On today’s episode of Gendering Geopolitics, host Emily Prey sits down with Beth Van Schaack, the U.S. Ambassador-at-Large for Global Criminal Justice, and Wai Wai Nu, the Founder of the Women Peace Network in Myanmar, to reflect on the 75th anniversary of the Genocide Convention, the ongoing Rohingya genocide, and what actions can be taken to better support survivors.
Emily Prey:
Hello and welcome to Gendering Geopolitics, a special edition series of the New Lines Institute for Strategy and Policy’s Contours Podcast. Each episode will consist of conversations with scholars and practitioners from around the world about issues of gender and international affairs. My name is Emily Prey and I’m the director of Gender Policy at the New Lines Institute.
Today I’m joined by Ambassador Beth Van Schaack and Wai Wai Nu to reflect on the 75th anniversary of the Genocide Convention, and to look at what the future holds for genocide prevention and punishment with a gender lens. I want to quickly give a shout out to our colleague, Julia Kuperminc, whose idea it was to have this podcast to commemorate the anniversary. Now to introduce our wonderful guests today.
Beth is the ambassador-at-large for Global Criminal Justice in the U.S. Department of State. In this role, she advises the Secretary of State and other department leadership on issues related to the prevention of and response to atrocity crimes, including war crimes, crimes against humanity and genocide. Wai Wai is the founder and executive director of the Women Peace Network in Myanmar.
She spent seven years as a political prisoner in Burma. Since her release from prison in 2012, Wai Wai has dedicated herself to working for democracy and human rights. Thank you both so much for joining me today. It’s so great to have you here for my official first podcast recording. Beth, I want to start with you, since we are commemorating the anniversary of the Genocide Convention.
Can you give us a short reflection of the past 75 years of the Genocide Convention? What are some successes and where is there room for growth?
Beth Van Schaack:
Yeah. Thanks so much, Emily. It’s really great to be here with you but also with Wai Wai, whose work I really admire. I’m really looking forward to hearing what she has to say on this important topic. As we know, genocides have been committed for centuries within human society. But the independent legal concept of genocide as an international crime that would be subject to prosecution, didn’t emerge until the post-World War II period and the horrific events surrounding the Holocaust.
The treaty now has attracted widespread ratification. I think it’s 150-something states now, although enforcement remains a real challenge. The treaty defines the crime, it obliges states to prosecute the crime in either their own courts or before an international tribunal. It envisions states being engaged in preventative endeavors, although these obligations are framed very vaguely.
In terms of prohibited acts, the treaty includes killing members of the group, which of course, embodies the colloquial, everyday understanding of genocide, but it also prohibits a broader range of acts. This includes the imposition of serious bodily or mental harm on the group/ the imposition of conditions of life calculated to destroy the group. Then there are measures aimed at restricting the group’s ability to reproduce or the forcible transfer of children out of the group.
These are all independent ways in which genocide can be committed. The treaty also contains a dispute resolution provision, which allows contracting states to invoke the International Court of Justice for disputes arising out of the interpretation, application or fulfillment of the treaty. Including, and this is important, with respect to state responsibility for genocide. I imagine Wai Wai will discuss that the first case has now been brought under this provision against Myanmar by The Gambia, which is a West African nation.
Several shortfalls of this treaty have been identified. One includes the fact that the definition limits the number of protected groups that are acknowledged to be potentially the victims of genocide. Only violence against racial, ethnic, religious or national groups “counts” as genocide under the treaty. Noticeably absent are political or economic groups, which have often been targeted for extermination. There’s no explicit mention of gender per se, except insofar as the treaty prohibits the imposition of measures intended to prevent births within the group. This has been interpreted to encompass many forms of sexual violence.
In addition, when Lemkin first conceptualized the crime of genocide. And he was a Polish jurist who coined the term and really pushed the international community to draft a treaty. He would have included what we would call cultural genocide today. So measures aimed at the destruction of the cultural manifestations of the group: places of worship, artistic expression. As the treaty was being negotiated however, this idea fell away.
