Let's Talk Human Rights

By Joanna Gisel, UDSL '21

Hearings began this week before the International Court of Justice (ICJ) in the Hague on allegations made by Gambia that Myanmar committed genocide through the military clearance of hundreds of thousands of Rohingya, a Muslim minority.  For decades, Myanmar has experienced severe ethnic and religious violence, particularly perpetuated against the Rohingya Muslims in the Rakhine region. This violence, though not a new phenomenon, escalated in 2012 and resulted in wide-spread rape and sexual violence, forced labor, death by beating and fire, the razing of Muslim villages, and the forced displacement of over 140,000 Rohingya. The situation continues to this day, as the United Nations Human Rights Council (HRC) report of the Independent International Fact-Finding Mission in 2018 stated that the Rohingya Muslims face “a continuing situation of severe, systemic and institutionalized oppression from birth to death” at the hands of the Myanmar government and military.

The ICJ case focuses on state accountability of Myanmar and not individual criminal accountability. While there is on-going violence between the Rohingya, the government, and other groups, and around 700,000 Rohingya remain in Bangladesh, at some point the country will need to institute transitional justice mechanisms which seek to establish a sustainable, post-conflict rule of law and judiciary. Transitional justice is defined by the International Center for Transitional Justice (ICTJ) as “the ways countries emerging from periods of conflict and repression address . . . human rights violations so numerous and so serious that the normal justice system will not be able to provide an adequate response.” One important mechanism of transitional justice is criminal accountability in a judicial setting. Myanmar and the international community will need to utilize lessons from past transitional societies which have undertaken criminal prosecutions in order to successfully address the many human rights violations which have occurred. 

To shed light on lessons learned from other transitional justice contexts that may be  applicable to Myanmar, I researched efforts to bring criminal judicial accountability to post-genocide Rwanda. Both conflicts involve deep-rooted divides and hatred, whether ethnic or religious, and were the result of many decades of violence and repression of one party. Both cases also raise the issue of the dialectic between ethnocentrism and cultural relativism in international rule of law development. Approaches that rely on ethnocentrism, or the primacy of international norms, risk a failure to take root in a culture that cannot relate to those international norms. Meanwhile, culturally relativist approaches, which rely on the specific culture in question, risk ignoring important values, like those embodied in human rights, for the sake of “respecting” another culture. 

The post-conflict judiciary plays a large role in ensuring the development of a sustainable rule of law in a post-conflict society. In the Rwandan transitional justice context, three levels of judiciaries existed: grassroots or traditional courts, known as gacaca courts, national courts, and an international special tribunal – the International Criminal Tribunal for Rwanda (ICTR). One way in which the international community attempted to bridge the gap between ethnocentrism and cultural relativism in this case was through procedurally connecting the jurisprudence of the Rwandan national courts and the ICTR. Also utilized in the International Criminal Tribunal for Yugoslavia, Rule 11 bis of the Rules of Procedure and Evidence for the ICTR allowed for the transfer of cases from the ICTR to Rwandan national courts, provided that the national courts could secure a sufficiently acceptable rule of law standard for trials. In other words, the international tribunal engaged with and upheld the Rwandan national approach to justice but also reserved the power to deny these courts the cases if they could not guarantee international standards for due process and a fair trial.

Theoretically, Rule 11 bis struck a balance between international and national conceptions of justice. In reality, though, the ICTR was extremely reluctant to actually grant Rule 11 bis transfers, arguably undermining the development of the rule of law and criminal jurisprudence in Rwandan national courts. In cases such as Prosecutor v. Munyakazi and Prosecutor v. Kanyarukiga, the ICTR cited problems in the Rwandan judicial system, including the possible imposition of the death penalty and insufficient witness protections, as reasons for denying Rule 11 bis transfers. These denials occurred despite Rwandan efforts to mitigate these issues through legislation that ensured the death penalty would not apply to transferred cases and strengthening protections for witnesses. Regarding these assurances as insufficient, the ICTR failed to give the struggling, post-conflict nation the benefit of the doubt and prevented the potential strengthening of rule of law norms in Rwanda.

The concept and lessons behind Rule 11 bis have the potential to serve as a beneficial mechanism in the context of Myanmar. If criminal trials at the international level were to take place, they would likely occur at the International Criminal Court (ICC), which would hold complementary jurisdiction with Myanmar national courts over the crimes which occurred. Importantly, Aung San Suu Kyi, de facto leader of Myanmar, has suggested in the ICJ hearing that criminal prosecutions would be tried in military tribunals, not the national courts. Thus, the ICC would have to implement measures facilitating complementarity with Myanmar’s military tribunals. Learning from the implementation of Rule 11 bis in Rwanda, the ICC would need to meaningfully commit to engaging with Myanmar military tribunals. This approach would require a higher degree of trust in the Myanmar government’s efforts and their judiciary system. While there will likely be challenges with discrimination by the Myanmar government and military against the Rohingya, these can be mitigated by techniques including training of the military tribunals and international monitoring, which would help ensure that fair trials are conducted. This can also serve the purpose of fostering a sustainable rule of law in Myanmar, rooted in a concerted effort to preserve both due process and justice for victims, while engaging with both international and national approaches to justice. 

As Myanmar approaches the crucial moment in time for transitional justice processes, a review of the strengths and weaknesses of their implementation in similar post-conflict environments will be helpful. Nonetheless, these processes should be formulated according to the unique conditions in Myanmar. Certainly a key lesson is that a special emphasis will need to be placed on the post-conflict, rule-of-law judiciary and that the approach must integrate ethnocentric norms and culturally relativist understandings of the rule of law.

Joanna Gisel is a third-year law student interested in the fields of international law, human rights law, and social justice. This post is derived from the author’s larger work prepared for the University of Dayton Law Review. 

Photo: Rohingya refugees. Owen Bowcott, War Crimes Court Approves Inquiry into Violence Against Rohingya, The Guardian (Nov. 14, 2019, 1:51 PM)