Why the ICC is not doing anything about the Rohingya

‘WHY is the ICC not doing anything about the Rohingya?!’

This is a question I’ve seen a lot from different Burma activists in the past few years.

And when the International Human Rights Clinic at Yale Law School recently released a report concluding that genocide might be happening in Burma against the Rohingya my twitter feed blew up again with many indignantly calling on the International Criminal Court to start an investigation.

Because I am a firm believer in international criminal justice and an avid supporter of the ICC (despite its flaws) I want to explain why a possible investigation into the situation is not actually up to the ICC, and why an ICC investigation might not necessarily be the most appropriate way to protect the Rohingya.

Don’t get me wrong, I do believe there should be an ICC investigation and I agree that genocide might be ongoing (or at the very least crimes against humanity). However, it is important for people to understand who to address their criticism to and what an ICC investigation actually means in terms of protection.

The Rohingya, an ethnic Muslim minority, are one of the most persecuted minorities in the world. It is estimated that roughly about 1-2 million Rohingya live in Burma, while about 250,000 live as, mostly unregistered, refugees in Bangladesh. The Rohingya are not recognized as citizens in Burma by the 1982 Citizenship Law, and despite the fact that the Rohingya have been living in Burma for centuries the government and most people consider them illegal immigrants from Bangladesh. The Rohingya have long suffered discrimination by the government; they are unable to move, marry, or find jobs without obtaining government permits or paying bribes, and are systematically subjected to arbitrary arrests, forced labor, violence, forced displacement and eviction, among other human rights violations.

In July 2012 violence broke out between Buddhists and Rohingya in Burma’s Rakhine (Arakan) State. The violence quickly turned deadly and swept over the entire State, with attacks on the Rohingya by Rakhine Buddhists and some counter-attacks by the Rohingya on the Buddhists, with the Burmese government seemingly both unwilling and unable to do anything to stop it. This has led to many Rohingya now being forced to live in squalid conditions in camps, for ‘their own protection’, where they lack both adequate food and basic healthcare. (For more on this, see my earlier post ‘Burma’s Rohingya Policy – a Slow Burning Genocide’)

The current situation would seem like the perfect opportunity for the ICC to launch an investigation into possible crimes committed in Burma. However, while the persecution of the Rohingya and the recent violence would probably constitute at least crimes against humanity, and therefore technically fall under the jurisdiction of the ICC, it doesn’t mean that the Court has jurisdiction over this specific situation.

According to Article 15 of the Rome Statute, the ICC Prosecutor has proprio motu powers, meaning he or she may initiate an investigation on his or her own initiative.

However, ICC Prosecutor Fatou Bensouda can only use her proprio motu powers if the state where the crimes have happened is a party to the Rome Statute. A quick look at the ICC’s website (or even Wikipedia for that matter) confirms that Burma is not a state party to the ICC. This also means that another state party can’t refer the situation, as would otherwise be possible through Article 14 of the Rome Statute. Therefore, the ICC as an institution can’t be blamed for not investigating the situation in Burma – it simply does not have jurisdiction.

The only way for the ICC to have jurisdiction over a situation like the one in Burma would be through a referral by the UN Security Council acting under Chapter VII of the UN Charter (meaning the situation must be a threat to international peace and security), as allowed by Article 13 of the Rome Statute. It is therefore important to realize that any criticism at the lack of an investigation in Burma by the ICC should be directed, at least for the moment, at the UNSC – not at the ICC itself.

There are also reasons why an ICC investigation might not necessarily provide the urgent protection the Rohingya so desperately need.

First of all, it is important to understand that the ICC is about personal accountability for crimes, not protection against human rights violations. As a criminal court it provides post-facto justice and there is little to suggest that a UNSC referral would act as a catalyst for sudden government interest in the protection of the Rohingya. As such, a referral may in the end provide victims with some measure of justice, but it will not offer immediate protection. If the goal is accountability for past crimes, the ICC might be the right way to go, but if it is about ending the violence and the persecution against the Rohingya, it is probably not the most efficient way.

Second, clearly for the Rohingya time is of the essence. However, lobbying members of the UNSC would take considerable time. And considering the situation in Syria, which occupied most of the UNSC’s time at the moment, and the international community’s lack of action or even criticism regarding the situation for the Rohingya, such a referral is highly unlikely.

Also, even if a referral is made, the ICC’s own process, investigation to prosecution and judgment, will take years. Given these considerations, it may be better to put lobbying efforts towards convincing the international community to put pressure on the Burmese government, than to go through the drawn-out process of a UNSC referral to the ICC.

