It’s been close to three years since Myanmar carried out the most violent military crackdown on the Rohingya Muslim minority seen to date.
Over 700,000 Rohingya were forced to flee their homes in Rakhine (a coastal state in Myanmar), into neighboring Bangladesh. Ten thousand or more were killed.
Survivors told reporters how soldiers grabbed babies by their legs and flung them into bonfires. How they locked people inside huts and set them on fire. How they cut children’s throats before raping the women.
A later International Fact-Finding Mission, sanctioned by the UN Human Rights Council, concluded that the military had committed violence with ‘genocidal intent’.
The crimes against the Rohingya were crimes against humanity.
So, where do we stand today? What is the situation for the Rohingya, and what are the prospects for justice?
A continued genocide
For the perpetually persecuted minority, things are not looking up. Many are living crammed up in shabby refugee camps in Bangladesh and elsewhere.
Those still in Rakhine state, many of whom are internally displaced, suffer under even harsher restrictions than before the 2017-crackdown.
A decade-long conflict between military forces and armed groups of Rohingya is ongoing and ugly, with both sides culpable of unlawful killings.
It’s a cycle of violence, which Myanmar opportunistically spins by describing its massive, indiscriminate attacks on the Rohingya Muslim (and Rakhine Buddhist) community as counter-terrorism operations.
Late April this year, the U.N. Special Rapporteur on the situation of human rights in Myanmar issued a statement saying that: “While the world is occupied with the COVID-19 pandemic, the Myanmar military continues to escalate its assault in Rakhine State, targeting the civilian population.”
The UK-based Burmese Rohingya Organization (BROUK) have recently called it a “continuing genocide”.
The government denies the accusations of genocide, although the leadership has conceded that some members of the military have committed war crimes. They continue to state that the military is engaged in a legitimate battle against “Muslim terrorists” and refuse to acknowledge the Rohingya as an indigenous ethnic group.
So far, impunity prevails in Myanmar. However, we are seeing tangible and creative efforts to fight the impunity – from the international community and the Rohingya survivors.
November last year was groundbreaking. The Myanmar case of genocide and crimes against humanity has been brought before the International Court of Justice, The International Criminal Court, and the Argentinian Federal Court.
The Gambia vs Myanmar
On November 11, 2019, The Gambia went to the International Court of Justice (ICJ) seeking proceedings against Myanmar for violating the Genocide Convention.
What does the Gambia have to do with a possible genocide in Myanmar? Nothing, except that the Gambian Justice Minister Abubacarr Tambadou was distraught by the stories told to him by Rohingya survivors in Cox’s Bazar in Bangladesh.
A former lawyer at The International Criminal Tribunal for Rwanda, he recognized the tell-tale signs of genocide, and Tambadou decided to act.
The ICJ is a principal organ of the UN, and the court settles legal disputes between member states. The dispute here is, simply put, that Gambia argues that Myanmar is breaching the Convention, while Myanmar argues that it isn’t.
In February this year, Maldives formally joined the case (siding with The Gambia). State parties to the Genocide Convention can join the ongoing case, and provide technical, legal and financial support.
The ICJ does not prosecute individuals. They can’t send anyone to prison. They can investigate, and deliver a (on paper) binding ruling.
I say on paper, because the UN Charter says that all member states must comply with the decisions, but in practice enforcement is close to impossible.
Well, no one is going to comply then, right? Actually, most states do, either fully or partially.
The investigation into the situation in Myanmar is ongoing, and it will take years before we see a ruling. But in January this year, the court ordered Myanmar to take provisional measures to prevent genocide/incitement to genocide against the Rohingya, and to prevent the destruction of evidence of any such acts. An important international acknowledgement of the urgency and gravity of the situation.
This week, Myanmar submitted a report to the ICJ outlining what they’ve done to heed the order.
The report is not public, but it probably highlights directives issued in April by the Myanmar authorities and addressed to all state actors. They basically say: don’t commit genocide, don’t incite genocide, hate or violence, and don’t destroy or remove possible evidence.
The Rohingya organisation BROUK views the directives as insubstantial, calling them ‘window-dressing.’
ICC green lights investigation
As opposed to the International Court of Justice, The International Criminal Court (ICC) can only prosecute individuals. But Myanmar is not a party to the ICC. Therefore, the ICC does not have jurisdiction over the crimes committed in Myanmar.
However, the military crackdowns on the Rohingya have created a major ‘spill-over’ into Bangladesh, and Bangladesh is a state party to the ICC.
You can therefore argue that part of the crimes have taken place within the territory of a state party. Clever, huh?
That’s how ICC-prosecutor Fatou Bensouda, on November 14, 2019, got the green light to start an investigation into any crimes committed at least in part on the territory of Bangladesh, as long as the crimes are sufficiently linked to the situation in Rakhine.
This is jurisdictional creativity, and it’s worth mentioning, as a side note, that British lawyers and Syrian refugees are hoping to achieve something similar when trying to get Syrian top-officials on trial (Syria is also not a party to the ICC, but millions have fled to neighboring Jordan, who is).
Of course, the best thing would be if the UN Security Council would refer the case to the ICC and grant ICC full jurisdiction, but that won’t happen when two of the permanent members, Russia and China, are allies of Myanmar.
Universal jurisdiction at play
Because the International Criminal Court is limited in its jurisdiction to the cross-border crimes, mass-killings and genocide committed within Myanmar seems to fall outside the scope of the investigation.
That’s where a possible lawsuit in Argentina could play a key part.
On November 13, the genocide survivor Tun Khin, the President of BROUK, filed a criminal complaint in the Argentinian Federal Court against those responsible for the crimes of genocide and crimes against humanity, committed against the Rohingya in Myanmar.
The complaint names Myanmar State Counselor Aung San Sui Kyi and Senior-General Min Aung Hlaing as culprits.
The complaint was filed on the basis of universal jurisdiction – a principle saying that crimes such as genocide and crimes against humanity can be investigated and prosecuted by any state, no tie to the conflict necessary.
Now it’s up to the Argentinian court to take up the case.
The plight of the Rohingya is in no way over. Their need for protection, help and support is imminent, one that comprehensive investigations and long-term court cases can’t meet. But the lawsuits can be part of a broader, international effort, showing those in power in Myanmar that we won’t let them escape justice.
If you want to stay fully updated on the situation, I recommend following Tun Khin @tunkhin80 on Twitter.
Sources: ICC, ICJ, Human Rights Council, The Criminal Complaint against Myanmar, Paulson, Colter (2004) The American Journal of International Law, Vol. 98, No. 3., BROUK, Human Rights Watch, Opinio Juris, National Geographic, BBC, The Guardian, The New York Times.