On 6 September, the Pre-Trial Chamber I (‘Chamber’) of the International Criminal Court (ICC) ruled that the ICC has jurisdiction over the alleged deportation of Rohingya people from Myanmar to Bangladesh. Since August 2017, over 670,000 Rohingya Muslims have fled to Bangladesh, persecuted by Myanmar security forces and other individuals who have killed, raped, and looted the Rohingya in targeted attacks. The crisis reached an apparent impasse as the Government of Myanmar has consistently deflected international criticism and denied access to the United Nation’s (UN) fact-finding mission. The ICC’s decision raises hope for an alternate, legally sanctioned pathway towards aiding the Rohingya. However, it is important to assess what must still be done and whether prosecution will be a viable method for resolving the crisis.
The Rohingya people have been fleeing Myanmar for decades, long treated as illegal immigrants and considered a threat by various groups within Myanmar. Since August 2017, attacks against Rohingya have significantly escalated as the military initiated a “clearance operation” aimed at forcing Rohingya out. In response, international actors have united in condemning Myanmar’s military and calling on State Counsellor Aung San Suu Kyi to join them in doing so. The US and EU have imposed sanctions on the military officials they claim are responsible. The UN set up an international fact-finding mission and the UN High Commissioner for Human Rights has heavily cautioned that the situation is “a textbook example of ethnic cleansing.” Yet, international actors have been powerless to directly address the crisis. As Myanmar is not a signatory of the Rome Statute, the ICC does not have territorial jurisdiction over situations within Myanmar. Furthermore, China vetoes any attempts by the UN Security Council to refer Myanmar to the ICC. Consequently, the Chamber’s decision that the ICC does have jurisdiction crucially opens up the opportunity for future prosecution.
Nonetheless, there are limitations to the ICC’s ruling. The inquiry, submitted by Chief Prosecutor Fatou Bensouda, is narrowly focused on “forcible deportation” and does not include other crimes occurring within Myanmar due to territorial jurisdiction issues. The ICC was able to legally justify its decision because the forcible deportations occured in the territory of a Rome Statute signatory, Bangladesh. Myanmar’s government has since fiercely rejected the ICC ruling. A statement from the office of Myanmar’s President Win Myint claims that the ruling was undermined by “faulty procedure and is of dubious legal merit.”
Regardless of the government’s objections, Chief Prosecutor Fatou Bensouda can now investigate whether there is sufficient evidence to charge Myanmar’s top officials. However, the officers must still be brought to trial by member states and successfully prosecuted by ICC judges for crimes against humanity. Prosecution of the responsible officials is an essential step in attaining justice for the Rohingya people. But, until further progress is made in reconciling divisive religious, political, and ethnic tensions, it is unlikely that full justice and security can be achieved for the Rohingya.
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