A Critical Analysis of Myanmar's Human Rights Challenges and the International Response

Critical evaluation of the ICC decision on jurisdiction in the Myanmar Situation – The Rohingya Crisis

Introduction

In the recent times, the Rohingya crisis is one of the crucial incidents of Myanmar that has shaken the world and the Human Rights declaration of the international agencies has been questioned once again. In the year of 2017, more than 70,000 Rohingya Muslims crossed the border of Bangladesh from their native Rakhine State in Myanmar in order the escape from the hands of the violent military force. However, the complicated relationship of Myanmar to the International Criminal Court has left this gross human rights violation as an open wound before the world. Hence the ICC’s decision on this Rohingya debacle has been marked as one of the most important decisions of the international agencies on Human Rights violation in the recent times.

Literature Review and Research Question

For the purpose of this critical evaluation of the ICC decision on the jurisdiction in the Myanmar Situation, we shall apply the research conducted by CE Gomez, journal written by Mayesh Alam, report by Eleanor Albert and Lindsay Maizland and research paper by Md. Tanzimuddin Khan and Saima Ahmed.

Also, to conclude the better in terms of the research, comparative and descriptive research questions have been developed regarding the detailed description of United Nation and ICC’s inertia towards taking firm decision in the gross human rights violation of the Rohingya Crisis:

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  1. Ce Gomez. “The International Criminal Court’s Decision on The Rohingya Crisis: The Need for A Critical Redefinition of Trans-Border Jurisdiction To Address Human Rights” (2020), California Western International Law Journal, vol. 50, no. 1, pp. 177-204
  2. Alam, Mayesha. “Enduring Entanglement: The Multi-Sectoral Impact of the Rohingya Crisis on Neighboring Bangladesh.” (2018). Georgetown Journal of International Affairs, vol. 19, pp. 20–26
  3. Eleanor Albert and Lindsay Maizland. The Rohingya Crisis (2020). CFR. < https://www.cfr.org/backgrounder/rohingya-crisis > [accessed on 23rd Aug, 2021]
  4. Khan, Mohammad Tanzimuddin, and Saima Ahmed. “Dealing with the Rohingya Crisis: The Relevance of the General Assembly and R2P.” (2020). Asian Journal of Comparative Politics, vol. 5, no. 2, pp. 121–143
  5. How International Criminal Court has responded towards the Rohingya crisis and why such response of ICC is crucial in this matter?

    What are the scopes of ICC’s decision in the Rohingya matter?

    How ICC’s response in trans-border jurisdiction in addressing human rights shall be applicable in the case of Rakhin State’s Rohingya?

    What could have been the Court’s alternative choices for the purpose of better conclusion of the human rights violation?

    Rohingya Crisis in Myanmar

    “I prefer not to say I’m Rohingya, because it is very dangerous here.” – Kamal, a Rohingya Muslim man.

    From the reports of the Atlantic, it can be found that Kamal is one of the Rohingya men who smuggled himself out of the Rakhine State and even though Kamal was considered to be a wealthy businessman in the Rakhine State, his status in Myanmar did not assure him of safety. However, unlike Kamal, most of the Rohingyas could not save themselves or smuggled themselves out of Myanmar and they had to endure the wrath of the Myanmar military force where Rohingyas were attacked, raped, killed vigorously. They were kept in low-life camps and slaughtered eventually. Till 2019, more than one million of Rohingya fled Myanmar and crossed the border to enter into Bangladesh and India, yet the international agencies failed to react promptly at this huge humanitarian issue.

    These stateless people, comprised of Muslim majority and Hindu minority, has only travelled from one country to another temporarily, until the International Agencies succeeded at taking notice of them and an investigation was opened by the ICC on the situation of Myanmar in 2018 only. The ICC’s decision is not a single decision but it has several layers which play an important role in deciding the human rights violation of the Rohingya and it also decide how competent the international courts are at upholding the UDHR in reality.

