Accountability and Justice for the Rohingya

Kate MacSweeney
Former legal and advocacy intern, Coalition for the ICC

On 11 November 2019, The Gambia formally submitted its case at the International Court of Justice against the government of Myanmar for failing in its obligation to prevent and punish the perpetration of the crime of genocide against the Rohingya people.

The Rohingya, a Muslim ethnic minority group from Rakhine State in Myanmar, have been the target of indiscriminate killings, rape and sexual violence, arbitrary detention, torture, beatings, and forced displacement by Myanmar security forces since late 2016.

A UN Human Rights Council-mandated Independent International Fact-Finding Mission on Myanmar released a report in September 2019, that concluded that Myanmar “continues to harbor genocidal intent” towards the Rohingya.

The ICJ case is one among a number of judicial forums hearing cases involving the long-suffering Rohingya. Two others include a case at the International Criminal Court that has reached the investigation stage, as well as a case in an Argentinian court under that country’s universal jurisdiction legislation.

1) International Court of Justice

As relied upon in The Gambia’s application to the ICJ, the facts of the crimes have been extensively documented by independent investigations conducted under the auspices of the United Nations and corroborated by international human rights organizations and other credible sources. These have included reports and statements by the UN Special Rapporteur on the situation of human rights in Myanmar, the UN Special Advisor on the Prevention of Genocide, the UN Human Rights Council’s Independent International Fact-Finding Mission on Myanmar, the UN Special Rapporteur on Freedom of Religion or Belief, the UN Deputy High Commissioner for Human Rights, the UN Committee on the Elimination of Discrimination Against Women, UNOSAT, as well as Amnesty International, Human Rights Watch and many other civil society organizations.

The accumulation of these sources of information and evidence helps make international judicial remedies more feasible.

Filing the case on behalf of the 57-members of the Organization of Islamic Cooperation (OIC), The Gambia asked the Court to order measures against Myanmar to cease all ongoing internationally sanctionable wrongful acts, ensure that persons responsible for the abuses are tried and punished, provide reparations to the victims, guarantee safe and voluntary repatriation, and to provide assurance and guarantees of non-repetition. The ICJ held public hearings on the matter from 10 to 12 December 2019, at the Peace Palace in The Hague.

On 23 January 2020, the ICJ unanimously issued provisional measures in the case, ordering Myanmar to: refrain from acts of genocide against the Rohingya; ensure that groups under its control, including military forces, refrain from acts of genocide; preserve, including through preventing the destruction of any evidence related to allegations of genocide; and submit a report four months from the date of the order outlining the steps taken to implement the above mentioned measures.

Although the January order is not a formal determination that Myanmar committed genocide against the Rohingya, it is still a positive development for the Rohingya people  (should Myanmar agree to follow the order), as well as The Gambia’s ability to bring forth a case against Myanmar despite not having been directly affected by it. Before her term ended, the outgoing UN Special Rapporteur on Human Rights warned about escalations of violence and the potential of further violations, despite the ICJ order. Looking ahead, the ICJ also released a schedule for the filing of initial pleadings: The Gambia must submit a written memorial by 23 July 2020 and Myanmar must submit its response by 23 January 2021. While the January provisional orders can be seen as a positive step forward, it will likely be years before a final decision is reached.

2) International Criminal Court

Several days after Gambia filed the ICJ suit, the International Criminal Court authorized the opening of an investigation into the situation in Bangladesh and Myanmar, following an earlier request from the Office of the Prosecutor. In reaching this decision, the Court heard from many of the alleged victims as well as others speaking on their behalf.

Myanmar is not a party to the Rome Statute of the International Criminal Court. However, the Court ruled last year that it did have jurisdiction regarding the crime against humanity of deportation with reference to the Rohingya fleeing to Bangladesh, which is a State Party to the ICC.

The investigation at the ICC is ongoing. The Judges authorized the investigation with broad parameters, allowing the Prosecutor to investigate any crimes under the ICC’s jurisdiction (war crimes, crimes against humanity, genocide and the crime of aggression)  and committed fully or in part on the territory of Bangladesh or another State Party to the ICC, as long as the alleged crimes are sufficiently linked to the current situation. The Office of the Prosecutor is currently organizing a fact-finding mission to gather evidence relevant to the situation to build their case.

3) Argentina’s universal jurisdiction

On 14 November 2019, some Latin American human rights groups instituted proceedings in Argentinian tribunals under the principle of universal jurisdiction. This marks the first time since the beginning of the genocide that a case has been made directly against Nobel Laureate Aung Suu Kyi, as well as several other top Myanmar officials. However, the current prospect of Suu Kyi either visiting or being extradited to Argentina is unlikely, and so the potential of any such trial occurring remains unclear. However, these proceedings provide for yet another possible avenue for justice for the Rohingya, and paired with the situations at the ICJ and ICC, underscore the need to ensure accountability in Myanmar.

Complicating matters further, the COVID-19 pandemic has reached refugee settlements in Bangladesh. The densely packed, under-resourced camps do not have the capacity to ensure sufficient conditions for self-isolation and proper sanitation for the nearly one million Rohingya who call the camps home. The serious risk posed by the spread of COVID-19 puts into sharp relief the need to urgently deliver justice to this group of people who have suffered unspeakable crimes for so long.

While the political and legal challenges faced by those attempting to provide justice for the Rohingya, and now including issues related to the COVID-19 pandemic, have at times seemed insurmountable, momentum has steadily been growing since last year to end impunity for the atrocities committed against this group.

At an NGO side-event on December 5, 2019, at the Assembly of States Parties to the International Criminal Court, a number of speakers pointed to the ethnic violence that is also prevalent in other parts of Myanmar. The Rohingya are only the worst victims in a state where discrimination and internal repression are quite ingrained. Tun Khin, a Rohingya activist who has worked to get the Argentina case to court, said: “We don’t want revenge on the government. We just want our communities to live in peace. Now we can see the wheels of justice finally starting to turn. It feels like peace might be getting closer.”