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Observations on Behalf of Victims from Tula-Toli

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Observations on Behalf of Victims from Tula-Toli ICC-RoC46(3)-01/18-26 19-06-2018 1/32 EO PT Original: English No.: ICC-RoC46(3)-01/18 Date: 18 June 2018 PRE-TRIAL CHAMBER I Before: Judge Péter Kovács, Presiding Judge Judge Marc Perrin de Brichambaut Judge Rein Adélaïde Sophie Alapini-Gansou REQUEST UNDER REGULATION 46(3) OF THE REGULATIONS OF THE COURT Public Observations on behalf of victims from Tula Toli Source: Legal Representative of Victims No. ICC-RoC46(3)-01/18 1/32 18 June 2018 ICC-RoC46(3)-01/18-26 19-06-2018 2/32 EO PT Document to be notified in accordance with regulation 31 of the Regulations of the Court to: The Office of the Prosecutor Counsel for the Defence Ms Fatou Bensouda Mr James Stewart Legal Representatives of the Victims Legal Representatives of the Applicants Ms Megan Hirst Mr Wayne Jordash Unrepresented Victims Unrepresented Applicants (Participation/Reparation) The Office of Public Counsel for The Office of Public Counsel for the Victims Defence States’ Representatives Amicus Curiae Competent Authorities of the People’s Republic of Bangladesh REGISTRY Registrar Counsel Support Section Mr Peter Lewis Victims and Witnesses Unit Detention Section Victims Participation and Reparations Other Section No. ICC-RoC46(3)-01/18 2/32 18 June 2018 ICC-RoC46(3)-01/18-26 19-06-2018 3/32 EO PT I. INTRODUCTION 1. These submissions are made pursuant to article 19(3) of the Rome Statute (the “Statute”) on behalf of victims from the village of Tula Toli in Myanmar (“the victims”). The victims request Pre-Trial Chamber I (the “Chamber”) to make a positive ruling regarding its jurisdiction under article 12(2)(a) of the Statute. II. PROCEDURAL HISTORY 2. On 9 April 2018 the Prosecutor’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute (the “Request”)1 was filed. 3. On 7 May 2018 the Chamber invited the Competent Authorities of the People’s Republic of Bangladesh to submit observations.2 4. On 11 May 2018 the Chamber ordered that a status conference be held on 20 June 2018, in closed session with only the Prosecutor represented.3 5. On 30 May 2018 submissions were filed by lawyers at Global Rights Compliance on behalf of a group of victims from Myanmar (the “GRC Victims’ Submissions”).4 6. On 11 June 2018 it was reported in some media outlets that Bangladesh had filed submissions to the Court confidentially.5 7. The Chamber has granted five requests for leave to present amicus curiae submissions pursuant to rule 103, allowing until 18 June 2018 for the submissions.6 1 Prosecutor’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute, ICC-RoC46(3)- 01/18-1, 9 April 2018. 2 Decision Inviting the Competent Authorities of the People’s Republic of Bangladesh to Submit Observations pursuant to Rule 103(1) of the Rules of Procedure and Evidence on the “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute”, ICC-RoC46(3)-01/18-3, 7 May 2018. 3 Order Convening a Status Conference, ICC-RoC46(3)-01/18-4, 11 May 2018. 4 Submissions on Behalf of the Victims Pursuant to Article 19(3) of the Statute, ICC-RoC46(3)-01/18-9, 30 May 2018, notified on 31 May 2018. 5 “Rohingya Crisis: Dhaka uses confidential mode of submission to ICC”, Dhaka Tribune, 11 June 2018; “Rohingya Crisis: Dhaka for Confidential mode of submission to ICC”, The New Indian Express, 11 June 2018. 6 Decision on the “Request for Leave to Submit Amicus Curiae Observations by the International Commission of Jurists (pursuant to Rule 103 of the Rules)”, ICC-RoC46(3)-01/18-7, 29 May 2018; Decision on the “Request for leave to submit an Amicus Curiae brief pursuant to Rule 103(1) of the No. ICC-RoC46(3)-01/18 3/32 18 June 2018 ICC-RoC46(3)-01/18-26 19-06-2018 4/32 EO PT 8. On 12 June 2018 the legal representative of the victims provided victim application documents from 10 individual victims to the Registry. III. OVERVIEW OF SUBMISSIONS 9. The victims strongly support the Request and the GRC Victims’ Submissions. The present submissions seek to complement rather than to repeat arguments made in those filings. The following matters are dealt with: (1) First, a number of factual matters are addressed from the perspective of the victims, based on their own accounts rather than open source materials. (2) Secondly, the submissions complement the arguments on jurisdiction already made by addressing the continuing nature of the crimes in light of the facts, and the relevance of the Statute’s deterrence objective. (3) Thirdly, arguments are presented relating to the appropriate approach to victims’ participation in the current proceedings. (4) Finally, remaining procedural matters are addressed. 