Over the past two decades of listening to survivors of atrocity crimes – including the perspectives shared in a recent survey of Rohingya survivors of genocidal violence in Myanmar – I have seen time and again that while the desire for justice is universal, the question of what justice means in any given community (and for different individuals within any given community) is often very particular and highly influenced by local context. There is nothing terribly surprising in this observation. What is striking, however, is the degree to which the professional community working on and around international criminal law (ICL) (and I include myself in this) often fails to absorb the full implications of this reality.
I don’t want to overstate the claim. There are plenty of examples of work being done to vernacularize or transform international criminal law for a local context. And, of course, there are different constituencies for international courts to consider (would-be perpetrators and their future victims, current victims of different conflicts, and ultimately, perhaps, humanity at large), each with different accounts of what international prosecutions can achieve (deterrence, historical record, expressivism, etc.).
By the same token, it remains true that so much activity in and around ICL rests on the assumption – implicit, but also often explicit – that international courts are working to serve the victims’ quest for justice. “We hope that through our work, we can bring justice to the victims,” then-ICC Prosecutor Fatou Bensouda explained, upon opening an investigation into the 2017 atrocities in Myanmar.
In some cases the claim, or hope, of serving victims aligns with reality. There are plenty of survivors of atrocities for whom justice means seeing the perpetrators most responsible for the violence prosecuted in a legitimate criminal trial and sentenced to a lengthy term of imprisonment. And that is exactly what the International Criminal Court (ICC) can offer.
But what of the many counter-examples that also exist? What are the obligations of international courts (or domestic courts exercising universal jurisdiction) that rely on the testimony of victims to achieve the type of justice that falls within these courts’ mandates, but can never achieve the type of justice that these same victims themselves seek?
The Slow Growth of Victim Participation
Normative work on the rights of victims began gaining traction at the international level over four decades ago with the 1985 U.N. Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, and work has continued in this space ever since. Yet this move towards a victim-centered approach was not part of the establishment of the ad hoc international tribunals for Rwanda and the former Yugoslavia.
Critical scholarship by Binaifer Nowrojee, Diane Orentlicher, and others helped make the case for this lacuna to be addressed by the time the ICC was established. The inclusion of a victim participation mechanism and a Trust Fund for Victims within the Rome Statute was heralded as a ground-breaking development. Yet translating the ideal of victim-centered criminal proceedings into reality in international prosecutions has been challenging, with constraints of distance, cultural competency, and differential resource allocation, among other factors, hampering success.
The example of the Rohingya survivors of the 2017 atrocities in Myanmar provides a telling illustration. In late 2019, following the Victim Participation Unit’s first four visits to Cox’s Bazaar (the refugee camp in Bangladesh where many Rohingya survivors fled), the Registry reported “massive confusion … the overwhelming majority of people have very little information and understanding, if any, of these various justice initiatives and, importantly, their different mandates and functions.” Four years later, the Registry’s Eighth Report on its outreach activities recounted that there was still “massive confusion among the Rohingya between the various international justice mechanisms available, their mandates, activities and roles…”
As civil society actors have repeatedly insisted, the ICC must work, with urgency, on strengthening the connection between victims and the Court. At the same time, this entire sphere of activity remains wedded to the assumption that the ICC can, in theory, offer justice to victims. This will be true for some of the victims whose experiences are central to the Court’s work, but not for all of them. So again the question arises: What obligations does the ICC, or any court dealing with international crimes, have towards those victims whose testimony and experiences of harm are used to deliver a type of justice that those same victims do not see as meaningful or, perhaps, not even recognize as justice?
“What Kind of Court Is This?”
The question of what international courts owe to those who participate, directly or indirectly, in their proceedings, yet feel no connection to the type of justice the court offers, is raised – unavoidably – in survey results from over 400 Rohingya survivors of the 2017 genocidal violence in Myanmar described in “What Kind of Court Is This?”: Perceptions of International Justice Among Rohingya Refugees, recently published in Human Rights Quarterly (I am a co-author).
By way of background: The Muslim minority Rohingya population in Myanmar faced decades of violent persecution and forced displacement before the 2017 attacks. A 1982 Citizenship Law in Myanmar excluded Rohingya from the list of officially recognized national ethnic groups, rendering them ineligible for full citizenship. More recently, Rohingya were forced to accept National Verification Cards designating them as “Bengali,” and successive Burmese leaders (including Nobel Prize laureate Aung San Suu Kyi) have refused to even utter the term “Rohingya” on the grounds that no such people exist.
