Abstract
Following the mass atrocities committed against the Rohingya people by the state of Myanmar, what international justice mechanisms are global states trying to pursue in order to hold state actors and Burmese military accountable? This piece explores various international justice mechanisms, including the ongoing case at the International Court of Justice (ICJ) brought forward by Gambia to hold Myanmar accountable for violating the 1948 Genocide Convention. It critically examines the effectiveness of international justice systems, including the International Criminal Court (ICC) and the ICJ, and examines future prospects of justice for the Rohingya.
Keywords: International Criminal Court; International Court of Justice; Rohingya Crisis; Myanmar; Bangladesh; Gambia; Refugees; International Law
In late January 2020, the International Court of Justice (ICJ) issued an order to Myanmar stipulating that the state take “all measures within its power” to prevent further acts of violence against Rohingya Muslims by the state.[1] This order was a sweeping move by the court, as it marked the first international order to Myanmar that implied state responsibility for the forced deportation of over 700,000 of its Rohingya ethnic minority group in 2017.[2] In the two years since the massive state-provoked outflow of refugees, there has been an ongoing investigation into Myanmar’s security forces by the United Nations[3] and international cries for state accountability, including the Canadian government’s condemnation of the treatment of the minority group.[4]
The history of Buddhist-Muslim conflict in the region is a longstanding feature of the buildup that led to Rohingya fleeing Burmese military in 2017.[5] In the decades following Myanmar’s independence of the British, the country was shrouded in an isolationist military regime that targeted Muslims, and Rohingya especially, as being “other”; in 1982, a law was passed that stripped Rohingya of their citizenship rights, removing any legal protections that accompanied state recognition of the minority group as a “recognized group” under the state.[6] As the country transitioned into a fragile democracy in 2010, the international community – in supporting the country’s transition out of junta rule – turned a blind eye to its ongoing internal mistreatment of its Rohingya minority group.[7] To this day, the 1982 citizenship law remains in place, rendering the Rohingya both within and driven out of Myanmar “stateless.”[8]
When mass Buddhist-Muslim violence broke out in 2012, it marked the beginning of a massive state-sponsored campaign of violence that would go on to target the Rohingya for nearly a decade to come. In 2015, the community became known by the international community as Myanmar’s “boat people” – fleeing to surrounding countries that would provide refuge from the ongoing violence and destruction.[9] In the years between 2015 and 2017, the state implemented apartheid-like conditions that segregated and persecuted Rohingya communities across Rakhine state.[10] This included the burning of Rohingya villages, widespread mob violence, state enforced restrictions on mobility, and sexual violence alike. The ethnic violence was both supported and endorsed by the state – massive propaganda and hate campaigns over Facebook fuelled organized mobs against the Rohingya, and Myanmar’s military was eventually condemned internationally for its ongoing support of the violence, as well as the policies of segregation it implemented in response to the conflicts.[11]
Now in 2020, over 1.2 million of Myanmar’s Rohingya refugees are living in camps in neighbouring Bangladesh with no immediate end to their statelessness in sight.[12] Given the role of the Burmese state in this crisis, and the scale of the suffering and persecution that Myanmar has launched, international states have turned to the question of how to hold Myanmar accountable for the harm it has caused the Rohingya. It is certain that the actions of Myanmar’s military were in direct contravention of the UDHR and of the basic norm of human rights that has purportedly taken shape around the globe since the Second World War. The recent case launched by Gambia seeks to address these deep human rights violations – but what recourse does the case stand to have?
Why not the International Criminal Court?
The systemic nature of the violence in Myanmar led the Prosecutor for the ICC to attempt opening an investigation into the Rohingya crisis in 2018. The ICC, a new “human rights” tool, was created in 2001 with the Rome Statute with an intent of holding perpetrators of mass atrocities accountable for specific human rights violations, including genocide, crimes against humanity, and more. Bringing a case against Myanmar’s military was a delicate process – Myanmar is not one of the 122 member states party to the Rome statute of the ICC[13], which brought forward the question of whether the international court could prosecute a state that is not under the court’s jurisdiction. The court ruled that if a component of the crime of forced deportation occurs on a state that is a Rome statute member (in this case, Bangladesh) then the court may move forward.[14] In short, this means that despite patterned, systemic evidence of attempted ethnic cleansing and genocide, Myanmar’s top officials will only be investigated for the crime of forced deportation.[15] While the fact-finding mission proved to be useful for evidence gathering, it was by nature limited in its scope and potential because the evidence it collected had to have been restricted to evidence applicable to forced deportation – this is tricky, given that there was ample evidence for genocide, but this evidence would be irrelevant in a case taken up by the ICC against Myanmar.
Regardless, even in prosecuting forced deportation, the ICC’s effectiveness is questionable at best – the court has faced escalating criticisms in recent years which seriously question its ability to deliver justice, especially because of the racialized nature of its prosecution list.[16] To be sure, the ICC is not in the business of granting miracles. Case precedents, like the arrest warrant of Omar Al Bashir, caution that legally enforcing accountability for top officials will be unpredictable and unlikely. The absence of the United States, Russia, and China among the Rome Statute’s signatories implies a stark truth: the consequence of a court created to prosecute criminal states that is opt-in is that criminal states will simply opt-out.
