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The Senate

Motion to Urge the Government to Invoke the Genocide Convention to Hold Myanmar to its Obligations and to Seek Provisional Measures and Reparations for the Rohingya People--Debate Adjourned

April 11, 2019

Pursuant to notice of April 3, 2019, moved:

That the Senate urge the Government of Canada without further delay to invoke the Genocide Convention and specifically to engage with like-minded States to pursue the matter before the International Court of Justice in order to hold Myanmar to its obligations and to seek provisional measures and ultimately reparations for the Rohingya people;

That the Senate urge Canada to exert pressure on Myanmar to release the jailed Reuters journalists, and to allow for unobstructed access to Rakhine State by independent monitors in order to investigate the international crimes committed and to afford protection to remaining Rohingya;

That the Senate urge the Government of Canada to continue to assist the Government of Bangladesh through multilateral aid in addressing the humanitarian needs of the Rohingya refugees, with particular focus on the needs of women and children, including education; and

That a message be sent to the House of Commons requesting that house to unite with the Senate for the above purpose.

She said: Honourable senators, I rise today to speak to my motion, which calls on the Government of Canada to invoke the Genocide Convention with respect to the ongoing genocide committed by Myanmar against the Rohingya people and to pursue the matter before the International Court of Justice. As a member of the international community, Canada has a duty to hold Myanmar to account for the crime of genocide committed against the Rohingya people.

April marks the month of genocide remembrance, condemnation and prevention. This is a month of sober remembrance. It is a time for us to reflect on the meaning we ascribe to the words “never again.”

Today I acknowledge that we are standing on the unsurrendered Indigenous territory of the Algonquin people. On this land, the Canadian government committed genocide against the Indigenous people of Turtle Island, which included the forcible removal of children into residential schools.

A few days ago, April 7, we observed the National Day of Reflection on the Prevention of Genocide. Senators Andreychuk and Cormier, along with other senators, welcomed civil society and parliamentarians here to mark the twenty-fifth anniversary of the outbreak of the Rwandan genocide.

In only 100 days — from April to July 1994 — nearly 1 million Tutsis were slaughtered, enabled by a lack of action by the international community — well-documented inaction by Canadians like retired Senator Roméo Dallaire and Dr. James Orbinski of Doctors Without Borders, who refused to abandon Rwanda.

Colleagues, let’s recall the words “never again,” taken up after the Holocaust of the Second World War, when millions of Jewish people, along with people with disabilities, Roma and homosexuals, were murdered with vicious, hate-driven efficiency.

From the horror of mass atrocities, Jewish lawyer Raphael Lemkin built the word “genocide” from the ancient Greek word “genos,” for “race” or “tribe,” and the Latin word for “killing,” “cide.” He helped to draft what became the first UN human rights treaty, the Genocide Convention of 1948, which was not activated until 1951 — after 20 countries, including Canada, had ratified it.

Days ago, Rwandan genocide survivors reminded us, here in the Senate of Canada Building, of how the world failed them in 1994. In truth, it is more accurate to say “again, again, again” than to mouth “never again,” after each fresh set of massacres intended to destroy a people, whether in Europe, Africa, or now — 25 years after Rwanda — in Myanmar, as the world watches the ongoing cleansing operation directed by the Tatmadaw, Myanmar’s military rulers, which started in 2017, resulting in coordinated mass rapes across hundreds of villages and different districts, occurring in ways that cannot be seen as coincidental. The aim of those rapes, resulting in thousands of Rohingya women being forcibly impregnated, were part of the state of Myanmar strategy to destroy the Rohingya, specifically included in the definition of genocidal actions defined in the convention.

Over 720,000 Rohingya have escaped genocide in the Rakhine state in Myanmar, fleeing from the evil but familiar genocidal techniques of murder, rape, mutilation and burning whole communities, escaping into neighbouring Bangladesh.

The joint motion of both houses of Canada’s Parliament last fall made us the first country to officially name this as genocide. For those who remain in Myanmar, the attacks are ongoing, as the Government of Myanmar has continued its persecution of the remaining Rohingya and, just as happened in the Nazi Holocaust, the attacks are extending to other ethnic groups, such as the Kachin, the Kayan, the Shan and the Chin minorities in Myanmar.

The volume and pace of refugee arrivals in Bangladesh made this the fastest-growing refugee crisis in the world, with a concentration of refugees in Cox’s Bazar, a camp on the coast of Bangladesh, among the densest in the world. Just weeks ago, Bangladesh informed the UN Security Council that Rohingya refugees fleeing Myanmar will no longer be accepted.

Honourable senators, why should the Canadian Senate consider another motion on the Rohingya genocide? Why is the motion before you today focused on Canada taking specific action under the Genocide Convention? Because Canada ratified the Genocide Convention in 1951 and Myanmar ratified it in 1956, so both are state parties to this international law. However, as set out in the motion before you, Myanmar continues to defy international norms and standards, including the imprisonment of journalists and the denial of access to the UN Special Rapporteur.

As international human rights expert, Professor John Packer, recently noted, the essential thrust of the Genocide Convention — the repeated call of never again — is prevention. Prevention entails positive duties. The International Law Commission has made it clear that matters such as genocide are available to any and all interested states, not just those directly damaged. Failure of state parties to the Genocide Convention to take action to prevent genocide, or, once begun, failure to take action to prevent further acts of genocide, thus constitutes a breach of the Genocide Convention.