The treaty really focuses on the physical or biological destruction of the group, rather than its cultural erasure. But it is important to note that this is one area where the physical destruction is not required, is with respect to the transfer of children. In addition, we’ve seen in jurisprudence, acts of cultural erasure have been proffered before courts as evidence that a particular group is being targeted and being targeted for their destruction.
In terms of jurisdiction, there are some weaknesses. Universal jurisdiction, for example, is not specifically mentioned. That said, it’s now widely recognized that genocide is subject to universal jurisdiction, and many states have incorporated the prohibition into their domestic codes. We’ve seen a number of national-level prosecutions for genocide, particularly with respect to the genocide in Rwanda and the former Yugoslavia.
Most recently, there was a very important case in Germany against members of the Islamic State for genocide committed against Yazidis. We’ve seen the international tribunals prosecuting crimes of genocide very actively. The International Criminal Court does not yet have a case, but Omar al-Bashir, who’s the deposed president of Sudan, will be prosecuted for that crime once he’s brought into custody.
And another shortfall – and as I mentioned, the preventative mandate is drafted very vaguely – according to Article 8, contracting parties may, “Call upon competent organs of the United Nations to take action.” They’re meant to do this under the UN Charter for this prevention and suppression of acts of genocide. No specifics are identified, so it’s really been left to states to explore what measures might be taken, including, for example, sanctions or weapons embargoes, or even humanitarian intervention.
The International Court of Justice has ruled that there are preventative obligations on contracting states, if they have a capacity to influence events in the state in which genocide is being committed. These obligations, though, still need to be fleshed out.
That’s a brief sketch of the treaty, what it has accomplished, where it falls short. In terms of room for growth, as I mentioned, much more can be done in terms of enforcement. We need to see more prosecutions at the national and international level. In addition, as an international community, we need to continue to invest in preventative measures to protect vulnerable groups, so they can avoid the scourge of genocide. I’ll stop there.
Emily Prey:
Thanks, Beth. I think that was a really comprehensive and good overview of the Genocide Convention and where we can go from there. I think it’s very important how you mentioned while there’s widespread ratification of the treaty, that enforcement does still remain a challenge. We can see this especially in the case of the Rohingya in Burma.
I want to zoom in on this case where hundreds of thousands of Rohingya, largely women and children, fled the military junta’s genocidal campaign in 2017 and were able to set up refugee camps in Cox’s Bazar. But now in 2023, it’s such an intractable situation, there’s horrific human rights abuses. There’s the creation of Bhasan Char. It really doesn’t look good for the Rohingya.
Wai Wai, what is lacking in the approach to genocide prevention and punishment in terms of the dignity of survivors?
Wai Wai Nu:
Thank you very much, Emily. It is an honor to be in your podcast alongside Ambassador Schaack. I think when it’s come to the situations of Rohingya and protections of victims and survivors, as you described perfectly, the situations in Bangladesh has been deteriorating day by day. Especially over the past several years, since when they’ve had to flee about one million people or 900,000 people had to flee from Burma in 2017.
People had hope and they had a hope that they will be able to seek refuge in Bangladesh, and have some breathe and save their life. Perhaps stay there for a little while with dignity after surviving the genocide. But lately, the situations has drastically deteriorated where the people are facing so many challenges, including in addition to living in the very overcrowded camps.
There is inadequate shelter obviously in these very overcrowded camps, and limited sanitation facilities and scarce access to clean water, limited access to healthcare and lack of basic services. We can somehow say that some basic services had been provided. However, the children are facing disease outbreaks, malnutrition, inadequate educational opportunities, and risks related to neglect and exploitations.
As well as violence, including gender-based violence and risks of child marriage, and child labor and human trafficking, et cetera, so on. At the same time, people who were transferred to Bhasan Char Island are having so many challenges, including loneliness, mental health and finding themself in open prison-like conditions. They cannot basically escape from the island anymore, which is far from the mainland.
