Seeking justice for the Rohingyas: Will the ICC work? — Fareed Mohd Hassan, Mohd Hazmi Mohd Rusli

MAY 29 — The international community has subscribed to a number of international treaties which provide protection for human rights long before the establishment of the United Nations (UN) in 1945. The crimes of genocide, war crimes and crimes against humanity were committed in the past in many parts of the world. The Nanjing Massacre in 1937 and the Rwanda Genocide of 1994 and the violence against East Timorese in the ’90s are clear examples of extreme brutality beyond humanity. Fortunately, the individuals responsible for committing these crimes have been punished accordingly. The incidence of crime against humanity have yet to end as it is still taking place in Libya, Sudan, Syria, Iraq and worse still, just within our region, Myanmar.

The issue of Rohingyas, be it on their status as refugees or the crimes committed against them, has also become one of the main topics discussed of late, particularly after the outbreak of the Rakhine State Riot in 2012. This issue has recently worsened when many of the Rohingya migrants left their “homeland” in Myanmar seeking refuge in neighbouring countries, such as Thailand, Indonesia and Malaysia. Could the perpetrators of the crimes of genocide against the stateless Rohingyas be brought to justice in the name of humanity?

Criminal Tribunal

There are a number of international criminal tribunals established by the UN Security Council (UNSC) such as in Timor-Leste for the crimes committed during Indonesia’s invasion of that territory in 1999 and in Cambodia during the Khmer Rouge of Pol Pot’s regime in 1975 to 1979. However, these tribunals were established through agreements between UNSC and the respective Governments of Timor-Leste as well as Cambodia.

It seems impossible for the Government of Myanmar to request the UNSC to establish a tribunal within the State, in which many State leaders might be vulnerable to be prosecuted for the alleged crimes. Since the world has its permanent international criminal court to prosecute and punish individuals responsible for the crimes of genocide, war crimes and crimes against humanity committed after July 2002, thus there is no need to establish a tribunal to deal with the issue of the Rohingya case.

The International Criminal Court

The International Criminal Court (ICC) is established through a treaty called the Rome Statute that came into force on July 1, 2002. The objective of the ICC is to prosecute and punish individuals responsible for the crimes against humanity, regardless of the position of the perpetrators, which may include the Head of State.

The crime of persecution is one of the crimes listed under crimes against humanity which has been condemned by the international community since World War II. Article 7(2)(g) of the Rome Statute defines persecution as “the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group”. The Rohingyas — who are Muslims and ethnically different from the other ethnic groups in Myanmar — are not being recognised as “citizens” of that country. Ever since the independence of Myanmar in 1948, their fundamental rights have been denied and restricted such as freedom of movement and the right to receive education. The Rohingyas have been, for decades, ill-treated and is subject to a systematic scheme of racial discrimination alleged to be sponsored by the government of Myanmar. Though the Rohingyas are not considered citizens of Myanmar, the ICC jurisdiction cannot be ousted since the alleged crimes were committed within the territory of Myanmar.

The ICC possesses jurisdiction to try cases on the crimes of genocide as provided under Article 6 (1) of the Rome Statute. In addition, Myanmar is also a Party to the Genocide Convention 1948 which require similar obligation from Myanmar to prevent and punish individuals responsible for the crime of genocide. There has been no action taken by the Government of Myanmar to prevent, what more to punish the perpetrators. Thus, it leaves no other choice to the Rohingyas but to flee to other neighbouring countries, such as to Malaysia, Indonesia and Thailand seeking protection.

Though Myanmar is not a State Party to the Rome Statute, this does not necessarily mean that the perpetrators can walk freely unpunished. Articles 13 (b) and (c) of the Rome Statute permit the ICC to exercise its jurisdiction over States which are non-Parties, with conditions. With regards to Article 13(c), the ICC Prosecutor can initiate his or her own investigation provided that, information from individuals or organisations involved such as the United Nations High Commissioner for Refugees (UNHCR) must be supplied to initiate the investigation.

The UNSC could also refer the situation in Myanmar to the ICC under Article 13(b) of the Rome Statute which is similar to what took place in Darfur, in Sudan, and Libya, where these two countries are also non-Parties to the Rome Statute. However, not only it requires political involvement from other UNSC Members, this effort to seek justice for the Rohingyas through the ICC must not be vetoed by any of the “big five” (China, USA, Russia, France and the UK) in the UNSC. This is a long-term legal option that the world community could consider to end the plight of the Rohingyas.

Conclusion

Similar protection and justice should be given to the Rohingyas through the ICC by bringing the alleged individuals responsible for the crimes committed against them. However, the ICC jurisdiction could only be triggered in two circumstances — by the ICC Prosecutor through information provided by individuals or organisations or via the involvement of the UNSC to refer the situation in Myanmar with regards to the Rohingyas. Indeed, if there is support from the world community as a whole, the question of whether or not Myanmar is a State party to the Rome Statute is irrelevant for the purpose of bringing the perpetrators to the ICC.

Since there is still a ray of hope in bringing justice to the Rohingyas through the ICC, the world should not let the lives of these vulnerable victims of persecution to be at stake as the Rohingyas, just like everyone else, are human beings too.

* Fareed Mohd Hassan is a Legal Researcher at the School of Law, University of Aberdeen, Scotland, United Kingdom. Dr. Mohd Hazmi Mohd Rusli is a Senior Lecturer at the Faculty of Syariah and Law, Universiti Sains Islam Malaysia, and a visiting professor at the School of Law, Far Eastern Federal University, Vladivostok, Russia.

** This is the personal opinion of the writers and does not necessarily represent the view of the Malay Mail Online.