Since August 2017, the ongoing Rohingya humanitarian crisis and the associated international crimes against the ethnic Rohingyas have been evoking extensive international attention. Though the Security Council could not pass a resolution on the crisis due to veto given by China, the Pre-trial Chamber of the ICC delivered its decision on 6 September 2018 agreeing with the prosecution request that it can exercise jurisdiction to the crime against humanity of deportation under the Rome Statute of the International Criminal Court (ICC) 1998. Despite the positive developments at the ICC, the confusion remains as to whether the prosecutor will be able to investigate the crime of genocide. The reason is that according to Pre-trial Chamber decision the prosecution can only investigate the crime against humanity of deportation.
In this context, some questions deserve due exploration and answer from a legal point of view. For example, will the Rohingyas be satisfied if the ICC only tries the crime of deportation where genocide has been allegedly committed against the Rohingya ethnicity? On the other hand, even if the ICC tries all the offences, will it be able to solve the ongoing Rohingya crisis? Will the government of the Myanmar initiate voluntary repatriation process if their individuals are tried by the ICC?
The crime of genocide is one of the most serious international crimes and the present government of Myanmar is alleged for the commission of this crime. According to contemporary jurisprudence of international criminal law, the perpetrators from Myanmar responsible for committing genocide against the Rohingyas cannot simply go unpunished. Hence, the outcome of the ICC decision on Rohingya issue has to be assessed in light of the above-mentioned questions. Keeping aside the issue of ICC jurisdiction in this matter, however, the objective of this write-up is to explore as to whether we can seek other international dispute settlement bodies (e.g. the ICJ) to deal with the crisis.
The International Court of Justice (ICJ) is the chief judicial organ of the United Nations and the claim for invoking the ICJ's jurisdiction for the Rohingya solution is primarily based on the argument that Myanmar is a party to the UN Genocide Convention 1948. Article IX of the Genocide Convention states that any contracting party may submit an application to the ICJ respecting to the interpretation, application and state responsibility for genocide. Myanmar has not put any reservation to this provision and as such there is no bar for the ICJ to exercise its jurisdiction. Rather Myanmar has put a reservation on Article VI which does not negate the obligation to prosecute perpetrators of genocide but indicates that Myanmar considers its own courts to have exclusive jurisdiction over such cases. This reservation does not apparently pose any threat for the ICJ to exercise its jurisdiction. Therefore, there is a jurisdictional basis for the ICJ to adjudicate a dispute about Myanmar's compliance with the Genocide Convention above all, the obligation of the state itself not to commit genocide.
Now the question is who can bring cases in the ICJ against Myanmar. As per the Genocide Convention, any contracting party may submit a case against Myanmar. Any non-injured state may also bring a case in the sense that every state has a common interest in seeing the objective of the Convention realised and upheld. Apparently, a non-injured state may not bring a case because bringing a case in the ICJ may involve economic and political ramifications. The non-injured state will also need to explain to its subject the reason for taking such action. In this context, though Bangladesh has opted out of Article IX, it can bring the case against Myanmar. The general view is that the rule of reciprocity that applies when jurisdiction is based on an optional clause declaration does not apply where consent to jurisdiction is based on a compromissory clause.
Bringing the case under the Genocide Convention in the ICJ can be important for several reasons. Firstly, the focus of the ICC is to ensure individual criminal responsibility, on the other hand, the ICJ focus is on the responsibility at the state level. We have already observed the response of the Myanmar government after the Pre-trial Chamber decision that it will not allow the ICC prosecution to enter into Myanmar to investigate as it is not a party to the Rome Statute. Since Myanmar is a party to the Genocide Convention, it has the obligation at the state level to comply with the ICJ decision.
Secondly, in the ICJ proceeding there are chances for the world community to witness and observe the entire state policy of the Myanmar government including the “ethnic cleansing” and persistent violation of fundamental rights of the Rohingyas. It will be very difficult for Myanmar to deny these allegations while representing the case at the highest judicial level in the international plane.
Thirdly, if the ICJ finally finds the violation of state responsibility not to commit genocide, the question of reparation may arise. It may include financial compensation for the victims to resettle in their homelands that may trigger also to claim citizenship rights and end of a wide range of discrimination.
Fourthly, the ICJ can issue provisional measures if there are reliable shreds of evidence that Myanmar is not complying with the obligation under the Genocide Convention. The verdict on merit may take several years, so provisional measures may help to cease the persistent abuses. Provisional measures may include the direction by the ICJ to create a convenient atmosphere to voluntarily repatriate the Rohingyas from Bangladesh to Myanmar.
From the available evidence it can be assumed that if genocide case is brought against Myanmar in the ICJ under the Genocide Convention, there is a high chance that Myanmar may be found violating the obligation under the Genocide Convention not to commit genocide and to prevent committing genocide. It is now the government of Bangladesh to decide whether it will bring a case in the ICJ against Myanmar when diplomatic efforts are failing due to various actions and omissions of the Myanmar government. It is true that a case in the ICJ will not solve all the problem of the Rohingyas. But the charge of genocide is by far the most atrocious allegation against Myanmar that simply cannot go unpunished and as such the ICJ can be a practical option for the Rohingyas who thirst for justice.
The writer is a Student of LLM Programme, South Asian University, New Delhi, India.