    International Criminal Court’s Response in Rohingya Crisis


  6. McLaughlin, Timothy. ‘I Had No Options’: The Rohingya Man Who Smuggled Himself (2019), Atlantic, < https://www.theatlantic.com/ international/archive/2019/02/rohingya-man-smuggled-himself-myanmar/581806/ > [accessed on 23rd Aug, 2021]
  7. Ibid
  8. Ce Gomez. “The International Criminal Court’s Decision on The Rohingya Crisis: The Need for A Critical Redefinition of Trans-Border Jurisdiction to Address Human Rights” (2020), California Western International Law Journal, vol. 50, no. 1, pp. 177-204
  9. In the year of 2002, the Rome Statue had established the International Criminal Court that aimed at participating into the global fight of upholding human rights and fight the human rights violation and hold the States responsible to for the crimes against Human rights through International Criminal Justice. Currently, ICC is comprised of 122 countries that has ratified ICC and signed the original law herein. However, none of the countries had referred the Myanmar situation to the ICC for a long time which shows the world’s cold shoulder to the Rohingya crisis and it is not just the ICC who failed to take notice of the Rohingya crisis but the International Court of Justice and the United Nation has failed at this task as well. And such non-interactive attitude of the State Parties to the Rome Statue has fianlly forced ICC to extend its jurisdiction in takin recognition of the Myanmar Situation Suo moto.

    Chief Prosecutor’s Request

    After the Rohingya crisis had escalated from Myanmar to Bangladesh and India, the International Criminal Court had observed that none of the state parties to the Rome Statue had sough to resolve the dispute by referring them before ICC and the member states often vetoed the decision in referring the case to the ICC which frustrated the jurisdiction of the ICC. Hence, in the year of 2018, ICC’s chief prosecutor Fatou Bensouda, sough to end this impunity and in the year of 2018, the Chief Prosecutor, in order to, put an end to the Rohingya crisis, requested the pre-trial chamber of ICC open an investigation whether ICC has any jurisdiction towards recognising the Myanmar tragedy suo moto and conduct a proper investigation again the criminal act of deportation, which was initiated by the Myanmar military government against the Rohingya community of the Rakhine State.

    Pre-Trial Chamber I Decision

    While the Chief prosecutor’s humanitarian approach might have been a ray of hope for the Rohingya community against Myanmar, it essentially created a difficult situation for the ICC as many other international courts, ICC too had a limited jurisdiction. The prime focus of


  10. Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90 (entered into force July 1, 2002)
  11. Application Under Regulation 46(3), Case No. ICC-RoC46(3)-01-18, Prosecution’s Request for a Ruling on Jurisdiction Under Article 19(3) of the Statute, ¶ 1 (Apr. 9, 2018), < https://www.legal-tools.org/doc/4af756/pdf/ > [accessed on 23rd Aug, 2021]
  12. ICC was to deal with genocide and war crimes. However, the chief prosecutor herein alleged that the Rohingya crisis essentially fulfilled the definition of crime against humanity under article 7 of the Rome Statue herein

    However, to assert jurisdiction over the Rohingya deportation crisis, the ICC had to fulfil any of the three requirements which are – i) That the crime has been committed by one of the State Parties national ii) The crime has been committed inside the territory of a Member State or iii) The United National Security Counsil has referred the matter to the ICC. Myanmar is not a State Party to the Rome Statue which has prevented ICC to exercise jurisdiction under the first two clauses and also the UNSC had not referred the matter before the ICC. Hence it became extremely difficult for ICC to assert territorial jurisdiction over the matter of Rohingya deportation and conduct a strict investigation against the gross human rights violation.

    Such barring of jurisdiction only left the ICC with one option – to justify that the deportation has occurred inside the territory of one of the State Party of the Rome Statue herein. Once such justification was done, the ICC had to investigate the referral which came through Chief Prosecutor of the International Criminal Court which satisfied article 13, 14 and 15 of the Rome Statue herein. Hence, after considering the situation for more than five months, the Pre-Trial Chamber I decided that ICC may exercise jurisdiction over the deportation crime against Myanmar on September 6, 2018 and the Chief Prosecutor shall have the liberty to examine and investigate the matter of deportation under the authority of ICC.