I am convinced of the importance of the ICC and a supporter of its work. As a Burma activist I would also welcome a UNSC referral of the situation in Burma, as justice and accountability seem impossible to come by at the national level. I am also deeply convinced that something has to be done, and soon, to solve the Rohingya issue in Burma.

However, I would ask my fellow activists for the Rohingya cause to think about what it is they are trying to achieve with an ICC referral. If their goal is protect the Rohingya and to improve the situation on the ground, it may be better to lobby foreign governments to exert real pressure on their Burmese counterparts to actually take steps to find a solution to the issue. This will of course also take a lot of time and effort, but might not only be faster than the ICC road, but might provide some actual protection.

The ICC is certainly not a cure-all to the violence and persecution faced by the Rohingya in Burma, and should not be expected to alone serve as a solution.

Quick Reflections on Paris, Beirut, and ISIS

This post is written by Tara Van Ho, who couldn't post it due to internet issues 

I’ve been off the page for a variety of reasons, starting with being knocked off my feet from food poisoning. But, I want to address the terrorist attacks last night in Paris.

I’m not going to recap what we know – the BBC, CNN, and others are better placed for that. But, last night as friends checked in one after the other on Facebook, I couldn’t help but reflect on how differently the situation played out from that which followed the bombings in Beirut this week.

In case you missed the Beirut story – as several of my friends did – on Thursday, IS claimed at least 43 lives in Lebanon’s capital. More than 200 others were injured.

One of the attacks involved a suicide bomber at the gates of a school.

At a mosque, Adel Termos threw himself on a suicide bomber in an attempt to stop the attack.

IS wants these attacks to be a sign of its strength. They are not. If you are blowing yourself up to kill children, concert-goers, people heading to prayer, or others who cannot defend themselves against you, you are a coward and no amount of shouting allegiance to anyone – or to God – changes that.

You are simply a fucking coward.

Unfortunately, those cowards have been able to inflict a lot of carnage, and too frequently that damage occurs in places the Western media isn’t covering. And that is a serious problem.

The problem is not the western-centric nature of the news. I understand why an attack in Paris gets significant coverage.  There are iconic symbols there, and it’s quite a distance from the conflict in Syria. It’s easy to believe the bombings are “more shocking” than what happened in Beirut. 

At least, if you’re not Lebanese or living in Lebanon or with friends in Beirut.

Keep in mind that the last terrorist attack in Paris was more recent than the last terrorist attack in Beirut.

Following Beirut, none of my friends in Lebanon were able to ‘check in’ on Facebook.  There was approximately 1 story per news organization.  And several of my friends didn’t know Lebanon had even happened until after the devastation in Paris.

This is a problem because the failure of Western media to cover attacks like those in Beirut at the same level, with the same focus and concern for the disruption of people’s normal lives, is that it feeds the damning narrative that these attacks stem from Islam or multiculturalism. If the only attacks the media focuses on involve brown-skinned attackers and white victims, it creates a fear of those who look different and reinforces a belief, that all Muslims (or other brown-skinned people) are silent, at fault, or complicit in these attacks, when really most are victims.

But, if we covered attacks like Beirut with the same level of concern as we see Paris being covered now, we would have a clearer picture that the situation is not about Islam or Middle Easterners. It is not Muslim versus European. Rather, it is a matter of the world vs. ISIS.

Since the year 2000, including the 8 identified last night, 41 Muslims have been implicated in terrorist attacks in the EU.  That includes individual stabbings and shootings.  It also includes those identified as providing assistance to the attackers. 

41.  Out of more than 19 million Muslims in the EU.

Google tells me that means less than 0.000002% of the Muslim population in Europe have been implicated in terrorist attacks.

And I realize there are some who have been involved but haven’t been identified.  Consequently, the number doesn’t include those responsible for the Madrid attacks.  But even if you have 5 unidentified people for every 1 we know, you’re looking at less than 250 people since 2000. And that’s still only 0.000013% of the Muslims in Europe.

This is so miniscule because the problem isn’t Islam. And it’s not multiculturalism.

The problem is a limited number of small-minded men who want to feel big about themselves.

If we let their hatred lead us, we will be following a dark and dangerous path, one not worthy of our collective humanity.

Martin Luther King, Jr., said two things that stick with me in times like this: “Hate cannot drive out hate. Only love can do that.”  And “The moral arc of the universe is long but it bends towards justice.” 

I believe that arc bends only because of the people standing on it, pushing it towards something better.

Be one of those people.  Stand on the moral arc.  Fight IS and its idolatry of self (because that’s really what it worships). Don’t fight those who are already victims, like the millions of Muslim refugees who are dying – quite literally – to get away from the Islamic State.