The Rohingya crisis and the International Criminal Court
Shahriar Yeasin Khan
The Arakan/Rakhine state of Burma/Myanmar is home to over 1 million Rohingya, an ethnic minority, effectively classed by Burmese law as foreigners, and are not considered as citizens of Myanmar. The Burmese government recognises 8 major national ethnic races, which are composed of many other sub-ethnic groups, totaling approximately 135 in number. Despite tracing their roots in Burma to the 8th century A.D., the Burma Citizenship Law promulgated in 1982 failed to recognise the Muslim Rohingya [amongst several other ethnic groups] as part of the countrys 135 officially recognised ethnic groups, thus effectively vanquishing their full citizenship rights. For them to become a citizen, the law requires the so-called resident foreigners and their children to show documentary evidence tracing their unbroken lineage within the geographical region of Burma before the year 1823 [1 year before the advent of colonial British rule]. Almost all individual Rohingya fail to fulfill such onerous evidential requirements, rendering the Rohingya people effectively as legally stateless persons, whilst still having a collective history of residing within Burma for over a millennium.
Thus, not legally being citizens of Myanmar, the Rohingya are deprived of fundamental legal and social rights: with strict restrictions on education, healthcare and employment; undue restrictions on movement [they cannot travel without official authorisation, and cannot work outside of their villages]; inability to marry anyone without prior permission from the State; imposition of forced labour; amongst other curtailment of basic rights enjoyed by all other legally recognised citizens of Myanmar. Being Muslims in a Buddhist majority country, for some rather perplexing reasons, the Rohingya also face massive social discrimination within the general Burmese community. Subjected to a regime of continuous and relentless oppression, over hundreds of thousands of Rohingya have been forced to live in concentration camps for many years in the Arakan capital Sittwe; many more are additionally displaced for fear of being oppressed/killed. Consequently, many have fled Burma through the sea/river borders [in precarious little boats which regularly capsize] to Bangladesh, Malaysia, Indonesia and Thailand. Many do not survive these perilous journeys. Those who do survive are either sent back, or otherwise find themselves stuck in makeshift refugee camps, with most receiving very little or inadequate humanitarian assistance therein.
The Rohingya have been engulfed in religious and ethnic conflict in Burma for centuries. The Burman King Bodawpaya conquered Arakan in 1784. Since then, with the advent of a repressive regime, hundreds of thousands of Rohingya Muslims have fled Burma, seeking refuge in Bangladesh, in the course of multiple periods: starting from the late 1700s, then in the early 1800s, and also in the 1940s [when religious tensions between the Muslims and Buddhists in Myanmar grew to severely heightened levels]. In 1978 there was an exodus of about 200,000 Rohingya into Bangladesh; refugee camps were established, and soon thereafter, with support from the international community, Bangladesh was able to successfully repatriate most of the Rohingya back to Burma. Almost immediately afterwards, the discriminatory Citizenship Law of 1982 was promulgated in Burma. Once again, during 1991-1992, more than 250,000 Rohingya fled the persecution, forced labour and rapes that they faced in Arakan, and sought refuge in Bangladesh,
The most serious of them all started from 25th August 2017 onwards, when a new series of violent attacks were sparked by the Arakan Rohingya Salvation Army (ARSA). Human Rights Watch recently issued reports containing new satellite imagery and sensory data showing that nearly 284 villages in Rakhine have been almost completely destroyed in the 2017 attacks. Such large scale atrocities in Rakhine is unprecedented in recent history. At the time of writing, during the period of August-October 2017, at least 700,000 Rohingyas have already crossed the borders into Bangladesh. Commendably, the Bangladeshi people have welcomed the Rohingya refugees into Bangladesh, given the dire situation they have been forced to face in Myanmar. This is of course a difficult endeavour on the part of Bangladesh, and without necessary support from the international community, it is unlikely that Bangladesh can afford the proper sustenance of the Rohingya refugees.
Given the mass atrocities perpetrated by the security forces in Myanmar, in cahoots with certain Buddhist monks, some Rakhine villagers and vigilante groups, it is quite natural that the Rohingya would try to escape these terrifying circumstances and seek refuge elsewhere. Mass media and NGO reports suggest that in conjunction with a passive government, which has only recently been democratically elected (Rohingyas cannot vote in national elections), and led by Aung San Suu Kyis NLD party the military dominated administration has been directly/indirectly involved in mass arrests, rape, extrajudicial killings, and forcibly removing the Rohingya from villages with their property confiscated and houses burnt down. Unfortunately, till now, the perpetrators remain at large, beyond the purviews of any legal accountability.
