In search of international justice: The Rohingya

Rohingya camp

Rohingya, citizen of Myanmar’s Rakhine State, are the most persecuted minorities of the world. Though it is historically proven that they are integral part of Myanmar, Myanmar govt. considers them as British colonial and postcolonial migrants from neighboring Bangladesh. The persecution of the Rohingya has a decade long history. Violent, large-scale crackdowns by Burmese military targeted toward the Rohingya – like Operation King Dragon in 1978, and Operation Clean and Beautiful Nation in 1991 – forced hundreds of thousands of Rohingya to flee Burma into Bangladesh.

In 2017 the military of Myanmar launched a latest merciless onslaught against the Rohingya communities, something that the head of the UN agency for human rights referred as “acts of horrific barbarity,” potential “acts of genocide,” and “a textbook example of ethnic cleansing”. Over a million Rohingyas were forced to seek shelter in neighboring country, Bangladesh.

In 2018, The UN Fact-Finding Mission on Myanmar reported atrocities that “undoubtedly amount to the gravest crimes under international law” and that could constitute a genocide. The report highlighted the extreme scale and brutality of the violence. It said estimates of 10,000 deaths took place in the Rakhine campaign and cited harrowing witness accounts of mass killings, gang rapes of women and young girls and the wholesale destruction of villages by the military.

In seeking for justice, in 2019 the Republic of The Gambia, a west African country, instituted proceedings against Myanmar at the International Court of Justice (ICJ) in The Hague. It argued that Myanmar was in breach of its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide for acts that “intended to destroy the Rohingya group in whole or in part”. In December 2019 the world was afforded the astonishing spectacle of Nobel Peace Prize laureate Aung San Suu Kyi, the head of Myanmar’s democratic party National League for Democracy (NLD), vigorously defending Myanmar and its vicious military at the ICJ against these charges.

The question of who represents Myanmar in international fora has been a contentious issue since the coup, the military junta or the Myanmar’s National Unity Government (NUG)-in exile, comprised largely of elected members of parliament and ethnic minority representatives. Since ‘parties before the Court are states, not governments’ with the clear implication that the representatives in the court do not reflect the conferring of recognition, at the ICJ the junta has prevailed.

This signals to a further delay in considering the substance of the proceedings. The military junta has continued Aung San Suu Kyi’s preliminary objections in the case, arguing that The Gambia was acting as a “proxy” for the Organization of Islamic Cooperation, and also that it lacked standing to bring the case. In contrast, the NUG has withdrawn the preliminary objections and contends that UN Ambassador Kyaw Moe Tun, who supports the opposition, is “the only person authorized to engage with the Court on behalf of Myanmar”.

The junta’s representation of Myanmar in these hearings, according to Yanghee Lee, a former UN special rapporteur on human rights in Myanmar, is a shame. These hearings are focused on the preliminary objections, which the judges will need to consider for a number of months. Instead, the Court should acknowledge the NUG’s legitimacy, publicly reject the objections, and then quickly get to work on the case’s main issue—the horrors committed against the Rohingya people.

Regrettably, it is highly doubtful that the court will order a different set of attorneys to represent Burma now that the case has officially started. A decision from the proceedings was already expected to take many years. The long-suffering Rohingya of Myanmar must now adapt to the glacial speed of international law in order to get any semblance of justice, with months of wasted time still to come arguing the preliminary objections.

Coming to the ICC, after Russia’s expanded invasion of Ukraine in February 2022, the ICC Prosecutor announced an ICC investigation into alleged crimes in Ukraine in March, a month after the attack. The ICC Prosecutor was also quick to issue a clear warning against committing crimes in Ukraine. No similarly strong ICC public statements have been forthcoming concerning Myanmar. Nor has there been the same level of public support for prosecutions from other states. This is a concern, particularly since there is a view that prosecutions, arrest warrants, and statements from the ICC Prosecutor could have a deterring and preventive impact, especially during an active conflict.

At least from the outside, this should be the case for Myanmar. There is substantial information on the crimes alleged; the dedicated UN Fact-Finding Mission concluded in an August 2018 report that the Myanmar military “committed what amounts to war crimes and crimes against humanity” and an Independent Investigative Mechanism continues to capture and collect potential evidence on international crimes. There has been no such coordinated push on Myanmar, despite the gravity of the crimes alleged and the ongoing allegations of atrocities following the 2021 coup. An ICC office has not opened in Bangladesh or Myanmar, leaving Rohingya communities even further removed from the distant Europe-based ICC. Every victim, including the Rohingya, deserves the same treatment as a large portion of the globe is exhibiting about Ukraine.

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