If they attempt to leave the island, then they could be caught by the authorities and put in jail, so hardship, indescribable. In these conditions, I do not want to blame whether Bangladesh or anybody, but I think it’s the collective failure of the international community and shortfall of the Genocide Convention itself. In addition to what Ambassador has described, I also see at least two major shortfalls in the convention itself.
That include one, the victim has very little to no role to bring the case, whether at the International Court of Justice or at the ICC. Basically, the victim has very little say when it comes to justice and accountability for what they have suffered from the contracting party or the perpetrators. But I would like to focus on the other aspect of the shortfall, which is the convention itself lacking the protections of the victims and survivors.
Especially after the genocide in the case of Rohingya, when they flee, after they fled Burma or after they fled the genocide. Now, as we describe, in addition to the serious humanitarian conditions in the camps, the people are not even having basic needs or meeting basic nutrition level, which described in the Rohingya response plan this year alone, where the need for the food, the need for the Rohingya response is $973 million. They were only able to raise about $370-something million.
There is a huge gap, over $500 million gap. There’s a gap of that level, that massive gap for the Rohingya response. Therefore, we have seen over the past several months that the deductions of food rationed for the Rohingya refugees from $12 to $10 and $10 to $8 per people per month. $8 or $10 means in the Western countries, it’s just about the price of a salad or a sandwich, and they have to live with this amount of money for a month.
Now the good news from $8, by next month, they will be receiving $10 again so that’s good news. However, these massive gaps and the deteriorating, serious conditions in the camps described that how the international community has failed to protect the victims and survivors of genocide and how the Genocide Convention itself does not provide room for the victims and survivors to be protected after the genocide or post-genocide, especially when they are in the second country.
In the case of Burma and Myanmar, the International Court of Justice has issued provisional measures to protect the Rohingya, but that provisional measures only applies to the contracting party like Burma, not the Bangladesh. Therefore, now where majority of Rohingya are, the victims and survivors are now living in Bangladesh and lacking the basic needs or protections of their basic needs. Which is, I think, a huge question that the world and that the international need to be asking for.
How are we providing protection to these victims and survivors, not just around the securities and physical protection, safety, et cetera, but also the minimum, the food and adequate nutrition? How are you going to provide them? These are not the survivors and victims or refugees that just left regular conflict, but these are victims of genocide and victims and survivors of genocide.
There’s a huge responsibility and another level of question that international communities should be asking to provide a protection to these communities. I think this discussion is not happening at this till today, and I think we need to be asking these questions more and more and raising this question.
Emily Prey:
Thank you so much, Wai Wai. I think it’s so important and people are talking a little bit more about this now, but to have a survivor-centered approach when you’re thinking about atrocity crimes. Especially hearing from you how the victims have had little say in justice and accountability, I think that’s an important call to the international community that we need to do better.
We can see from how the junta, they perpetrated their genocide against the Rohingya in 2017 and before. It was very gendered and specifically targeted women’s sexual and reproductive organs, and separating men and women based on their perceived roles in society. We know that genocide is a gendered crime.
We know based on research from the Global Justice Center and from New Lines, that women are more likely to survive genocides as victims of nonlethal acts and thus, be considered witnesses rather than victims themselves. Beth, what do we need to do to move forward in these interpretations of who is a victim of genocide?
Because this has huge implications for justice, accountability, support, reparations, and how can the United States lead on this?
Beth Van Schaack:
Thanks for that question. Before I answer it, I just want to acknowledge that I have been to Cox’s Bazar, and Wai Wai has really very accurately captured the full scope of this tragedy. Those people are living in very difficult conditions. I want to acknowledge the difficulty that Bangladesh faces absorbing what is now upwards of a million individuals from neighboring Myanmar.
But at the same time, there’s definitely much more that we can all do in order to bring some dignity to the lives of those individuals. When I was there, I met with many women victims, and what I found just so remarkable was that they all still have some measure of faith in the international community and in the ability for us to deliver justice. After all they have experienced, they still held that faith.