    How did Pre-Trial Chamber I assert the Jurisdiction on the Rohingya Crisis in Myanmar – a critical explanation

    In the case of Rohingya crisis, it is needless to say that ICC had asserted the jurisdiction on Myanmar, exercising the loopholes of the Rome Statue and interpreting the articles of the Rome Statue regarding territorial jurisdiction to serve the humanity.


  13. Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90 (entered into force July 1, 2002).
  14. Rome Statue, art. 12(2)
  15. Ibid
  16. Rome Statue, art. 13
  17. Slodkowski, Antoni. “Myanmar to ICC: Rohingya Jurisdiction Request ‘Should Be Dismissed’” (2018). Reuters < https://www.reuters.com/article/us-myanmar-rohingya/myanmar-to-icc-rohingyajurisdiction-request-should-be-dismissed-idUSKBN1KU1NG > [accessed on 23rd Aug, 2021]
  18. Rome Statue, art. 14 & 15
  19. Alam, Mayesha. “Enduring Entanglement: The Multi-Sectoral Impact of the Rohingya Crisis on Neighboring Bangladesh.” (2018). Georgetown Journal of International Affairs, vol. 19, pp. 20–26
  20. In order to do so, the nature of the crime was to be established under the Rome Statue. To that effect, the Chief Prosecutor of the ICC had referred the crime of deportation of the Rohingya Community under article 7 of the Rome Statue and termed the same as crime against humanity. While assessing the same, the Pre-Trial Chamber I proposed that the element of ‘displacement across the border’ under article 7(1)(d) of the Rome Statue shall cover the cases of deportation.

    Once the nature of the crime was established and it was decided that the crime of deportation shall come under article 7(1)(d) of the Rome Statue, the territorial jurisdiction of assessing the crime before the ICC was to be established. According article 12 of the Rome Statue, for the purpose of taking recognition of a crime by the ICC, it is necessary that the crime occurred inside the territory of a State Party who has ratified the Rome Statue. However, it has not been mentioned under article 12 of the Rome Statue whether each of the element of the crimes needed to occur inside the State Party’s territory or not. Hence, the pre-trial chamber I interpreted this article as if one of the elements of the discussed crime happens inside the territory of a State Party, it shall come under the jurisdiction of the ICC. Hence, the Pre-Trial Chamber I modified the jurisdictional topic under article 12(2)(a) of the Rome Statue to investigate on the Rohingya crisis herein.

    Once the nature of the crime was established and it was decided that the crime of deportation shall come under article 7(1)(d) of the Rome Statue, the territorial jurisdiction of assessing the crime before the ICC was to be established. According article 12 of the Rome Statue, for the purpose of taking recognition of a crime by the ICC, it is necessary that the crime occurred inside the territory of a State Party who has ratified the Rome Statue. However, it has not been mentioned under article 12 of the Rome Statue whether each of the element of the crimes needed to occur inside the State Party’s territory or not. Hence, the pre-trial chamber I interpreted this article as if one of the elements of the discussed crime happens inside the territory of a State Party, it shall come under the jurisdiction of the ICC. Hence, the Pre-Trial Chamber I modified the jurisdictional topic under article 12(2)(a) of the Rome Statue to investigate on the Rohingya crisis herein.

    How the pre-trial chamber I exerted the element of article 12? The explanation resides with Bangladesh. From carefully examining the case of Rohingya crisis, it could be asserted that the crime of deportation technically did not begin until they were displaced across the border of Bangladesh. Bangladesh is one of the countries that has ratified the Rome Statue and thus any crime occurring inside the territory of Bangladesh shall come under the jurisdiction of ICC. Thus, as the deportation of the Rohingya community did not complete until they were displaced across the border, it can be said that one of the elements of the crime happened inside Bangladesh which is a member state of Rome Statue and hence the deportation crime of Rohingya shall come under the modified jurisdiction of ICC

    It is true that such modification of jurisdiction of ICC had attracted controversy across the world and in the face of such controversy, the ICC asserted that the preliminary jurisdiction has been assumed for the purpose of conducting an investigation by the Chief Prosecutor and


  21. Eleanor Albert and Lindsay Maizland. The Rohingya Crisis (2020). CFR. < https://www.cfr.org/backgrounder/rohingya-crisis > [accessed on 23rd Aug, 2021]
  22. Ibid
  23. the rest of the jurisdiction in resolving the issue shall be realised and concluded once the investigation by the Chief Prosecutor completes.

