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Can international law help Myanmar's Rohingya people

Can international law help Myanmar's Rohingya people
Rohingya refugees walking from Myanmar into neighbouring Bangladesh - october 2017 REUTERS/Zohra Bensemra

There are now 1.1 million Rohingya refugees in Bangladesh, living in camps near the border with Myanmar. They fled burning villages, killings, rape, mutilations perpetrated by the Myanmar army and civilians. Today they are seeking legal actions against the alleged perpetratrors of crimes they qualify as genocide. The International Criminal Court has already been set into motion but legal experts believe there are better, more expeditious proceedings.


The International Criminal Court (ICC) has asked Bangladesh for "written observations on the circumstances" surrounding the presence of Rohingya people in the country.

Bangladesh’s Minister for Foreign Affairs Shahriar Alam said his government has complied with the ICC’s demand.

“We have provided all the information they asked for and everything that we know from our experience,” he said, while adding that the Bangladeshi government is still committed to settling the matter bilaterally.

This is part of a process set in motion when ICC prosecutor Fatou Bensouda sent an application on 9 April, asking the judges to rule on whether the court has jurisdiction over alleged deportation of Rohingyas from Myanmar to Bangladesh, a possible crime against humanity.

But is the ICC the best option?

Professor John Packer believes that there are better alternatives, like the International Court of Justice and the United Nations Convention on the Prevention and Punishment of the Crime of Genocide adopted by the UN State members in 1948.

John Packer is a professor of law at the University of Ottawa in Canada and has been working on Myanmar since 1992, when he was assistant to the United Nations Special Rapporteur on human rights in Burma.

He says that the ICC has a limited scope when the issue of reparation is raised because only individuals are targeted and not the state. Whereas under the UN Genocide Convention the state may be held accountable for crimes it did not prevent or if it failed to punish the perpetrators of said crimes.

Myanmar voted for and ratified the convention in 1956. Packer says that it was agreed by UN member states to stop another holocaust. If there is any breach of the convention, other member states - having ratified the treaty - cannot sit passively and are under obligation to take action, he pointed out.

A state that is party to the convention could bring a case against Myanmar at the International Court of Justice (ICJ) based in The Hague. There is no requirement for the state bringing the claim to have itself been injured in some way by Myanmar's conduct.

But, as Cambridge University researcher Michael Becker points out, there are several obstacles to pursuing a case at the ICJ.

An ICJ case against Myanmar requires finding a state that is willing to bring the case, he told RFI. And it is rare, although not unprecedented, for non-injured states to bring such cases.
Bringing an ICJ case can have political and economic costs. It may be perceived as a hostile act, not only by Myanmar but by other states that support its government

The question Becker asked is what state or states might be willing and able to undertake such a litigation. Doing so, he says, requires a willingness to commit the necessary resources and a willingness to face the political blowback that might follow.

States in which there are vocal diaspora communities of Rohingya refugees might be places where there are opportunities to build local support for such an effort.

Becker added that there is no guarantee that a claim against Myanmar alleging genocide would succeed as a legal matter. He wrote that the law of genocide has been interpreted by international courts and tribunals, over time, in a highly restrictive way. Even when there is abundant evidence of terrible acts of violence and cruelty, the task of demonstrating genocidal intent – that is, intent to destroy in whole or in part a protected group– is very steep.

But, Becker stressed, the difficulties outlined do not necessarily mean that pursuing a case would not have a strong political impact or serve other purposes. Bringing an ICJ case, he says, would require Myanmar to respond to the very serious allegations of mass atrocity in a formal judicial setting. The proceedings themselves would be an opportunity to shine a light on everything that has happened, including the regime’s efforts to rewrite history.

Note: The interview with John Packer was recorded before Bangladesh responded to the ICC

Follow Zeenat Hansrod on Twitter @zxnt


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