Three Avenues to Justice for the Rohingya
After encountering decades of violence, the Rohingya people are finally en route to justice via the international tribunals in The Hague and through Argentina’s exercise of universal jurisdiction. While the International Criminal Court’s geographic scope is limited by States’ willingness to consent to its jurisdiction, inter-state dispute settlement before the International Court of Justice and universal jurisdiction provide complementary approaches to justice for the Rohingya.
Sunrise over Bagan, Myanmar. Photo: Alexander Schimmeck on Unsplash.
By: Kanishka Kewlani
The Rohingya people are an ethnic group from Myanmar (previously, Burma), mostly concentrated in the Rakhine State on Myanmar’s western coast. As a primarily Muslim minority group living in a predominantly Buddhist country, the Rohingya people have faced decades of violence, forced displacement, and discrimination by the Myanmar government. The United Nations (“UN”) has referred to the Rohingya as the “most persecuted minority in the world,” and they are also one of the largest stateless populations the world has seen. By mid-2020, there were an estimated 1.6 million who had been forcibly displaced across the Asia-Pacific region, and their statelessness is the result of Myanmar’s long history of discriminatory laws, policies, and practices denying the Rohingya citizenship in their native country since 1982.
The ICC Investigation
On November 14, 2019, the International Criminal Court (“ICC”) authorized the ICC Prosecutor to proceed with an investigation for the alleged crimes against the Rohingya people that took place in States within the ICC’s jurisdiction. The ICC is typically the venue for prosecuting instances of genocide, war crimes, crimes against humanity, and the crime of aggression. However, per the Statute of the ICC, or the Rome Statute, the ICC holds jurisdiction only when those crimes “were committed by a State Party national, or in the territory of a State Party, or in a State that has accepted the jurisdiction of the Court.”
Importantly, Myanmar is not a State Party to the ICC. However, the Pre-Trial Chamber III of the ICC concluded that the Court may exercise jurisdiction over crimes that took place across the Myanmar-Bangladesh border because Bangladesh became a State Party to the ICC in 2010. The Chamber found a reasonable basis to believe that the violence perpetrated against the Rohingya population could qualify as two crimes against humanity: deportation across the Myanmar-Bangladesh border and persecution on religious and/or ethnic grounds. The supporting material underlying the investigation’s opening showed evidence of approximately 600,000 to one million forced displacements from Myanmar to Bangladesh. This is significant, of course, but still does not capture the full scale of atrocity originating in Myanmar, as the ICC’s focus is limited geographically to conduct that occurred across the border into and within the territory of Bangladesh.
Two other ways that advocates for Rohingya have sought accountability and justice for the Rohingya people are through universal jurisdiction and recourse in the International Court of Justice (“ICJ”). Notably, in both cases, the country prosecuting or bringing suit has no direct nexus to the Rohingya victims or atrocities committed in Myanmar.
Argentina’s Exercise of Universal Jurisdiction
The premise of universal jurisdiction is that certain crimes are so serious (e.g. crimes against humanity, war crimes, genocide, and torture) that the duty to prosecute them transcends borders. As such, any nation should have the authority to hold perpetrators accountable, regardless of nationality of the perpetrator or victim or where the crime was committed.
On November 13, 2019, the Burmese Rohingya Organisation UK (“BROUK”) filed a complaint in an Argentinian national criminal court against Myanmar under the principle of universal jurisdiction, asserting allegations of genocide and crimes against humanity committed against the Rohingya people. The lower court dismissed the case on July 12, 2021, because of an ongoing investigation before the ICC. However, BROUK appealed the decision, arguing that the ICC investigations are limited to crimes that took place partly or fully in Bangladesh and do not include those that were committed in Myanmar. Upon appeal, the Argentine judiciary ruled on November 26, 2021 to overturn the lower court decision and decided to open an investigation into the Rohingya genocide in Myanmar.
The Gambia v. Myanmar in the ICJ
While the ICC’s membership is limited to those who have voluntarily signed onto the Rome Statute, the ICJ theoretically has compulsory jurisdiction over civil disputes arising among all 193 UN Member States, which includes Myanmar as of 1948.
On November 11, 2019, The Gambia filed a case before the ICJ, alleging that Myanmar violated the Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”)—The Gambia ratified the Genocide Convention in 1978, and Myanmar ratified it in 1956. Article 9 of the Genocide Convention allows disputes between parties “relating to the responsibility of a State for genocide” to be submitted to the ICJ. In its application to the ICJ, The Gambia asserted that the prohibition of genocide is a jus cogens norm (meaning, a fundamental, overriding principle of international law) and results in applications erga omnes partes. Erga omnes partes obligations under the Genocide Convention are those that a State Party owes toward all other States Parties to the Convention.” Therefore, even though The Gambia has no physical nexus to the crimes committed against the Rohingya people in Myanmar, it still has standing under the erga onmnes partes doctrine to bring this case before the ICJ.
On January 23, 2020, the ICJ issued an order for provisional measures, confirming that the Court has “prima facie jurisdiction” and the authority to adjudicate this dispute. The latest development in the case is that the Court will hold hearings on Myanmar’s preliminary objections from February 21, 2022 to February 28, 2022.
The obligations erga omnes partes doctrine presents a unique and useful way for the ICJ to oversee types of claims that would typically take place before the ICC, particularly when the ICC does not hold jurisdiction. For the claims asserted in The Gambia v. Myanmar, the ICC would not hold jurisdiction because Myanmar is not a State Party to the Rome Statute.
International-scale impact litigation, like The Gambia v. Myanmar and Argentina’s prosecution via universal jurisdiction, presents a very useful avenue for international justice—one which is not necessarily constrained by States’ willingness to submit to international criminal investigations. Both the ICJ litigation and the prosecution in Argentina will serve as precedent going forward for how States can hold other States accountable for obligations made under treaties, like the Genocide Convention, even without a direct nexus to the atrocities committed. However, from a procedural standpoint, it is important to note that the ICC has more robust mechanisms for direct victim involvement in judicial proceedings. Victims of international crimes are even able to participate independently of the Prosecution and Defense in cases before the ICC. While the ICC avenue appears to be the avenue that will provide the most direct involvement by the Rohingya, the complementary ICJ and universal jurisdiction cases are broadening the geographic scope of accountability for Myanmar’s crimes. Each approach has its strengths, which, in conjunction, will hopefully accord the Rohingya people the long-awaited justice and reparations they are entitled to.
Kanishka Kewlani is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. She graduated from Columbia College in 2018 with a B.A. in Political Science and Human Rights. Prior to law school, Kanishka worked as a Legal Analyst at Kobre & Kim.