The Rohingya have fled from their homeland in Rakhine, Myanmar, whenever there has been an eruption in violence. Approximately 700,000 Rohingyas are currently living in Bangladesh’s Cox Bazar district ever since fleeing the latest outbreak of violence in August 2017. The latest scale of violence is the result of a four-month long military operation against Rohingya militants that has been marred by widespread allegations of extrajudicial killings, rape, arson, and other serious human rights violations. There is now a strong call by some countries to start criminal proceedings against Myanmar’s top military personnel who may be implicated for war crimes. 

The Rohingya crisis is a product of deep-seated hatred and resentment perpetuated by the military that has manifested in discriminatory policies that have disenfranchised and stripped the Rohingya of their basic civil liberties including citizenship, employment and education. Senior General Min Aung Hlaing said in March 2018 that the Rohingyas have nothing in common with the rest of the country and the recent violence was exacerbated by their quest for citizenship. Both the outgoing and current governments have asserted that the Rohingya are ‘Bengali’ trespassers from Bangladesh whereas the community has in fact lived in Myanmar for generations. 

Punitive Action

The UN High Commissioner for Human Rights, Zeid Ra’ad a-Hussein, has been advocating for strong punitive action against Myanmar, urging the UN General Assembly to pass on information pertaining to the atrocities to the International Criminal Court (ICC). Similar statements have been made by Yanghee Lee, the UN Special Rapporteur on the situation of human rights in Myanmar, on the prosecution of military personnel for war crimes. The Organisation of Islamic Cooperation (OIC) has also joined the for-prosecution lobby, announcing its interest in forming a committee to investigate and provide evidence of those guilty of crimes. This initiative shows collective solidarity on the issue, but has its own limitations. 

Despite sufficient evidence to suggest state-sponsored violence against civilians by the Tatmadaw, domestic prosecution is off the table since the military controls three key ministries: defence, home affairs and border. Furthermore, the Association of Southeast Asian Nations (ASEAN) is unlikely to intervene or take a proactive stance due to its non-intervention principle. The final call lies with the ICC; however, the international court only has jurisdiction over the signatories to the Rome Statute, thus keeping Myanmar, which is not a signatory, off the hook of direct prosecution. 

Only the UN Security Council (UNSC), through a resolution, can refer Myanmar to the ICC for criminal proceedings.  But, such a resolution is likely to be blocked by China and Russia given their strong relations with Myanmar. Last year, China was quick to block a UNSC statement on Myanmar pertaining to the crisis. 

Nonetheless, there have been past exceptions where China placed the international community’s agenda over its national interest. Despite China’s close relations with Sudan, the UNSC was able to refer Sudan to the ICC, which led to the eventual conviction of former president Omar Al Bashir in 2009. The UNSC has also referred Libya to the ICC despite not being a signatory to the Rome Statute. So, while remaining UNSC members could attempt to pressurise China to prioritise humanitarian issues over its national interest, it will undoubtedly be an uphill task. 

Alternative Options

First, different groups such as Human Rights Watch (HRW) and Amnesty International (AI) should form a joint committee to collate, gather and document information on the alleged atrocities. The OIC and fact-finding mission of the Human Rights Council (HRC) can be a part of this joint body to which each group brings its own expertise and pool of resources. 

This is important for a number of reasons. The details of human rights violations are still murky since no names for conviction have yet been submitted. The lack of precision on whom to prosecute under what crimes may be a reason behind the stunted progress on punitive action. Identifying the alleged perpetrators will help build a concrete case that could eventually lead to prosecution. 

Second, creation of an ad-hoc tribunal to try Myanmar's generals remains a possibility. Such tribunals were common instruments in the 1990s to respond to atrocities committed in Rwanda and the former Yugoslavia. The International Criminal Tribunal for Rwanda (ICTR) saw a number of politicians convicted for genocide and other crimes against humanity. However, the UNSC will need to pass a resolution to set up such a tribunal on Myanmar. 

Third, the UN Secretariat may explore the possibility of sending military observers to supervise the situation in Rakhine. These observers can be stationed there to oversee developments and investigate allegations of atrocities. However, their access within the state may be heavily restricted,  thus hindering their capability to make in-depth and comprehensive assessments. There is also likely to be opposition from Russia and China who may not want to jeopardise their relations with the Tatmadaw, which remains antagonistic to external presence in the country. 

Fourth, the ICC is probing whether it has extended jurisdiction over the crisis’ spill over in Bangladesh. Since Bangladesh is a signatory to the Rome Statute, the ICC has requested Dhaka to weigh in for prosecution. Unsurprisingly, Myanmar has objected to this, arguing that such a move would have no legitimacy. 

Conclusion

Over the past few months, the US, European Union (EU), and others have imposed asset freezes and visa bans on military officials. However these measures have not deterred the alleged wrongdoers from committing further atrocities. As a result, prosecution remains the last resort. However, the ICC’s jurisdictional limitations and Chinese and Russian reluctance to allow the UNSC to refer Myanmar to the court compels the international community to take action towards prosecution through alternative ways.