Rohingya and the ICC – The Rights of the Rohingya?

The “preliminary probe” announced by the International Criminal Court (ICC) in response to the exodus of the Rohingya opens the door to further international legal inquiry into the accusations of systemic ethnic violence against the Rohingya Muslim minority. But the prosecutor for the International Criminal Court is facing serious challenges in fulfilling the raised expectations.

Article by Robert Menzies

The ICC ruled on Thursday 6th September 2018 that it has jurisdiction to investigate the displacement of hundreds of thousands of Rohingya people from Myanmar to Bangladesh as a possible crime against humanity. This decision opens a path toward possible accountability for attacks by security forces on the Rohingya. These began a year ago and Myanmar continuously refuses to cooperate in any international investigation into the flights and the reported killings and mass rape of the Rohingya.

The ruling came in response to a request by the prosecutor for the International Criminal Court, Fatou Bensouda, who argued that although Myanmar was not a member of the court, the crime continued into Bangladesh, which is a member.” (New York Times)

With the most recent ruling the call for further investigations into the crimes against humanity committed by the Myanmar military against the Rohingya raises more questions than it answers. While the eventual prosecution of those responsible seems desirable, the challenge this poses to the prosecutor to be able to live up to the expectations and indeed to the ICC itself is serious.

Challenges facing the International Criminal Court

There is local backlash, given that the ICC´s ‘intervention’ into Myanmar’s affairs provides ample ammunition for the state and military to bolster its claims of threats against national sovereignty and foreign influence. As Myanmar did not join the Rome Statute of the International Criminal Court, the court has no direct jurisdiction over crimes committed on the territory of Myanmar but only if the UN Security Council would decide to request the ICC to initiate investigations. However, this has not been the case. Instead the ICC has deemed the cross-border effects of the events, taking place in Myanmar, on Bangladesh, a party to the Rome statute, sufficient cause to launch a preliminary investigation.

This raises the possibility that the ICC probe among the other high profile reports could be counterproductive in the long run as in particular the ICC is perceived by national authorities to be playing games to extend its jurisdiction internationally and using the Rohingya case as a means to an ulterior end.

The lack of access to the territory of the Union of Myanmar and the governments non-cooperation present serious hurdles to any attempt to prosecute the alleged perpetrators before the ICC, as without both a complete investigation cannot be guaranteed much less a trial. Indeed, the limited scope so far of the probe and its potential results have led some commentators to question whether the Rohingya would be satisfied if those responsible for the atrocities were only tried for the crime against humanity of forcible deportation and not charged with genocide or murder or sexual violence. Further, there is a risk of overstretching the capacities of the ICC as well as of course antagonising non-members further.

The probe is only the beginning of what will, even if it is successful, be a long road to justice. Particularly, given the political backlash to be expected from the court’s decision to allow a non-signatory to be investigated, which in itself is a radical step. It is too late to prevent or protect the Rohingya from the apparent systemic campaign of intercommunal violence that has caused their largest mass exodus in recent years, and while calls to action have been met with greater attention in the media and by international actors, no sustainable solution is in sight. Even if this probe is successful in leading to a trial and bringing those responsible before the court, it is a slow remedy, which will do little for the hundreds of thousands of Rohingya displaced across the region and beyond.

Update on the Rohingya Crisis: One year later

The plight of the Rohingya is one of the largest refugee crises in recent history and one of the most pressing human rights and humanitarian crises facing the international community today.” It has been described as a ‘slow-burning genocide’ stretching back over decades and in light of this, any international criminal remedy may be too little, too late.

“The horrors inflicted on Rohingya men, women and children during the August 2017 operations, including their indiscriminate killing, rise to the level of both war crimes and crimes against humanity” (OHCHR)

Accusations from ethnic cleansing to that of possible genocide have been made in a political climate that is shaped by wide ranging concerns including considerations regarding the ongoing issues surrounding the peace process in the country.

In June 2018, Myanmar’s government signed an agreement with the United Nations that will lead to the “voluntary, safe, dignified, and sustainable” repatriation of some 700,000 Rohingya refugees back to their homes, or their place of choosing. At the same time, Myanmar’s civilian and military powers seem to have entirely ignored international condemnation of the crackdown and allegations that it amounted to ethnic cleansing, and Aung San Suu Kyi’s government is still insisting that only refugees with the correct identity documents can return.” (The Conversation)

The recent memoranda of understanding between UN agencies and the government have been promoted as a success in continuing the political dialogue and opening up of a historically isolationist nation, however they have so far failed to have a visible impact on the conditions in Rakhine. The efforts by Myanmar and Bangladesh to facilitate repatriations have been met with strong opposition both by the UN agencies, and notably  the Special Rapporteur on Human Rights, and the Rohingya themselves, citing fear over the potential of restarting the cycle of abuse and violence without more concrete and visible measures to safeguard their rights and address the underlying systemic causes.

