CCIL 2018: “The Role of International Criminal Law and the ICC in Responding to the Alleged Crimes Perpetrated Against the Rohingya”

On November 1 and 2, 2018, the Canadian Council on International Law (CCIL) held its annual conference in Ottawa, Canada. This conference is touted as one of the premier international law conferences in the world, bringing together scholars and practitioners from across Canada, the United States and Europe. This year’s topic was “International Law at the Boundaries,” which recognized the role of non-state actors and ideas that seek to push international law to its limits.

One particular panel discussed three important, and even novel, issues within international criminal law: (1) jurisdiction over crimes committed by a non-state party; (2) sexual and gender-based violence; and (3) the role of social media in contributing to these crimes. “The Role of International Criminal Law and the International Criminal Court (ICC) in Responding to the Alleged Crimes Perpetrated against the Rohingya,” examined the ongoing situation in Myanmar and the ICC’s role in holding perpetrators of international crimes accountable. Fannie Lafontaine of Laval University’s Faculty of Law and the Canadian Partnership for International Justice chaired the panel of three speakers: Payam Akhavan of McGill University’s Faculty of Law, Valerie Oosterveld of Western University’s Faculty of Law, and Kyle Matthews of the Montreal Institute for Genocide and Human Rights Studies.

Akhavan discussed the ICC’s jurisdiction over the crimes committed against the Rohingya. This has been an area that has required some thought because Myanmar is not a party to the Rome Statute of the ICC, and therefore the Court does not have jurisdiction over crimes committed on its territory unless a referral by the United Nations Security Council is made (which has not happened yet and has been suggested to be unlikely). Akhavan highlighted how the ICC’s jurisdiction is currently being established through the crime of forced deportation as an underlying act of the crime against humanity. Forced deportation involves the crossing of international borders, and because the act of deporting the Rohingya ended on the territory of a state that is a party to the Rome Statute—Bangladesh—the Court has jurisdiction to try those responsible for forcing the Rohingya into Bangladesh.

Oosterveld ended the panel with a discussion of sexual and gender-based violence in the context of the Rohingya. She discussed the many ways that Rohingya women and girls are targeted and then humiliated through public gang-rapes to promote terror, and even ‘branded’ by their perpetrators biting them. Men and boys suffered similar treatment in detention from their captors trying to gain information.

She also discussed the fact-finding mission sent to Myanmar to gather information and evidence as part of the ICC’s preliminary investigation, and some of the challenges faced when sexual and gender-based violence is involved. She first identified an important distinction between collecting information and collecting evidence. Collecting information involves speaking to victims to understand their situation and what they went through. This generally must be done as soon as possible after the crime was committed to gain as accurate an understanding as possible since information can be forgotten over time, especially considering the trauma suffered. On the other hand, collecting evidence must take into consideration the ‘do no harm’ principle; even though collecting evidence should happen as soon as possible, it may be appropriate to delay speaking to victims until appropriate supports are put in place to prevent further trauma.

Oosterveld then discussed the difficulty of fitting evidence of sexual and gender-based violence into the crime of forced deportation. In this case, attempting to incorporate evidence of sexual and gender-based crimes (which is an important violation that should be recognized), given the already difficult task of asserting jurisdiction and the limited types of crimes that can be charged that would fit into this jurisdiction, is an added difficulty. Oosterveld suggested, however, that sexual and gender-based crimes could demonstrate the required intent and context of the Rohingya’s expulsion, or even open the door to a charge of persecution as a crime against humanity, under which gender is a basis.

The most novel issue (at least in my experience) was discussed by Matthews, who opened the panel and introduced an aspect of international crimes that is not often thought of: the role of social media. He brought an interesting perspective to how we recognize and prosecute the crimes committed against the Rohingya by highlighting the role of Facebook as a platform to spread hate speech, thereby encouraging and perpetuating the persecution of the Rohingya.

An intriguing piece from Matthews’ presentation was data from Buzzfeed News regarding Facebook posts made by politicians in Myanmar. Of 4,000 posts analyzed between March 2017 and February 2018, 10% counted as hate speech as defined by Facebook’s own public community standards. These posts included hateful, anti-Muslim content, and sometimes even called for violence. These posts were not caught and removed by Facebook because there weren’t any Burmese-speaking content reviewers until two years ago. Facebook also attempted to use artificial intelligence to monitor and review hate speech, but this could not detect the cultural aspects of the posts that constituted hate speech. This led to the United Nations, for the first time ever, calling out a social media company for contributing to atrocities.

To quote Matthews, “the advent of social media has changed conflict and changed the way people can be incited to commit violent acts.” Most of us use Facebook and other social media platforms every day, and when used the right way they are a great tool to connect with people across the world. What we don’t often realize and recognize—and what the Rohingya situation has brought to light—is that, while hateful speech on these platforms may seem harmless, they can lead to real world violence and even rise to the level of crimes against humanity.

This blogpost and my attendance to the 47th Annual Conference of the Canadian Council on International Law (CCIL) were partially supported by the Canadian Partnership for International Justice and the Social Sciences and Humanities Research Council of Canada.

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