They are all very actively tracking the various pathways to justice that we know exists. The International Court of Justice, which has been mentioned, the ICC is exercising jurisdiction, and there are a number of cases that are at various stages in national courts. While these justice efforts really capture our imagination, I think Wai Wai’s point is incredibly important.
Justice still will mean very little where basic needs are not being met, so we need to be able to do both. When it comes to the question about gender and women and girls as victims, the treaty, as I mentioned, does not include groups defined by their gender as specifically protected groups. But we have seen in jurisprudence and in scholarship, that we know that genocide can have a gender dynamic or a gender logic.
Individuals who are identified with the different sexes, are often subjected to differential treatment in a larger campaign of violence against a protected group. A classic pattern is that men and boys may be seen as more of a physical threat to the aggressor group, so they may be killed and subject to outright killing. Whereas women and girls may be subjected to sexual violence, including sexual slavery, although we’ve also seen sexual violence being committed against men and boys as well.
Importantly, the Rwanda Tribunal prosecuted acts of sexual violence in which the victim did survive, and these were prosecuted as genocide. That confirmed that rape can be a predicate act for genocide. This enabled those survivors to speak directly to their experience. The story is often told that the prosecutors originally didn’t charge rape as a predicate act of genocide.
It only took the spontaneous emergence of testimony by survivors when they were sitting on the stand, for the judges to call for the proceedings to be halted and for the prosecutors to go back and consider amending those indictments. So there was a real blind spot there. That blind spot fortunately has now been removed, and I think we’re seeing much more attention to looking at the gendered aspects of genocide.
We’re going to see this, I think, with future prosecutions involving the Yazidi genocide. Many men and boys were killed but many women were taken into sexual slavery. Indeed, there are still women and girls missing today and being found in some of the camps where ISIS members are being detained. We know that this can be prosecuted as genocide as well, given the clear intent of the Islamic State to eliminate the Yazidi people.
The fact that there may be many survivors of genocide, including women and girls who survived sexual violence and other forms of gender-based harm, really highlights the importance of rehabilitation, including physical, psychosocial and economic. This was Wai Wai’s point. As an international community, we must also invest in this work to allow those survivors to heal, and to ultimately return to a life path of dignity and of self-determination.
Now, in terms of what governments can do including my own, there’s so many things we can do to really add content and heft to the Genocide Convention, which is quite short. I read it again this morning. It’s a very quick read. We need to think about how we can add content to some of the promises made by that treaty. First, we must continue to invest in documentation to fully understand the nature of violence.
Including its gendered components so that we can craft effective, preventative interventions and also prepare for and launch credible accountability exercises. In addition, we have to make sure that the mandates of investigative bodies, such as commissions of inquiry and fact-finding missions, include a gender component so that those dynamics are not overlooked as they have so often been in the past.
As justice efforts are pursued, whether in domestic or international tribunals, prosecutors and investigators must take a gendered approach and include in-house expertise on working with survivors. This includes training around trauma and the impact of trauma on the ability of survivors to participate in a justice process. We can also help by investing in civil society organizations.
Many of them are survivor led, in order to help accompany survivors through a justice process, which we know can be incredibly rigorous, exhausting and retraumatizing. Having support persons who have the well-being of the witnesses as they’re at top of mind is incredibly important. There’s also many practical ways that we can assist. There was a group of Rohingya women who traveled from Cox’s Bazar to Argentina to give live testimony before a judge.
There is an open investigation there under universal jurisdiction, and those women were invited to testify. This involved a lot of logistics, including just the simple ability to find travel documents and to work it out between the various, relevant embassies to enable those women to travel, give their testimony, and then safely return to their places of refuge now in Cox’s Bazar.
As governments, as donors, in all of our programming and foreign assistance, we should be asking grant applicants to describe how they’re going to incorporate a gendered perspective and a trauma-informed perspective into their work, so that they’re ensuring that these issues are not overlooked. Those are just some quick ideas about what more the international community can do in order to ensure that the gendered aspects of genocide are top of mind.
