Justice for the Rohingya? An Amicus Brief and the Road(s) to Accountability

Hundreds of thousands of Rohingya have been deported from Myanmar to Bangladesh in recent months. (Photo: Reuters)

We have all heard of the brutal treatment of, and devastating situation facing, the Rohingya people. Many believe the abuse of this vulnerable population by Burmese authorities amounts to genocide. Yet after so months since the crisis erupted, the situation facing the Rohingya continues to deteriorate. Justice for the atrocities committed against them appears to be a very remote possibility. There is reason, however, for at least some hope on this front.

As readers will know, a few weeks ago, the Office of the Prosecutor at the International Criminal Court (ICC) sought to ascertain whether it might have a sliver of jurisdiction over the crimes committed by Myanmar forces against the Rohingya. In particular, the Prosecutor — in an unprecedented move — asked judges in the Pre-Trial Chamber whether she might have jurisdiction over the deportation of the Rohingya from Myanmar (a non-member state of the ICC) to Bangladesh (a member-state that seems willing to engage with the Court on this question). In seeking to put her position forward, ICC Prosecutor Fatou Bensouda has put it well, explaining that: “the crime of deportation is analogous to a cross-border shooting: the crime, for example murder, is not completed until the bullet (fired in one State) strikes and kills the victim (standing in another State). In both scenarios, the occurrence on the territory of the second State is not, in legal terms, the mere remote effect of a completed criminal conduct on the territory of the first State—rather, it is a legally required element of the crime”.

In this context, the Canadian Partnership of International Justice under the leadership of Fannie Lafontaine and Amanda Ghahremani filed an amicus curiae at the ICC. I’m proud to have been part of that initiative. You can read our full brief here. You can also find a list of other submissions here.

The Canadian Partnership of International Justice filing supports the position of the ICC Prosecutor that she can request the Pre-Trial Chamber, under Article 19(3), to ascertain whether she has jurisdiction over the deportation of Rohingya people from Myanmar into Bangladesh and that the Office of the Prosecutor should, indeed, be granted jurisdiction to investigate this crime.

Bangladesh too has filed its observations which many hope (and some believe) will be favourable to an ICC investigation, although, for obvious geopolitical reasons, this is a sensitive issue. Officials in Myanmar, on the other hand, have stated that they will ignore the Court’s request to hear their views, saying that they have “no reason to respond”. Ignoring the ICC is Myanmar’s way of effectively saying they do not recognize the authority of legitimacy of the Court and therefore will not participate in its proceedings.

It is worthwhile stressing that this is not an ideal situation. But the ICC Prosecutor should be commended for trying to make the best, or at least something, out of a bad situation. The world has stood by watching as hundreds of thousands of Rohingya have been forced to leave their homes in Rakhine State only to enter devastating conditions in camps across the border in Bangladesh. Along with their often-meagre belongings, they carry with them stories of untold violence and harm. Adding insult to criminal injury, neither side will recognize them as Rohingya. They are disenfranchised and disregarded. To call it abhorrent is an understatement.

The possibility of an ICC investigation into the forced deportation of the Rohingya into Bangladesh promises at least a degree of accountability for these atrocities. No state or institution is offering that hope right now. Some, like Human Rights Watch (HRW), have pushed for a United Nations Security Council referral of Myanmar to the ICC. The is problematic for at least two reasons. One, it not going to happen, as Russia has made clear. Two, it is an extremely risky proposition in that Security Council referrals have generally done zilch for justice and accountability whilst falsely elevating the hopes of victims and survivors and severely undermining the credibility of the ICC.

Some may believe that taking the Security Council route is important because if it is exhausted, it will leave the UN General Assembly to take up the matter and to create an International, Impartial and Independent Mechanism (IIIM) for Myanmar. This is a goal that the Canadian government, among others, is advocating. It would follow the ‘blue-print’ of the General Assembly in creating the IIIM for Syria, which was established after multiple failed attempts to refer Syria to the ICC. While a IIIM for Myanmar is an excellent idea, it is evident that the international community does not need to get to a vetoed referral of Myanmar to the ICC at the Security Council to effectively exhaust the Security Council referral route. Getting clear statements from China and Russia that they would veto any ICC referral should be enough. Moreover, a failed referral could further damage the ICC and politicize the plight of the Rohingya. The sole benefit would be the ‘naming-and-shaming’ of Russia and, especially, China — which is undoubtedly attractive to some, primarily Western, states, but is unlikely to help alleviate the horrendous conditions that the Rohingya find themselves facing. For now at least, states should do all that they can do support the potential investigation of the forcible deportation of Rohingya from Myanmar into Bangladesh.

Of course, we need to keep expectations realistic. If the Prosecutor is granted jurisdiction over the deportation of Rohingya into Bangladesh, the Court will not be able to investigate or prosecute any allegations of murder, rape, sexual and gender-based violence or any other form of atrocity or violence wrought upon the Rohingya people. Everything should be done to avoid that perception so as to manage expectations and avoid a situation where the Court is perceived to be able to do something it is not (see this recent article, for example). That won’t help anyone. If the Prosecutor is successful in her efforts, her office will only be able to investigate the crime of deportation.

Still, the option currently seems to be: have the ICC investigate deportation or do nothing at all. We can’t let perfect justice be the enemy of any justice. While it won’t be easy, the opportunity to move towards achieving some degree of accountability in this situation is real and it is palpable. It is the best shot that the interested members of the international community currently have. And it is this creative and novel use of the Rome Statute that acts as a reminder of the promise of the ICC – making accountability a bit more possible when no one else will.

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