The institutionalisation of camps of Rohingya, still in Myanmar, into settlements contrasts to the appearance of increased access to North Rakhine which however is controlled through weekly allowances which force humanitarian actors to tread lightly. Overall while humanitarian access is now legally permitted it is not comparable in scope to before the crisis and is only a limited step towards progress.

International Criminal Law and the Rohingya

The independent United Nations’ fact-finding mission has come to the conclusion that Myanmar’s military carried out atrocities that amounted to “genocidal intent.” Another UN report alleges that they are responsible for war crimes and crimes against humanity against (ethnic) minorities across the country.

The key legal arguments discussed centered on jurisdiction and right to investigation by the Office of the Prosecutor. However, a preliminary examination is not an investigation but rather a process of examining available information so as to determine whether there is a reasonable basis for an investigation as established by the Rome Statute. The OTP investigation, in this case, is seeking to establish the facts necessary to bring charges against individuals responsible for international crimes against the Rohingya.

Crucially the probe rests on the charge: of the “crime against humanity of deportation” per petition in the court ruling. The crime against humanity of deportation is transboundary in nature and deportation is understood as an open conduct crime.

The underlying “flying bullet theory”, concerning the international criminal liability of involved actors, (ICC prosecutor) would also be applicable potentially to other cases such as against the US in Afghanistan or the case of Syria. It bears repeating that this probe is not a centrally controlled campaign from the West, however international actors are increasingly seen as indivisible within the country.

The Statelessness of the Rohingya

Statelessness is an underlying issue which is also tied to driving forces behind the peace process. The forced displacement of Rohingya, both within Myanmar as well as across the border to Bangladesh, present significant challenges as they are both a cause and consequences of divide and conquer strategies used to oppress. The Rohingya, who number over 1 million people, have been systematically persecuted for generations and stripped systematically of their citizenship rights including through the establishment of Myanmar’s 1982 Citizenship Law which rendered most of them stateless and through other discriminatory legislation like the race and religion laws. However, the stateless debate has, by and large, remained confined to academic circles and not been addressed in any meaningful way in the public or political discourse.

At its core, this issue complicates attempts at ensuring recognition and refugee status as well as further undermining their rights both abroad or in the event of repatriation. The root causes of forced displacement need to be addressed. This goes beyond international criminal prosecution alone, as it will not be enough to permanently counteract the systemic discrimination and violence the Rohingya face. Especially worrying has been the forced repatriation of Rohingya by India which further highlights the widespread need for a more regional debate about statelessness itself. Here ASEAN and other regional forums could do more to start the conversation and tackle issues like the removal of identification and freedom of mobility for groups like the Rohingya by creating ID cards for them. Restrictions on freedom of movement for the foreseeable future then remain in place, supported by Rakhine nationalist sentiments, who are facing elections in November adding a further layer to an already complex issue.

Looking forward

The crisis is an inconvenient reality for neighbouring countries and Myanmar itself is unwilling or perhaps in the case of the National League for Democracy (NLD) unable to do much in the face of the Tatmadaw, Myanmar’s military, which has been accused of possible genocide against the Rohingya in Rakhine state. The protracted nature of the Rohingya case is a further underlying issue making any attempt at addressing the situation even more daunting. Indeed any attempt to pursue international criminal liability for crimes against humanity across national borders raises many challenges for the ICC itself and perhaps offers little to the Rohingya. The forced deportation as well as other acts of systemic acts of violence against the Rohingya is a transnational issue which needs to be addressed and redressed in its totality.

“Myanmar’s repeated failure to admit genocide had taken place and with the legal impunity given to the military, it fell to the international community to hold those responsible to account.” (The Guardian)

The ICC’s investigation is only the beginning in bringing clarity and accountability to the victims of the ethnic violence in Rakhine and beyond, but the probe cannot operate in a political vacuum and must be assessed in light of the broader international development surrounding Myanmar’s peace process as well as possible international sanctions as well as pressures to repatriate.

So far the international pressure has achieved some symbolic actions but no lasting structural change. Overall Bangladesh and the international community, including the ICC, have sought to internationalise the crisis while as before Myanmar has pursued bilateral actions, designed to limit foreign involvement. Meanwhile the displacement and suffering of the Rohingya continues, as the political process fails to address the situation, threatened by forced repatriation without credible guarantees for their safe and durable return.

Autor: Robert Menzies


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