    The Compatibility of ICC’s decision on jurisdiction with International and State Law

    From the abovementioned critical evaluation and explanation, it can be stated that the ICC necessarily twisted the Rome Statue and stated that only one element of the crime needs to be occurred inside the territory of a State Party for ICC to take jurisdiction of such crime under article 12(2)(a) of the Rome Statue. In response to such liberty exercised by the ICC to resolve such a humanitarian crisis, questions have been raised whether such decision by the pre-trial chamber I shall be compatible with the international and the state law of the countries which are affected by such jurisdictional modification.

    Compatibility with the State LawCompatibility with the State Law

    In this particular case, the affected country is Myanmar because the Rohingya crisis originated in the Rakhine State and if any decisions were to take by the ICC, it would go against the government of Myanmar. So, the question comes whether ICC had any jurisdiction to encroach into the domestic affair of Myanmar?

    To address such issue, the ICC had approached the principle whether it states that for the purpose of dealing with any Human Rights violation, it is the duty of that State to deal with such problem. However, the principle also states that if the particular state fails at resolving the domestic issue of Human Rights within their judicial system, it would be the concern of the international law at once. For this particular matter, Myanmar has failed at resolving the issue with the help of their own judicial system and the crime of displacement across border took place. Also, to overcome this conflict of compatibility, several cases have been cited by the Pre-Trial Chamber I decision as well.

    Compatibility with International Law

    While it has been argued that many of the international treaties do not support such liberty assumed by the ICC in dealing with the Rohingya issue, there are cases which has been decided by the ICJ in the contrary. In the case of S.S. “Lotus” (Lotus), decided by the


  24. Brooke, Holly. “State Sovereignty and Human Rights – Irreconcilable Tensions” (2017). Medium < https://medium.com/@hollybrooke/statesovereignty-and-human-rights-irreconcilable-tensions-462d356ae063 > [accessed on 23rd Aug, 2021]
  25. Press Release, Int’l Criminal Court, ICC Pre-Trial Chamber I Rules That the Court May Exercise Jurisdiction over the Alleged Deportation of the Rohingya People from Myanmar to Bangladesh (Sept. 6, 2018), < https://www.icccpi.int/Pages/item.aspx?name=pr1403 > [accessed on 23rd Aug, 2021]

Permanent Court of International Justice in 1927, it was held by the ICJ that the question of territory shall not be applicable in case of acts of criminal nature and the ICC’s pre-trial chamber has necessarily adopted such principle in establishing a territory in the given case of Rohingya.

Also, the ICC is of the view that Myanmar is a member state in different international treaties that require them to adopt trans-border jurisdiction. It is to be argued that Myanmar is a party to e International Convention for the Suppression of Terrorist Bombings, the International Convention for the Suppression of the Financing of Terrorism etc. where it has been explicitly said that “to take measures to establish its jurisdiction . . . in cases where the alleged offender is present in its territory, irrespective of the location of the commission of the alleged offence or the nationality of the alleged offender”. Hence, it has been argued by the ICC that by denying the territorial jurisdiction in the crisis of Rohingya, Myanmar is contradicting its own ratification towards other international treaties and law and hence, it can be said that the decision taken by ICC is compatible with international law as well. Looking for further insights on Maritime Law? Click here.

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Conclusion

Although from the abovementioned discussion and critical evaluation, it can be said that the ICC has successfully exerted their territory in exercising and adjudicating the criminal cases in the territory of Myanmar which involves the deportation of the Rohingya communities, it can also be questioned that whether forced deportation by using violent methods can come under the purview of the article 7 of the Rome Status or not. Also, the decision made by the pre-trial chamber I has also failed at citing several valid arguments in treating a criminal deportation occurred inside a non-state party. It is true that for the purpose of exercising such modified jurisdiction, very few commanding case laws are present and not many international law has supported the same decision as well.