Although Myanmar is not a Party to the Rome Statute, in 2019 the ICC granted the Prosecutor’s request to investigate crimes against the Rohingya that were completed on the territory of Bangladesh (which has joined the Court). Around the same time, The Gambia brought a claim against Myanmar at the International Court of Justice (ICJ) under the Genocide Convention for the 2017 attacks on the Rohingya.
It is against this backdrop that, through a mix of semi-structured focus group discussions and in-depth individual interviews conducted in Cox’s Bazaar in late 2022, a team of 32 Rohingya researchers (who cannot be named for their own security), Payam Akhavan, Daniel Coyle, Abdullah Jainul, Ishita Kumar, Antonia Mulvey, Yuvraj Rathore, and myself sought Rohingya views on justice. Central to our decision-making around the survey design was a commitment to avoid any preconceptions about what justice would mean to those who agreed to speak with us, as well as to ensure that we situated their responses within the context that those who spoke with us inhabit.
Survey data should always be interpreted cautiously, and it is important to emphasize that while my co-authors and I believe the data from this survey accurately captures the sentiments of a cross-section of Rohingya refugees in Cox’s Bazaar at the moment in time that they were interviewed, it cannot be used to make any generalizations about the views of Rohingya diaspora more broadly, nor about Rohingya populations still inside Myanmar. And just as the views of many Rohingya refugees are different today than what they were when the international legal proceedings began, so too may their views evolve in the future.
With those important caveats in place, however, the consistency of views elicited was notable. Asked, as an open-ended question, to identify one or two concrete things they needed to see happen to feel they personally had received justice, 86 percent of respondents volunteered that they needed citizenship (including the right to identify as Rohingya) in Myanmar.
Meanwhile, just 16 percent of respondents volunteered that punishment of perpetrators would give them a feeling of justice. As one respondent explained: “[There is a] proverb saying that, if a dog bites me, I shouldn’t bite it back. If [they are] to be punished for what was done to us, they will have more hatred and anger towards us. It can be enough for us if they don’t torture us again and we can live there peacefully.”
By contrast, respondents often used justice and citizenship interchangeably and viewed citizenship as the gateway through which all their other goals could be realized. One respondent, describing why justice means citizenship, explained: “We need to fix the root cause. If we want compensation, their punishment, and such things, I don’t think we get ou[r] justice. The best justice for us is to fix the root cause of the problem.”
Citizenship in Myanmar is a kind of justice that no international court can deliver. Despite this, the level of confusion about the mandates of the international courts means that many Rohingya attach their hopes for this type of justice to these courts: “Except citizenship, we don’t want anything else [from the ICC or ICJ],” one respondent concluded.
Situated within the Rohingya cultural context, these expectations regarding what a court can deliver are readily explicable. The lived experience of a justice process among most Rohingya surveyed has involved local communal mechanisms, with all sides of a dispute gathering together, and where the adjudicator is vested with absolute discretion to determine a wide range of outcomes to deliver a just result. Against this backdrop, it makes sense for those Rohingya we surveyed to assume that the ICC, ICJ, or any court tasked with adjudicating the violence they faced, would have the ability to deliver citizenship if that is what justice requires.
Pluralizing Our Understanding of Justice
There are no simple answers to address the gaping disconnect between the narrow type of justice that institutions like the ICC can provide, and the varied forms of justice that different survivor communities (and different survivors within those communities) seek. The starting point, though, must surely be to surface and acknowledge the diversity of views that exist.
Historically, much of the empirical work with survivor communities on the topic of justice has come from the field of transitional justice. The relative dearth of such studies by those with specialist ICL expertise could be cast as the consequence of being wedded to one of the foundational assumptions of our discipline – justice means accountability for perpetrators. Yet I suspect there is also a more practical element in play.
Conducting this kind of research typically requires interdisciplinary collaboration with data scientists, anthropologists, psychologists, and others. And, like all field work, it is expensive, which means seeking funding. These logistical and financial barriers mean it is much easier to think, write, and speak about justice in abstract terms, than to engage in extended discussions with those who have survived the kinds of violence that generates the demand for justice in the first place.
One underappreciated implication that arises from this constellation of factors is that, even when we acknowledge that ICL offers only a narrow form of justice, few of us are ever forced to reckon with interviews or transcripts where individual survivors tell us, directly and unequivocally, that the type of justice we can offer does not mean justice to them at all.