10. These submissions are based on first hand discussions with the victims, all of whom are former residents of the village of Tula Toli. They have experienced a litany of persecutory crimes at the hands of Burmese authorities over many years, including the massacre committed at Tula Toli on 30 August 2017. The victims include men and women, ranging in age, and including some leaders of the community. While funding and assistance has been provided by organisations and individuals who have been working with the victims, these organisations and individuals have not sought to supplant their views for those of the victims. Rules of Procedure and Evidence on the ‘Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute’”, ICC-RoC46(3)-01/18-8, 19 May 2018; Decision on the “Joint Request for Leave to Submit Amicus Curiae Observations pursuant to Rule 103 of the Rules”, ICC-RoC46(3)-01/18- 15, 11 June 2018; Decision on the “Request for Leave to Submit Amicus Curiae Observations by Guernica 37 International Justice Chambers (pursuant to Rule 103 of the Rules)”, ICC-RoC46(3)-01/18- 17, 14 June 2018; Decision on the “Request for Leave to Submit Amicus Curiae Observations by the Bangladeshi Non-Governmental Representatives (pursuant to Rule 103 of the Rules)”, ICC-RoC46(3)-01/18-18, 14 June 2018. No. ICC-RoC46(3)-01/18 4/32 18 June 2018 ICC-RoC46(3)-01/18-26 19-06-2018 5/32 EO PT 11. The victims’ views and their accounts of their experiences are important factors to be considered by the Chamber in its consideration of the Request. These views are to be distinguished from positions expressed by or attributed to “civil society”. While some civil society organisations may be well placed to provide useful input to the Court, their views plainly cannot be equated with those of the victims.7 12. The Request rightly emphasises that “this is not an abstract question but a concrete one.”8 Not only is the question not a hypothetical one; it is also not a theoretical legal exercise. For the victims the subject matter of the Request is the ongoing perpetration against them of a calculated and brutal series of international crimes, which has led to them becoming refugees unable to safely return to their homes. As will be explained, the victims believe that the continuation of these crimes can only be prevented by the involvement of the international community, including this Court. The Chamber’s determination of the Request may therefore fundamentally shape the course of their lives. IV. FACTUAL MATTERS A. Background 13. Before addressing jurisdiction, these submissions set out additional detail regarding: the decades of persecution which led up to the events of August 2017; the events of August 2017 themselves; and the victims’ circumstances since those events. This is material not contained in the Request or the GRC Victims’ Submissions, and it is relevant to understanding the nature of the crimes and therefore to the jurisdictional issue which is before the Court. 14. There is also a further reason why the following factual material is provided. Both the Request and the GRC Victims’ Submissions make reference to the terrible 7 Regrettably it is often assumed or asserted that views ascribed to “civil society” are the same as those of victims, this claim even having been made in one of the rule 103 requests in these proceedings. 8 Request, para.4. No. ICC-RoC46(3)-01/18 5/32 18 June 2018 ICC-RoC46(3)-01/18-26 19-06-2018 6/32 EO PT events that occurred in Tula Toli on 30 August 2017.9 Through media and NGO reporting10 the massacre has become emblematic of the atrocities committed against the Rohingya people in Myanmar. To the survivors of the massacre it is much more: it was a pivotal event in the escalating persecution they experienced over many years, and a real, personal and defining moment of trauma in their lives. It is right and proper that when this event is put before the Chamber, the victims themselves play a role in its telling. Quite aside from ensuring the authenticity of the account, this provides some small restoration of agency for people who have been repeatedly silenced and marginalised. B. The village of Tula Toli 15. Tula Toli11 is situated in the bend of a river within the boundaries of Maungdaw township, in northern Rakhine State, Myanmar. Before August 2017 the village included both Rohingya and Rakhine hamlets, with an estimated population of around 4700 people (4360 Rohingya; 350 Rakhine).12 Rohingya were able to vote for members of a village council, but since 2012 they could neither vote in the election of the village council’s chair nor hold that position.
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