Myanmar and the International Criminal Courts: Finding Loopholes in International Law in the Search for Justice

For decades now, the international community has searched for a way to provide justice and accountability when addressing mass crimes against humanity, yet obstacles such as politics, legal red tape, and jurisdictional laws manage to consistently obfuscate this search. The international community struggles to make use of limited resources and abilities to provide relief and aid. In the form of legal action, they are held back by technicalities and jurisdictional issues. As the anniversary of the start of the Rohingya genocide in Myanmar passed in August, an answer to provide justice and an end to violence remains necessary, despite the difficulty entailed in finding such an answer. A solution through the legal system and the International Criminal Court was found. This solution makes use of a technicality within the jurisdictional laws for the court. If successful, working through this ‘loophole’ could finally bring about change for both the Rohingya people and the global community as a whole, creating justice for the victims and accountability towards the perpetrators.

Over a year has passed since the most recent outburst of mainly state-sponsored anti-Rohingya rhetoric and violence has broken out in the nation of Myanmar. The bloodshed led and organized by the country’s Buddhist majority, is targeting the Rohingya people: a majority-stateless Muslim minority who live in the Rakhine state along the coast of the Indian Ocean, near the Bangladesh-Myanmar border. Although a majority of the 1 million Rohingya who live in Myanmar are able to trace their roots back hundreds of years in the country’s history, they are denied citizenship, political representation, and are considered to be illegal migrants from the neighboring nation of Bangladesh. As a result of this, the Rohingya have managed to form a unified political, ethnic, and religious identity that is strikingly different from the rest of Myanmar’s 135 ethnic groups. Their distinct and solitary culture has led them to face severe discrimination since the 1970s, experiencing everything from the stripping of legal rights to alleged abuses by police and other officials.

In August of 2017, that persecution evolved into the latest wave of extreme violence, manifesting itself in the form of rape, murder, and arson. The violence and attacks have brought about one of the fastest growing and most pressing refugee crises of the 21st Century. The events in Myanmar have led to a mass human migration whose growth rate has reached the levels of and, in some cases, even surpassed other current refugees crises - such as Syria, Somalia, Afghanistan, and South Sudan - that have been going on for much longer.  In the mere year since the genocide began, over 700,000 Rohingya have fled from Myanmar to Bangladesh, where they now live in overcrowded and under-resourced refugee camps along the border. The intensity of the crisis and lack of response from the Myanmar government has led the international community into a frantic search for a remedy to the violence, and more importantly, justice for the Rohingya.

The question of how to bring aid and justice to the Rohingya people has plighted the international community since the start of the crisis in 2017. On the side of humanitarian aid, Bangladesh itself has devoted large amounts of its already limited and strained resources to take care of the refugees fleeing into its lands. The United Kingdom halted its training courses for the Myanmar military and pledged to provide 59 million pounds in aid resources for those in flight. On the other side of the coin, ASEAN (the  Association of Southeast Asian Nations) has avoided interference. This is due to the fact that ASEAN operates on consensus, and as Myanmar is a member, a full agreement will never be reached; Myanmar will always respond to measures brought to the table with dissent and disagreement. Nonetheless, a majority of the world’s countries have agreed that something must be done to end the violence in Myanmar, something outside of providing food and vaccines. What was needed is legal action in the form of international law.

In March of 2017, the United Nations Human Rights Council appointed a special panel to investigate and document the extent of the crimes that are occurring within Myanmar. A year and a half later, the panel returned with their final report, in which they established that Myanmar’s security forces are responsible for numerous “heinous crimes,” including hate rhetoric, exclusionary policies, imprisonment, arson, expulsion, torture, murder, rape, and sexual slavery. The UN Fact Finding Mission on Myanmar also concluded that the acts committed by security forces amounted to four out of the five acts prohibited by the Genocide Convention - “(a) killing, (b) causing serious bodily or mental harm, (c) inflicting condition of life calculated to bring about the physical destruction of the group or in part, and (d) imposing measures intending to prevent births.” With the evidence put forth and determination of guilt made, the panel ended their report by recommending that the international community continue to administer relief aid for the refugees, place greater pressure on the Myanmar government to end the violence and support legal action against the perpetrators. In the case of legal accountability, it was determined that any legal action should be referred to the International Criminal Court for prosecution.

