Justice remains elusive for Rohingyas even after two years due to a lack of strong support from major world powers, like the US, China, and Russia, said legal and international experts.
The International Criminal Court’s (ICC) move to probe the alleged acts of genocide, war crimes, and crimes against humanity committed by the Myanmar military on Rohingyas was promising but the court has no jurisdiction over Myanmar, they said.
Myanmar is not a party to the Rome Statute, a treaty that established the ICC, they said.
The experts on international relations and genocide said the best way to hold Myanmar accountable was by taking the matter before the UN Security Council. The council could refer the matter to the ICC since Myanmar is a UN member state.
If Myanmar is found guilty at the ICC, it could be punished.
However, it is unlikely that the UNSC would take such an action since China and Russia, not parties to the Rome Statute, may use their veto power in the council. Over the last two years, the two vetoed every concrete action against Myanmar.
The US, which imposed sanctions on Myanmar’s top general and three senior officers for violating human rights, does not recognise the atrocities committed by the Myanmar military as acts of genocide.
In September last year, US threatened tough action on the ICC if it tried to prosecute Americans for alleged war crimes in Afghanistan.
Prof Mizanur Rahman, an international law expert at Dhaka University, said the US was very unlikely to support any move to ensure justice for Rohingyas at the UN Security Council.
Things have come to this despite the fact that a UN Independent International Fact-Finding Mission last year reported that Myanmar’s military carried out mass killings and gang rapes of Muslim Rohingyas with “genocidal intent”. These caused about 7.5 lakh Rohingyas to flee Rakhine and take shelter in Bangladesh.
The mission called for the UNSC to impose an arms embargo on Myanmar and recommended targetted sanctions and setting up of an ad-hoc tribunal to prosecute suspects or refer them to the ICC.
There have been no such moves.
The Organisation of Islamic Conference, however, decided to take Myanmar to the International Court of Justice, the principal judicial organ of the UN.
Experts are unsure as to how this would pan out due to divisions among global powers.
The ICC constituted a pre-trial chamber regarding the situation in Bangladesh and Myanmar, and in July, ICC Prosecutor Fatou Bensouda requested authorisation from the ICC judges to investigate the situation in Myanmar from October 9, 2016 to August 2017.
According to a recent article by migration researcher Yuriko Cowper-Smith at the University of Guelph, Canada, international law experts John Packer and Payam Akhavan have observed that the ICC has serious resource constraints and it is notoriously slow.
Packer also said accountability must not be limited to trials of individuals, Myanmar itself must be held to account.
Yuriko said a verdict of the ICC might result in prosecution of some individuals but would not necessarily ascribe guilt to Myanmar as a country.
“Continued efforts should be made to refer the situation in Myanmar to the ICC. Unfortunately, it is an expensive and lengthy process with narrow reach, meaning that other legal options may be preferable or be pursued in tandem.”
INTERNATIONAL COURT OF JUSTICE (ICJ)
As per the consensus at a recent OIC conference in Saudi Arabia, Gambia would take Myanmar’s case before the ICJ, according to Bangladesh’s foreign ministry officials.
“But Gambia is yet to file the case. We don’t know the fate of it,” said Prof Mizan.
Yuriko said this channel is important since article 9 of the UN Genocide Convention confers the ICJ jurisdiction to determine if a government was responsible for acts of genocide, including their failure to prevent or punish perpetrators.
Prof Mizan said, “The OIC should have had a much stronger role in this case ... . This is frustrating.”
Prof Imtiaz Ahmed, director of Centre for Genocide Studies at Dhaka University, said the major world powers might be divided over Myanmar but it is widely recognised that Myanmar committed genocide.
“The UN fact-finding mission and a number of other organisations made damning reports revealing evidence of genocide in Myanmar,” he told The Daily Star.
The mission has information about the people and companies who have investments in and links to businesses owned by the Myanmar army and called for severing the ties, he added.
Canada and France also recognised that the crimes against Rohingyas constitute genocide and called for justice.
Prof Imtiaz said despite the situation at the UNSC, there is global support for justice for Rohingyas.
For the first time, Chinese officials were present at Rohingya refugee camps in Bangladesh during the second attempt to repatriate Rohingyas on August 22. “If the pressure continues, China could be convinced that Myanmar needs to be held accountable,” he said.
Mofidul Hoque, trustee of the Liberation War Museum of Bangladesh and a war crimes researcher, said international NGOs and civil society members should put more pressure on the global community to pursue the case against Myanmar.
“The Rohingya too should mobilise and become a voice for their own cause,” he said.