May 18, 2018 @ 05:53 AM 382 2 Free Issues of Forbes
The International Criminal Court Is Looking Into The Crimes Committed Against the Rohingya Muslim
Ewelina U. Ochab , Contributor Opinions expressed by Forbes Contributors are their own.
In August 2017, I wrote about the atrocities perpetrated, with the authorisation of the Burmese government, against the Rohingya Muslims in Burma. I considered whether the atrocities could amount to genocide or crimes against humanity. I argued that independent from the determination of the atrocities, an urgent and comprehensive response was necessary to stop the ongoing violence and prevent further escalation. I further argued that an adequate investigation into the alleged crimes perpetratedagainst Rohingya Muslims must be a priority.
Following my original article, it has become clear that various UN bodies wish to commence a fact-finding mission in Burma. They have so far been prevented from doing so by the Burmese government who have refused permission for fact-finders to enter the country. Without the ability to conduct a fact-finding inquiry inside Burma, the quality of any enquiry would suffer. While interviews could still be collected from Rohingya Muslims who have managed to escape to Bangladesh, a lot of evidence is lost without access to the areas that the crimes are alleged to have been committed.
Away from the UN, another international actor has decided to weigh in on the issue. In April 2018, the Chief Prosecutor of the International Criminal Court (the ICC), Ms Fatou Bensouda, sought a ruling from the President of the Pre-Trial Division on the question of the ICC’s jurisdiction in the case. The question she submitted asked ‘whether the Court may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh.’
The ICC Chief Prosecutor’s submission contained information of consistent and credible public reports to suggest that since at least August 2017, ‘more than 670,000 Rohingya, lawfully present in Myanmar, have been intentionally deported across the international border into Bangladesh.’ The ICC Chief Prosecutor referred to recent statements of the UN High Commissioner for Human Rights who described the atrocities committed against the Rohingya Muslims in Burma as ‘a textbook example of ethnic cleansing’ and the UN Special Envoy for human rights in Myanmar identifying the ‘hallmarks of a genocide.’ The ICC Chief Prosecutor relied on evidence presented by the ‘UN Office of the High Commissioner for Human Rights (OHCHR), the UN Human Rights Council Independent International Fact-Finding Mission on Myanmar; the UN Special Rapporteur on the Situation of Human Rights in Myanmar; the UN Office of the High Commissioner for Refugees (UNHCR); the International Organization for Migration Inter Sector Coordination Group (ISCG); the UN Children’s Fund (UNICEF); Human Rights Watch; Amnesty International; Fortify Rights; Médecins Sans Frontières; and the International Rescue Committee’ and corroborative video footage and reports, and 42 individual communications received by the Office of the Prosecutor.The ICC does not have the territorial jurisdiction over the situation in Burma that much is clear. Put simply, Burma is not a signatory to the Rome Statute. Ms Bensouda’s question focuses, instead, on Bangladesh which is a signatory to the Rome Statute. The ICC Chief Prosecutor’s submission seeks to clarify whether the ICC can exercise jurisdiction ‘when persons are deported from the territory of a State which is not a party to the Statute directly into the territory of a State which is a party to the Statute’ to be able to investigate the crime and prosecute the perpetrators.
The focus of the question is limited to the forcible deportation (which is a crime against humanity under Article 7(1)(d) of the Rome Statute) of the Rohingya Muslims and not on any other crimes that are alleged to have been perpetrated within the territory of Burma. The referral is limited purely because of the lack of territorial jurisdiction over the situation in Burma. The question of cross-border deportation may provide the ICC with enough jurisdiction to conduct investigations into the situation of the Rohingya Muslims and to commence prosecutions.
Other options open for the ICC to gain the requisite territorial jurisdiction would include if Burma voluntarily accepted the jurisdiction of the ICC or if the situation in Burma was referred to it by the UN Security Council. Both seem highly unlikely, despite international pressures.
The pro-active initiative of the ICC Chief Prosecutor to enquire on the question of jurisdiction is very welcome as are any other options that might allow the ICC to gain the requisite jurisdiction. Other options are highly dependent on the political will of many state actors. It seems highly unlikely that the ICC will gain jurisdiction to get involved otherwise. While the scope of the current jurisdiction enquiry is very narrow, it will allow the ICC to initiate the basis of a much-needed investigation. Prosecutions may then follow which will give the Rohingya Muslims a better chance of securing some form of justice.
Ewelina U. Ochab is a human rights advocate and author of the book “Never Again: Legal Responses to a Broken Promise in the Middle East.”