As further noted by Professor Packer, in this regard it is essential to understand that the character of the Genocide Convention is, above all, a matter of state obligation, where breaches engage state responsibility and the attendant law of state responsibility.

Colleagues, in November 2017, I was on the parliamentary delegation in Bangladesh briefed by the Honourable Bob Rae on the very evening that he returned from the Cox’s Bazar Rohingya refugee camp. I’ve known him since law school, and as many others in this chamber who know him will likely agree, he’s like a rock in even the most tense situations.

But not that evening, and not this past June when he testified before our Senate Human Rights Committee, near the end of his mandate as the Special Envoy for the Prime Minister, where he broke down and told the senators:

The camps are full of young people, and the thing that I felt as a father and a grandfather is, these are just kids.

In September 2018, the report of the Independent International Fact-Finding Mission on Myanmar by the UN Human Rights Council stated that the Tatmadaw, the ruling armed forces of Myanmar, continue to use rape and sexual violence as a part of a:

. . . deliberate strategy to intimidate, terrorize or punish the civilian population. They are used as a tactic of war.

The UN fact-finding report also urged for senior generals of the Myanmar military to be investigated and prosecuted in an international criminal tribunal for genocide, crimes against humanity and war crimes.

In that same month of September 2018, the Parliament of Canada unanimously adopted MP Andrew Leslie’s motion, recognizing that the crimes committed by Myanmar against the Rohingya constitute the crime of genocide. As we know, Senator Omidvar brought that motion to us and, as a result, both houses of the Canadian Parliament named it a genocide, an action of which we can be pleased.

Canadians care. Canadians look for ways to make a positive difference, locally, national and internationally. For example, city councillors in municipalities across Canada, including our largest cities of Montreal and Toronto, are tabling motions this month calling for the end of Myanmar’s genocide against the Rohingya.

At the UN Forum on Minority Issues in November of 2018, Nurul Islam, Chair of the Arakan Rohingya National Organisation, presented a statement on behalf of the Rohingya people, calling for the international community to invoke the Genocide Convention against Myanmar.

Canadian human rights academic centres, such as the Montreal Institute of Genocide and Human Rights Studies at Concordia University, the Raoul Wallenberg Centre for Human Rights, affiliated with McGill University, and the Human Rights Research and Education Centre at the University of Ottawa, have also called for Canada to follow up on its joint parliamentary motion by taking further action to invoke the Genocide Convention, which we can do as a state party.

This action would be consistent with the motion already accepted in both houses of our Parliament, and it is this action that is at the heart of the motion before you today.

As Canadians, we take pride in our leadership on international human rights. However, our commitment to human rights is not just defined by the speeches we give in Parliament or at the UN, or even by the dollars we commit to international development. Our commitment to human rights is defined by what we say and what we do in response to egregious human rights violations, including the crime of genocide.

Honourable senators, this Genocide Remembrance, Condemnation and Prevention Month, let us remember the millions of human lives that have been lost to genocide, including those that were lost in the Holodomor, the Armenian Genocide, the Holocaust, the Rwandan Genocide, the Srebrenica genocide, the Cambodian Genocide and the Darfur Genocide.

Let us acknowledge this by taking further action for the hundreds of thousands of Rohingya who have been driven from home. With this motion, we can do more than remember. We can take action consistent with our obligations under international human rights law to hold the Government of Myanmar accountable for the ongoing genocide against the Rohingya, the Kachin, the Karan, the Shan and Chin minorities.

Sixty-eight years after Canada ratified the Genocide Convention, let us ensure that the words, “never again,” are not said too late yet again. I invite you to consider and give your support to this motion which, if passed, will be taken to the other place, where a Member of Parliament is waiting to move there as well.

Thank you. Meegwetch.

Hon. Josée Forest-Niesing [ + ]

I have a question for the senator.

The Hon. the Speaker [ + ]

Senator McPhedran, your time is about to expire. Are you asking for a couple of minutes to answer a question?


Senator Forest-Niesing [ + ]

Thank you, honourable senator, for bringing to light the importance of this particular motion. You’re quite right that Canadians do care. As a Canadian, I care and am very preoccupied and compelled to take action.

I wonder, however, given the fact that Myanmar has not co‑operated with other international efforts, including denying access to the UN Special Rapporteur, if it’s not clear if Myanmar will consent to the process if Canada brings it before the International Court of Justice.

So I wonder, if the Senate accepts your motion urging the government to invoke the Genocide Convention, what are the chances that Myanmar will be held to account before the International Court of Justice?

I thank the honourable senator so much for a very good and quite tough question. It is true, as the senator has pointed out, that Myanmar has not accepted the compulsory jurisdiction of the court pursuant to article 36(2) of the International Court of Justice statute. However, both Myanmar and Canada are state parties to the genocide convention itself which allows Canada, as a state party, to rely on Article 9 of the convention. That article provides that disputes between the contracting parties relating to the interpretation, application or fulfilment of the convention, including those relating to the responsibility of a state for genocide, can be submitted to the International Court of Justice by a state party.

Myanmar has not made any reservations under Article 9 of the genocide convention. Therefore, Myanmar, as a state party, is bound by obligations under the genocide convention to appear before the International Court of Justice. Of course, before pursuing any intervention, military or otherwise, we must exhaust the resources available to us under international human rights law, and this motion reinforces this approach. The International Court of Justice is there for exactly this kind of situation. Thank you.

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