Law and Politics of International Criminal Liability for ‘Ethnic Cleansing’ in Rakhine

In recent times, numerous international rights organisations and leaders across the world have been arguing for the referral of the ‘ethnic cleansing’ campaign of the Rohingyas in the Rakhine by the Myanmar military to the International Criminal Court (ICC).  With every passing day, the repatriation of the Rohingyas, and due recognition of their rights and freedoms seems to be moribund. If nothing else, the world at least owes the Rohingyas an acknowledgement of their pain and suffering, as a fact, by holding the culprits and the instigators of the ethnic cleansing campaign accountable under the rules of international law. This piece explores the relevant international law and political considerations involved in such an endeavour.

The information and evidence collated by various organisations including the United Nations (UN) and their statements issued to that end, point to the fact that the atrocities committed in Rakhine may amount to the international crimes of genocide and crimes against humanity enunciated in Articles 6 and 7 respectively of the Rome Statute of the International Criminal Court, 1998 (Rome Statute). However, it must be noted that Myanmar is not a state party to the Rome Statute. Hence, the ICC cannot automatically exercise its jurisdiction over the alleged crimes perpetrated in Myanmar. However, as per Article 13(b) of the Rome Statute, the UN Security Council (UNSC); acting under Chapter VII of the Charter of the United Nations, through the adoption of a resolution can refer a situation, in which crimes such as genocide and/or crimes against humanity appear to have been committed, to the Prosecutor of the ICC, even if the crimes have been perpetrated in a state that is not a signatory to the Rome Statute. Hence, such a referral by the UNSC would be required in the present scenario to give the ICC jurisdiction to try the alleged crimes committed in the Rakhine since Myanmar is not a party to the Rome Statute.

The international law on the issue is quite straightforward but the politics; not so much. It is highly likely that any UNSC resolution with regard to referral to the ICC would receive majority support but will ultimately fail due to a veto by China and Russia.

China will veto the resolution because of its historically close ties with Myanmar and its geopolitical fight with India to maintain its influence over the country. However, in recent times, China is under increasing scrutiny for its treatment of the Muslim Uyghur minority in Xinjiang. An affirmative vote in the UNSC could be an opportunity for it to recoup some of its lost credibility in the Muslim world. Moreover, China is no stranger to atrocities of mass murder and rape of innocents. Recently, we marked eighty-years of the infamous Nanjing Massacre perpetrated by Japanese troops in the six weeks that followed 13 December 1937. China is also no stranger to the sentiments that ensue when the commission and the true extent of the atrocities are denied and challenged respectively. The Nanjing Massacre is still fresh in the Chinese national memory, and disputes regarding its nature and extent continue to be a bone of contention in Sino-Japanese relations.

China and India are at loggerheads with each other to support the Myanmar government. Preferably, both countries should outright support a referring resolution in the UNSC. Regardless of India’s stance, China should nonetheless support such a referring resolution as a mark of respect to the horrors its people endured in the past and to demonstrate its commitment to the rules-based international order, over which it intends to exact considerable influence and authority as a super-power. Hence, even if the decision entails short-term political costs, it is more beneficial in the long term and more importantly, it is just.

Now, Russia is unlikely to unilaterally veto a referring resolution. It too has a significant Muslim minority, which it would not want to antagonise over a country which is geopolitically and economically insignificant and also keeping in mind its close ties with Bangladesh; the country that is now home to over 700,000 Rohingya refugees. Additionally, Bangladesh needs to actively and persistently advocate and insist on such a measure in the UN and across its relevant diplomatic missions. Chastening the perpetrators of the ‘ethnic cleansing’ is also in Bangladesh’s interest as it is the best way of reassuring the Rohingyas of their safety and security in their homeland, thus moving a step towards their voluntary repatriation. Bangladesh, too, is no stranger to the crimes of genocide and crimes against humanity, and it too understands the sentiment when the commission and magnitude of such crimes are denied and challenged respectively.

At the end of it all, a ‘people’ who have been subjected to mass killings, rape, and destruction of their homes deserve justice, and such atrocities and their perpetrators; no matter the political and economic ramifications; must be condemned and punished.

This article was originally published in The Daily Star on 3rd March 2018. The original version is available at: https://www.thedailystar.net/opinion/human-rights/search-justice-1542661