Angshuman Choudhury

The Hague-based Court remains the best chance to hold alleged perpetrators accountable for their heinous crimes and consequently, provide some sense of justice to the displaced and traumatised Rohingyas.

Since 11 November, four separate developments have taken place in different corners of the world within the span of just one week that have shone the spotlight on Myanmar over its alleged mistreatment of the Rohingya Muslim minority in northern Rakhine State. The Myanmar state, its civilian government led by Nobel laureate Aung San Suu Kyi, and its military, which is accused of perpetrating ‘genocidal violence’ against the Rohingya, all stand to face indictments at various courts.

The first one was filed at the International Court of Justice (ICJ) by The Gambia, on behalf of the Organisation for Islamic Cooperation (OIC), accusing Myanmar of violating the 1948 Genocide Convention. Two days later, a second case was filed against top government and military officials, including Suu Kyi, at a court in Argentina under the “universal jurisdiction” principle. One day later, the International Criminal Court (ICC) approved a full-scale investigation into alleged crimes against humanity perpetrated against the Rohingya by the Myanmar military. Reed Brody, commissioner at the International Commission of Jurists, termed this triad of cases as an “accountability hat-trick”.

Parallel processes

The ICJ and ICC cases are particularly significant, since both are top-tier courts within the prevailing international system. The crucial difference between both is that while the former hears cases against States, the latter deals with specific individuals accused of war crimes and crimes against humanity.

The ICJ case against Myanmar entails only a series of public hearings that are scheduled to commence on 12 December in The Hague. As argued by one legal expert in The Diplomat, while Myanmar will find it difficult to argue against the Court’s jurisdiction, the “tangible practical value” of the judgment may be limited. On 20 November, Suu Kyi, Myanmar’s de facto head of state, announced that she would be personally leading the defence of her country at the ICJ when the hearings begin next month.

So far, the Independent International Fact-Finding Mission on Myanmar (FFM), established by the UNHRC in March 2017, was the only international entity gathering evidence of crimes against the Rohingya. A year after submission of its full report in September 2018, the FFM’s mandate lapsed.

So, at the moment, the ICC process is the only judicially-sanctioned international independent investigative process on the Rohingya issue. Two other parallel non-judicial investigations are underway: the Independent Investigative Mechanism for Myanmar (IIMM), sanctioned by the UN Human Rights Council (UNHRC) last year, which also conducted its first official visit to the refugee camps in southeastern Bangladesh on 18 November; and the Independent Commission of Enquiry (ICoE), appointed and operated by the government of Myanmar.

The IIMM is simply tasked to gather and collate evidence “in order to facilitate and expedite fair and independent criminal proceedings” in “national, regional or international courts or tribunals” that have jurisdiction over crimes committed against the Rohingya.

On the other hand, the four-member ICoE, which comprises of two international members, has already been flagged as tooth-less. The UN FFM, in its final report, noted that the commission was ridden with biases, lacked expertise and was unwilling to attribute specific responsibility on individuals, and concluded that it “will not and cannot provide a real avenue for accountability, even with some international involvement.”

Thus, the ICC seems to be the only process at the moment that could result in some tangible prosecutions.

A unique premise

The ICC process can be best understood by analysing the first document filed at the court. The case began when on 9 April 2018, Chief Prosecutor, Fatou Bensouda, submitted a “request for jurisdiction over the alleged  deportation  of the Rohingya people from Myanmar  to Bangladesh” under Article 19(3) of the Rome Statute – the founding treaty of the ICC – before the Pre-Trial Division. Article 19(3) states that “the Prosecutor may seek a ruling from the Court regarding a question of jurisdiction or admissibility.”

The foundational basis of this submission is the power granted to the Prosecutor under Article 15 of the Statute, by virtue of which she or he can “initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court.” The other two ways by which the Court can exercise jurisdiction over an individual or crime, as stipulated by Article 13 of the Statute, are – a direct referral by a particular State Party, or a UN Security Council resolution under Chapter VII of the UN Charter.

Now, Myanmar is not a party to the Rome Statute, and remains out of the ICC’s direct jurisdiction. Thus, ideally, nationals of Myanmar cannot be prosecuted by the Court. But, Bangladesh – which sits next to Myanmar and currently hosts around 800,000 Rohingya refugees who fled the post-August 2017 violence in Myanmar’s Rakhine State – is a State Party to the Statute.

Hence, the prosecutors claimed that the Court has jurisdiction on those who committed crimes against the Rohingya under  Article  12(2)(a) of  the  Statute “because  an  essential  legal  element  of  the crime—crossing an international border—occurred on the territory of a State which is a party to the Rome Statute (Bangladesh).”

Article 12(2)(a), in essence, states that the Court may exercise jurisdiction over a crime (and the criminal) if it has taken place in the territory of a State Party. The prosecutors used this provision to assert that since the Rohingya were forced to flee into Bangladesh through violent coercive action of the Myanmar military, it is prosecutable under Article 7(1)(d) of the Statute, which classifies “deportation or forcible transfer of population” as one of the many “crimes against humanity”. The prosecution is careful to note that since the Rohingya crossed an international border, the action can be characterised as “deportation”.