Emily Prey:
Thank you so much, Beth. I’m glad that you mentioned dignity and the real human consequences of genocide, because that leads right into my next question for Wai Wai. Because genocide, it’s not just one moment in time. It doesn’t end when a war ends, for example.
I think one of the biggest critiques of international law and perhaps the Genocide Convention, is that historically these types of treaties and laws have often been created by the world’s most privileged, and sometimes practitioners can forget the human faces of atrocity crimes.
Wai Wai, how can we maintain a human focus when thinking about genocide prevention and punishment, and adhering to the points laid out in the Genocide Convention?
Wai Wai Nu:
This is a great question. The Genocide Convention, the act of genocide, the crimes of genocide itself is directed to human groups. Different identity-based human groups, and it should always be reminded and considered in every steps of the justice processes. Now, when it’s come to Burma case and Rohingya case, we’ve seen we definitely have some progress over the past several years. We have a case before ICJ, and we have an investigations at International Criminal Court.
We also have several universal jurisdiction case. When it’s come to justice and accountability, we can say that there has been some improvement looking at these cases. However, we can also say that these cases seems to be very far from the people on the ground. The people are not feeling that these processes are connected to them, or they can actually connect to the case and feel the progress or take part in the processes at all.
I think there is room to minimize this gap, and there should be creative tools to minimize these gaps as much as possible. At the end of the day, these crimes, as we discuss, is directed or directly linked to the group themself and to the victims and survivors as a group of Rohingya. I think there is a little bit of not missed opportunity, I would say negligence around that.
People tend to forget who are the victims and survivors, whether these processes are being connected to the larger the victims and survivor groups or not. I think that’s for me, someone who has been advocating for the justice and accountability for my community feel a little odd and sad in a way, to see how these processes are making progress and how being detached from the community themself.
I can also see that there are some individuals’ involvement, very, very small number involvement in, for example, testimony before the Argentina court. However, I think although some of the act of genocide are maybe committed to the individual or violated against the individual. But at the end of the day, these crimes are connected to the larger group as Rohingya.
I think the people who are involved in the case itself, should find a way to engage with their broader community themself, in a way to inform the processes or get them involved in the processes, I think which is critical. But then when you talk about the justice processes in general, the case before the ICJ and the criminal accountability processes are different.
For us, the case before the International Court of Justice is very, very important, because at some point we’re hoping that these case may lead to the responsibility of the state. So that our hope is to compensate or to repair, to provide remedy to the group as a whole as Rohingya. Not just a criminal accountability for the key perpetrators, but also what the state should do to repair or to provide remedy to the Rohingya as a group.
Since the ICJ case is heavily focused on the state responsibility so for us, this case is very important. However, we are also seeing that the ICJ’s statute does not provide any room for the community’s or victims’ direct involvement in the case itself. We are a little frustrated about that process as well. In the case of Rohingya, they participate in state.
The state representing the victims, The Gambia is not the state that Rohingya directly belong to. Although we trust in their intentions and interests of The Gambia, however, there may be some gap between the interest of the Rohingya community, and victims and survivors, and the participating state in ICJ. There is two ways, I think, this can be fixed. One, perhaps I’m not sure whether it will be extremely difficult for us to claim for the amendment of the statute.
But in this case, perhaps the courts or the judges can come up with a creative tool to have a more direct victims’ and survivors’ participation in the processes. Second way is perhaps the legal team from Gambia could find ways to proactively engage with the Rohingya. We understand limitations of the case and we understand limitations of the ICJ’s procedures and jurisdictions.
However, I think there is still a way for the ICJ and parties involved to try to proactively engage with the victims and survivors’ community in the community. When it’s come to the criminal accountability, especially when it’s come to ICC, ICC has actually several mechanisms to engage with the victims and survivors. I think it’s a matter of implementations of these mechanisms, procedures.
It’s a matter of interest of the ICC itself to engage with the victims and survivors’ group, from providing support to consultations, regular consultations with the victim communities, whether the right victims or the civil society groups representing the victims. As well as basically perhaps like international community find victims’ groups their own counselors or their own lawyers to represent International Criminal Court.
