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  • Writer's pictureDurham Pro Bono Blog

ICC to investigate into crimes against the Rohingya

Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.


The Pre-Trial Chamber III of the International Criminal Court (hereafter the ICC) has authorised Prosecutor Fatou Bensouda to proceed with an investigation against crimes committed against the Rohingya by Myanmar.[1] The permission granted by the ICC follows the Prosecutor’s request on 4th July 2019 to investigate into the alleged crimes committed within the Court’s jurisdiction, including the crimes against humanity of deportation and persecution.[2]



Rohingya children playing in refugee camps in Bangladesh (Photo by Jon Warren/World Vision)


Who are the Rohingya?


The Rohingya are a predominantly Muslim group who have long since settled in Myanmar’s western coastal state of Rakhine.


The Rohingya have been identified by the United Nations as ‘the most persecuted minority in the world’,[3] with the history of oppression tracing back to Britain’s colonisation of the country formerly known as Burma.[4]

Following Myanmar’s independence from Britain, the government have sought to ostracise this minority through the enactment of legislation that denies the Rohingya people citizenship and deprives them of the status of an official indigenous race.[5]


The basis of the investigation


The Prosecutor requested the investigation into the situation in Myanmar regarding the approximate 720,000 Rohingya refugees who have fled targeted attacks by the government, mainly to the neighbouring country of Bangladesh.[6] Importantly, the ICC is able to exercise jurisdiction over crimes committed in the territory of a State Party to the Rome Statute.[7] Whilst Myanmar is not a State Party to the Rome Statute and has not accepted the ICC’s jurisdiction, Bangladesh ratified the treaty in 2010. Consequently, Pre-Trial Chamber III has concluded that the Court may exercise jurisdiction over crimes where at least one element occurred in Bangladesh territory since 9th October 2016.[8]


Pre-Trial Chamber III is satisfied that there is a reasonable basis to believe that widespread and/or systematic acts have been committed by the Myanmar military across the border of the two countries which could qualify as deportation and persecution on the grounds of ethnicity and religion.[9] Pre-Trial Chamber III found no need to assess whether other crimes within the ICC’s jurisdiction may have been committed, although such crimes could be part of the Prosecutor’s future investigation.


As a consequence, the ICC is unable to investigate into the accusation of genocide due to this jurisdictional limitation,[10] despite the UN proclaiming that the Rohingya still face the ‘threat of genocide’.[11]

In regard to the additional legal requirements to pursue an investigation, Pre-Trial Chamber III accepted that scale of the alleged crimes and number of the Rohingya victims involved clearly elevated the situation to meet the gravity threshold.[12] Approximately 18,000 Rohingya women and girls are thought to have been raped by Myanmar authorities and almost 24,000 Rohingya killed,[13] demonstrating the severity of the crisis. Furthermore, the Pre-Trial Chamber and the Prosecutor agreed that there were no substantial reasons to believe that the investigation would be contrary to the interests of justice.[14]


The response by the Myanmar government


Myanmar has vocalised its rejection of the ICC investigation for the purported crimes, with the government’s spokesman Zaw Htay declaring that the proposed action is ‘not in accordance with international law’.[15] The spokesman articulated that ‘Myanmar and government are neither in denial nor closing our eyes,’[16] maintaining that the state would utilise its own institutional bodies to conduct such an investigation.[17]

Nevertheless, the introduction of mandatory identity cards by the Myanmar authorities for the Rohingya, facilitating the ongoing oppression of the minority group, is unlikely to pacify concerns from the international community.[18]

The future?


As a result of Pre-Trial Chamber III’s authorisation to proceed with the investigation, the Prosecutor will commence collecting evidence from an array of reliable sources, ensuring this is done impartially. The duration of the investigation is dependent on the time needed to accumulate all of the relevant evidence. If the evidence is sufficient to establish a basis for individual criminal responsibility for certain actors, then the Prosecutor is able to request Judges of the Pre-Trial Chamber III to issue either summons to appear or warrants of arrest. Notably, the responsibility to enforce warrants of arrest issued by the ICC remains with the states, therefore it is essential that State Parties to the Rome Statute comply with their legal obligation to cooperate fully with the ICC.[19] Additionally, states not party to the Rome Statute may also be invited to aid the ICC and may choose to do so on a voluntary basis.[20]


As a result of the UN Independent Fact-Finding Mission report released in September this year, economic sanctions have already been encouraged against businesses associated with Tatmadaw, the armed forces of Myanmar.[21] Whilst this strategy could potentially pressurise Myanmar to allow over 700,000 Rohingya to return to their homelands, such recommendations remain subject to institutional gridlocks of the Permanent 5 of the United Nations Security Council.[22]


