Prosecutor to probe alleged crimes in which at least one element occurred in Bangladesh, a state party to the Rome Statute

LONDON -- As Myanmar continues to commit crimes against the Rohingya people, the international legal community appears to be buzzing with measured excitement over the possibility of holding the country’s senior-most perpetrators accountable for genocide and other crimes against humanity, and justifiably so.

Last week saw two important developments at the International Criminal Court (ICC): the establishment by the ICC Presidency of a pretrial chamber regarding “the situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar” and ICC Prosecutor Fatou Bensouda informing the presidency that she will seek the former’s authorization to open an investigation into this situation.

The prosecutor has also notified the three newly assigned judges at the chamber of her intention “to investigate alleged crimes within the Court’s jurisdiction in which at least one element occurred on the territory of the People’s Republic of Bangladesh -- a State Party to the Rome Statute since June 1, 2010 -- and within the context of two waves of violence in Rakhine State on the territory of the Republic of the Union of Myanmar, as well as any other crimes which are sufficiently linked to these events”.

These developments were made possible by the majority ruling at the Pre-Trial Chamber I that the ICC has jurisdiction over the crimes against humanity which Myanmar, a non-ICC member state, has allegedly committed against the country’s Rohingya ethnic minority group. In so ruling in September 2018, the Chamber reasoned that an element of this crime (the crossing of a border) took place on the territory of a state party to the statute (Bangladesh), although Myanmar is not a state party to the ICC or Rome Statute.

As to be expected, Myanmar has repeatedly officially dismissed the ICC’s ruling, declaring that it does not recognize either the court’s jurisdiction or its Myanmar-related ruling.

Building on the unprecedented ruling on Myanmar-Bangladesh situation by the ICC judges in terms of the court's jurisdiction over a non-member state of the ICC, the prosecutor made it clear that her request to begin a full investigation into Myanmar's grave crimes has a much larger scope than a single element of Myanmar's crime, namely the crime of deportation. The anticipated ICC investigation will cover "crimes against humanity of persecution and/or other inhumane acts in the context of the two waves of violence against Rohingya people". Myanmar have committed these crimes within its own national territories, but which the prosecutor considers are "sufficiently linked" to the crime of deportation. 

The Prosecutor’s Office has conducted a ‘preliminary examination’ of the Rohingya situation, listening to the eye-witness and first-hand accounts of Rohingya who survived and fled state-directed violence back home in Myanmar. The most recent announcement on June 26 by the Prosecutor is a clear indication that she is persuaded enough by the juridically admissible evidence, presumably, which the ICC preliminary examination has uncovered and collected in order to begin a fully-fledged investigation into Myanmar’s crimes against Rohingya. It is very likely that she will seek the ICC Presidency’s authorization to set up a full ICC trial on these crimes once the last hurdle of the pre-trial chamber’s ruling over the strength of the evidence is overcome.

Additionally, the United Nations General Assembly adopted the Human Rights Council’s recommendation from September 2017 for the establishment of an Independent Mechanism which is mandated to “collect, consolidate, preserve and analyze evidence of the most serious international crimes” committed by Myanmar since 2011 and to “prepare files…to facilitate and expedite fair and independent criminal proceedings” should criminal tribunals on Myanmar’s international crimes against Rohingya people and other minority groups eventually materialize.

Besides the developments at the ICC, another legal option is being explored by other international actors.

Most significant is the announcement made by the Organization of Islamic Cooperation or OIC at its 14th Islamic Summit Conference held in Mecca earlier this month that Gambia, the chair of the Ministerial Committee of the OIC for Accountability for Human Rights Violations against the Rohingya Minority in Myanmar, will be filing a legal challenge at the International Court of Justice (ICJ).

The ICJ is more accurately the World Court, where states -- not individuals -- take their grievances and disputes and seek resolution. Important to note is the fact that also based in the Hague, the ICJ is not a criminal court and does not try individuals, unlike the ICC. It is lesser known to the lay public and less ‘mediagenic’ or ‘less sexy’ than the ICC, where individual “evil-doers” which include the likes of Slobodan Milosevic were tried -- or indicted in the case of then sitting Sudanese President Omar al-Bashir -- for their atrocity crimes.

Presumably, Gambia will be filing a legal challenge to Myanmar at the ICJ for Myanmar’s flagrant violation of its treaty obligations to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. Myanmar has been a party to the Genocide Convention since it signed and ratified the Convention in 1956.

The UN-mandated International Independent Fact-Finding Mission has officially and repeatedly presented evidence that Myanmar is, in effect, violently persecuting the Rohingya minority group “with genocidal intent”. In fact, on the very day -- 26 June -- and in the same city of the Hague, the ICC Presidency constituted the Pre-Trial Chamber I on Myanmar-Bangladesh situation in her keynote address to the World’s First Conference on Statelessness, the Sri Lankan fact-finder and legal scholar Radhika Coomaraswamy highlighted various genocidal aspects of Myanmar's systematic persecution of the Rohingya people. Myanmar's multiple deprivations by design have put the surviving Rohingya inside Myanmar in a semi-famine situation and made a vast majority of Rohingya illiterate. 

It’s been almost two years since Myanmar committed the largest of its state-directed waves of mass violence against peaceful, unarmed Rohingya people since the military singled out the only Muslim population with a land that they can legitimately call their ancestral homeland in Myanmar immediately adjacent to Bangladesh.

The UN’s own internal assessment (dated May 29) by former Guatemalan Foreign Minister Gert Rosenthal made it plain that the UN Secretariat and its senior managers are “impotent” in the face of Myanmar’s genocide and the Security Council did nothing to end Myanmar’s committing of international crimes with impunity.

The developments in the ICC and ICJ arenas do hold out the potential for ending Myanmar -- both leaders and state institutions -- acting like a hell-hound towards terrorized and brutalized national minorities, most particularly Rohingya Muslims.

Genocides are no crimes of passions; they are state’s pre-meditated and well-organized large-scale crimes under individual leaders using various organs of the state while mobilizing the hateful sentiments of ethnically or religious majoritarian publics, singling out a national minority as a target for group extermination, “either in whole or in part”.

In Myanmar’s genocidal destruction of the Rohingya people, it is not a few bad apples who command the security forces who engaged in mass-slaughter and mass-destruction of the targeted Rohingya communities and individuals, but state’s bureaucracies such as the ministries of Education, Health, Labour, Social Welfare, Immigration, Religious Affairs, Information, Foreign Affairs and State Counsellor Office, as well as the legislature and the judiciary, are directly involved. Noteworthy is the fact that Aung San Suu Kyi heads the two crucial ministries: State Counsellor's Office and Foreign Affairs. Under the directives of the coalition government of Suu Kyi and the generals, these bureaucracies have been implementing official and well-documented policies of the denial of Rohingya to access health services, education, the right to livelihoods, physical freedom of movements, group’s history, identity and right to exist, de-registering them in the national citizenship registry, dismissal of any wrong-doings in official statements.

When pursued in ways that compliment mutually, legal actions at the ICC and ICJ can help end decades of Myanmar’s impunity and make both Myanmar as a UN member state and individual leaders holding the highest offices in the land pay for their crimes.

*The author is a Burmese coordinator of the Free Rohingya Coalition, an umbrella network of Rohingya refugees and human rights activists, and co-author, with Natalie Brinham, of "Essays on Myanmar Genocide" (2019). 

This article was originally published on the Anadolu Agency on June 30, 2019.