Written by: Regina Paulose
In November 2012, the Office of the Prosecutor (OTP) of the ICC released its Report on Preliminary Examination Activities 2012, which examines situations in various countries for acts which could potentially amount to crimes against humanity and/or war crimes. Some of the countries mentioned in this report are North Korea, Columbia, and Afghanistan. While one could question some of the cases the OTP is currently investigating, this author takes the position that there are other atrocious human rights situations which need the immediate attention of the ICC. In particular, the OTP should begin to make efforts to investigate and address the continued persecution and abuse of the Rohingya population in Burma.
The Status Quo Conflict and Response
According to some scholars, the Rohingya’s origins are not entirely clear. Setting aside this debate, the Rohingya mainly reside in Burma on the western side. The Rohingya are a Muslim minority in Burma where the majority of the population is Buddhist. It is estimated that there are currently 800,000 to 1 million Rohingya living in Burma. Since the 1970’s the regime in Burma has been trying to drive out or restrict the Rohingya. This sentiment was put into law in 1982 when it created a Citizenship Law, which mandates that a person must prove their Burmese ancestry dating back to 1823 in order to have freedom of movement and access to other basic rights such as education in the country. (Recall: Armenian Genocide and Nazi Germany). This law is one of the prime reasons why the Rohingya have become “stateless.”
The Rohingya have been the target of violence and recent clashes, which has left “dozens dead and tens of thousands internally displaced.” One does not have to look further than the last 8 months to truly see how the regime continues to treat the Rohingya. In June 2012, an outbreak in communal violence between the Buddhist and Muslim Rakhine and the Rohingya lead to massive sweeps resulting in detention of Rohingya men and boys. (Recall the massacre at Srebrenica). Reports indicated that these groups were subject to ill treatment and were held “incommunicado.” In October 2012, satellite images showed that homes of the Rohingya were being destroyed by security forces. The security forces then overwhelmed and cornered the Rohingya to drive them out of the area. This destruction is on top of the gruesome reports of beheading and killing of women and children. (Recall: Rwanda). The violence has continued in spurts, but is clearly directed at the Rohingya and motivated purely by hatred.
Faced with no other alternatives and with no access to justice in their country, the Rohingya have begun to flee only to be met with rejection from other countries. On the first day of 2013, some members of the Rohingya group were intercepted by Thai authorities and were deported back to Burma. The Thai Navy is under orders to send them away from Thailand. Bangladesh has also expressed that it is not willing to accept Rohingya into their country.
Some countries however are reaching out to the Rohingya. For instance, Malaysia does accept the Rohingya as refugees. Iran recently sent humanitarian aid in order to help and has called upon the UN to take action. Regionally, ASEAN offered to conduct “talks” but that was “rejected.” The regime explained that it sees the escalating violence as an “internal problem.”
After a close examination of these events, the U.S. Presidential visit in November 2012, made the waters murky. President Obama felt that Burma was “moving in a better direction” and that there were “flickers of progress.” During the visit the President met with an advocate of the Rohingya population. While President Obama stated that his visit was not an endorsement of the current government, simple questions arise as to what the U.S. would be willing to do (or not do) to prevent this sectarian violence from escalating. Not surprisingly, after the visit, Thein Sein made 2013 human rights news, when his regime admitted to using air raids against the Kachin rebels who are battling the government for control over certain territories.
The ICC and its potential involvement
There are two interesting points of discussion that this scenario creates. The first is how the Office of The Prosecutor (OTP) would be able to meet jurisdictional requirements if it were to seriously consider prosecution. The controversial propio motu powers of the Prosecutor would allow her to investigate this situation. Articles 13, 15, and 53 of the Rome Statute require temporal jurisdiction, territorial or personal jurisdiction, and material jurisdiction. In addition, there are requirements in the Statute concerning admissibility. Burma is not a state party to the Rome Statute. The real challenge with this case would be with meeting the territorial or personal jurisdiction elements. Of course the easiest way to meet this requirement would be if the UN Security Council (UNSC) would be willing to refer the case as it did with Bashir of Sudan. As stated above, the U.S. Presidential visit does not make clear at this time what the U.S. position would be, especially considering the U.S. also eased sanctions, perhaps as a symbol of new relations, on the regime in November.
Another interesting point of discussion also concerns the potential charges. This author believes that this is a strong case for various charges under crimes against humanity against the Government. Another added dimension to this is that there are also civilians who target the Rohingya and seek to remove them from Burma. Since the posting of this article in January, there has been a recent increase in violence between Buddhist monks, civilians, and the Rohingya. As previously noted, the regime has continuously called the situation with the Rohingya an “internal problem.” The situation with the Rohingya can be distinguished from the conflict with the Kachin rebel/soldiers who are fighting for territory and independence.
Some other kind of action is now necessary besides dialogue and commentary from high level UN officials. Our cries of “never again” have become hollow. The purpose of the ICC should be to facilitate deterrence in addition to punish perpetrators of grave crimes. The international community waits for these situations to become so grave that every action becomes too late. We cannot say we are students of history, when we continually are faced with the same situations over again and repeat the same mistakes. Our ability to ignore tragedy has come at the expense of hundreds of thousands of lives.
Interested in reading more or the full length analysis? Check out: A Road Well Traveled: Religion, Just War, and the Rome Statute, 2(2) A38JIL (2013) 178.
 This author questions some of the potential charging decisions being made by the ICC – for instance – the case involving North Korea and South Korea, is a clear act of aggression, but is under examination as a war crime. The death toll in this case is 22 people. The OTP is spending resources in Colombia, to assess whether the government is prosecuting the FARC properly. The author concurs that these cases are worthy of ICC attention, but questions why the ICC wont deal with situations that are ongoing which need immediate intervention. (Besides financial reasons).
 The great name debate: the U.S. recognizes the official name of the country as Burma. Myanmar is the name was introduced by the former military regime, 23 years ago, and is preferred by the current regime. President Obama reportedly did refer to the country as Myanmar out of diplomatic courtesy when meeting with Thein Sein, President in November 2012. See http://www.cnn.com/2012/11/19/politics/obama-asia-trip/index.html
 Although I thoroughly question the impact of sanctions and their utility, some sanctions were eased on Burma in the days leading up to the Presidential visit.