Meanwhile, Gambia has brought a claim before the International Court of Justice accusing Myanmar of breaching the Convention on the Prevention and Punishment of the Crime of Genocide for the military campaign against the Rohingyas in 2017.[23] The case is due to be opened in December and marks the first legal attempt to hold Myanmar accountable on the international plane for its actions against the Rohingya.[24] The State Counsellor, Aung San Suu Kyi, will defend Myanmar against the accusation of genocide before the principal judicial organ of the United Nations.[25] Suu Kyi was previously awarded the Nobel Peace Prize for her commitment to attaining democracy and human rights, however her response to the persecution of the Rohingya has tarnished her reputation.[26]


Conclusion


The legal developments mark a considerable step in recognising the atrocities committed against the Rohingya. As Michael McGrath, director for Myanmar, Sri Lanka and Thailand at Save the Children, recognises, the ‘international community must step in and deliver justice where Myanmar has failed to’.[27] Though Myanmar continues to object to the ICC’s investigation into the crimes against humanity, Pre-Trial Chamber III’s decision authorises the Prosecutor to proceed in the crackdown of the human rights abuses.

Katie Morris (Human Rights)


SOURCES


[1] Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar (Decision Pursuant to Article 15 of the Rome Statute on the Investigation into the Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar) ICC-01/19-27 (14 November 2019) 58


[2] Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar (Request for authorisation of an investigation pursuant to art 15) ICC-01/19-7 (4 July 2019) 6


[3] Human Rights Council, ‘Human Rights Council opens special session on the situation of human rights of the Rohingya and other minorities in Rakhine State in Myanmar’ (5 December 2017) <https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=22491&LangID=E> accessed 16 November 2019


[4] National Geographic, ‘The Rohingya People’ (9 April 2019) <https://www.nationalgeographic.co.uk/2019/02/rohingya-people> accessed 16 November 2019


[5] Burma Citizenship Law 1982 art 3


[6] USA for UNHCR, ‘Rohingya Refugee Crisis: The Facts’ (20 August 2018) <https://www.unrefugees.org/news/rohingya-refugee-crisis-the-facts/> accessed 16 November 2019


[7] Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 90 (Rome Statute) art 12


[8] (n 1) 11


[9] ibid 42



[11] Shoon Naing and Stephanie Nebehay, ‘Rohingya still in Myanmar face “threat of genocide”: United Nations’ Reuteurs (16 September 2019) <https://uk.reuters.com/article/uk-myanmar-rohingya/rohingya-still-in-myanmar-face-threat-of-genocide-united-nations-idUKKBN1W122C> accessed 16 November 2019


[12] (n 1) 52


[13] ‘Former UN chief says Bangladesh cannot continue hosting Rohingya’ Al Jazeera (10 July 2019) <https://www.aljazeera.com/news/2019/07/chief-bangladesh-continue-hosting-rohingya-190710191318011.html> accessed 16 November 2019


[14] (n 1) 52


[15] ‘Myanmar rejects ICC probe into alleged crimes against Rohingya’ Al Jazeera (15 November 2019) <https://www.aljazeera.com/news/2019/11/myanmar-rejects-icc-probe-alleged-crimes-rohingya-191115180754984.html> accessed 16 November 2019


[16] ibid


[17] ibid


[18] Shoon Naing, ‘Myanmar forces Rohingya to accept cards that preclude citizenship: group’ Reuters (3 September 2019) <https://www.reuters.com/article/us-myanmar-rohingya/myanmar-forces-rohingya-to-accept-cards-that-preclude-citizenship-group-idUSKCN1VO16D> accessed 16 November 2019


[19] (n 5) art 86


[20] ibid art 87


[21] Human Rights Council, ‘The economic interests of the Myanmar military’ (12 September 2019) UN Doc A/HRC/42/CRP.3 5


[22] Michelle Nichols, ‘U.N. Security Council mulls Myanmar action; Russia, China boycott talks’ Reuters (17 December 2018) <https://uk.reuters.com/article/uk-myanmar-rohingya-un/u-n-security-council-mulls-myanmar-action-russia-china-boycott-talks-idUKKBN1OG2CH> accessed 16 November 2019


[23] The Republic of the Gambia institutes proceeding against the Republic of the Union of Myanmar and asks the Court to indicate provisional measures ICJ Press Release 2019/47 <https://www.icj-cij.org/files/case-related/178/178-20191111-PRE-01-00-EN.pdf> accessed 21 November 2019


[24] Agence France-Presse, ‘Aung San Suu Kyi to defend Myanmar against charges of Rohingya genocide at top UN court’ (21 November 2019) <https://www.telegraph.co.uk/news/2019/11/21/aung-san-suu-kyi-defend-myanmar-against-charges-rohingya-genocide/> accessed 21 November 2019


[25] Shoon Naing and Thu Thu Ang, ‘Suu Kyi to contest Rohingya genocide case at world court’ (20 November 2019) <https://www.reuters.com/article/us-myanmar-rohingya/suu-kyi-to-contest-rohingya-genocide-case-at-world-court-idUSKBN1XU1WR> accessed 21 November 2019


[26] ibid


[27] (n 15)

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