Historically, the Republic of the Union of Myanmar -formerly Burma – was under military rule, but established a civilian-led government in 2015. The new government made people hopeful that marginalization based on ethnicity and discrimination against minorities would come to an end. Minority groups felt relatively safe and expected that the legacy of abuse in the country was over.
Unfortunately, the country fell into chaos in 2017 when “clearance operations” were initiated in Rakhine, which drove out a huge number of ethnic Rohingya into neighbouring Bangladesh. Rakhine is in the western region of the country, near Bangladesh, and is largely occupied by the Rohingya people, who are predominantly Muslim. The Rohingya have been denied the rights to a nationality, healthcare, education, and to move freely within the country.
The mass atrocious crimes were backed by Myanmar’s security forces. Discriminatory laws and policies have been passed against the Rohingya people. A 2018 report by the UN Human Rights Council-mandated Fact-Finding Mission (FFM) on Myanmar concluded that the military and some civilians have committed crimes against humanity and war crimes in Rakhine, Shan, and Kachin states, as well as acts of genocide in Rakhine state. The FFM concluded that the actions of the security forces towards the Rohingya people amount to five acts of genocide as defined in the Genocide Convention.
In its mandate to ensure that international crimes do not go unpunished, the International Criminal Court (ICC), through the Office of the Prosecutor, is seeking permission to open an investigation into the perpetrators of these atrocities. The Rome Statute requires the prosecutor to seek leave of the court before opening an investigation on a situation in any State. This requirement aims to curb the potential problem of having a rogue prosecutor.
The Office of the Prosecutor has received reports and communications of the alleged persecution and deportation of the Rohingya people. On 6 September 2018, following a request by the Office of the Prosecutor, the court ruled by majority decision that it has jurisdiction over the alleged deportation of the Rohingya people from Myanmar. The deportation occurred from the territory of Myanmar (which is not party to the Statute) to Bangladesh (which is party to the Statute).
The constitution of Pre-Trial Chamber III by the Presidency of the International Criminal Court is only the beginning of the quest for justice for the Rohingya people. The judges will decide whether to authorize the prosecutor to open an investigation.