Three Complementary Legal Strategies for Accountability: A Momentous Week for the Rohingya

The past week has been a momentous one for the Rohingya, in their quest for justice and accountability. 

On Monday 11 November, The Gambia filed an application at the International Court of Justice (ICJ) alleging violations of the genocide convention against Myanmar. On 13 November, a case was filed in Argentine domestic courts on the basis of what is termed ‘universal jurisdiction’ against members of the Myanmar government, including Aung Sang Suu Kyi. And finally, on 14 November, the pre-trial chamber of the International Criminal Court (ICC) issued its decision, giving the prosecutor the green light to commence with her formal investigation. 

The multiplicity of legal proceedings may be confusing to many, including legal professionals. What are all these cases, and how do they relate to each other? What are the legal outcomes of these cases, why are there so many and do they all deal with the same issues? These are just a few of the questions that arise from the developments this week. While the sudden developments on the legal front are in the most part coincidental, these are all cases that have been in the works for some time now. 

First, on the International Court of Justice – this is a court that hears disputes between states, and hence permits only states as parties to the proceedings. It is not a human rights court that addresses individuals, and adjudicates between states on the basis of violations of international treaties. The Gambia has filed its application based on the fact that both Myanmar and The Gambia are parties to the Genocide Convention, and both agree that the ICJ is the appropriate court to resolve a dispute between them. Many have asked, why The Gambia? What is its interest in the case of the Rohingya? The Gambia, as part of the Organisation of Islamic Cooperation, is arguing that on the basis of how heinous the crime alleged is – that is, the international crime of genocide – it has the responsibility as part of the international community of states, as well as a state party to the convention, to put a stop to the ongoing atrocities by approaching the court. As a first step, The Gambia has asked for ‘provisional measures’ which are similar to an injunction in domestic law, asking the ICJ to order Myanmar to put an end to its actions. Overall, the ICJ proceedings are at the very first step – and there are many stages to go before this case comes to a conclusion. Previously, the ICJ has heard cases of genocide, most relevant of which is Bosnia and Herzegovina v Serbia and Montenegro in relation to the genocide at Srebrenica. The court held that while Serbia had not directly committed genocide, it was responsible for not preventing and punishing the crime. It is also worth remembering that at the time the ICJ decided the case, the International Criminal Tribunal for the Former Yugoslavia – a UN war crimes tribunal set up specifically for the region – had already found individuals criminally liable for genocide in Srebrenica.  

The second set of legal proceedings has been initiated by the Burmese Rohingya Organisation (U.K), filed in the courts of Argentina. This is based on the ‘universal jurisdiction’ principle – basically, that by virtue of the gravity of international crimes such as genocide, countries enact legislation that allows them to prosecute those it considers may have been involved in these crimes, regardless of nationality or location of the crimes. This concept has evolved over the past three decades, from the Pinochet case and cases now relating to atrocities in Syria. This is also increasingly being seen as a more realistic and workable approach to hold perpetrators accountable, rather than only relying on international courts. 

The last part of the legal strategy is the ICC. This is a court that was established – based partly on the model of standalone international courts for the Balkans and Rwanda – to serve as a permanent international court that could try individuals (much like domestic courts), for international crimes in The Hague. The underlying basis for this court is complementarity, which means that only once domestic remedies are exhausted can an international case be commenced. Again, like the ICJ, states typically need to have signed up to the treaty, the Rome Statute. In the case of the Rohingya, while Myanmar is not a party to the treaty, Bangladesh is. And so in order to be able to examine the case in the first place, the prosecutor limited her inquiry to those crimes that have a cross-border component as Bangladesh is the source of jurisdiction. These essentially relate to crimes against humanity including deportation. The prosecutor completed her initial inquiries, and in July, on the basis that there was sufficient evidence to warrant a detailed investigation – a new phase in the proceedings – she submitted a request to the pre-trial chamber to authorize this full-fledged investigation. On 14 November, the pre-trial chamber came out with its decision permitting the investigation. This case is more focused in scope due to its cross-border component and a few other limitations, but attempts continue to obtain a separate referral from the UN Security Council to the ICC, for a case based on the full range of international crimes.     

These are three distinct types of legal actions, and in different fora – but all indicate an inexorable move towards justice and accountability. Each will have its pitfalls, and there are multiple hurdles along the way in each of these legal proceedings. However, the past week has marked legal milestones which Myanmar would be wise to heed – that the efforts for justice continue in earnest and will not be deterred anytime soon.