Daily Star
C R Abrar, Rezaur Rahman Lenin
Wed Jul 5, 2023
The resolution of the
Rohingya crisis appears to have met a dead end. Quite predictably, yet
another round of questionable repatriation efforts has stalled. With
dwindling financial commitment, agencies tasked to look after the
refugees are finding it extremely difficult to make ends meet. Squalid
living conditions in camps compounded by restrictions on freedom of
movement, reduced supply of rations, deteriorating law and order
situation coupled with absence of education, skills development and work
opportunities, and protracted uncertainty of repatriation have taken a
huge toll on the refugees, both physically and psychologically. While
some have resigned to such a reality, others, particularly the young
ones, are looking for opportunities to escape the fenced camp life and
Bhasan Char. Data from the United Nations High Commissioner for Refugees
(UNHCR) shows that in 2022 alone, more than 3,500 Rohingya tried to
undertake perilous journeys through the Bay of Bengal and Andaman Sea.
This is a 360 percent increase from the previous year.
The
Rohingya have been subjected to a slow burning genocide over the last
40 years, and despite being recognised as "the most persecuted minority
in the world" by the UN, they have been largely forsaken by the
international community that is essentially guided by economic and
strategic interests while paying lip service to human rights principles
and international law. The community's efforts to seek justice and
accountability for the perpetrators of genocide and other state crimes
appear to have hit a roadblock in recent times.
The
International Criminal Court (ICC) is a court of last resort that
investigates alleged war crimes, crimes against humanity and other grave
offences when nations are unable or unwilling to do so. In an overall
grim situation, the request of the last ICC prosecutor on the
determination of the jurisdiction pursuant to the Rome Statute (in April
2018) and the subsequent ruling of the ICC's Pre-Trial Chamber (in
September 2018) that it has jurisdiction to hold the Myanmar government
to account provided a glimmer of hope to the hapless Rohingya. The
judges urged the prosecution not to delay in pursuing their task.
However,
contrary to the hype that the ruling had generated among those who
champion human rights, justice, accountability and the rule of law, the
Rohingya genocide case appears to have taken a back seat in ICC
priorities. The issue becomes evident if the treatment of the Rohingya
case by the ICC is compared with the court's dealings with the Ukrainian
case.
In the
Ukrainian case on March 2, 2022, the chief prosecutor of the ICC
announced the opening of an investigation of all "past and present
allegations of war crimes, crimes against humanity or genocide"
committed by Russia in the war in Ukraine, which had begun a week
earlier. Days earlier, his office announced that it already had "a
reasonable basis to believe crimes… had been committed." Not
surprisingly, his move received strong international political support,
with 39 countries having referred the Ukraine situation to the office of
the prosecutor for investigation.
Within
months, the European Commission launched a new project to support the
investigation capacities of the ICC by committing 7.25 million euros. In
particular, the resource "will help the ICC to scale up its
investigation capacity to respond to the ongoing investigations into war
crimes committed by Russia in Ukraine." Announcing the support, the
high representative/vice-president of the European Commission
reiterated, "the International Criminal Court's investigations are
crucial to ensure accountability and justice for the heinous crimes
committed in Ukraine."
In
April 2022, Eurojust (the European Union Agency for Criminal Justice
Cooperation) and ICC agreed to join forces and for the court to
participate in the EU's Joint Investigation Team. The information on
possible war crimes and crimes against humanity is currently being
collected to enable investigation and adjudication by relevant actors in
the future to ensure that those responsible for war crimes and other
atrocities are held accountable. There are also moves to further scale
up the office's data storage and processing infrastructure and to build
up additional analytical and forensic capacity for new types of
evidence, including digital.
On
March 17 this year, the ICC issued an arrest warrant against the
Russian president and commissioner for children's rights, accusing them
of being responsible for war crimes in Ukraine, including the unlawful
deportation of children. Within a week, on March 23, the prosecutor
general of Ukraine and the registrar of the ICC signed a cooperation
agreement on establishing an ICC country office in Ukraine.
There
is a stark difference in the ICC's treatment of the above case with
that of the Rohingya genocide. While the apex global criminal court has
demonstrated its interest and competence in engaging with Ukraine's
case, it has exposed its apathy and indifference to the Rohingya case.
This is obvious on the following counts:
First,
within less than 18 months of the opening of the investigation in
Ukraine, the ICC was able to open a field office there, and there is
already an arrest warrant. In contrast, nearly four years into the
investigation in the Rohingya genocide case, there is no arrest warrant;
there is not even a field office opened in Bangladesh.
Second,
the new prosecutor is on record that accountability for crimes
against/affecting children is a "priority" to his office. The world is
aware that many Rohingya children, including babies and infants, were
victims of state crimes in Myanmar. Why, then, are they not a priority
to the prosecutor as the Ukrainian children are? Do the Rohingya
children not deserve justice?
Third,
the prosecutor has called for friendly governments to send
investigators, lawyers and military experts to help with the
investigation in Ukraine, and it has been reported that more than 40
experts have been seconded by EU states alone. In contrast, thus far,
there is no information available on whether the prosecutor has made
requests to governments to send personnel to help with the Rohingya
genocide investigation. Can one, therefore, surmise that the Rohingya
case is not being treated as a priority like the Ukrainian case?
Fourth,
while the prosecutor deserves accolade for his efficiency in requesting
an arrest warrant in the Ukrainian case within a relatively short time,
he seems to be in no hurry to request an arrest warrant against the
murderous Myanmar military leaders. Does he expect the Rohingya refugees
to wait indefinitely in Bangladesh in atrocious and harmful conditions,
with dwindling international support and an increasingly hostile
environment?
Fifth,
is the prosecutor cognisant of the facts that: a) rations are now below
the international standard; b) camp people are subjected to physical
threat and extortion; and c) sexual violence is rife in the camps?
Sixth,
given the prosecutor's stated commitment to the rights of children, is
he not concerned that: a) half a million Rohingya children are being
denied even primary education; b) half a million children are being
malnourished as their parents and caregivers are made dependent solely
on ever-decreasing rations; and c) half a million children are growing
up in a place where murders, extortion, and sexual violence are rife and
increasing?
Seventh,
does the prosecutor share the view that construction of government
buildings and settlements on Rohingya land, as well as the destruction
of their villages, reveal the Myanmar government's ulterior motives and
lack of sincerity in addressing the Rohingya question? Isn't he
concerned that plans under consideration by the governments of
Bangladesh and Myanmar to repatriate the Rohingya refugees from Cox's
Bazar back to internment camps in Myanmar will undermine their rights
and impair their security?
And
finally, how will the prosecutor protect the witnesses who have spoken
to his team when they are back in Myanmar, and how will the prosecutor
bring those witnesses to The Hague to give their evidence in a trial?
Surely, the Rohingya deserve appropriate answers to all these important questions from the ICC.
Dr CR Abrar is an academic with an interest in human rights issues.
Rezaur Rahman Lenin is an academic activist.
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