The ICJ: another avenue for accountability?
Recognizing the stagnation that the ICC’s route leads to by its narrow forced deportation case, international actors have now pursued a different avenue for accountability. In January 2020, Myanmar’s top officials appeared in the Hague to testify before the ICJ, an international court for states traditionally akin to dispute resolution courts in domestic jurisdictions. The testimony was in response to a case brought by Gambia against Myanmar for its violation of the Genocide Convention in 1948.[17] While the case brought forward by Gambia on behalf of the 57-nation Organization of Islamic Cooperation’s actual decision could well be years away, in January 2020, the court ordered that Myanmar take steps to prevent genocide against the Rohingya that remain within its borders, cease the destruction of evidence of genocide, and going even further, ordered Myanmar file a report every six months until the resolution of their case that lays out the steps it has taken to protect Rohingya.[18] As far as international justice responses go, this is a strong one. The trouble is simply that the court does not have any enforcement mechanisms. It is currently unclear whether Myanmar will comply – after all, what incentives does it have to do so? At worst, the findings of the ICJ can be acted on by the UN Security Council – something that the state will likely have to reconcile with regardless of whether it complies with the ICJ’s present order. Myanmar has consistently denied that it has committed a genocide, and continued to do so after receiving its ICJ order. One New York Times article noted that the state’s present “PR strategy” is accepting that war crimes were committed, but denying their constituting genocide.[19]
Historically, while international law has tried to prosecute war crimes, it has only ever rallied its slow-moving silos to bring actionable, consequential rulings and political action forward for the most severe crime of genocide (and even still, this has not been successful for all cases of genocide). This was true of the Nuremburg trials, of the international response to the Rwandan genocide, and stands potentially be true as well should the ICJ case find Myanmar guilty of genocide. Unfortunately, mass atrocities that are still mass, but do not meet the highest bar of human rights violations, have not received the same international attention and action. They have certainly not received similar accountability. This is true of the US invasion of Iraq, the forced displacement of Palestinian refugees, and many more international human rights crises that have not received thorough accountability from their perpetrators.
Why is international legal accountability important?
Do the apparent difficulties with enforcement mean that we abandon hope in international accountability mechanisms altogether? In a world as interconnected as ours, this does not promise much more justice than is already being delivered. It is true that with over a million Rohingya trapped in Bangladesh, solutions to the refugee crisis are not going to be solely from the arm of international law. The Rohingya case will likely require continued lobbying from diaspora, organizations, governments, and allies for their citizenship rights in Myanmar to be respected, and for effective peace processes to be initiated to make safe return a possibility. Nonetheless, a ruling from the ICJ would be a start – it would add legitimacy, international recognition, and solidarity with Rohingya diaspora and those currently trapped in statelessness. Given that a finding from the ICJ allows for the UN Security Council to take action, there is promise yet for the international community to use the legal mechanisms in place more effectively today and in the future than they have been used in the past. Even if only to spur political will from other states, or international financial support for the Rohingya trapped in Bangladesh’s camps, the potential for international justice is still large, and the fight for more just mechanisms to protect human rights still vital.
Anushka Kurian is a fourth-year student majoring in International Relations and Ethics, Society and Law. She is an Event Reporter and Contributor for Synergy: The Journal of Contemporary Asian Studies, South Asia section.
Bibliography
BBC. “African Union Backs mass withdrawal from ICC” BBC. February 1, 2017. Accessed February 2020. https://www.bbc.co.uk/news/world-africa-38826073
Francis Wade, Myanmar’s Enemy Within: Buddhist Violence and the Making of a Muslim ‘Other.’ London: Zed Books Ltd, 2017.
