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HomeOpinionBalancing justice and diplomacy: The ICC and the Rohingya crisis

Balancing justice and diplomacy: The ICC and the Rohingya crisis

Guest contributor

Shafiur Rahman

The Rohingya crisis, stemming from the August 2017 massacres, remains one of the most harrowing human rights violations of our time. Today, six years later, the question of how the international community, particularly the International Criminal Court (ICC), has addressed this tragedy takes on immense significance. For the Rohingya, the ICC involvement marked not only a legal milestone but a deeply symbolic and emotional one—the promise of seeing their oppressors held accountable, perhaps even dragged off to The Hague and imprisoned.

Indeed, two years after the crisis, there was a tremendous buzz surrounding key developments that focused on the ICC role. The authorization to initiate an investigation into crimes related to the waves of violence in Rakhine State, granted by the ICC Pre-Trial Chamber III on Nov. 14, 2019 was the first significant good news for the Rohingya. This event, alongside other international legal actions, ignited hope for justice and change, and affirmed the belief that international justice can prevent future atrocities by the brutal military. 

The Gambia filed a case against Myanmar before the International Court of Justice (ICJ) in November 2019, alleging violations of the Genocide Convention. Additionally, on Nov. 13, 2019 the Burmese Rohingya Organisation UK (BROUK) petitioned Argentinean Courts to investigate the role of Myanmar’s leaders under the principle of universal jurisdiction. These actions affirmed the belief that international justice can prevent future atrocities by the military. Yet, despite these promising developments, an undercurrent of dissatisfaction and disillusionment was beginning to take shape, revealing cracks in the process of seeking justice.

Karim Khan’s recent visit to Bangladesh, in his capacity as the chief prosecutor of the ICC, was met with a palpable air of disappointment and confusion. I spoke to refugees from Tula Toli, a community seared by the memories of the 2017 atrocity. Their commentary about Khan’s visit was varied but revolved around a theme of neglect. Junaid, a survivor of the Tula Toli massacre, was candid about his lack of knowledge: ‘I was completely unaware of Khan’s arrival. I hadn’t heard anything about his visit.’ *Mosharraf Ali, however, voiced an unsettling concern. Ali perceived, whether true or not, that Khan met only with particular organizations like the one led by Mohibullah, a prominent Rohingya human rights defender, killed in 2021. ‘Why did he prefer to meet with Mohibullah’s group over us?’ he asked, encapsulating the feeling of exclusion pervasive in the camp. *Razia from Tula Toli was confused about the very purpose of Khan’s visit.

But these are not simply anecdotal complaints. A letter from 20 Rohingya Civil Society Organisations to Prosecutor Karim Khan reveals deep-seated frustrations and numerous grievances. The organizations express their disappointment over the limited interaction and outreach from ICC representatives, calling for a more sustained presence to ensure better coordination and accurate information dissemination. 

They lament misunderstandings about the ICC case within the refugee camps, emphasizing a conspicuous absence of support from the ICC to counter these misconceptions. Their concern extends to the lack of an ICC field office in the camp, despite prior requests, arguing that such an office could foster enhanced communication, collaboration, and direct engagement. 

They also brought up the stark inequality in the treatment of the Rohingya case,  highlighting a perceived disparity in resource allocation and attention compared to other cases, specifically Ukraine. This sense of neglect leads to clear frustration, as the Rohingya crisis seems sidelined despite its widely accepted categorisation as genocide. 

The open letter, delivered directly to Khan’s email address, was met with silence; no reply was received. This apparent disregard was further complicated by a privately made statement during Khan’s trip. One of the signatories informed me that Khan mentioned the letter, expressing his opinion that it should not have been written. The reaction to this response was one of deep dismay.

Sawyed Dollah of the Rohingya Student’s Network, a signatory to the letter, conveyed his frustration: “I feel not only disrespected or disappointed but also disheartened. He ignored the collective voice of victims. And I believe this kind of treatment is a reason for delaying justice for us.” His words encapsulate a sentiment that extends beyond simple disappointment, hinting at a growing fear that justice for the Rohingya may be slipping further away.

