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ICC vs Myanmar: A unique opportunity for ensuring accountability

Decisions the ICC will have to take regarding the Rohingya case could have international implications.

A Rohingya refugee woman who crossed the border from Myanmar a day before, carries her daughter and searches for help, in Palang Khali, Bangladesh October 17, 2017 [Reuters]

Over half a million Rohingya have been forced from their homes in Myanmar since 2016, with most crossing the border into Bangladesh. At a time when the number of refugees and internally displaced are the highest in decades globally, addressing root causes and ensuring accountability are important.

Representatives of the UN Security Council recently concluded a fact-finding visit to Myanmar and Bangladesh. The possibility of Myanmar investigating and pursuing accountability for the atrocities that have been committed was raised.

This has been met with much scepticism, given denial on the part of the Myanmar government regarding any responsibility for the mass exodus of the Rohingya. There are also growing calls for the UNSC to refer the matter to the International Criminal Court (ICC). Recent developments are now refocusing attention on the forced movement of individuals across borders, viewed through the lens of international accountability.

Deportation as a crime against humanity

In an unprecedented move, the prosecutor of the ICC is seeking to assert the jurisdiction of the court for the deportation of Rohingya from Myanmar to Bangladesh. This is based on Article 7 of the Rome Statute which includes "deportation or forcible transfer of population" as a crime against humanity. In her motion of 9 April 2018, the prosecutor argues that deportation requires the crossing of an international border and hence, the court has jurisdiction - due to the fact that Bangladesh is a party to the Rome Statute, even though Myanmar is not. Judges of the ICC have been asked to determine whether the prosecutor can proceed in this case.

As a crime against humanity, "deportation" has been included in the statutes of international and hybrid tribunals for the former Yugoslavia, Rwanda, Sierra Leone and Cambodia. However, typically there has been a greater emphasis on crimes considered of greater gravity, often occurring in conjunction with, or the reason for the forced movement of the population.

Also, due to the type of conflicts, displacement within borders has been the focus mainly. While open to interpretation, the distinction drawn by the prosecutor is that "deportation" requires crossing an international border, whereas "forcible transfer" relates to displacement within state borders.

Hence, the argument asserting jurisdiction of the court hinges upon an essential element - completion of the crime of deportation in Bangladeshi territory.

Legal and humanitarian concerns

The focus on deportation in the legal submission excludes a wide array of potential crimes identified by UN experts, including gross human rights violations such as killings, enforced disappearances, torture, sexual violence, and potentially, genocide. While the charges filed by the prosecutor are limited, this may not preclude additional charges subsequently, including by virtue of a potential UNSC referral.

Fulfilling evidentiary requirements to establish deportation as a crime against humanity will be a challenge, should the case move forward. While the completion of the crime requires the crossing of an international border and access to Bangladesh, the other elements of the crime, such as establishing a "widespread or systematic attack" against a civilian population will require access to evidence in, or from, Myanmar.

There have also been concerns pertaining to the process followed thus far. While the Bangladesh government has been asked to present its views to the pre-trial chamber on the prosecutors' motion, the government of Myanmar has not been invited to do so. Further, on the basis of confidential information, a closed session of the chamber and the prosecutor has been scheduled. Such ex parte and closed proceedings have raised legitimate concerns as to the transparency of the proceedings.

The focus on deportation also serves to highlight the plight of those individuals - by various accounts numbering 5,000 - who are in "no man's land", stuck between the borders of both countries. For those who have made it to Bangladesh, dire living conditions in the camps are expected to be exacerbated by the oncoming monsoon.

A repatriation agreement between Bangladesh and Myanmar - which has not been made public - is yet to be implemented. As Human Rights Watch indicated to the Myanmar government, the terms of the agreement are highly problematic pertaining to essential elements including security of returnees, voluntariness of return, access to land and livelihood, and full citizenship rights.

The implementation of the accord has been delayed for a variety of reasons including ongoing violence. The developments at the ICC may put additional pressure on Myanmar and Bangladesh for the modification and implementation of the repatriation agreement, or indeed, may backfire, with no improvement.

Spotlight on forced movement of populations

Mass scale refugee flows, as well as internal displacement, are on the rise. Displacement or deportation are central to most humanitarian crises, with a detrimental impact on the affected populace as well consequences for a host state. The ICC prosecutor, in paragraph 5 of her submission, indicates that enforced migration is of "acute international concern at the present time".

The developments at the ICC are a positive step in terms of international accountability - a test case on the substantive legal question, but also perhaps more crucially, on the issue of jurisdiction.

The impact of a positive ruling of jurisdiction by the court may have cross-border implications globally. It might lead to the prosecutor deciding to take this approach towards asserting jurisdiction when a state party borders a non-state party.

It is not inconceivable that the prosecutor might resort to such action for mass scale refugee movements across state borders or even mass deportations, depending on the factual context. While the innovative approach to asserting jurisdiction may be a positive development, particularly given the inaction of the UNSC, many states will no doubt raise objections.

While global effort should focus on alleviating the humanitarian crisis in Myanmar and Bangladesh, it should also hold accountable those who are responsible for the plight of the Rohingya. In this sense, the ICC proceedings are a step in the right direction.


(c) 2018 Al Jazeera

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