Rohingya Flight Gives International Criminal Court Myanmar Crimes Jurisdiction

"Fleeing Rohingya," a painting by Syed Jahangir

"Fleeing Rohingya," a painting by Syed Jahangir

By John Washburn

The International Criminal Court has jurisdiction over crimes against the Rohingya people in Myanmar, according to a November 14 decision by its PreTrial Chamber. It said that although the Court could not take up these crimes while the Rohingya remained in Myanmar because the country does not belong to the ICC, their flight to Bangladesh, which is a member of the Court, created the necessary basis for jurisdiction. The ICC prosecution will now formally investigate and bring charges to the Court if the investigation warrants.

The Rohingya are a Muslim minority group in predominantly Buddhist Myanmar (Burma). The Myanmar government claims that they were all sent from Bengal by the British colonial government. However, most international opinions agree that in the pre-colonial period ancestors of some of the Rohingya existed as a Muslim community in what was then the kingdom of Burma.

Since Myanmar’s independence, there have been increasing troubles between the Rohingya and the Buddhist majority. Both the government and private groups imposed heavy legal and illegal restrictions on the lives of Rohingyas, physically attacked them, and denied them social services and many of the basic necessities of life. The government refused to recognize them as citizens. In response, by 1978 they began to flee by the thousands, mostly to Bangladesh. Growing Buddhist militancy resulted by 2011 in violent threats against the Rohingya. In reaction, a Rohingya armed resistance group began to attack some military facilities and actions. The army invaded the main Rohingya center in Rakhine State, killing and arresting Muslims and destroying property. In consequence, more Rohingyas fled to Bangladesh in 2016-2018. It became apparent that the army intended these as deportations.

The Rohingya situation has had a long history at the ICC. Its most recent phase leading to the November 14, 2019 decision began with a September 16, 2018 PreTrial Chamber ruling. The PreTrial Chamber ruled, in response to a prosecution request, that the presence of then at least a million Rohingyas in Bangladesh would sustain ICC jurisdiction over the alleged crimes against them in Myanmar. The court considered that the Rohingyas’ movement to Bangladesh was a deportation imposed by the Myanmar government and military, which continued to affect them in Bangladesh. Deportation, especially on a large scale, is an ICC crime.

This ruling permitted the prosecution to make an office review of available information called a preliminary investigation. Satisfied with the results, on July 4, 2019 the prosecution asked a new PreTrial Chamber to authorize a formal on-site investigation. In the following months, the Chamber asked for more legal reasoning and factual information that it eventually used to support its final decision of November 14, 2019

That decision was carefully researched, comprehensive, and thoughtful. It included an examination of the interests of justice. The judges were evidently and soberly aware of the importance and newness of their conclusion. They were clearly influenced by thousands of victims’ extensive and unanimous accounts of their persecution, experience of violence, and deportation. The Chamber was also aware of The Gambia’s recent request to the International Court of Justice for an opinion on the legal character of the crimes against the Rohingya.

The decision continued the practice of innovations which characterized the 1996-1998 negotiations to create the International Criminal Court. At critical moments the participants abandoned the UN practice of consensus when it proved impossible, in favor of decisions by very large majorities. Impasses were overcome by breaking them into pieces dealt with in small groups of negotiators. It was early agreed that defendants would be the highest-ranking individuals responsible, not states. There were many more examples of new approaches to treaty negotiations.

After the creation of the Court, its members established the Trust Fund for Victims, adopted aggression as another ICC crime, and devised a procedure for the nomination and election of judges. The ICC has always been a work in progress. Its 124 members still have much to deal with: Budgets are inadequate, major nations are not members, organization of the Assembly of States Parties needs to be improved, the organization and processes of the Court need to be further refined (especially to meet its heavy and growing caseload), and geographical representation in its cases and among its staff is still inadequate.

Member states, large numbers of individual supporters of the Court worldwide, and NGOs have welcomed the decision pertaining to the persecution of Rohingya. Their responses have been variously emotional, political, and expert. The decision has also been used as precedent: British lawyers and an organization of lawyers there have cited it in asking the ICC prosecutor for a preliminary examination of crimes in Syria against a large group of its citizens who are refugees in Jordan. The Office of the Prosecutor has agreed to review the request.

The Unitarian Universalist UN Office has followed the crisis of the Rohingya for years and has advocated for UN action. Dr. Holly Atkinson, member of the Unitarian Church of All Souls in New York City, made a number of trips to Myanmar on behalf of the Obama Administration to document the attacks against and oppression of the Rohingya in Myanmar. The Unitarian Universalist Service Committee (UUSC) has partnered with grassroots organizations in that country since 2002, including a recent focus on the Rohingya refugee crisis.

The first General Assembly of the combined Unitarian and Universalist denominations in 1961 adopted a resolution affirming support for the United Nations. The new joint faith was organized primarily by North American congregations as the Unitarian Universalist Association (UUA). The UUA approved the concept of an international criminal court and described its basic features. Representatives of the UUA participated in the Civil Society meeting in 1995 that described the kind of Court that most of civil society would support and work toward, and they agreed to establish the international NGO Coalition for the International Criminal Court (CICC). Elaine Harvey (a Canadian) and John Washburn (an American), based in the Unitarian Universalist United Nations Office, represented North American Unitarian Universalists in the CICC from its start. Both of them participated in almost all of the negotiations to create the Court’s Statute, including the 1998 meeting in Rome which adopted it.

The Court expresses and implements principles and values at the heart of Unitarian Universalism. Among the UUA’s Seven Principles is a call for justice in human relations. Its commitment to the International Criminal Court is also a natural part of its long and profound dedication to the United Nations. The movement now must find ways to turn the growing support for the Court in the United States into action by our people and government. This was not the first time that UUs working at the United Nations made history, and it won’t be the last.

About the Author

John Washburn

John Washburn has been a Foreign Service Officer and a senior United Nations official. He is a fourth generation Unitarian-Universalist and represented the movement at the 1995 founding meeting of the international NGO Coalition for the International Criminal Court. In the same capacity, he...


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