By Syed Qamar Afzal Rizvi
March 26, 2020
Recently, the ICC without any shadow of doubts, has declared that The Hague based Court of war crimes exercises jurisdiction over crimes where part of the alleged criminal conduct – in this case mass deportation(forcing between 600,000 and one million Rohingya refugees out of Myanmar, into neighbouring Bangladesh since 2016 – takes place on the territory of a state party, the ICC has extended its international law-enforcement role. Yet, in terms of international law, the Myanmar case is unique in that it bilaterally involved the jurisdiction of the ICJ and the ICC because the ICJ adjudicates the case concerning the disputes between the states while the ICC entertains the complaints regarding the crime against humanity and genocide.
The Rohingya, who numbered around one million in Myanmar at the start of 2017, are one of the many ethnic minorities in the country representing the largest percentage of Muslims in Myanmar, with the majority living in Rakhine state. By any definition of cultural norms, Rohingyas have their own language and culture and say they are descendants of Arab traders and other migrant groups who have been settled in the region for generations. Sadly, neither the central government– nor Rakhine’s dominant ethnic Buddhist group– the Rakhine, recognize the label “Rohingya,” a self-identifying term that surfaced in the 1950s, a term rightly endorsed by the experts–recognising a personification of collective political identity. The Arakanese people, also known as Rohingyas, inherited the Arakan coastal region of Myanmar (Rohang), which later was changed to Rakhine in the 1990s.
More than 740,000 Rohingya were forced to flee over the border into sprawling camps in Bangladesh, in violence that the UN investigators said amounted to genocide
While the UN’s ICJ known as the ‘World Court’, settles disputes submitted by States on a range of matters, the ICC is the world’s only permanent criminal tribunal with a mandate to investigate and prosecute individuals who participate in international atrocity crimes, including genocide and crimes against humanity. Investigators from the International Criminal Court have begun collecting evidence for a case involving alleged crimes against humanity by Myanmar against Rohingya Muslims causing them to flee to neighbouring Bangladesh, a court official said Tuesday. To keep the record straight, in November 2018 the Office of the Prosecutor requested that the Pre-Trial Chamber determine whether the ICC could exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh. Bangladesh and Myanmar have had already signed an arrangement on the repatriation of Rohingya refugees back to Rakhine state. The said repatriation arrangement is seen as controversial at best, with the UN High commissioner for Refugees (UNHCR) recently stating that it “does not believe current conditions in Rakhine state are conducive to the voluntary, safe, dignified, and sustainable return of refugees”.
Subsequently in November 2019, ICC judges gave green-light a petition to investigate alleged crimes against humanity committed against the Rohingya by Myanmar in accordance with its mandate under the Rome Statute. The ICC statute does allow the court to intervene in cases related to four core international crimes: genocide, crimes against humanity, war crimes, and the crime of aggression. Phakiso Mochochoko, director of the Jurisdiction, Complementary and Cooperation Division of the ICC Office of the Prosecutor, said a team of investigators is visiting Rohingya refugee camps to collect evidence. He said justice will be delivered whether Myanmar cooperates or not.
Progressively In its preliminary ruling on 23 January, the World Court( ICJ firmly recognized the extreme vulnerability of the Rohingya in Myanmar and the irreparable harm they have suffered, and it orders Myanmar to take all measures within its power to prevent: 1) killing members of the group; 2) causing serious bodily or mental harm to the members of the group; 3) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and 4) imposing measures intended to prevent births within the group.
The case against Myanmar at the ICJ was moved by the Gambia, a self-described “small country with a big voice on human rights”. The actual case will take years to conclude, but the imposition of provisional measures by the preliminary trail Court is a significant victory along the way. The ICJ’s orders which are binding on Myanmar require the government to prevent genocidal acts, ensure security forces do not commit genocide, preserve evidence of genocidal acts and report back on its compliance.
Seen form the veritable facts of the ongoing investigation that three judges in the ICC’s pre-trial chamber, Judge Olga Herrera Carbuccia, Judge Robert Fremr and Judge Geoffrey Henderson, found “a sufficient basis to believe widespread and/or systematic acts of violence against Rohingyas in Myanmar. It’s a first step in what Rohingya victims see as their best – and perhaps only – opportunity to hold Myanmar authorities accountable for their alleged atrocities. Authorities belonging to the Buddhist-majority in Myanmar have adamantly denied accusations of serious crimes by arguing that security forces have been battling Rohingya militants who have waged attacks on checkpoints and other sites. The ICC’s decision came after Aung San Suu Kyi, Myanmar’s de-facto civilian leader (who has been awarded the Noble peace prize), was named in an Argentine lawsuit over crimes against the Rohingya and Myanmar faced a separate genocide lawsuit at the United Nations’ top court. More than 740,000 Rohingya were forced to flee over the border into sprawling camps in Bangladesh, in violence that the UN investigators said amounted to genocide.
The Myanmar military Junta have instituted discrimination against the Rohingya for decades, denying them citizenship and basic services. Notably, the 1982 Citizenship Law officially stripped Rohingya of their nationality and made them stateless on the basis of Myanmar’s government repugnant claim that they are illegal immigrants from Bangladesh. Due to this, the Rohingyas do lack access to secondary and tertiary education in state-run schools, and are unjustifiably denied of all basic and fundamental state access and face restrictions on freedoms of religion, association and movement. Violently compounding this widespread discrimination, the Rohingya have had to face several state-sanctioned ethnic cleansing campaigns. Yet, “Operation Dragon King” in 1978 blatantly drove 200,000 people to Bangladesh and a similar operation in 1991 forced 250,000 people to flee Myanmar. By all reasonable accounts, the international human Rights Law (IHRL) and International Humanitarian Law (IHL) are applicable in Rohingya’s’ case who have been subjected to Genocide. Though in the Court of law, the offence of Genocide seems a difficult task to be proved by the Gambian legal team, the World Court decision makes a good start on the primacy of international law. The fifteen international judges and two ad hoc have categorically emphasized that there are fundamental rights at stake and that the Rohingya deserve protection of those rights immediately.
Syed Qamar Afzal Rizvi is an independent ‘IR’ researcher and international law analyst based in Pakistan
Original Headline: Rohingyas’ plight & ICC probe: Myanmar’s crime against humanity
Source: The Daily Times, Pakistan