Jurisdiction of the International Criminal Court in the Rohingya Crisis: Light at the End of a Dark Tunnel

INTRODUCTION

Crimes in the international purview fall under the jurisdiction of the International Criminal Court (ICC) where the National courts are unwilling or unable to try such cases. This is because the court has a complementary jurisdiction with national courts. However, the jurisdiction of the ICC on such cases is limited to the states that are party to the Rome Statute of 1998, which is the enabling statute of the ICC. Therefore, where a crime is committed in a state that is not a party to the Rome Statute or by a national of such a state, the ICC would have no choice but to watch silently as they would not have jurisdiction on such cases. This is the situation in Myanmar as crimes of genocide and crimes against humanity are perpetrated against the Rohingya muslims, as they are forced by the Myanmar government to evacuate their current place of residence in the Rakhine state of Myanmar.

This article seeks to examine the ways by which the ICC can generate the necessary jurisdiction to prosecute crimes which are in the international purview and are committed in states that are not parties to the Rome Statute such as has been committed by Myanmar’s leaders.

HISTORICAL BACKGROUND OF THE ROHINGYA MUSLIMS

Historically, the Rohingya Muslims have inhabited the Rakhine State of the old Burma (now Myanmar) for over a millennium. During World War II, the Rohingya muslims aligned with the British (for the promise of a Muslim state after independence) against the Rakhine Buddhist natives who were aligned with the Japanese. However, despite the longevity of their residence in the area, they are not regarded as citizens of the Myanmar. After independence in 1948, the government refused to grant the Rohingya Muslims citizenship on the basis that they had to provide documentary evidence to prove that they were residents of Myanmar which none of the Rohingya Muslims could provide.

LATEST DEVELOPMENTS

In August 2017, the Myanmar government launched an attack which the United Nations and the Human Rights Watch described as “an ethnic cleansing” on the Rohingya Muslims. They wiped out 282 Rohingya villages and killed over 10,000 Rohingya Muslims, 730 of which were children under the guise of killing the armed men who attacked some Myanmar officials as far back as August 2015. The United Nations report shed light on the strategy of the Myanmar government to erase the existence of the Rohingya muslims in Myanmar. It includes;

  1. Arrest and arbitrarily detain male Rohingya between the ages of 15 – 40 years;
  2. Arrest and arbitrarily detain Rohingya opinion makers, leaders, cultural and religious personalities;
  3. Initiate acts to deprive Rohingya villagers of access to food, livelihoods and other means of conducting daily life and activities;
  4. Commit repeated acts of humiliation and violence prior to, during and after the 25th of August, to drive out Rohingya villagers en-masse;
  5. Justifying killings by declaring Rohingya to be Bengalis and illegal settlers in Myanmar;
  6. Instill deep and widespread fear and trauma – physical, emotional and psychological, in the Rohingya victims via acts of brutality namely killings, disappearances, torture, rape and other forms of sexual violence.

It was also reported that megaphones were used to announce; “You do not belong here, go to Bangladesh. If you do not leave, we will torch your houses and kill you.”

It is evident that the reason why the Myanmar Armed Forces have burned down the villages of the Rohingya people is majorly to make them leave the Rakhine state and never return.

JURISDICTIONAL ISSUES OF THE INTERNATIONAL CRIMINAL COURT

The ICC created by virtue of the Rome Statute that took effect in July 2002. It jurisdiction over four types of international crimes including; crimes of genocide, crimes against humanity, war crimes and crimes of aggression.  Article 6 & 7 of the Rome Statute, which is the enabling statute of the ICC, gives it jurisdiction over genocides and crimes against humanity as has been committed against the Rohingya Muslims in Myanmar. This jurisdiction is however limited to three circumstances where it can be invoked. They include

  1. If the crimes have been committed on the territory of a state party to the Rome statute
  2. If the crimes were committed by a national of a state party
  3. If the crimes were referred to the prosecutor by the United Nations Security Council.

The first two circumstances have the requirement that the state must be party to the Rome Statute.

SOLUTIONS TO THESE ISSUES

However, in finding solution to this jurisdictional issue, the court can invoke its jurisdiction with respect to the Rohingya crisis based on the third circumstance. The United Nations Security Council (UNSC), as stated in the statute can refer the case to the prosecutor, which can permit the prosecutor to launch an investigation on the issue and thereby bring the perpetrators to book.

However, considering the stance of Russia and China on the conflict in Myanmar, it is highly likely that they would exercise vetoes on the issue in the UNSC. This is because China, who is a permanent member of the UNSC is a close commercial and political ally to Myanmar.  They will therefore veto any suggestion to punish the leaders of Myanmar for their crimes of genocide. Also, Russia who is also a permanent member of the UNSC has strong defense and nuclear cooperation with Myanmar and this may likely cloud their decision in the punishment of Myanmar.

Furthermore, it can be inferred from Article 7(1)(d) of the Rome statute which describes deportation and forcible transfer of population that it is a crime against humanity to forcefully transfer a group of people from one place. However, for this crime to be committed, there is the requirement of two locations. In the instant case, the two locations are Myanmar where the Rohingya Muslims are being chased from and Bangladesh where they are being forced into. The doctrine of territoriality as stated expressly in Article 12(2) can be summoned in this case to give ICC the necessary jurisdiction it needs. This simply means that part of the crime as earlier stated was carried out in Bangladesh, which is a state party to the Rome Statute, this gives the ICC the much needed jurisdiction to try the case. 

CONCLUSION

In conclusion, the ICC can get the assume jurisdiction through a referral of the case from the UNSC to the prosecutor and through the doctrine of territoriality as stated explicitly in Article 12(2) of the Rome Statute. This will help protect the human rights of Rohingya Muslims. It will also help the international community prevent further crimes of genocide and crimes against humanity.

Fayinka Abisola Tiwalade is a student of the faculty of law, University of Lagos. She enjoys writing and reading on varying topics of law. She hopes to be able give meaningful contributions on different gray areas in law.

 

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