Government of Canada. “Canada’s Response to the Rohingya crisis in Myanmar and Bangladesh.” December 23, 2019. Accessed February 2020. https://www.international.gc.ca/world-monde/isses_development-enjeux_developpement/response_conflict-reponse_conflits/crisis-crises/myanmar.aspx?lang=eng
International Criminal Court. “The States Parties to the Rome Statute.” Accessed February 2020. https://asp.icccpi.int/en_menus/asp/states%20parties/pages/the%20states%20parties%20to%20the%20rome%20statute.aspx
International Criminal Court. Decision on the “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute” ICC-RoC46(3)-01/18-37. September 6, 2018. Accessed February 2020. https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-RoC46(3)-01/18-37
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Mozur, Paul. “A Genocide Incited on Facebook, With Posts From Myanmar’s Military.” The New York Times. October 15, 2018. Accessed February 2020. https://www.nytimes.com/2018/10/15/technology/myanmar-facebook-genocide.html
Richard C. Paddock. “U.N. Court’s Order on Rohingya Is Cheered, but Will Myanmar Comply?” The New York Times. January 24, 2020. Accessed February 2020. https://www.nytimes.com/2020/01/24/world/asia/myanmar-rohingya-genocide.html?auth=login-google
The Conversation. “Rohingya genocide case: why it will be hard for Myanmar to comply with ICJ’s orders.” The Conversation, January 31, 2020. Accessed February 2020. http://theconversation.com/rohingya-genocide-case-why-it-will-be-hard-for-myanmar-to-comply-with-icjs-orders-129170
The Conversation. “The history of the persecution of Myanmar’s Rohingya.” The Conversation. September 20, 2017. Accessed February 2020. https://theconversation.com/the-history-of-the-persecution-of-myanmars-rohingya-84040
UNHCR. “Joint Response Plan for Rohingya Humanitarian Crisis” International Organization for Migration, United Nations High Commissioner for Refugees, UN Resident Coordinator in Bangladesh, Inter Sector Coordination Group. February 2019. Accessed February 2020. http://reporting.unhcr.org/sites/default/files/2019%20JRP%20for%20Rohingya%20Humanitarian%20Crisis%20%28February%202019%29.comp_.pdf#_ga=2.251895306.221316619.1550267367-1154611560.1545415555
UN Human Rights Council. “Detailed findings of the Independent International Fact-Finding Mission on Myanmar.” September 16, 2018. Accessed February 2020. https://www.ohchr.org/Documents/HRBodies/HRCouncil/FFM-Myanmar/20190916/A_HRC_42_CRP.5.pdf
[1] The Conversation. “Rohingya genocide case: why it will be hard for Myanmar to comply with ICJ’s orders.” The Conversation. January 31, 2020. http://theconversation.com/rohingya-genocide-case-why-it-will-be-hard-for-myanmar-to-comply-with-icjs-orders-129170 (accessed February 2020)
[2] UN Human Rights Council. “Detailed findings of the Independent International Fact-Finding Mission on Myanmar”. September 16, 2018. https://www.ohchr.org/Documents/HRBodies/HRCouncil/FFM-Myanmar/20190916/A_HRC_42_CRP.5.pdf (accessed February 2020)
[3] Ibid.
[4] Government of Canada. “Canada’s Response to the Rohingya crisis in Myanmar and Bangladesh.” December 23, 2019. https://www.international.gc.ca/world-monde/issues_development-enjeux_developpement/response_conflict-reponse_conflits/crisis-crises/myanmar.aspx?lang=eng (accessed February 2020)
[5] Francis Wade, Myanmar’s Enemy Within: Buddhist Violence and the Making of a Muslim ‘Other’ (London: Zed Books Ltd, 2017).
[6] Ibid.
[7] Ibid.
[8] The Conversation. “The history of the persecution of Myanmar’s Rohingya.” The Conversation. September 20, 2017. https://theconversation.com/the-history-of-the-persecution-of-myanmars-rohingya-84040 (accessed February 2020)
[9] Euan McKirdy and Saima Mohsin. “Lost at sea, unwanted: The plight of Myanmar’s Rohingya ‘boat people’.” CNN. May 19, 2015.https://www.cnn.com/2015/05/19/asia/rohingya-refugee-ships-explainer/index.html (accessed February 2020)
[10] UN Human Rights Council. “Detailed findings of the Independent International Fact-Finding Mission on Myanmar”. September 16, 2018. https://www.ohchr.org/Documents/HRBodies/HRCouncil/FFM-Myanmar/20190916/A_HRC_42_CRP.5.pdf (accessed February 2020)
[11] Paul Mozur. “A Genocide Incited on Facebook, With Posts From Myanmar’s Military.” The New York Times. October 15, 2018. https://www.nytimes.com/2018/10/15/technology/myanmar-facebook-genocide.html (accessed February 2020)
[12] UNHCR. “Joint Response Plan for Rohingya Humanitarian Crisis” International Organization for Migration, United Nations High Commissioner for Refugees, UN Resident Coordinator in Bangladesh, Inter Sector Coordination Group. February 2019. http://reporting.unhcr.org/sites/default/files/2019%20JRP%20for%20Rohingya%20Humanitarian%20Crisis%20%28February%202019%29.comp_.pdf#_ga=2.251895306.221316619.1550267367-1154611560.1545415555 (accessed February 2019)
[13] International Criminal Court [online]. “The States Parties to the Rome Statute.” https://asp.icc-cpi.int/en_menus/asp/states%20parties/pages/the%20states%20parties%20to%20the%20rome%20statute.aspx (accessed February 2020)
[14] International Criminal Court. Decision on the “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute” ICC-RoC46(3)-01/18-37. September 6, 2018. https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-RoC46(3)-01/18-37 (accessed February 2020)
[15] Ibid., p. 42
[16] BBC. “African Union Backs mass withdrawal from ICC” BBC. February 1, 2017. https://www.bbc.co.uk/news/world-africa-38826073 (accessed February 2020)
[17] The Conversation. “Rohingya genocide case: why it will be hard for Myanmar to comply with ICJ’s orders.”
[18] Richard C. Paddock. “U.N. Court’s Order on Rohingya Is Cheered, but Will Myanmar Comply?” The New York Times. January 24, 2020. https://www.nytimes.com/2020/01/24/world/asia/myanmar-rohingya-genocide.html?auth=login-google (accessed February 2020).
[19] Ibid.
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