If the organizations which wrote that letter felt aggrieved, consider the case of Rohingya refugees who formerly lived in the No Man’s Land encampment. A mere six months before Karim Khan’s visit, over 4,500 Rohingya individuals were forcefully deported from this area in an action in which Bangladesh was clearly involved

The displacement of thousands in such a manner should have raised alarm bells for the ICC. Specifically, there have been two incidents in No Man’s Land that are of particular interest: one on Nov. 14, 2022 and another on Jan. 18, 2023. Both incidents reported shelter destruction, property damage, abductions, deaths, and personal injuries. The January event resulted in the complete destruction of the camp and displacement of all Rohingya.

However, the ICC handling of these situations has left much to be desired. The Rohingya individuals from No Man’s Land, seeking justice and accountability, faced further insult when they discovered that the ICC online contact pathway allowed them to submit only 200 characters worth of information — 80 characters fewer than a standard tweet. This limitation not only stifles their voice but also, according to those who filled up the form, signifies a lack of seriousness in gathering detailed information. Such brevity is particularly difficult for people without proficiency in English, adding yet another barrier.

Their attempts to articulate their complex and urgent grievances were met with nothing more than an automated reply with a reference number. As of today, no investigator has reached out to them, leaving them in a state of uncertainty and frustration. The lack of human interaction and the unresponsiveness of a system designed to address their grievances underlines the gap between the ICC mission and its on-the-ground execution, leaving the vulnerable population in continued despair and their quest for justice stymied by what they perceive to be bureaucratic indifference.

Through consultations with international lawyers, I’ve been able to discern that these refugees have several main avenues to make their cases known to the ICC, each with its own set of limitations. They can attempt to communicate through the Online Portal, but this pathway restricts the submission to a mere 200 characters, hardly enough to describe the complex tragedies they have endured. Alternatively, they could seek representation through Legal Representatives of Victims (LRVs), but most refugees in the camps do not have access to such representation, leaving them without legal guidance and further marginalizing their position. 

The Victims Participation and Reparations Section (VPRS), the outreach arm of the ICC, theoretically exists to facilitate communication with affected communities. However, one prominent Rohingya organization based in Europe confided that they had not even heard of this outfit until recently and have had no contact with it so far. Finally, there are face-to-face meetings with the ICC, which provide an invaluable opportunity for personal interaction and understanding. Yet, clearly, given all the complaints, this approach is not running effectively.

These various pathways, while theoretically providing channels for the victims to express their grievances, seem fraught with barriers that render them practically ineffective. The lack of clear communication, the absence of legal representation, the limited reach of the outreach arm, and the impracticality of face-to-face interactions create a systemic problem that leaves the Rohingya refugees voiceless. Their suffering continues to be a distant and abstract concept to those with the power to enact justice, resulting in a failure to translate the ICC mission into tangible support and action for the people it is meant to serve.

But what about Karim Khan, the Prosecutor himself? There’s an expectation that a visit by the ICC chief prosecutor to regions of ongoing human rights abuses should come with strong, unequivocal statements. The benefits of such a gesture are manifold. It draws global attention, reaffirms international norms, offers victims a semblance of reassurance, and importantly, acts as a deterrent against future human rights infringements.

But the pronounced silence on specific critical issues affecting the Rohingya in the camps during Khan’s visit is striking. He failed to mention the concerns surrounding the potentially unsafe repatriation plans that Bangladesh has for the Rohingya, or the uncertainties about Bhasan Char – a remote island where Bangladesh is relocating Rohingya refugees – or No Man’s Land. Instead, he lavished praise on Bangladesh. 

The most significant comment Khan made, pertaining to the situation on the ground, concerned the recent cuts in rations by the World Food Programme (WFP). While this is a substantial and valid concern, it also fits into Bangladesh’s playbook. Bangladesh has leveraged the WFP issue as a pretext to pressure the refugees into returning to Myanmar through an insecure repatriation process. How, then, can we interpret this reticence?

The actions of international figures, particularly from institutions such as the ICC, often reveal a balancing act between diplomacy and their fundamental mandates. Diplomatic efforts, though beneficial in fostering collaboration, can sometimes overshadow the primary objectives of such institutions. Khan’s focus on the WFP ration cuts affecting Rohingya refugees, albeit appreciated, also puzzled refugees. 

