Hundreds of thousands of Rohingya have been deported from Myanmar to Bangladesh in recent months. (Photo: Reuters)

We have all heard of the devastating situation facing the Rohingya people. Many believe the abuses committed against this vulnerable population by Burmese authorities amount to genocide. Yet almost a year since the Rohingya crisis captured global attention, the situation facing the Rohingya continues to deteriorate. Justice for the atrocities committed against them appears to be a very remote possibility. There is reason, however, for at least some hope on this front.

A few weeks ago, the Office of the Prosecutor at the International Criminal Court (ICC) sought to ascertain whether the Court might have a sliver of jurisdiction over the crimes committed by Myanmar forces against the Rohingya. In particular, the Prosecutor — in an unprecedented move — asked judges in the Pre-Trial Chamber whether she might have jurisdiction over the deportation of the Rohingya from Myanmar (a non-member state of the ICC) to Bangladesh (a member-state that seems willing to engage with the Court on this question). In putting her argument forward, ICC Prosecutor Fatou Bensouda usefully explained that:

the crime of deportation is analogous to a cross-border shooting: the crime, for example murder, is not completed until the bullet (fired in one State) strikes and kills the victim (standing in another State). In both scenarios, the occurrence on the territory of the second State is not, in legal terms, the mere remote effect of a completed criminal conduct on the territory of the first State—rather, it is a legally required element of the crime.

In this context, the Canadian Partnership of International Justice under the leadership of Fannie Lafontaine and Amanda Ghahremani filed an amicus curiae at the ICC. I’m proud to have been part of that initiative. You can read our full brief here. You can also find a list of other submissions here.

The Canadian Partnership of International Justice’s filing supports the position of the ICC Prosecutor that she can request the Pre-Trial Chamber, under Article 19(3), to ascertain whether she has jurisdiction over the deportation of Rohingya people from Myanmar into Bangladesh. It also support the view that the Office of the Prosecutor should, indeed, be granted jurisdiction to investigate this crime.

Bangladesh too has filed its observations, which many hope and believe will be favourable to an ICC investigation. For obvious geopolitical reasons, this is a sensitive issue for Dhaka. Officials in Myanmar, on the other hand, have stated that they will ignore the Court’s request to share their views on the matter, saying that they have “no reason to respond”. Ignoring the ICC is Myanmar’s way of effectively saying that they do not recognize the authority of legitimacy of the Court and therefore will not participate in its proceedings. We can expect that to turn to mud-slinging if and when the Prosecutor opens an investigation.

It is worthwhile stressing that this is not an ideal situation. Far from it. But the ICC Prosecutor should be commended for trying to make the best, or at least something, out of a bad situation where any jurisdictional reach is extremely limited. The world has stood by watching as hundreds of thousands of Rohingya have been forced to leave their homes in Rakhine State only to enter devastating conditions in camps across the border in Bangladesh. Along with their often-meagre belongings, they carry with them stories and burden of untold violence and harm. Adding insult to criminal injury, neither side will recognize them as what they are: Rohingya. They are disenfranchised and disregarded. To call it abhorrent is an understatement.

The possibility of an ICC investigation into the forced deportation of the Rohingya into Bangladesh promises at least a degree of accountability for these atrocities. No state or institution is offering that hope right now. Some, like Human Rights Watch (HRW), have pushed for a United Nations Security Council referral of Myanmar to the ICC. This would have the benefit of granting the ICC jurisdiction over the whole situation — and not just the crime of deportation. It would then be able to investigate and prosecute all crimes — including sexual and gender based violence, murder, rape, etc. But this proposal is problematic for at least two reasons. First, it not going to happen, as Russia has made clear. Second, it is an extremely risky proposition in that Security Council referrals have generally done zilch for justice and accountability whilst falsely elevating the hopes of victims and survivors and severely undermining the credibility of the ICC. Curiously, no organization or proponent of a Security Council referral of Myanmar to the ICC has explained why, in this case, we should expect anything different.

Some believe that taking the Security Council route is important precisely because it won’t work. If the Security Council approach is exhausted, it will leave it to the UN General Assembly to take up the matter and to create an International, Impartial and Independent Mechanism (IIIM) for Myanmar. This is a goal that the Canadian government, among others, is advocating. It would follow the ‘blue-print’ of the General Assembly in creating the IIIM for Syria, which was established after multiple failed attempts to refer Syria to the ICC. While a IIIM for Myanmar is an excellent idea, it is evident that the international community does not require a vetoed referral of Myanmar to effectively exhaust the Security Council referral route. Getting clear statements from China and Russia that they would veto any ICC referral should be enough. I’m certain both would be happy to oblige.

Moreover, a failed referral could further damage the ICC and politicize the plight of the Rohingya. The sole benefit would be the ‘naming-and-shaming’ of Russia and, especially, China — which is undoubtedly attractive to some, primarily Western, states, but is unlikely to help alleviate the horrendous conditions that the Rohingya find themselves facing. For now at least, states should do all that they can to support the potential investigation of the forcible deportation of Rohingya from Myanmar into Bangladesh and focus on creating a IIIM without going down the drawn-out and deleterious Security Council path.

Of course, we need to keep expectations realistic. If the Prosecutor is granted jurisdiction over the deportation of Rohingya into Bangladesh, the Court will not be able to investigate or prosecute any allegations of murder, rape, sexual and gender-based violence or any other form of atrocity or violence wrought upon the Rohingya people. If the Prosecutor is successful in her efforts, her office will only be able to investigate the crime of deportation, leaving those Rohingya who have not managed to flee the Myanmar beyond the ‘justice’ of the ICC and also excluding other ethnic groups and factions in the country that experience atrocity at the hands of Burmese authorities. Everything should be done to avoid that perception so as to manage expectations and avoid a situation where the Court is perceived to be able to do something it is not (see this recent article, for example). That won’t help anyone. On the contrary, elevated and unmet expectations will only cause more pain.

Still, the option currently seems to be rather clear: have the ICC investigate deportation or do nothing at all. We can’t let perfect justice be the enemy of any justice. While it won’t be easy, the opportunity to move towards achieving some degree of accountability in this situation is real and it is palpable. It is the best shot that the interested members of the international community currently have. And it is this creative and novel use of the Rome Statute that acts as a reminder of the promise of the ICC – laying the groundwork for justice when no one else is will to do so.