To justify its claim that the act of deportation also covers Bangladeshi territory, it argues that “in circumstances where the enforced border-crossing takes the victim directly into the territory of another State, this legal element is completed in that second State.” Here, it draws a comparison to a “cross-border shooting” where the bullet is fired from one side of a border, but is received by the victim on the other. It argues that Article 12(2)(a) may be interpreted to cover such multi-territory criminal cases.

In effect, while the Prosecution did not claim jurisdiction over the core crime in question i.e. genocide or ethnic cleansing, it is trying to get to the common criminal party – Myanmar military leadership – that allegedly perpetrated both genocidal violence and forced deportation. Going through the latter crime is a longer route, but is the only legally valid path to bypass Myanmar’s non-party status to the Rome Statute and hold its military officers accountable for their alleged crimes.

On 11 April 2018, the request was assigned to the Pre-Trial Chamber for further assessment. On 6 September 2018, after multiple rounds of consultations with stakeholders and expert field visits, the Chamber decided that the Court may exercise jurisdiction over the forced deportation of the Rohingya to Bangladesh. Subsequently, on 4 July 2019, Chief Prosecutor Bensouda, requested the Court to authorise an investigation into the crime of forced deportation  “which occurred within the context of two waves of violence in Rakhine State on the territory of [Myanmar], as well as any other crimes which are sufficiently linked to these events.”

Interestingly, in its investigation request, the Prosecutor requested mandate to cover crimes committed from 9 October 2016, when the Myanmar military launched its first wave of violent “clearance operations” in Rohingya-dominated villages in northern Rakhine after a local insurgent attack against border outposts. In its first jurisdiction request, the Prosecutor had only covered events following the 25 August 2017 attack.

On 14 November, the Pre-Trial Chamber gave the go-ahead to initiate investigations into not just the “crime of humanity of deportation”, but also “persecution on grounds of ethnicity and/or religion” as classified under Article 7(1)(h) of the Statute and other crimes contextually linked to both the October 2016 and August 2017 waves of violence. In summary, the Chamber allowed the Prosecutor to investigate any crime perpetrated against the Rohingya community, including any future crime, that fulfils the following four parameters, irrespective of the criminal’s nationality:

1) it is within the Court’s jurisdiction, 2) it is allegedly committed at least in part on the territory of Bangladesh, or on the territory of any other State Party or State accepting the ICC jurisdiction; 3) it is sufficiently linked to the situation as described in the decision; and 4) it was allegedly committed on or after the date of entry into force of the Rome Statute for Bangladesh or other relevant State Party.

Post-investigation stages

From here, the next step for the Prosecutor is to conduct thorough investigations and identify suspects. Since Myanmar has rejected the ICC’s jurisdiction, it is highly unlikely that the government would allow the Chief Prosecutor to visit the country to gather corroborative evidence. Hence, she has to confine her activities within Bangladeshi territory. The ongoing UNHRC-sanctioned IIMM process can provide solid supplementary evidence to her team and in the process, bolster the case.

Once the evidence-gathering process is complete, which could take a few months or years depending on various factors, the Prosecution can file a request to the Court to issue arrest warrants for the suspects. Alternatively, the Court may issue summons to appear if it is “satisfied that this would be sufficient to ensure the person’s appearance.” If the Court does end up issuing warrants, the suspects are to be held and transferred to the ICC for trial. But, this is where the real hurdle begins.

The mandate to enforce arrest warrants issued by the ICC lies solely with State Parties. Hence, until one or more of the suspects land up in the territory of a State Party, which then makes an arrest-and-transfer to the ICC, the suspected perpetrators would remain at large. At times, the ICC also requests non-State Parties to cooperate, but they are not obligated to do so. Without an arrest and subsequent physical presence of the suspect at the Court, trials cannot begin. And without trials, there can be no verdict or sentencing, and no justice. In this regard, the ICC notes that the “failure to execute arrest warrants breeds a climate of impunity.”

On this, past precedent is not really encouraging. At the moment, nine suspects who have ICC arrest warrants against them remain at large. These include the deposed Sudanese President, Omar al-Bashir, and leader of the notorious Lord’s Resistance Army, Joseph Kony. In fact, despite the Court issuing a second warrant in 2010, Bashir visited various countries without being arrested, including three State Parties to the Rome Statute – South Africa, Uganda and Jordan. These have cast damaging shadows on the very credibility of the whole ICC process and without doubt, contributed to the culture of impunity.

The Myanmar military, too, maintains good relations with various countries in the South and Southeast Asia regions, such as India and Thailand. The only two ICC member states in the region that maintain fairly cordial relations with the Myanmar military are Japan and South Korea. It remains to be seen if Tokyo and Seoul will be keen to enforce any future ICC warrants against Myanmar military officials if they land up on their territory or go the Jordan/South Africa/Uganda way.

