Since August 2017, the plight of the Rohingya people has re-captured the attention of the international community. The United Nations and other parties have been slow to label the ongoing situation in the Rakhine region genocide. However, recent statements by UN Special Advisor on the Prevention of Genocide indicate a significant change in international rhetoric. The current crisis was a result of the alleged attacks by a rag tag group known as the ARSA which occurred in August 2017. The military responded to these attacks which resulted in thousands fleeing. The disproportionate response by the military and various mobs have continued to perpetuate genocide and crimes against humanity resulting in a humanitarian emergency.
One of the most pressing issues to date is the repatriation of Rohingya people back to Myanmar. While Bangladesh and Myanmar continue to negotiate the terms of repatriation, both parties neglect the legitimate concerns of the Rohingya people who do not want to go back to the same conditions which forced them to flee their homes. Compounding the problem is the coming rains and security issues that will occur if no appropriate action taken quickly. While Myanmar gives off the appearance that it is interested in negotiating, its actions continue to diminish the prospect of repatriation and point to an ineptitude at understanding basic human rights principles. As will be discussed below, the new query by the International Criminal Court (ICC) Prosecutor may complicate repatriation negotiations.
The Rohingya are not the only ethnic minorities that face gross human rights violations at the hands of the Myanmar military and as a result of government policies. As survivors, victims, and witnesses continue to share details of the atrocities that have unfolded in Myanmar, among the many questions that linger is how will impunity, which has been rampant for decades, be addressed?
International Criminal Court
In December 2015, the Arakan Rohingya National Organization and the Rohingya Intellectual Community Association of Australia filed a communication with the Office of the Prosecutor for the ICC asking her to exercise her propio motu powers and open an investigation in Myanmar. The basis of this communication was because the Rohingya, who have been rendered stateless by the government, will not be able to access any form of justice for crimes perpetrated against them within Myanmar. By the end of July 2017 the ICC Prosecutor’s office determined it would decline the matter because Myanmar is not a state party to the Rome Statute.
Subsequently, many activists and scholars commented on the possibility of an UN Security Council (UNSC) referral to the ICC, similar to what the UNSC did with Libya and Sudan. A UNSC referral move may not be successful as Myanmar continues its military relationship with Russia and China. Also, given recent changes in U.S. leadership, cooperating from the United States is unlikely. In November 2017 Russia and China refused to cooperate in accepting a Security Council resolution on the Rohingya matter.
However, this week there has been a sudden turn of events. On April 9, 2018, the Prosecutor filed a Request for a Ruling on Jurisdiction under Article 19(3) of the Statute. The specific question posed by the prosecutor was whether “the Court may exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh.” This is an issue of first impression.
In her brief to the Court the prosecutor asks the Court to determine whether it would have territorial jurisdiction since the victims are being deported from a non-state party territory into a state party’s territory. The Court will also have to determine the nature of the crime of deportation in Article 7(1)d, which is distinct and separate from the crime of forcible transfer. As previously discussed, while Myanmar is not a state party to the Rome Statute, the Prosecutor submits that at least one legal element needs to have occurred on the territory of a state party. This is not clear in the Rome Statute.
This will be an interesting legal issue to continue to monitor in the coming weeks. The ICC prosecutor’s request for ruling is a significant step in addressing the crimes committed by Myanmar. In addition this could be a significant achievement for the Rohingya in obtaining justice. However, the fact that genocide and numerous other crimes (which are mentioned in the Prosecutor’s brief) will not be prosecuted remains problematic and would allow impunity for such acts to continue.
While the ICC sorts itself out, the United Nations has also continued to address these issues.
The United Nations Human Rights Council
In March 2017, the United Nations Human Rights Council (HRC) adopted a resolution to “dispatch urgently” an independent international fact-finding mission to Myanmar. The work of the Fact Finding Mission (FFM) began in May 2017. A report on the investigation will be issued in September 2018. The FFM in its recent March 2018 update to the HRC stated that its investigation has found “human rights violations of the most serious kind, in all likelihood amounting to crimes under international law.” At the end of the Chairman’s update, he questioned what HRC would do with their findings.
There are a number of mechanisms at the UN’s disposal that could afford ethnic minorities in Myanmar justice. One of the most notable instruments would be the creation of an independent tribunal given the gravity and volume of crimes that have allegedly been committed. This independent tribunal would complement the efforts by the FFM. In addition to the independent tribunal or alongside the tribunal would be to create a UN Truth and Clarification Commission similar to the model used in Guatemala post conflict.
Also, one idea may be to utilize mechanisms that already exist at the HRC. The UN should consider opening the treaty body individual complaint procedure mechanism in cases of mass atrocities. This way, victims, witnesses, and other parties can lodge complaints or petitions directly to specific treaty bodies relevant to their case. Since it is a special complaints procedure, the petitions or complaints would be heard by the Committee of Experts regardless if the state party has signed the complaints procedure or not (in general Myanmar has not accepted any). This type of specialized mechanism could bolster the efforts of the treaty body system, emphasize global norms through existing Conventions, and create a shared space for dialogue and creating new practices.
For example, if a group of people want to lodge complaints regarding rape experienced in a conflict or mass atrocity setting, they would present this to the Committee of Experts for CEDAW in a specialized session dedicated to that conflict or mass atrocity. In turn the Committee would make recommendations after its process has closed based on the CEDAW. The goal would be to encourage a cooperative framework in resolving these issues. Perhaps utilizing the treaty bodies in the arena of mass atrocities could encourage countries to uphold or make new commitments to human rights. A special procedure mechanism such as this allows the conversation to be given its proper weight.
Of course, if the individual complaints procedures had a specific track for stateless people, this would also be a significant accomplishment and the UN would move closer to achieving its Sustainable Development Goals.
Finally, universal jurisdiction can and should be utilized more. With respect to the Rohingya matter, some lawyers have taken action within their national jurisdictions. However, diplomatic or head of state immunity may prove that these cases will be hard to pursue (but should be pursued) successfully.
The situation in Myanmar may shows signs of slowing down but if history is any indication of what is to come, another flare up of violence will be right around the corner. Without a true commitment to the responsibility to protect and “never again,” the international community will fail the ethnic minorities of Myanmar once again.
Author: Regina Paulose
 Request for a Ruling on Jurisdiction, Para 55
 Request for a Ruling on Jurisdiction, Para 4-6, 13- 16
 Request for a Ruling on Jurisdiction, Para 28 – 29
 Request for a Ruling on Jurisdiction, Para 45