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.