What happened to the Rohingya is a stain on the history
of humanity. But the arc of history has a way of bending towards justice.
Almost two years on from the orchestrated campaign of
violence that led to more than 700,000 Rohingya Muslims fleeing Burma for
Bangladesh, justice for what a UN investigation has said likely constituted
genocide remains elusive, but not necessarily out of reach.
With the presumption of a Chinese veto, the UN
Security Council remains hopelessly divided. So besides issuing a “Presidential
Statement” in November 2017, the body responsible for international peace
and security has not issued one resolution as one of the world’s gravest
humanitarian crises has unfolded. Some fear even bringing on a vote to refer
the situation to the International Criminal Court (ICC) could grind to a halt
any remaining sense of cooperation.
At the very least it could have imposed an arms embargo
or tried to force the Association of Southeast Asian Nations (ASEAN) to adopt a
stronger position as it did around the 2011 Preah Vihear border dispute. But countries like Indonesia – despite their promises
– have not done enough stands up for the Rohingya while on the Security
Council. Meanwhile atrocities continue to take place to this day, and an
internet blackout in Rakhine State ordered by the Burmese regime four
weeks ago makes us again fear for the worst.
Despite this, some glimmers of hope are beginning to
emerge on the long road to delivering justice and accountability. But without a
concerted diplomatic effort in the coming months around a number of key events
– including the anniversary of the crisis and a number of crucial UN meetings
and reports, we may lose a rare political window to take a step closer to
securing the outcomes that the Rohingya people so desperately deserve.
Firstly, the decision of the UN’s Human Rights Council
last year to establish a new investigative mechanism to prepare case
files for future prosecution was a landmark achievement – but one that
passed with relatively little attention.
The big problem now is that it will likely take the new
mechanism more than two years to even prepare one case file, and once it does
there is no equivalent international mechanism through which these cases can
then be brought to trial. While it is possible that some national courts in
Germany, Sweden and elsewhere could perhaps use universal jurisdiction to hear
cases as we have seen on Syria, this is by no means enough and those
responsible remain inside the country. Given the Security Council deadlock, the
best option would be for the international community to establish a special
tribunal as they did with Rwanda and Yugoslavia – and there is no procedural
reason that the UN General Assembly could not mount such a push themselves.
Secondly, while the United States, European Union, Canada
and Australia have all imposed economic sanctions against some Tatmadaw
soldiers (forcing some into “early retirement” in the process), the
Commander-in-Chief has not been included despite a UN report’s clear
recommendation. And while a travel ban imposed against him by the U.S.
this week has by the Tatmadaw’s own admission undermined their ‘dignity’ (even
if they do not wish to travel there), thankfully legislation before the
U.S. Congress has the potential to apply even more targeted, appropriate and
consequential pressure on the senior military leadership if it can get past the
cautious approach favourited by Republican Senate Leader Mitch McConnell. Other
countries would inevitably follow suit.
Similarly, sanctioning military-owned companies would
also help ensure they feel the pinch – and a major forensic report by the UN on
these companies due out later this month will hopefully help change that tide
as well. At the same time, some countries continue to sell arms to
Burma, while others – including Australia – have maintained other
forms of cooperation.
Thirdly, last month’s request by the ICC
Prosecutor to formally investigate the seemingly narrow, but in fact expansive,
crime of forced deportation from Burma to Bangladesh is a potential game changer.
Nothing focuses the minds of the leaders of the Tatmadaw
forces in Naypyidaw more than the thought of one day ending up in the dock in
The Hague – something which many thought would never happen in the former
Yugoslavia, but sometimes it is just a matter of time. If an arrest warrant was
to come, travel by the Burmese leadership would become impossible to those
countries that have signed the Court’s statute – and this is why it was so
disappointing for the Rohingya that Malaysia, an ASEAN member, reneged
on its intention to join the Court just a few months ago.
And finally, and perhaps most significantly in the short
term, a number of countries are now openly floating the possibility of
taking Burma to the International Court of Justice for failing to uphold its
obligations under the 1948 Genocide Convention.
Whether such a case is filed by The Gambia, Canada, The
Netherlands (where there is support at different levels) or another country,
the important thing is that a concerted diplomatic and legal effort is mounted
to ensure it does not fail and that others are quickly able to support it.
While this wouldn’t be able to hold any individuals to account, it could
deliver reparations and other sanctions.
What happened to the Rohingya is a stain on the history
of humanity. But the arc of history has a way of bending towards justice. And
for the roughly one million refugees that continue to languish in makeshift
camps in Bangladesh, including more than 400,000 children with no access to
education, this cannot come soon enough. The next few months will be a powerful
reminder of this, but also present an increasingly rare opportunity that must
be seized with both hands.
Source: @TRF_Stories