A New Push for Prosecution in Myanmar’s Violence Against Rohingya
Posted May 30, 2018 4:34 p.m. EDT
In a request submitted to the International Criminal Court on Wednesday, lawyers included an unusual annex: 20 pages of purple thumbprints.
These are the equivalent of signatures from 400 Rohingya women and girls, most of them illiterate refugees who were driven out of Myanmar last year after thousands of Rohingya Muslims were massacred.
The request urges the International Criminal Court in The Hague to open a criminal investigation into continuing atrocities, including genocide, against the Rohingya, the latest twist in a brewing dispute about whether the international court has the authority to intervene in what the United Nations and United States have called a clear case of ethnic cleansing.
“We feel so vulnerable. We feel so sad. We are unable to bear the emptiness of losing our family members,” the women’s petition says. “We are looking for justice from the United Nations and the International Criminal Court.”
Thus far, the attacks have been carried out with impunity, and many witnesses have said it was Myanmar government soldiers, in uniform, who raped and killed civilians. Human rights groups say the lack of accountability is particularly jarring, arguing that the attacks on the Rohingha involve exactly the kind of mass atrocities this court was created for. Its mandate is to judge crimes against humanity, war crimes and genocide.
An obvious obstacle is that Myanmar, where the violence was meted out, is not a signatory to the court. That means the court cannot address crimes committed in Myanmar, by Myanmar citizens, unless the U.N. Security Council authorizes it, which most observers say is unlikely.
And Myanmar has shown little interest in punishing those responsible or pursuing the evidence, which has been documented by rights groups and journalists and corroborated by satellite imagery.
So prosecutors and human rights lawyers are trying a novel approach: They argue that since hundreds of thousands of Rohingya have been deported to Bangladesh, and since this can be construed as continuing crimes against humanity taking place in Bangladesh, a member of the court, the prosecutor can have jurisdiction to act. Bangladesh is not suspected of crimes, but would provide the route to jurisdiction.
The request submitted Wednesday by the group Shanti Mohila, or Peace Women, goes further: Its lawyers say that as long as Myanmar refuses the return of the Rohingya and forces them to live in terrible conditions, its “crimes of apartheid, persecution and genocide continue” even outside its territory. If the court goes along with the request, it would mark a radical departure in international law.
In April, Fatou Bensouda, the court’s chief prosecutor, asked court judges for an advisory opinion. Her position was that granting jurisdiction would be consistent with “well-established principles” and that forced migration issues were of “acute international concern.”
On June 20, a panel of judges will hold a closed-door hearing on the question, which has drawn criticism from lawyers following the case.
Court rules require that judges must explain why a session would be held in secret. Kevin Jon Heller, a professor of law at the University of London, wrote in a recent blog post that jurisdiction “is a pure issue of law, so what justifies the secrecy?”
The court has received many requests to intervene in the Myanmar violence. But the prosecutor and the judges are now for the first time weighing the jurisdiction question, using Bangladesh as the springboard.
The ruling could have far-reaching implications beyond Myanmar and Bangladesh. Syria is not a member of the court, but neighboring Jordan is, and hundreds of thousands of Syrians have fled to Jordan amid atrocities in Syria. Some analysts wonder if it could open the door to the court’s taking up cases in that and other sweeping conflicts.
This issue comes at a time when the court is struggling to rebuild its reputation after losing several high-profile cases in Africa, including giving up on prosecuting Uhuru Kenyatta, Kenya’s president.
Scholars say it is unclear which way the court will rule.
Phil Clark, a political scientist at the School of Oriental and African Studies in London, called the jurisdiction question a “major gray zone” since the worst of the atrocities took place inside Myanmar.
But he said this was a huge opportunity for the International Criminal Court, known as the ICC, to become more global. Though the court has opened some recent investigations involving Georgia, Afghanistan and the Palestinian-Israeli conflict, many of its biggest cases have centered on atrocities in Africa.
“The ICC has also struggled to show that it can deal with crimes committed by sitting members of governments, including high-ranking military officials,” Clark said.
The court has no police force of its own and depends on national governments to make arrests.
In the petition filed Wednesday, lawyers for the 400 Rohingya women and girls assert that Myanmar’s government is continuing “a persecutory and genocidal campaign that spans both Myanmar and Bangladesh.” The petition accuses authorities in Myanmar of deportation, persecution, genocide and apartheid.
“If a person is illegally detained, the crime isn’t over until that person is released,” said Wayne Jordash, the lead human rights lawyer representing the Rohingya women. “Similarly, in this case, the crimes are ongoing. The Myanmar authorities are maintaining conditions for either the destruction of the group or so they can’t go home.”
A U.N. special rapporteur said earlier this year that the attacks on the Rohingya people bear the “hallmarks of genocide.”
The court is waiting on Bangladesh’s government to say what it thinks about the jurisdiction issue. So far a group of Bangladeshi scholars has come out in support of the court’s taking the case.
Myanmar has expressed “serious concern” about the prosecutor’s request for jurisdiction. The Rohingya, a Muslim ethnic minority reviled by Myanmar’s Buddhist majority, have been persecuted for decades. In August, after Rohingya rebels attacked several police posts, witnesses said that Myanmar government soldiers stormed into villages and burned everything in sight.
Many witnesses said the soldiers rounded up civilians and systematically slaughtered them, sometimes in groups of several hundred. Countless women and girls were brutalized and raped.
Human rights groups said the international court might be the only hope for justice for the Rohingya, including the 400 who pressed their inked thumbs to the legal papers.
“The authorities in Myanmar have become more intransigent over time, not less,” said Param-Preet Singh, an international justice specialist at Human Rights Watch. “Against this backdrop, the idea that Myanmar’s military and security forces would hold themselves to account feels especially divorced from reality.”
“The only clear path to justice left for victims,” she added, “is the ICC.”