Recommendations and suggestion

Apart from expanding the jurisdiction of the ICC under article 12 of the Rome Statue, the court could have exerted many other alternative choices which would have been more permanent in nature. One of such alternate choice is that the court could have proposed an amendment under article 121(1) of the Rome Statue where they could have collected


  • S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10, at 20 (Sept. 7)
  • Press Release, Int’l Criminal Court, ICC Pre-Trial Chamber I Rules That the Court May Exercise Jurisdiction over the Alleged Deportation of the Rohingya People from Myanmar to Bangladesh (Sept. 6, 2018), < https://www.icccpi.int/Pages/item.aspx?name=pr1403 > [accessed on 23rd Aug, 2021]
  • affirmative votes of the other State Party’s in assuming the territorial jurisdiction rather than assuming and deciding on its own. Also, an amendment could be passed for the purpose of correcting article 12(2)(a) by getting two-third majority vote from the State Parties.

    Secondly, the court could have asked for the State Parties for the referral of the Rohingya crisis to ICC expressly or also could have approached UNSC to refer the same to the ICC in spite of acting independently which attracts more controversy.

    BIBLIOGRAPHY

    Journals

    Alam, Mayesha. “Enduring Entanglement: The Multi-Sectoral Impact of the Rohingya Crisis on Neighboring Bangladesh.” (2018). Georgetown Journal of International Affairs, vol. 19, pp. 20–26

    Ce Gomez. “The International Criminal Court’s Decision on The Rohingya Crisis: The Need for A Critical Redefinition of Trans-Border Jurisdiction To Address Human Rights” (2020), California Western International Law Journal, vol. 50, no. 1, pp. 177-204

    Eleanor Albert and Lindsay Maizland. The Rohingya Crisis (2020). CFR. < https://www.cfr.org/backgrounder/rohingya-crisis > [accessed on 23rd Aug, 2021]

    Khan, Mohammad Tanzimuddin, and Saima Ahmed. “Dealing with the Rohingya Crisis: The Relevance of the General Assembly and R2P.” (2020). Asian Journal of Comparative Politics, vol. 5, no. 2, pp. 121–143

    Articles

    Brooke, Holly. “State Sovereignty and Human Rights – Irreconcilable Tensions” (2017). Medium < https://medium.com/@hollybrooke/statesovereignty-and-human-rights-irreconcilable-tensions-462d356ae063 > [accessed on 23rd Aug, 2021]

    McLaughlin, Timothy. ‘I Had No Options’: The Rohingya Man Who Smuggled Himself (2019), Atlantic, < https://www.theatlantic.com/ international/archive/2019/02/rohingya-man-smuggled-himself-myanmar/581806/ > [accessed on 23rd Aug, 2021]

    Slodkowski, Antoni. “Myanmar to ICC: Rohingya Jurisdiction Request ‘Should Be Dismissed’” (2018). Reuters < https://www.reuters.com/article/us-myanmar-rohingya/myanmar-to-icc-rohingyajurisdiction-request-should-be-dismissed-idUSKBN1KU1NG > [accessed on 23rd Aug, 2021]

    S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10, at 20 (Sept. 7)

    Treaties/Others

    Application Under Regulation 46(3), Case No. ICC-RoC46(3)-01-18, Prosecution’s Request for a Ruling on Jurisdiction Under Article 19(3) of the Statute, ¶ 1 (Apr. 9, 2018), < https://www.legal-tools.org/doc/4af756/pdf/ > [accessed on 23rd Aug, 2021]

    Press Release, Int’l Criminal Court, ICC Pre-Trial Chamber I Rules That the Court May Exercise Jurisdiction over the Alleged Deportation of the Rohingya People from Myanmar to Bangladesh (Sept. 6, 2018), < https://www.icccpi.int/Pages/item.aspx?name=pr1403 > [accessed on 23rd Aug, 2021]

    Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90 (entered into force July 1, 2002)

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