Although this is the criminal accountability process of criminal court, and it’s only able to, it will prosecute the individual perpetrators. Especially the leaders of the command responsibility or the heads, whoever give directives or whoever ordered these crimes. But I think still the criminal accountability is the key element of bringing justice for the community.
I’m glad that the ICC has more mechanisms on victims’ and community engagement, which can give some human focus prosecutions. We need to basically encourage them to implement them. As it is important for the victim groups to have an effective criminal accountability process, I do believe that this will benefit both the international criminal justice, as well as the victims and survivor groups such as Rohingya.
Emily Prey:
Thank you, Wai Wai. I think that you made such a significant point that we don’t want these international legal processes to be detached from the communities themselves. Thank you for your perspective and all of the advocacy work that you’re doing on behalf of the Rohingya.
Now, before we end, I just wanted to ask for both of you, is there anything that I didn’t ask that you wish that I had, or any last points that you would like to make?
Beth Van Schaack:
Well, maybe I’ll go first. This was a tremendous discussion. I was really honored to be a part of it. I just want to emphasize and underscore what Wai Wai just said about the importance of the lawyers working on these cases, not losing sight of what ultimately is at stake here, and who ultimately is impacted upon by these proceedings.
We can be very captured by the legal nuances and the arguments that we make, but there are real human beings that really care very deeply about what is happening so making that human connection is incredibly important. Ensuring that the survivors interests are being reflected, not only in the legal theories and the cases, but in the very procedures that their voices are being heard.
And that they have an impact and that they’re being communicated with, so that they understand where the law is, why there are delays, all of that. That kind of communication is really important for us as lawyers, who can be very captured by what’s happening in The Hague and elsewhere.
Emily Prey:
Yes, definitely. Thank you for underscoring that. Wai Wai, do you have any final comments?
Wai Wai Nu:
Sure. Thank you, Ambassador, for highlighting that important point. I think in relation to that, I think it is also extremely important to support victims and survivors-led effort from the documentations to the justice processes as a whole. Not only for the international accountability, but also domestic accountabilities, especially when it’s come to the transitional justice.
The Rohingya, groups like Rohingya, especially the victims and survivors of genocides, could be in a situation sometimes they find themselves extremely challenging to stand up for themself. I think it is utmost important to support the victims and survivors-led initiatives, from documentation to the Rohingya litigation, to the entire justice processes, memorializations and reparations itself.
I think that’s one message I think we will want to deliver today and continue to deliver, I guess, in the future. Lastly, to reiterate or to reemphasize on what Ambassador earlier mentioned around the community engagement and victims participation, and around having expertise and knowledge around the context. I think it’s extremely important because most of the time the experts, the lawyers in the international justice processes, are usually from Western countries, let’s say.
Often these cases happened in other part of the world. In the case of Rohingya, I can see there’s a huge gap, a knowledge gap between the content and the ground reality and the understanding of the legal experts, or experts involved in investigations and et cetera. When I say knowledge gap doesn’t mean their expertise, but in fact the nuances, the culture, the custom, the tradition, the language, all of it.
I fear that there will be a lot of missed opportunities and losing sight or loss in translations, nuances lost in translations when it’s come to these investigations and justice processes. I am hoping that these mechanisms and courts started to realize the huge gap between the contextual background in the customs and traditions that we have, and the legal translation or analysis that they would make in their offices.
So equipping themselves with the adequate resources and expertise that can accurately translate or describe or present the suffering or the experiences of the victims and survivors to the investigations or court proceeding would be, I think, immensely important and valuable for us to be able to seek a more effective justice, as we pursue broader justice for the community.
Emily Prey:
Thank you so much, Beth and Wai Wai, for sharing your insights on gender and genocide, particularly looking at the Rohingya and Burma, and for taking the time to join me in this episode of Gendering Geopolitics.
Thanks to our audience for tuning in and please head to newlinesinstitute.org for more information and to explore our other podcasts and publications.