In their twenty years, the International Criminal Court has prosecuted multiple nations and world leaders for crimes against humanity. Although they are more than qualified to perform the job of prosecuting Myanmar and its security forces, they are held back by a technicality in that they do not have complete jurisdiction over the case. Myanmar refused to join the ICC Rome Statute in 1998 and has yet to accept membership in the twenty years since, making them outside of the court’s general jurisdiction. However, on September 6, 2018, the ICC’s Pre-Trial Chamber I  found a loophole that allowed them to declare that the ICC does have the jurisdiction to prosecute Myanmar on the crime of the forced deportations of the Rohingya people, as well as any other crime against humanity that they deem applicable. This is due to the fact that although the International Criminal Court is unable to prosecute Myanmar for their actions inside of their borders, they are able to extend their power over the crimes that spilled over the border into Bangladesh, who is a signatory of the Statute. The nation of Myanmar responded negatively to the ‘loophole,’ stating that it goes against the 1969 United Nations Vienna Convention, as well as their general sovereignty as a nation. With the approval of the preliminary court, the case’s prosecutor, Fatou Bensouda, plans to continue with her preliminary investigation, which, one would hope, will lead to indictments, arrest warrants, and a trial.

A trial targeting any and all Burmese leaders who are designated through Bensouda’s investigation is a necessity. The idea of international accountability is a relatively new concept, only having come into existence within the last century. Nations often attempt to hold one another accountable through the use of methods, such as trade sanctions, embargoes, and holding of funding. All of these methods hold complex results. In the case of trade sanctions, if not specifically targeted towards a nation’s leaders or elite, the sanctions themselves could prove harmful to civilians and non-impactful to leaders. The ability to create accountability through economic legislation is limited and focuses on merely the beginning or middle of an event, not the end or aftermath. Legal accountability is able to address issues of human rights violations or genocide after they have taken place for long periods of time or even ended. However, due to international law and accountability being relatively new terms, justice and punishment have yet to be delivered in a way that is recognized by the global community, as well as in a way that deters further incidences of human rights violations, particularly ethnic cleansing and genocide. Although Fatou Bensouda and the rest of the International Criminal Court will doubtlessly face a multitude of challenges in their fight for justice and accountability for the Rohingya people, it is a necessity that they do all they can to succeed.  The loophole of going through Bangladesh in order to prosecute its neighbor is a controversial one yet may prove to just be enough to bring about justice for those who have been affected by the actions of the nation of Myanmar and its security forces. Without the loophole, the international community would be extremely limited in their response to the crisis, as they would be trapped with humanitarian aid and economic sanctions being their only options to provide assistance to the fleeing Rohingya. If the trial is successful, the Rohingya may be able to receive justice and a sense of closure and protection from the persecution and genocide that has taken place. However, success may also lead to a debate on the rights of states and whether Myanmar’s rights as a sovereign nation were disregarded or even violated. The case will also play a major role in defining the powers and standing of international law, as well as the International Criminal Court. Whether the trial behind what has become known as the Rohingya Genocide succeeds or fails, it could pave the way for a new era of globalized law and politics, as well as a change in the way that today’s plight of human rights abuses is addressed.

The Refugee Camp Economy and the Economic Argument for Re-Conceptualizing Camps as Permanent Cities

Though the European Migrant Crisis has refocused Western attention toward the plight of the refugee, the issue of how a host country should deal with incoming refugees is not new. Many host countries choose to house refugees in camps, or designated areas often prepared in haste for the temporary housing of incoming refugees. However, these camps tend to exist longer than initially anticipated, and eventually begin to resemble makeshift cities, sometimes with tens of thousands of inhabitants living in a given area for an extended period of time. In time, a local economy begins to take form, and while the refugee camp economy is currently rather under researched, what economic and ethnographic research that has been done reveals key economic inefficiencies in the way camps are constructed.

In a few ways, the refugee camp economy functions much like one might expect. The primary economic actors tend to be the inhabitants themselves (as opposed to local citizens of the host country), many of whom come into the camp with previously developed productive skills and some even with access to valuable commercial networks or even financial capital back home. That being said, there are no large corporate businesses, and instead most commerce is conducted through either small specialized shops in designated market districts, or generated via the refugees’ agricultural production.

Perhaps surprisingly, there are often benefits to living and working in these camps as well. The 1951 Refugee Convention requires that taxes and tariffs levied on refugees may not be higher than the level that nationals of the same tax category pay, though often refugees do not pay taxes at all, or pay lower taxes than citizens of their host country. For example, Afghan refugee truckers working in Pakistan are exempted from licensing fees that Pakistani truckers must pay. Likewise, asylum seekers coming to Nakivale (Uganda) receive a plot of land with which to start a farm for free upon arrival. It seems from these observations that host countries generally recognize that there is typically little revenue to gain from refugees, and that refugees can typically contribute more to a country’s overall economic well-being as cheap labor than as direct revenue sources.

