ICC referral: Need of the hour
The Rohingya, an ethnic Muslim minority who have been
targeted by pogroms in Myanmar, are suffering through another lethal strategy:
the denial of healthcare, food and humanitarian aid. After visiting Myanmar for
a fourth time, columnist Nicholas Kristof wrote for The New York Times that the
killings have shifted from “ethnic cleansing” to “slow-motion genocide.”
Kristof talks to Hari Sreenivasan.
n place against Rohingyas in Rakhine since August last
year. He construed reports of bulldozing of alleged mass graves as a
“deliberate attempt by the authorities to destroy evidence of potential
international crimes, including possible crimes against humanity.” The rights
chief urged UN General Assembly to establish a new independent mechanism to
expedite criminal proceedings in courts against those responsible.
Earlier, Prof Yanghee Lee, the UN's human rights envoy to
Myanmar, expressed the view that there were grounds for bringing the country's
de facto leader, Aung San Suu Kyi, before an international tribunal for failing
to intervene in the “clearance operation” the military had launched in Arakan
following alleged militant attacks on several police posts and army base on
August 25.
In another move, three female Nobel peace laureates urged
Bangladesh, the UN and other state parties to refer Myanmar military and other
perpetrators to the International Criminal Court (ICC) for the “genocide”
against the Rohingyas. “Alternatively, the ICC prosecutor should open an
independent investigation into the crimes against humanity and genocide
perpetrated in Rakhine state,” they observed, after visiting Rohingya refugee
sites in Bangladesh. One of the three laureates and an eminent legal expert,
Shirin Ebadi, stated that as Myanmar was not a state party to the Rome Statute,
the UN Security Council can recognise Myanmar's crimes against humanity and
then refer that to the ICC. “We want this case to be discussed at the UN
Security Council and there is sufficient evidence for this to take place,” she
asserted.
Denouncing the Myanmar army's “bald-faced lie” against
the “mountains of evidence,” Phil Robertson of the Human Rights Watch noted
that “they've been covering up their human rights atrocities for decades.”
Referring to absurd claims of the Myanmar military leadership, Robertson
observed, “Statements like these indicate why the international community must
prioritise hauling Senior General Min Aung Hlaing and other Burmese military
commanders up in the international criminal court to stand trial for the crimes
against humanity they've ordered or committed.”
Addressing the Berlin conference on Myanmar Genocide on
February 27, 2018, Ambassador David Scheffer, who played a critical role in
establishing the ICC, reminded the audience that “the age of impunity is over.”
He stated that one cannot commit crimes on people and assume that he could get
away doing so with impunity, as one could twenty-five years ago. When a state
thrusts a million people on a neighbouring state, the argument of
non-interference in domestic affairs becomes irrelevant. Such a context demands
international actions, and judicial option remains one among those.
Scheffer argues that ideally justice for Rohingya against
Myanmar military and political leadership needs to be pursued in the national
court as jurisdiction resides there. That option is improbable in the short
term, though under a changed political dispensation in Myanmar, perhaps in
15-20 years' time, it could be a likely scenario. After weighing in several
options including those of the International Court of Justice, universal
jurisdiction of other national courts, and hybrid war crimes tribunals such as
those set up in Cambodia, Sierra Leone, East Timor and Kosovo, Schaffer informs
that a referral under the Rome Statute is perhaps the best option. If such a
reference is made, then the ICC will enjoy the full jurisdiction.
Invoking the Rome Statute by the Security Council to
bring perpetrators of the Myanmar genocide to justice may not be an easy task.
Thus far, states such as China and Russia remain committed to the wrong doer.
The challenge remains two-fold. On the one hand, engage in diplomatic efforts
to make those countries abstain from voting when such a resolution is passed.
On the other hand, exert moral pressure by building international public
opinion against the Myanmar genocide demanding accountability of the
perpetrators and shaming their supporters by putting them on record.
It is true that Myanmar, the site of crimes, is not a
state party to the Rome Statute, and the perpetrators, the country's civil and
military leadership, are not nationals of a state party. But that does not
absolve them from facing justice. This is because, as Scheffer persuasively
argues, “the crime scene does not stop at the border; it very purposively and intentionally
flows over into Bangladesh in a massive way.” In their act of “ethnic
cleansing,” the Myanmar leadership removed Rohingya population from one part of
their territory. Its intent was not to move them to another part, but to banish
them to Bangladesh. Thus, its intent, purpose and strategy were very clear. It
made Bangladesh experience the impact of commission of all sorts of crimes of
mass murder, gang rape, rampant torture, and destruction of livelihoods,
dwellings, villages and townships. Thus, as an affected party, Bangladesh can
self-refer to the ICC. The question is whether Bangladesh has the political
will.
Any other state party can refer as well. The state
concerned does not have to be an affected party. The other recourse lies with
the ICC prosecutor. Her office can also make the argument of the crime scene
and move the ICC.
So far, states appear unwilling to move in that
direction. This necessitates a concerted engagement of the global civil society
with the issue as it engaged to end the American occupation of Vietnam or in
dismantling the apartheid regime in South Africa. Thus, building international
solidarity through mobilising various quarters including poets, artists and
singers are crucial in moulding international public opinion. Care must be
taken so that such a campaign remains victim-driven. The Rohingya voices remain
absolutely crucial. Appropriate training in documentation must be imparted so
that along with capturing the survivors' testimonies, evidence on how the
command structures operated is collected.
Those engaged in the campaign must have the unflinching
faith that “the bubble of security and impunity is now getting tighter and
tighter, and therefore, demanding justice; documenting cases certainly are not
exercises in futility.”
At a time when the world community celebrates the 70th
anniversary of the adoption of the Universal Declaration of Human Rights and
the framing of the Genocide Convention, the Rohingyas' call for justice go
unheeded. The international community must ensure that they are delivered on
that account.