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Myanmar faces three international courts for Rohingya genocide –what good will they do?

The world failed the Rohingyas when they needed protection. But now it can ensure that the truth is told.

Daniele Archibugi
Daniele Archibugi
20 November 2019
Aung San Suu Kyi
Probably won't ever face justice
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Mick Tsikas/AAP/PA Images. All rights reserved.

Last week, three separate judicial actions were undertaken against Myanmar. The charges are the same in each: genocide and other human rights abuses committed against the Rohingya minority in that country.

As expected, the Myanmar government has not accepted any of these proceedings and says that its own agencies will investigate any crime. However, no investigation has taken place since the crackdown on the Rohingya began three years ago and moreover there is overwhelming evidence that the government itself contributed to the planning and the execution of the genocide. So there seems to be very little hope that these legal processes will bring to justice the perpetrators of crimes and provide relief to the Rohingyas. But that doesn’t mean they are pointless.

Let’s look at them in turn. First, the case that Gambia submitted at the International Court of Justice (ICJ) on 11 November, claiming that the Myanmar government has violated the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. The ICJ can address controversies between nation states, and it may find that Myanmar has violated its international obligations. It could assess that Rohingyas have been persecuted and it could ask the Myanmar government to provide reparations and guarantee repatriations. However, it is not set up to charge individuals.

If it produces a strong ruling, the UN Security Council could decide to intervene, either through sanctions against Myanmar or even in military action. The prospects of either outcome seem low: even though the Security Council has been properly informed about the situation, it has used neither political authority nor resources to solve the problem. Will an ICJ ruling change its willingness? Everything is possible, even when it is not credible.

On 14 November, the International Criminal Court (ICC) opened an investigation for crimes that Myanmar soldiers and police committed against Rohingya in Bangladesh. The ICC was created in 1998 in the hope that it could complement the ICJ: it has no competence on states, but it can indict and even punish individuals who have perpetrated gross violations of human rights. There are further limits to what it can do, though: while Myanmar is a member of the ICJ, it has never been a member of the ICC and therefore the court has no competence on the crimes committed within the country. However, some of the crimes in question took place on the other side of the border, in Bangladesh, which is a member of the ICC. Even if the investigation focuses on the lesser crimes committed there, it could produce evidence on the wider criminal enterprise and, potentially, lead to the arrest and trial of criminals. In its nearly twenty years of operations, however, the ICC has managed to indict and trial a very small number.

Also on 14 November, some Latin American human rights groups used Argentinian tribunals to sue Aung San Suu Kyi and other top Myanmar officials for the same crimes under the principle of ‘universal jurisdiction’. This was possible because Argentina is one of the few countries that allow their judges to address crimes committed abroad. This could also lead to the indictment of top Myanmar officials, even if it is very unlikely that they would ever be extradited to face trial.

All in all, it is doubtful that any Myanmar citizen who has committed these crimes will be seriously worried. The evidence that the Myanmar ruling class, including Nobel Peace Prize winner Aung San Suu Kyi, was involved in these crimes is so overwhelming that two years ago several commentators said that the prize should be revoked. But this does not mean that judicial proceedings could reach any of the guilty.

These proceedings have arrived far too late. The persecution of Rohingyas started in October 2016 and, while it is still continuing in parts of Myanmar, some of the worst humanitarian catastrophes have already occurred. It is estimated that more than 20,000 people were killed, accompanied by rapes, looting, torture and beatings. The number of refugees who had to flee to Bangladesh is estimated to be more than 700,000, and the hope that they could return to their homeland is, at least in the short term, incredibly small. None of these facts is new to the international community: reporters, human rights organisations and the victims themselves have scrupulously documented them. Closing the stable door after the horse has bolted is useless.

Civil society organisations, too, have done much investigative work. The Permanent Peoples’ Tribunal – an independent body that follows the pioneering work of the philosophers Bertrand Russell and Jean-Paul Sartre and the politician Lelio Basso on war crimes in Vietnam – delivered a very detailed ruling two years ago.

But the three new proceedings are important nevertheless. This is because the purpose of international justice is not just to punish a handful of criminals. Since the Nuremberg tribunals that followed the second world war, what is discussed in courts helps not only to identify wrongdoings but to rewrite history and hopefully to pave the way for future co-existence. Legal devices can also have the direct effects of alleviating the suffering of the victims, restoring truth, allowing reconciliation and bringing the most egregious criminals to justice. But, above all, they urge the international community to commit to address the problems.

The Rohingyas needed an authoritative international peace enforcement mission to keep them safe in their homeland and they did not get it. They needed international assistance to survive in refugee camps and they only partially got it. Now they need their voices heard and criminals identified and punished. The ICJ and the ICC are not able to provide the first two things. But they could provide at least the third, and they are responsible for having addressed the issue far too late. Let hope that – at least – they will not let the investigations drag on.

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