The long-term persecution of the Rohingya Muslims in Myanmar, which dates back to the 1970s, has become particularly grave in recent years, as increasing crackdowns have coincided with mounting challenges to the pursuit of justice. However, a new opportunity for justice for the Rohingya has recently opened, in the form of the International Criminal Court (ICC) in The Hague.
In August 2017, the Myanmar military launched a “clearance operation” in which more than 700,000 Rohingya were forced over the border from Myanmar’s Rakhine State to Bangladesh, where they now languish in sprawling refugee camps. The brutal crackdown involved the torching of villages and the rape of hundreds of women. It also resulted in the tragic deaths of an estimated 10,000 people. The United Nations’ human rights chief later described the military’s actions as “acts of appalling barbarity” and possible “acts of genocide.”
The Myanmar military has claimed that this crackdown was part of a legitimate operation against Rohingya rebels. However in mid-September, the army took a small step back from this stance, when it announced that it was in the process of “investigating possible wider patterns of violations” against the Rohingya.
The military’s announcement follows reports in early September that two Myanmar Army deserters confessed on video to committing heinous crimes against the Rohingya. At one stage these two men were said to be in the custody of the ICC, where an active investigation is currently taking place into the situation in Myanmar/Bangladesh. However, the Court has since dispelled these rumors, denying that the men are in its custody. The individuals are instead now rumored to be under the care of the Dutch government.
It is indeed positive that the justice process for the Rohingya victims is moving forward. The viability of the ICC Prosecutor’s investigation and any eventual trial may well be strengthened by the participation of these two individuals in the proceedings. At this point, however, we do not know whether and how they will engage in the process. The two men may be charged for the crimes they have admitted to in the video, or they could serve as witnesses in trials for more high-ranking individuals.
The nature of the two soldiers’ involvement in a potential ICC trial depends on the credibility of their admissions, the ability of the Prosecutor to link the actions of the two men to the crimes under investigation and the Prosecutor’s ability to charge and apprehend more senior individuals, who are responsible for a broader commission of crimes and whose prosecution would be prioritized over lower ranking individuals. The two Myanmar Army deserters may be able to direct the Court toward evidence and an understanding of what took place, which could lead in turn to such a charge and conviction.
For its own part, Myanmar may be more interested in investigating crimes committed against the Rohingya itself now that these two men have come forward, given he increased likelihood of some kind of trial at the ICC. Myanmar is not a state party to the Rome Statute, the treaty which created the ICC, which means that there is not a straightforward process toward prosecuting a case based on crimes committed in Myanmar. The Court does, however, have jurisdiction over the atrocities committed against the Rohingya, as at least part of the actions were were committed within the territory of a state party to the Rome Statute.
This is where Bangladesh comes into the picture. Bangladesh is a state party to the Rome Statute and the alleged crimes include widespread and/or systematic acts of violence that could constitute crimes against humanity of deportation from Myanmar to Bangladesh, in addition to persecution on the basis of ethnicity and/or religion. It is also possible that the international crime of genocide may be charged, as any potential crimes connected to the situation in Bangladesh may be investigated.
International criminal justice, particularly at the ICC, has previously focused on individuals from Africa, prompting criticisms that the court is biased in the cases that it pursues. A potential trial focusing on Myanmar would therefore provide a welcome diversification of the Court’s focus. Victims’ lawyers have petitioned the Court to hold some of its proceedings in Asia itself, which again would be highly beneficial, bringing the Court’s work closer to the victims and others affected.
The ICC investigation continues alongside a case currently taking place at the International Court of Justice, alleging genocide against the Rohingya by Myanmar, which was initiated by The Gambia. Neither judicial response will do much to materially change the circumstances of the Rohingya who have been lost and those who continue to live in refugee camps, but they will bring light to what is taking place in Myanmar and hopefully create a rallying point for international condemnation, to the point where it becomes far more difficult for Myanmar to act with impunity.
This focus toward the Rohingya victims and also the potential for future ICC prosecutions arising from the admissions of the two Myanmar Army deserters suggests that justice is not as far away as was once the case.
Shannon Maree Torrens is an international and human rights lawyer from Sydney, Australia. She has worked at the United Nations international criminal tribunals and courts. She holds a PhD in international criminal law from the University of Sydney.