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25 July 2018
Recently, the Rohingya situation in Myanmar (Burma) has been making headlines. The long-endured atrocities suffered by the Rohingya have escalated on 25 August 2017 through the ‘clearance operation’ by security forces as a response to attacks by opposing militants. Around 700,000 people fled their homes and thousands of people were killed. This is described by the UN High Commissioner for Human Rights as a ‘textbook example of ethnic cleansing’. The knee-jerk reaction is that justice must be achieved for the victims of this ethnic cleansing. However, the question is how: will the international community ever hold the perpetrators responsible? The answer might just lie in the International Criminal Court (ICC).
The International Criminal Court – how it works
The ICC is an independent body that deals with the most serious crimes concerning the international community. It aims to investigate, prosecute and try accused persons. Only individuals can be prosecuted by the ICC, not states or groups. This is so to put the trial’s focus on the person with the greatest responsibility in the crime, regardless of the official position held by the accused. Amongst other things, the Rome Statute 1998 sets out which crimes fall under the jurisdiction of the ICC, including the crimes against humanity.
Prosecutor Fatou Bensouda (Source: The Guardian)
The Prosecution’s Claims
This section will be largely based on the brief Prosecutor Bensouda has submitted to the court. A copy of it can be found here.
In April 2018, ICC prosecutor Fatou Bensouda asked the court to rule on the question whether the ICC ‘can exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh’. This will open the gates for an investigation on the issue and if necessary, prosecution of those responsible in Burma. A determination of two points is required: Firstly, the nature of the crime of deportation (article 7(1)(d)) and secondly, the territorial jurisdiction of the court (article 12(2)(a)).
The crime of deportation has long been recognised as a crime against humanity in the Rome Statute, and is distinguishable from the crime of forcible transfer. The former requires the victim to be forced to cross an international border, whereas the latter requires only enforced displacement within state territory. This distinction is necessary because they set out to protect different values in law: the right of the individual to stay in their home and the right of an individual to live in the state in which they are lawfully present (if they are living within a particular culture, society etc.). Even though the Rohingya are deprived of various fundamental rights e.g. have their citizenship stripped from them, they are arguably still lawfully present in Myanmar.
More importantly, deportation is a crime because it is presumed that even if the original circumstances in the home state is not ideal, it will still be a better position to those whom are forced into the new state. Note that it is enough to be deportation if ‘one or more acts that the perpetrator performed… produced the effect to deport.’ Thus, in this case, the enforced displacement of the Rohingya from Myanmar to Bangladesh falls squarely into the definition of the crime of deportation.
In order for the crime of deportation to be within the jurisdiction of the court, at least one legal element of the crime has to have occurred in the territory of the state party. This is principle of territoriality and consists of the legal element either originating from the state party (subjective territoriality) or is received by the state party (objective territoriality). It is enough that only a partial element of the crime occurred on a state party’s territory and need not be committed in whole in the state party’s territory. Just like the analogy of cross border shooting, where the bullet is fired from one state and hits the victim in another, this forced movement constitutes conduct in both states.
Rohingya Refugees queuing for food in Bangladesh (Source: The Independent)
Will Prosecutor Bensouda’s case succeed?
A possible challenge to this interpretation could be that the conduct in question should only include actions which give rise to the crime and not necessarily include the result of the actions. Since Myanmar forces did not cross into Bangladesh themselves when forcing the Rohingya into Bangladesh, the crime did not occur within the party state. Yet this is answered through the application of objective territoriality. Only the direct effects of the crime are needed, even if no elements of the crime were to occur in the state. Therefore, the ICC could use objective territoriality if needed as it is arguable that the main effects are within Bangladesh.
Since the way the ICC operates is based on the consent of sovereign states, it is thus controversial to extend jurisdiction to states which are non-parties to the Rome treaty. This could open the floodgates for the ICC to try cases of non-state parties even when conduct is strictly within the borders of the country itself. But, it is important to note that the role of the ICC is to ‘investigate, prosecute and try individuals accused of committing the most serious crimes of concern to the international community’. This favors asserting jurisdiction even when the state is a non-party state. Although there might be the problem of potential abuse, this can be limited by a high bar such as the standard of foreseeability of the effects.
The prosecution does have a case for the crime of deportation. Although the judgement has not been passed yet and there is a great deal of uncertainty given her request is the first of its kind, the opposing fundamental principle of national sovereignty and the rejection of the request by the Myanmar government, the arguments are still likely to be accepted given the gravity of the crime itself. But, this does not mean that the court would also have jurisdiction over the other crimes the Arakan Rohingya Salvation Army (ARSA) and the Myanmar Military has committed. Aung San Suu Kyi has previously said that if evidence of violations is provided, the Burmese authorities would take on a ‘proper investigation.’ Given the Myanmar government’s refusal to accept any evidence provided as well as how uncooperative the government has been however, it is unlikely there will be any fair investigation done by the authorities.
Therefore, the best way to achieve justice is for an independent body like the ICC to take over and hold those with the greatest responsibility accountable. A fair court like the ICC can also guarantee that only those that are truly most responsible will be held accountable and can uphold the highest standards of law to confirm this. This would only be possible for the other crimes besides deportation if the UN Security Council refers the case to the ICC. Even though this has not happened yet and likely to be vetoed by countries Burma has strong links to e.g. China, there is still some hope since the top UN human rights official, Zeid Ra’ad al-Hussein, wants the crimes against the Rohingya referred to the ICC. The same opinion is voiced within the international community including the UK.
The court has currently asked Myanmar to consider this request, an answer will be heard on the 27th of July.
On a side but important note, the Rohingya are not the only people in Burma facing this ethnic tension. Although they have been getting a lot of media coverage these days, it must not be forgotten that this type of conflict happens in other states within Burma as well. To learn more about these conflicts and the work HART does in Burma, please click here.