However, the economic costs associated with living and working in a refugee camp tend to offset or even overshadow the small benefits enjoyed by refugee workers. The most fundamental of these costs is the restrictions on movement outside of the camps. In order to travel outside of a given camp, refugees are almost always required to possess a permit issued by a settlement commander. These permits, though often in high demand, are not always easy to obtain. Werker (2007) notes that in the Ugandan camp in Kyangwali, the commander only issues permits on “one or two scheduled days each week.” Though these permits are generally free, they are issued at the commander’s discretion, exposing the permit allocation process to favoritism, prejudice, or even outright corruption.

This makes it difficult to conduct trade as a refugee. First, there are significant time costs involved, even if you know exactly when you will need the permit and when to see the commander, as the refugee must travel to the commander’s office and wait for however long it takes to see the commander, a process that the refugee must set aside at least a half of a day to complete. In addition, the refugee must have the foresight to plan ahead when exactly they will require access to an outside market, and then hope that they will be able to obtain the needed documentation when they expect to need it. Because of these high transaction costs associated with doing business with the outside world, a refugee is incentivized to start a business that caters to the needs of those inside the settlement. This means that refugee entrepreneurs are limited to maintaining small shops or general stores inside the camp itself, limiting themselves to smaller market sizes and lower growth potential.

Additionally, refugees face restrictions on their ability to work outside the camps, in addition to restrictions on their ability to leave the camp. Typically, in order to work outside of the refugee camp, refugees must get a work permit from the national visa office in the host country’s capital. This permit is difficult to obtain because of both time and monetary costs associated with obtaining the visa. In terms of monetary costs, the refugee must pay for transportation to the host country’s capital and back, and pay administration costs for the work permit itself. All-together, for the refugees living in the Kyangwali camp in rural Uganda, it costs more than a season’s worth of agricultural revenue just to make the journey to Kampala (which itself does not guarantee the permit), and around 6.5 times as much as the average season’s agricultural revenue to cover administration costs, which is “prohibitively expensive” for many refugees to obtain. With respect to time costs, the refugee must obtain a permit to leave the camp, travel to the host nation’s capital, jump through all the hoops associated with obtaining the work permit, and return to the camp before the permit to leave the camp expires. One mistake could throw off the timing of the delicately constructed journey, jeopardizing the refugee’s ability to make it back to the camp on time. The complexity and financial infeasibility of the process of obtaining a work visa discourages refugees from working outside the camp, even if the job opportunities within the camp limit the refugee’s ability to realize their full earning potential. Though specific details concerning its nature have not been recorded, similar restrictions to refugees’ movement (either by law or economics) have been reported in Zaatari (Jordan) and Calais (France), indicating that the Kyanwali account is not unique.

In addition to limiting one’s ability to work, barriers on easy movement present at many refugee camps (as well as the physical distance from the host nation’s population centers found at some of the more rural camps) contribute to unreasonably high information costs concerning economic activity in the outside world. In refugee camps, there tends to be little to no up to date information for refugee businesses concerning prices, new suppliers, best fertilizers, who is selling what crop, etc. This is particularly detrimental to farmers, and appears to at least partially explain why farmers in the Nakivale (Uganda) tend to grow maize more often than not, even when other crops have reportedly brought in seven times as much revenue in markets nearby, but outside of, Nakivale. Obviously this puts refugee businesses at a disadvantage and, much like how restrictions on work limit a refugee worker’s earning potential, the lack of up to date information limits the growth potential of refugee businesses.

Additionally, the extreme isolation, maintained in part by restrictions on movement, creates an environment that is ripe for predatory pricing on behalf of host country nationals doing business with refugees. The isolation of the camp means that the camp receives relatively few external traders selling goods to the refugees and buying the refugees’ agricultural products. Even if the external traders do not explicitly collude in a collective effort to cheat the refugees, the nature of this kind of oligarchic market sustains unfair prices for longer periods than in the more competitive markets that exist outside of the refugee camp.

Likewise, the isolation of camp, either as a product of sheer distance or by movement restrictions imposed on refugees, limits the market size and complexity available to refugees. As a business, this limits one’s growth and diversification potential, as it forces the business to cater to the demand of the camp exclusively, as opposed to being able to diversify to the demands of the camp and several other local markets in the region. As a laborer, the lack of diverse employment options limit’s one earning potential, as it becomes increasingly difficult to find employment that best matches one’s particular set of skills as the total market size of the camp, and subsequently the total amount of employers, decreases.