“If he can talk about WFP, why not all the other bad things that are happening to us?” said a student. The motivations behind emphasizing this issue can be complex. Khan’s emphasis on the implications of the WFP ration cuts for “security, stability, and safety in the camps” positions the issue not only as a humanitarian concern but also as a matter of maintaining order and stability within the camps. This perspective serves as a reminder that addressing Rohingya concerns also involves the management of the refugee settlements.

Khan’s commendation of Bangladesh might be aimed at building trust and rapport, a strategic move given that cooperative host states can significantly facilitate ICC operations. The intricate geopolitics surrounding the Rohingya crisis demands a sensitive approach to ensure wide-ranging cooperation and sidestep potential pitfalls. However, there are downsides to unalloyed commendation. By spotlighting the WFP issue, which aligns with the narrative embraced by Bangladeshi politicians, Khan might be aiming to magnify international attention and pressure, thereby aiding the refugees. 

However, again, this strategy isn’t devoid of risks. By prioritizing issues that resonate with the Bangladesh government’s stance, the ICC may inadvertently bolster narratives that exert undue pressure on the Rohingya refugees, thereby jeopardizing their welfare. The Office of the Prosecutor is empowered to investigate any crime within its jurisdiction, including future crimes, under specific conditions. Therefore, the potential avenues for justice are expansive and encompass not only Myanmar but also Bangladesh.

Article 54(1) of the Rome Statute mandates the prosecutor to investigate all aspects of a situation whilst upholding the principles of independence and impartiality. This balance is essential, and the ICC must judiciously weigh diplomatic efforts against its foundational obligations. A lopsided emphasis on diplomacy, particularly if it conflicts with the ICC central mission, could undermine its credibility and long-term efficacy. 

A 2019 submission to the ICC from one set of LRVs emphasizes this need, stating, “The scope of the investigation must encompass all potential perpetrators. The Tatmadaw must be the primary focus, but others facilitating their crimes must also be subject to scrutiny. So too must officials of Bangladesh, and the agencies supporting them, whose conduct increasingly resembles ill-treatment designed to effect unsafe repatriation.”

As Khan seeks to navigate the complex political landscape, he must retain a measure of distance from Bangladesh if he is to preserve the impartiality necessary to examine all crimes. His overly friendly approach risks not only overshadowing the ICC broader investigatory mandate but also inadvertently aligning with narratives that may not fully align with the pursuit of comprehensive justice. The success of the ICC in addressing the Rohingya crisis hinges on this delicate equilibrium, highlighting the importance of an approach that ensures both the cooperation of key stakeholders and the unbiased application of international law.

In summary, Khan’s visit seemed to have lacked breadth and depth, stirring criticisms that echo common complaints about the ICC. Concerns about selective justice, inconsistency in public statements, resource constraints and prioritization, and a lack of presence in affected regions all seem to be embodied in his 2023 visit. 

In light of the complex landscape of international justice and the particular drawbacks of the ICC’s approach, it is clear that the quest for justice and accountability for the Rohingya is challenging. The ICC limitations in scope, effectiveness, and victim participation, among other aspects, raise questions about its adequacy in addressing the totality of crimes committed against this community. 

Fortify Rights’ initiative to lodge a complaint in Germany under the concept of universal jurisdiction and the exploration of other domestic jurisdictions present new avenues that might hold more promise. These innovative strategies underscore the significance of both international and domestic legal mechanisms in the pursuit of justice. 

While the ICC continues to be an important player in this arena, the case of the Rohingya indicates that alternative avenues may sometimes provide more scope and flexibility in addressing grave injustices. The interplay between different jurisdictions and the potential for more direct victim participation in domestic settings may yet offer the Rohingya a more tailored and effective pathway towards justice and healing.

*names changed to protect identities

Shafiur Rahman is a journalist and documentary maker currently focussing on Rohingya issues. 

DVB publishes a diversity of opinions that does not reflect DVB editorial policy. We’d like to hear what you think about this or any of our stories: [email protected]

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