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.