But, assuming the suspects are arrested and transferred to The Hague, the trial process can commence immediately. The verdict, of course, is contingent on the strength of the Prosecution’s evidence and arguments, victim testimonies and the tenability of the suspect’s defence. Whatever the verdict be, it can be put up for one last appeal by either party, which could then lead to an Appeals Chamber upholding, amending or reversing the verdict, or in some cases, ordering a re-trial.

The Suspects

There are several probable suspects within Myanmar that the Prosecutor is likely to identify. The UN FFM’s list of perpetrators gives a sense of this. The Mission identified six key perpetrators within the Myanmar military who were responsible for ordering the alleged genocidal violence against the Rohingyas – the Commander-in-Chief, Deputy Commander-in-Chief, Commander of the Bureau of Special Operations-3, Commander of the Western Regional Military Command, Commander, 33rd Light Infantry Division, and Commander of the 99th Light Infantry Division.

The last three were directly involved in ordering the controversial “clearance operations” in northern Rakhine that led to the exodus of the Rohingya to Bangladesh. The first three may not have been directly involved, but the “doctrine of command responsibility” as embedded in Article 28 of the Statute holds them responsible for not doing enough to prevent criminal conduct by their subordinates or initiate investigations into such crimes.

So far, the senior leadership of the Myanmar military has summarily dismissed all charges of crimes against the Rohingya, with the Commander-in-Chief even arguing that they fled to Bangladesh to “live with relatives” or “flee to a third country.” However, in April 2018, the military reportedly dismissed seven soldiers from the military and sentenced them to 10 years in prison with hard labour over a massacre in the village of Inn Dein that was reported by Reuters. However, in May 2019, Reuters reported that the convicted soldiers were given an early release in November 2018. The Prosecutor, in her request for investigation, did note this. The suspects from the military leadership – in case they land up in an ICC courtroom – might use this instance to show that they were cognisant of crimes perpetrated by subordinates, and hence, should not be held responsible under the “doctrine of command responsibility”. However, given the overall scope of violence, the number of displaced Rohingya, and the wide reach of Article 28 to cover all forms of commission and omission, this would be a frail defence.

Besides the military, the Court cited the victims’ representatives as identifying three additional entities responsible for the crimes in question – the Border Guard Police (BGP), the Myanmar Government, Myanmar Police Force (MPF) and other local authorities. There is also documented evidence that Rakhine Buddhist vigilante mobs also participated in the violence. The Prosecutor does not make express mention of such vigilantes participating in the violence that led to the displacement. While the investigation might throw up concrete evidence of the same, it would be very difficult for the Prosecution to identify specific vigilante perpetrators.

Challenges for the Prosecutors

Like in most national and international courts, non-consensus amongst judges in always an issue. In the past, ICC benches have been sharply divided over the sanctity of the evidence presented, leading to controversial judgments. For instance, in a majority decision in January 2019, the Court acquitted Laurent Gbagbo, former President of Ivory Coast, of all charges of “crimes against humanity” on the belief that the Prosecution’s evidence was unconvincing. This came as a shock to many, and the Prosecution is mulling an appeal. The possibility of a stunted judgment, regardless of the strength of evidence, remains in the Rohingya case too. But, the evidence of wrongdoing in this case is glaring. Hence, the probability of a split verdict is on the lower side.

In addition to non-enforcement of warrants, the general non-cooperation of State Parties have often hampered Prosecutorial investigations. For instance, in 2014, the ICC was forced to drop all charges against Kenyan President Uhuru Kenyatta, as the government simply refused to submit the required evidence. He is still the country’s President. However, in the Rohingya case, it is the cooperation of Bangladesh that matters, and Dhaka has so far shown great eagerness to help the Prosecution. While the Sheikh Hasina government’s key intent is to escalate international pressure on Myanmar to take the refugees back, as long as it cooperates with the ICC, the Prosecution can achieve its objectives of indicting the perpetrators.

Conclusion

Despite all the inherent flaws within the ICC system and unwillingness of States to cooperate, the ICC remains an important component of the international criminal justice system, and giving up on it would, as put by a former senior attorney at the Court, “deliver a huge blow to the fight against impunity.” In the Rohingya case, particularly, the short period between filing the request and the final approval for investigation is a refreshing departure from past cases, and might indicate prompt justice to come. Hence, the Hague-based Court remains the best chance to hold alleged perpetrators accountable for their heinous crimes and consequently, provide some sense of justice to the displaced and traumatised Rohingyas. Without justice, there cannot be reconciliation or resettlement.

The author is a Senior Researcher and Coordinator, South East Asia Research Programme at the Institute of Peace and Conflict Studies, New Delhi. He holds an MSc in Conflict Prevention and Peacebuilding from the School of Government and International Affairs, Durham University, UK.