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To conclude a two-day event titled ‘Australian International Criminal Law Workshop 2019: International Criminal Justice Futures,’ the Griffith Law Futures Centre hosted a roundtable on contemporary genocide. Chaired by international law Professor Frédéric Mégret, joined by human rights lawyer and advocate Chris Sidoti and international criminal lawyer Melinda Taylor, the roundtable discussion considered modern day acts of genocide, and how to address the current atrocities being committed against the Rohingya and Yazidi people of Myanmar and Iraq. In large part, the discussion surrounded accountability – how to seek it, what to seek it for, and what it actually constitutes.
International criminal justice is typically sought through the International Criminal Court (ICC). Based in The Hague, Netherlands, the Court undertakes a complex process of sourcing evidence, checking its veracity and conducting adversarial trials to determine guilt for alleged crimes. Thus, the practice inherently requires the provision of witness testimony as to the alleged human rights abuses. Civil society organisations are also often involved in documenting the commission of serious human rights violations and abuses. A consideration that should necessarily (but does not always) arise is the issue of re-traumatization or endangerment that witnesses could come to face. Re-traumatization occurs when people who have suffered traumatic experiences are asked to recall those events in vivid detail. While international criminal tribunals rely on witness evidence, and human rights organisation and media reporting is often crucial to raise awareness of violence, extensive active interviewing of victims may present risks.
What, the roundtable sought to ask, are the ongoing ramifications of asking Yazidi women to recount the horrific sexual abuse they faced at the hands of their tormentors, or asking Rohingya men to relive the violent dispossession of their homes and livelihoods? To quote Sidoti, when seeking to uncover the extent of human rights violations, the rule is ‘first, do no harm.’ Similarly concerning is the danger that victims may face when coming forward – as Taylor states, ‘you can’t expect people to put their lives on the line just to get witnesses for the trial.’
Considering the prosecution of human rights violations leads to considerations of what actually constitutes a human rights violation, and more pertinently what constitutes genocide. Taylor, alongside the Genocide Studies Program at Yale University, has recently published a report titled Before It’s Too Late, which seeks to explore the persecution of the Yazidis in Iraq, and the persistent need to protect ethnic minority groups from persecution. On the night, the panel sought to discuss the weight that the word genocide carries in discourse surrounding human rights. Often, it appears that the international community feels it has to wait for a situation to escalate to a suitable degree – that is, to genocide – before it considers intervention. This, the roundtable agreed, was absurd. ‘You don’t have to wait until an act passes the genocide line to do something,’ Taylor said, ‘the markers [hate speech, deprivation of human rights, persecution] are always there.’
If the line does continue to persist, then at minimum it is necessary to reevaluate where it lies. The legislated definition of genocide in the Convention on the Prevention and Punishment of the Crime of Genocide is the intentional destruction in whole or in part of a population that is distinguished by race, religion, ethnicity or nationality. But, Taylor argues, ‘we need a broader construction of what destruction is.’ The raping of Yazidi women was a genocidal act to specifically marginalize the women within their communities. The forceful dispossession of the Rohingya is a genocidal act to remove the people from their land and their communities. Focusing on the semantics of genocide does not necessarily address the very real acts of emotional, physical and sexual violence that targeted minority groups face. The international community needs to be proactive in looking for the indicators of the undermining of human rights before a situation amounts to these acts of violence, let alone mass killings. That is, before it’s too late.
Having discussed the substance of human rights violations, the question of accountability arises. ‘What next?’ asks Professor Mégret, ‘what are your hopes? What are the constraints?’ Sidoti has an answer for this. ‘I don’t have hopes about accountability, I have expectations. The question is simply in what form?’ Sidoti was a member of the United Nations Human Rights Council’s International Fact Finding Mission on Myanmar. The Myanmar Government would not allow the Mission entry, so they travelled to Cox’s Bazar on the Bangladeshi side of their shared border, a city now hosting over 900,000 displaced Rohingya. The Mission produced 56,500 files in total, based on 1227 interviews with victims and witnesses, and 400 interviews with secondary parties. The next step, Sidoti says, is preparing these papers for court. This, Taylor posits, is the form through which to achieve accountability – human rights abusers and violators brought to the ICC, facing credible and legitimate criminal trials for their acts of violence.
So, what is the future of international criminal justice for crimes of genocide? Fundamentally, accountability – through the ICC or possibly in addition other forms of justice, such as the International Court of Justice and domestic courts exercising universal jurisdiction. As an aspect of accountability, however, there needs to be an emphasis on the experience of victims through the justice process, and serious considerations of how best to ensure that people – who have already suffered incredible trauma – are not forced to relive these events to their harm. There are intersections between international criminal justice, and international human rights and international humanitarian law, as well as responses within international, regional and domestic legal frameworks – as recent UN investigative mechanisms for crimes in Syria and Myanmar propose. Finally, there needs to be a reconsideration of how the international community responds to acts that may constitute genocide – beyond mass killings exist a number of other horrific acts intended to destroy a protected group, in whole or in part, that could amount to genocide as well as other crimes under international law warranting action. Debating whether human rights atrocities amount to genocide will not affect the very real impact that such actions have on targeted groups – to quote Professor Mégret, ‘the most urgent thing is gaining protections for those on the ground’.
As outlined above, accountability can be sought through the ICC, or other legal mechanisms such as the International Court of Justice and domestic courts exercising universal jurisdiction. In fact, since the roundtable all three approaches have been activated in relation to the Rohingya situation. On 11 November 2019 Gambia lodged an application against Myanmar at the International Court of Justice under the Genocide Convention, while several organisations commenced proceedings in Argentinian courts against named leaders of the Myanmar Government and military, under universal jurisdiction. On 15 November 2019, the ICC approved a request to conduct a full investigation into crimes against humanity alleged to have been committed against the Rohingya by the government of Myanmar.
Authored by Kai Haworth