[Thus far, the attacks have been carried out with impunity, and many witnesses have said it was Myanmar government soldiers, in uniform, who raped and killed civilians. Human rights groups say the lack of accountability is particularly jarring, arguing that the attacks on the Rohingya involve exactly the kind of mass atrocities this court was created for. Its mandate is to judge crimes against humanity, war crimes and genocide.]
By Jeffrey Gettleman and
Marlise Simons
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Rohingya in the
Kutupalong refugee camp in Bangladesh in November.
Credit Adam Dean for The
New York Times
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In a request submitted to the International
Criminal Court on Wednesday, lawyers included an unusual annex: 20 pages of
purple thumbprints.
These are the equivalent of signatures from
400 Rohingya women and girls, most of them illiterate refugees who were driven
out of Myanmar last year after thousands of Rohingya Muslims were massacred.
The request urges the International Criminal
Court in The Hague to open a criminal investigation into continuing atrocities,
including genocide, against the Rohingya, the latest twist in a brewing dispute
about whether the international court has the authority to intervene in what
the United Nations and United States have called a clear case of ethnic
cleansing.
“We feel so vulnerable. We feel so sad. We
are unable to bear the emptiness of losing our family members,” the women’s
petition says. “We are looking for justice from the United Nations and the
International Criminal Court.”
Thus far, the attacks have been carried out
with impunity, and many witnesses have said it was Myanmar government soldiers,
in uniform, who raped and killed civilians. Human rights groups say the lack of
accountability is particularly jarring, arguing that the attacks on the
Rohingya involve exactly the kind of mass atrocities this court was created
for. Its mandate is to judge crimes against humanity, war crimes and genocide.
An obvious obstacle is that Myanmar, where
the violence was meted out, is not a signatory to the court. That means the
court cannot address crimes committed in Myanmar, by Myanmar citizens, unless
the United Nations Security Council authorizes it, which most observers say is
unlikely.
And Myanmar has shown little interest in
punishing those responsible or pursuing the evidence, which has been documented
by rights groups and journalists and corroborated by satellite imagery.
So prosecutors and human rights lawyers are
trying a novel approach: They argue that since hundreds of thousands of
Rohingya have been deported to Bangladesh, and since this can be construed as
continuing crimes against humanity taking place in Bangladesh, a member of the
court, the prosecutor can have jurisdiction to act. Bangladesh is not suspected
of crimes, but would provide the route to jurisdiction.
The request submitted on Wednesday by the
group Shanti Mohila, or Peace Women, goes further: Its lawyers say that as long
as Myanmar refuses the return of the Rohingya and forces them to live in
terrible conditions, its “crimes of apartheid, persecution and genocide
continue” even outside its territory. If the court goes along with the request,
it would mark a radical departure in international law.
In April, Fatou Bensouda, the court’s chief
prosecutor, asked court judges for an advisory opinion. Her position was that
granting jurisdiction would be consistent with “well-established principles”
and that forced migration issues were of “acute international concern.”
On June 20, a panel of judges will hold a
closed-door hearing on the question, which has drawn criticism from lawyers
following the case.
Court rules require that judges must explain
why a session would be held in secret. Kevin Jon Heller, a professor of law at
the University of London, wrote in a recent blog post that jurisdiction “is a
pure issue of law, so what justifies the secrecy?”
The court has received many requests to
intervene in the Myanmar violence. But the prosecutor and the judges are now
for the first time weighing the jurisdiction question, using Bangladesh as the
springboard.
The ruling could have far-reaching
implications beyond Myanmar and Bangladesh. Syria is not a member of the court,
but neighboring Jordan is, and hundreds of thousands of Syrians have fled to
Jordan amid atrocities in Syria. Some analysts wonder if it could open the door
to the court’s taking up cases in that and other sweeping conflicts.
This issue comes at a time when the court is
struggling to rebuild its reputation after losing several high-profile cases in
Africa, including giving up on prosecuting Uhuru Kenyatta, Kenya’s president.
Scholars say it is unclear which way the
court will rule.
Phil Clark, a political scientist at the
School of Oriental and African Studies in London, called the jurisdiction
question a “major gray zone” since the worst of the atrocities took place
inside Myanmar.
But he said this was a huge opportunity for
the International Criminal Court, known as the I.C.C., to become more global.
Though the court has opened some recent investigations involving Georgia,
Afghanistan and the Palestinian-Israeli conflict, many of its biggest cases
have centered on atrocities in Africa.
“The I.C.C. has also struggled to show that
it can deal with crimes committed by sitting members of governments, including
high-ranking military officials,” Mr. Clark said.
The court has no police force of its own and
depends on national governments to make arrests.
In the petition filed Wednesday, lawyers for
the 400 Rohingya women and girls assert that Myanmar’s government is continuing
“a persecutory and genocidal campaign that spans both Myanmar and Bangladesh.”
The petition accuses the authorities in Myanmar of deportation, persecution,
genocide and apartheid.
“If a person is illegally detained, the crime
isn’t over until that person is released,” said Wayne Jordash, the lead human
rights lawyer representing the Rohingya women. “Similarly, in this case, the
crimes are ongoing. The Myanmar authorities are maintaining conditions for
either the destruction of the group or so they can’t go home.”
A United Nations special rapporteur said
earlier this year that the attacks on the Rohingya people bear the “hallmarks
of genocide.”
The court is waiting on Bangladesh’s
government to say what it thinks about the jurisdiction issue. So far a group
of Bangladeshi scholars has come out in support of the court’s taking the case.
Myanmar has expressed “serious concern” about
the prosecutor’s request for jurisdiction.
The Rohingya, a Muslim ethnic minority
reviled by Myanmar’s Buddhist majority, have been persecuted for decades. In
August, after Rohingya rebels attacked several police posts, witnesses said
that Myanmar government soldiers stormed into villages and burned everything in
sight.
Many witnesses said the soldiers rounded up
civilians and systematically slaughtered them, sometimes in groups of several
hundred. Countless women and girls were brutalized and raped.
Human rights groups said the international
court might be the only hope for justice for the Rohingya, including the 400
who pressed their inked thumbs to the legal papers.
“The authorities in Myanmar have become more
intransigent over time, not less,” said Param-Preet Singh, an international
justice specialist at Human Rights Watch. “Against this backdrop, the idea that
Myanmar’s military and security forces would hold themselves to account feels
especially divorced from reality.”
“The only clear path to justice left for victims,”
she added, “is the I.C.C.”