By Dr. S. Chandrasekharan
Myanmar is facing three major international justice initiatives, all at the same time in connection with the alleged crimes against the Rohingya community in Myanmar. There appears to be a concerted effort to corner Myanmar not only on the Rohingya issue, but also in other ethnic conflicts in Rakhine, Kachin and Northern Shan States.
The first is the establishment of an independent Investigation mechanism for Myanmar following the two reports of the Fact Finding Mission which wound up its activities finally without ever visiting Myanmar. The second is the investigation being initiated by the International Crime Court (ICC) where Myanmar is not even a party to the Rome Statute, but being initiated on the specious ground that some part of the action took place in Bangladesh which is a signatory and the third, a case being pursued on the complaint of Gambia that has nothing to do with Myanmar or Bangladesh except that it is majority Muslim State in remote Africa in the International Court of Justice.
Added to this is a case filed in Argentina by Latin American Human Rights Groups on 13th November for crimes against Rohingya Muslims in Myanmar. Though the Latin American countries are no exemplary models for human rights, a case for jurisdiction over crimes against Rohingya is being claimed on the ground that Acts including War crimes and Crimes against humanity are so horrific that those can be taken up anywhere.
It is now learnt that Suu Kyi may herself appear before the International Court of Justice on the case filed by Gambia accusing Myanmar of Genocide.
Establishment of IIMM for Myanmar:
The Independent International Fact-Finding Mission on Myanmar (FFM) finally concluded its mandate and closed its offices, two and a half years after its establishment by the Geneva-based UN Human Rights Council in March 2017. The FFM included investigators from Indonesia, Australia and Sri Lanka, supported by a team of researchers and lawyers from around the world.
Despite the fact that the team could not visit Myanmar and inspect the actual place of occurrences, over a thousand witnesses were examined outside Myanmar. The team did not talk to Myanmar officials who were dealing with the Rohingya issues.
Its 444-page report published in September 2018 and the subsequent one in 2019, the mission exceeded its brief in not only examining the situation in Rakhine State but also on violence in other conflict areas of Shan and Kachin States.
The Myanmar government had consistently rejected the FFM’s findings on the grounds that its approach and reports were biased and wrong.
Upon the recommendation of the FFM, the UN Human Rights Council created the IIMM through a resolution in September 2018. The IIMM is separate to the FFM and similar to a mechanism established for Syria in 2016. The IIMM is tasked to gather evidence and prepare case files to enable prosecution of individuals responsible for the most serious crimes under international law in national, regional or international criminal courts. Crimes within its mandate could have occurred anywhere within Myanmar since 2011. The decision to spread its scope across the whole country was made to consider the situation of victims’ groups. This was unfair and beyond the original brief of the mission.
The IIMM has powers to arrest or to have courts to try the indicted entities or individuals. All it can do is to gather evidence and submit their findings to courts that try such cases. It has no powers either to insist on Myanmar for policy changes or in crime investigations.
The Law Suit filed by Gambia on behalf of OIC in Hague:
Accusing Myanmar of breaching the 1948 UN Genocide Convention through a military campaign Gambia, on behalf of the OIC has filed a law suit in the International Court of Justice in Hague.
The ICJ will hold public hearings between December 10 and 12. Though the Court has no means to enforce the rulings, the Myanmar Government has taken the issue very seriously and has retained prominent international Lawyers to contest the issue. It is learnt now that Suu Kyi the State Councilor is likely to appear before the ICJ to plead the case personally.
Strangely on 13th November, a case has been filed in Argentina for crimes against Rohingya Muslims. The initiative has been taken by the Latin American Human Rights Groups under the principle of “Universal Jurisdiction”. While incidents against Rohingyas have nothing to do with Argentina, it is being accepted by the Argentina courts on the grounds that Acts like these “including War crimes and Crimes against Humanity are so horrific that they are not specific to one nation and can be tried anywhere.”
I think the Argentina groups should first consider serious human rights violations against the Uighur Muslims in Xinjiang, China after the revelation of the official papers on the reeducation camps in Xinjiang as revealed in New York Times, rather than take on a small and helpless country like Myanmar.
The Case in International Criminal Court:
On 14th November, the International Criminal Court said that it had approved a ‘Prosecution Request’ to investigate crimes against humanity- in the Rohingya Issue.
The Judge at the ICC contended that though Myanmar is not a member, the Court has jurisdiction to examine alleged crimes that partially took place across Bangladesh since the latter is a member. This is a fallacious argument as the supposed incidents are said to have taken place in Myanmar and not Bangladesh. The Rohingyas landed up in Bangladesh, the nearest neighbouring country and nothing else. Just because the Rohingyas victims moved to another country which is a member does not make it a strong case to initiate prosecution. The action of the ICC in this case is nothing short of being malicious, with intent somehow to indict and humiliate Myanmar Government.
What is significant is that it is not a coincidence that all these initiatives are coming more or less at the same time with the deliberate intent to corner Myanmar and tarnish Suu Kyi’s image. In the case filed in Argentina, it is said that Suu Kyi’s name is specifically mentioned.