Myanmar's Rohingya Genocide: ICC referral: Need of the hour

Rohingya refugees are seen at Thaingkhali makeshift refugee camp in Cox's Bazar, September 14, 2017. Photo: Reuters/Danish Siddiqui

By CR Abrar

The Daily Star

March 11, 2018

As hopes for an early, voluntary, safe and dignified repatriation of the Rohingya refugees to a protected homeland in Arakan fade, as Myanmar authorities persist in a “systematic,” lower-intensity persecution and violence in northern Arakan, and as new batches of expelled Rohingyas continue to cross the border into Bangladesh, the demand for bringing the perpetrators of the heinous crime to justice, including State Counsellor Aung San Suu Kyi and her military cohorts, gains traction.

On Friday, Zeid Ra'ad al-Hussein, the United Nations human rights chief, called for allegations of atrocities committed against the Rohingyas to be referred to the International Criminal Court (ICC) for prosecution. Earlier, he informed the Human Rights Council that he strongly suspected that “acts of genocide” might have taken place against Rohingyas in Rakhine since August last year. He construed reports of bulldozing of alleged mass graves as a “deliberate attempt by the authorities to destroy evidence of potential international crimes, including possible crimes against humanity.” The rights chief urged UN General Assembly to establish a new independent mechanism to expedite criminal proceedings in courts against those responsible.

Earlier, Prof Yanghee Lee, the UN's human rights envoy to Myanmar, expressed the view that there were grounds for bringing the country's de facto leader, Aung San Suu Kyi, before an international tribunal for failing to intervene in the “clearance operation” the military had launched in Arakan following alleged militant attacks on several police posts and army base on August 25.

In another move, three female Nobel peace laureates urged Bangladesh, the UN and other state parties to refer Myanmar military and other perpetrators to the International Criminal Court (ICC) for the “genocide” against the Rohingyas. “Alternatively, the ICC prosecutor should open an independent investigation into the crimes against humanity and genocide perpetrated in Rakhine state,” they observed, after visiting Rohingya refugee sites in Bangladesh. One of the three laureates and an eminent legal expert, Shirin Ebadi, stated that as Myanmar was not a state party to the Rome Statute, the UN Security Council can recognise Myanmar's crimes against humanity and then refer that to the ICC. “We want this case to be discussed at the UN Security Council and there is sufficient evidence for this to take place,” she asserted.

Denouncing the Myanmar army's “bald-faced lie” against the “mountains of evidence,” Phil Robertson of the Human Rights Watch noted that “they've been covering up their human rights atrocities for decades.” Referring to absurd claims of the Myanmar military leadership, Robertson observed, “Statements like these indicate why the international community must prioritise hauling Senior General Min Aung Hlaing and other Burmese military commanders up in the international criminal court to stand trial for the crimes against humanity they've ordered or committed.”

Addressing the Berlin conference on Myanmar Genocide on February 27, 2018, Ambassador David Scheffer, who played a critical role in establishing the ICC, reminded the audience that “the age of impunity is over.” He stated that one cannot commit crimes on people and assume that he could get away doing so with impunity, as one could twenty-five years ago. When a state thrusts a million people on a neighbouring state, the argument of non-interference in domestic affairs becomes irrelevant. Such a context demands international actions, and judicial option remains one among those.

Scheffer argues that ideally justice for Rohingya against Myanmar military and political leadership needs to be pursued in the national court as jurisdiction resides there. That option is improbable in the short term, though under a changed political dispensation in Myanmar, perhaps in 15-20 years' time, it could be a likely scenario. After weighing in several options including those of the International Court of Justice, universal jurisdiction of other national courts, and hybrid war crimes tribunals such as those set up in Cambodia, Sierra Leone, East Timor and Kosovo, Schaffer informs that a referral under the Rome Statute is perhaps the best option. If such a reference is made, then the ICC will enjoy the full jurisdiction.

Invoking the Rome Statute by the Security Council to bring perpetrators of the Myanmar genocide to justice may not be an easy task. Thus far, states such as China and Russia remain committed to the wrong doer. The challenge remains two-fold. On the one hand, engage in diplomatic efforts to make those countries abstain from voting when such a resolution is passed. On the other hand, exert moral pressure by building international public opinion against the Myanmar genocide demanding accountability of the perpetrators and shaming their supporters by putting them on record.

It is true that Myanmar, the site of crimes, is not a state party to the Rome Statute, and the perpetrators, the country's civil and military leadership, are not nationals of a state party. But that does not absolve them from facing justice. This is because, as Scheffer persuasively argues, “the crime scene does not stop at the border; it very purposively and intentionally flows over into Bangladesh in a massive way.” In their act of “ethnic cleansing,” the Myanmar leadership removed Rohingya population from one part of their territory. Its intent was not to move them to another part, but to banish them to Bangladesh. Thus, its intent, purpose and strategy were very clear. It made Bangladesh experience the impact of commission of all sorts of crimes of mass murder, gang rape, rampant torture, and destruction of livelihoods, dwellings, villages and townships. Thus, as an affected party, Bangladesh can self-refer to the ICC. The question is whether Bangladesh has the political will.

Any other state party can refer as well. The state concerned does not have to be an affected party. The other recourse lies with the ICC prosecutor. Her office can also make the argument of the crime scene and move the ICC.

So far, states appear unwilling to move in that direction. This necessitates a concerted engagement of the global civil society with the issue as it engaged to end the American occupation of Vietnam or in dismantling the apartheid regime in South Africa. Thus, building international solidarity through mobilising various quarters including poets, artists and singers is crucial in moulding international public opinion. Care must be taken so that such a campaign remains victim-driven. The Rohingya voices remain absolutely crucial. Appropriate training in documentation must be imparted so that along with capturing the survivors' testimonies, evidence on how the command structures operated is collected.

Those engaged in the campaign must have the unflinching faith that “the bubble of security and impunity is now getting tighter and tighter, and therefore, demanding justice; documenting cases certainly are not exercises in futility.”

At a time when the world community celebrates the 70th anniversary of the adoption of the Universal Declaration of Human Rights and the framing of the Genocide Convention, the Rohingyas' call for justice go unheeded. The international community must ensure that they are delivered on that account.

CR Abrar teaches international relations at the University of Dhaka. He acknowledges the rich contributions of the panelists at the Conference on Myanmar Genocide held at the Holocaust Museum, Berlin on February 27, 2018.