In fact, we see again and again that the status quo of refugee camps imposing strict constraints on refugees’ ability to move and work outside the camp yields economic inefficiencies (without mentioning, of course, the potentially unlawful nature of such restrictions). Naturally, one may wonder why host countries adopt these restraints on refugee movement and work in the first place. The obvious explanation is that there are security concerns with allowing refugees to move freely around a host country. Concerns over security are certainly legitimate, and can justifiably supersede concerns about economic inefficiency. Less justifiably, but certainly realistically, it would be difficult to doubt that there is a prejudicial tendency on behalf of the host country to want to keep refugees confined to certain areas, and that sometimes these prejudices can overshadow one’s better judgment.

Additionally however, restrictions on movement and work are put in place because the refugee camp is intended to provide temporary asylum from immediate danger. They are often built in haste and grow in an ad-hoc manner, as tents are pitched the day they are needed. This lack of long term planning and emphasis on temporary solutions indicates that there exists a conception that refugee camps are merely interim working and living arrangements meant to exist after the refugee has fled their home country, and before they return. Therefore, the host country is not looking to assimilate refugees into their economy, but merely support them for a few years before they leave. Restrictions on work and movement become comprehendible policies, as this makes it difficult for refugees to root themselves in their host country long term.

In the face of this observation, it becomes clear that in order to make it easier justify lifting barriers to movement and work, and realize the economic gains to be had from a large population of laborers with diverse skills, it would behoove host countries to re-conceptualize refugee camps as permanent refuge cities instead of mere spaces of temporary asylum. At first take, this idea of accepting the permanent nature of these refugee settlements explicitly undermines any hope that refugees or host countries may have of the refugees returning to the life that they once had. The ideal narrative of refugees coming to a camp to wait out a conflict in their home country until it is safe to return, is only a valid conception of the situation if it is understood that the camps, and the circumstances that drive refugees into the camps, are ultimately temporary. For the refugees themselves, framing life in a refugee camp as ultimately temporary implies an eventual return to normality, fueling a feeling of hope that is doubtlessly valuable at such a difficult time.

But this narrative has been deemed incompatible with reality by recent history. By UNHCR estimates as of 2003, the average amount of time spent in “protracted refugee situations” (i.e., refugee situations including, but not limited to, living in refugee camps) is 17 years. This explicitly undermines the narrative that refugees only need asylum for a few years while they wait out danger. In reality, refugees who come to refugee camps (or choose to formally migrate to other countries altogether) should be seen as individuals who are, more often than not, there to stay.

And once this idea of permanence is accepted, the host country is in a better position to lift the restrictions of movement and work currently imposed on migrant communities. If one believes that refugees are only in a host country for a couple years to wait out a conflict, it is easier to accept the inefficiencies associated with limiting the growth potential of refugee businesses, constricting the earning potential of refugee laborers, subjecting refugees to unfair trading dynamics, and lack of access to information. If it is accepted that the refugees will be in a given camp for an average of 17 years, the economic inefficiencies derived from restrictions on movement and work become glaring, as the host country is essentially giving up a generation of lost productivity. It becomes obvious that both the individual refugee and the host country’s economy stand to gain from the refugee’s free movement and ability to work.

Unfortunately, empirically estimating the economic effects of these restrictions on movement and work has proven difficult, and much of the academic work concerning refugee camp economies has been founded upon direct observation and the application of general economic principles. Likewise, no refugee camp has officially been designated as a permanent city or area of asylum, denying the opportunity for a natural experiment. This lack of empirical work leaves room for further exploration as to the magnitude of the claims made in this article.

What is no longer up for debate however, is whether refugee camps should be seen as temporary housing, or as permanent cities with citizens able and willing to contribute to the host country’s economy. What the persistent metropolis’ of Dadaab and Nakivale make clear is that camps tend to stay open much longer than intended, and are better thought of as permanent fixtures in their regions rather than temporary anomalies. Considering this fact, it simply makes sense to re-conceptualize refugee camps as cities, and to lift the economically unnecessary restrictions on work and movement currently imposed on the inhabitants of these cities. At the very least—perhaps if security concerns render this solution improbable—it must be recognized that current restrictions on movement and work that refugees face in camps is economically inefficient, and that finding a way of easing these restrictions would improve the welfare of the individual refugee and host country concurrently.

Of course, basic asylum for refugees fleeing immediate danger should remain the priority, and capturing the economic gains from these refugees should be of second order to this immediate need for safety. But acknowledging that there is a hierarchy of priority when dealing with refugee camps does not preclude realizing second order goals entirely. This is not about shifting the focus from providing asylum for people in need to turning desperate people into economic gains. Rather, it is about capturing what is already there.