheless important for the victims to recognise that what they have been subjected to is, in fact, a genocide.
The third route is through the UN. However, Myanmar has not ratified most international human rights treaties, so the prospect of bringing cases through the UN system is somewhat limited.
Considering the dire situation of Bangladeshi refugee camps, do you think pursuing accountabilities should be the top priority rather than improving the camp situation?
Although Bangladesh is accommodating the refugee community, the treatment is appalling. They adopted a very cynical political stance when deciding to accommodate because the Bangladeshi government was under criticism for their own human rights situation. By doing this, it deflected a lot of the criticisms.
The problem is that if the refugee community takes any action against the government, they will be punished by harsher treatment or forcing them back. So, I completely understand that they do not act against the Bangladeshi government.
Comparing that to whether their primary consideration should be, I would say that they are not mutually exclusive. Of course, criminal justice is not the only way to resolve these current disputes, but it is part of the puzzle. So, if they were to return to Myanmar, they would live next door to the perpetrators. You cannot simply just return to the previous status quo and expect everything to proceed. You cannot simply forgive and forget when you have had that level of victimisation. There has to be a process of holding those perpetrators accountable. For the Rohingya community to be safe and flourish, those responsible for persecuting them need to be held accountable.
If repatriation and restoring citizenship is not the final solution, what should the goal be?
I think that many would want to return home under safe conditions and live in a democracy. However, the question is how it is possible when you have a military state. Even the Nobel Peace Laureate, Aung San Su Kyi, uses discriminatory language that refers to them as not Burmese, saying they should move to Bangladesh.It shows how entrenched Burmese society that persecution is. All the context is just to provide them with a return to their state and is by no means the answer, unless there is a change of mentality and a democratic transition of power. I just do not see what the answer to this is.
Do you think there is room for improvement in how victims participate in the ICC? How can legal representation be effectively organised for a large number of Rohingyas?
I think there is always room for improvement, and I think that the representation of victims in international trials is constantly debated. Now, effectively, you will have to be a legal representative appointed to represent the interests of the victims and not every victim is given status in a particular case. The prosecutor brings charges against 2 or 3 military leaders, which is a small percentage of the overall criminality. It does not mean that everyone who is a victim in the conflict would participate and have been recognised as a victim of those proceedings. It can be a slightly unfair system, and it is certainly an imperfect system. Nevertheless, I think that, as long as they are properly represented in the proceedings, and they have an opportunity to participate through legal representation in those proceedings, it does certainly add to having the whole process unfold in a very fair and transparent way.
What we need to take into account is that the ICC will never have the ability to prosecute every crime that has been committed in any given conflict. Unfortunately, you must select the strongest cases against the most senior perpetrators, meaning many victims get left on one side. However, you have to recognise that the trial process is not only about holding individuals accountable; it is also about shaping a narrative, telling a story, and maintaining a historical record. You will contribute to the transitional justice process of any particular community by maintaining that accurate historical record. I think one of the things that the international tribunals quite often do not pay enough attention to is how you can use that criminal justice process to impact the stability and the reconciliation of communities in that particular situation under review. I think that is one of the things that we can learn from.
Lastly, how can the international community beyond the Rome Statue system support the Rohingya community?
I think what you have got to do is to speak to the communities to see what they want. Because I think that one of the failings of the international community generally is that we assume that we know what affected communities want. Thus, we adopt a very arrogant or colonial approach to things by deciding what is best for the communities without actually going into them and asking them what they want.
One of the first questions you asked me was whether the situation of the Rohingya in camps is more important than justice and accountability. Now, I can give you my answer as to what I think. However, I am not a Rohingya who has lost half their family to a military Junta genocide. So, in order for me to answer that question effectively, I would have to ask the community: What do you want now? Of course, you have to give them the tools to understand what the various options are, but the only way to understand what the international community and civil society should be doing is by asking the affected communities.
About the interviewer: Ge Jaimie JIN is a recent graduate of Sciences Po Paris, holding a Master's degree in International Security with a specialised focus on diplomacy. Her academic journey has sharpened her expertise in the fields of human security and international development. Her profound interest lies in addressing the intricate dynamics of EU-Asia relations, alongside a commitment to fostering social justice and advancing gender equality on a global scale.