In the current circumstances, given the extremity of the situation, and the recurring allegations that mass atrocities are being committed against the Rohingya in Myanmar [whoever the culprit(s) may be], the potential role of the International Criminal Court (ICC) in giving them justice for these alleged crimes has now become a live issue.
The ICC is a treaty-based organisation, the goal of which is to put an end to impunity for the most serious crimes of international concern. Importantly, it must be borne in mind that the ICC has complementary jurisdiction to national courts in the States that are signatories the Rome Statute (Preamble/Article-1/Art-17). It can only intervene when Member States are unwilling or unable to conduct genuine national investigations or court proceedings. Secondly, it may not try crimes committed before 1 July 2002, when the Rome Statute came into force (Art-11(1)).
As stipulated in the Rome Statute, which is the legal framework of the ICC, the crimes of Genocide (Article 6) and Crimes against humanity (Article 7) fall within the purview of the Myanmar situation. Genocide means committing certain specified acts with intent to destroy, in whole or in part, a national, ethnical, racial or religious group by means of, for instance, killing members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, among others. Crimes against humanity means committing certain specified acts as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack which must be pursuant to or in furtherance of a State or organizational policy to commit such attack by means of, for instance, murder, extermination, deportation or forcible transfer of population, rape, persecution, the crime of apartheid, among others.
The biggest obstacle to ensuring international criminal justice in this particular case is that Myanmar is not a State Party to the Statute, and this gives rise to issues as to the jurisdiction of the ICC.
The only other option, which is perhaps, relatively the most feasible option, remains under Art-13(b): whereby the UNSC may, by unanimous decision, refer the case to the Prosecutor, as it did for the Situations in Darfur and Libya, which ultimately resulted in warrants being issued for Omar Al-Bashir and Muammar Gaddafi. Chapter VII of the UN Charter empowers the UNSC as such, even though Myanmar is not a State Party to the Rome Statute. Although there is growing international political resolve, such a course of action for the Situation in Myanmar has not yet materialised.
A major obstacle are the veto powers of the Permanent Members of the UN. This was recently observed where a draft resolution by the UNSC of referral of the Syrian situation to the ICC was vetoed by China and Russia. Noting the current stance of Russia and China as regards the conflict in Myanmar, it seems highly likely that both these countries will exercise their veto powers at the UNSC, should a referral be even considered therein. This is an unfortunate reality of the UN system. The 2013 proposals of the then French President to regulate the veto powers in cases of mass atrocities, particularly within the ambit of the ICC, while receiving vocal support within the international community, lacks essential support from all the Permanent Members, and is probably unlikely to be adopted in the near future. Notably, the USA, China and Russia are not State Parties to the Rome Statute, which also significantly limits the ICCs political ambit. Political will is a major requirement in ensuring international justice, and whilst the UNSC and even the USA itself has been very vocal against the atrocities perpetrated against the Rohingya, a resolute and unified international action against Myanmar is yet to be taken.
As the situation in Myanmar is currently outside the Courts jurisdiction, this also affects the Office of the Prosecutors (OTP) ability to conduct a preliminary investigation into the alleged crimes. Under Art-13(c), Art-15 Art-53(1) of the Statute, the Prosecutor may, for instance, initiate an investigation proprio motu on the basis of information it may receive [information may be sent to the ICC by individuals or groups, States, intergovernmental or non-governmental organisations], but this must be in relation to crimes within the jurisdiction of the Court. However, diligent and thorough collection of eyewitness testimonies and other forms of evidence by involved parties must be encouraged, as in the future, these may form an essential part of potential future trials at the ICC in relation to the situation in Myanmar.
If the ICC were able to try the Myanmar case, subject to there being convictions, it would be able to make necessary reparations to the victims, including much needed rehabilitation (Art-75). Furthermore, and this is very important, the victims will then feel that their cries have been heard, and people around the world care about their plight, and that they have been given justice in the sense that the most responsible persons will likely be convicted and punished for the atrocities committed against the helpless Rohingya people.
The writer is a lawyer
