Rohingya refugees gathering behind a barbed-wire fence in a temporary settlement setup in a "no man's land" border zone between Myanmar and Bangladesh in this photo taken April 25. (Photo by Ye Aung Thu/AFP)
The International Criminal Court (ICC) is deliberating whether it has the mandate to prosecute Myanmar officials responsible for Rohingya Muslims fleeing en masse from Rakhine State to Bangladesh.
The Hague-based ICC judges held a closed-door hearing with the court's chief prosecutor Fatou Bensouda on June 20 to decide on whether it has a mandate to prosecute Myanmar officials for alleged "crimes against humanity." A decision has yet to be made from the hearing.
The hearing follows Bensouda's April 9 application where she requested that the ICC rule on whether it has jurisdiction over the so-called deportations of Rohingya people from Myanmar to Bangladesh and class it as a crime against humanity.
Dr. Ali Riaz, a professor of political science at Illinois State University, told ucanews.com that the nature of the crimes against Rohingya and their forcible deportation to Bangladesh falls under the purview of ICC's jurisdictions.
"The ICC doesn't specifically address ethnic cleansing or genocide, but 'deportation or forcible transfer of population.' Article 7(1)(d) of the Rome Statue has described this as one of the 'crimes against humanity,'" said Riaz.
"It clearly falls under the jurisdiction of the ICC, and the ICC has the authority to investigate and prosecute, if there is enough evidence against individuals responsible for the act," he said.
"Myanmar is not a signatory of the Rome Statue, but I think the ICC has the territorial jurisdiction too. The 'forcible deportation' across an international border into Bangladesh made this a significantly different situation, and as Bangladesh is a member, the ICC can create a special case for the operation of ICC jurisdiction," said Riaz.
If the process proceeds, Bangladesh will have additional leverage to push Myanmar to expedite the repatriation process (of Rohingya), he added.
Currently, Bangladesh shelters up to one million Rohingya in dozens of overcrowded refugee camps in Cox's Bazar following their exodus from Rakhine. The majority of them fled two brutal military crackdowns in August 2016 and October 2017, in response to Rohingya militant attacks. The U.N. has dubbed the most recent crackdown "a textbook example of ethnic cleaning."
Amid international pressure, Myanmar signed a bilateral agreement in November for the repatriation of Rohingya from Bangladesh. The process has been stalled, with officials on both sides citing lack of preparations.
Riaz said that the bilateral agreement between Myanmar and Bangladesh has produced nothing, not even a timeline for repatriation. "The apprehension that cooperation with the ICC will stall the repatriation process is misplaced," he said. "On the contrary, it may help Myanmar to act swiftly to avoid ICC processes."
Phil Robertson, deputy director of Asia at New York-based Human Rights Watch, said the only way the ICC could move forward with the case is via the request of chief prosecutor Bensouda. A referral from the U.N. Security Council is not going to occur, given that China is a permanent member of that body, Robertson said.
"The ICC is currently considering the request, since it will have implications for many other cases in the world where victims of crimes against humanity flee to a country that has ratified the Rome Statue," he said.
The 1998 Rome Statute — that established the ICC — was signed and ratified by 123 member states. The statute establishes the court's functions, jurisdictions and structure.
According to ordinary procedure, the ICC needs a referral from the U.N. Security Council to investigate war crimes against individuals deemed responsible for such acts.
However, following the appeal from Bensouda, the ICC judges have decided to look into the possibility of exercising the court's jurisdiction over Myanmar.
In May, the ICC sent a letter to Bangladeshi authorities asking them to submit details about the presence of Rohingya who fled Myanmar in relation to the prosecutor's request.
Bangladeshi deputy foreign minister Shahriar Alam said his government responded to the ICC and provided all the information required, reported bdnews24.com.
Alam added that Bangladesh was still committed to settling the matter "bilaterally".
HRW's Robertson cautioned over a possible backlash from Myanmar's military on Muslims in the country over the ICC. Myanmar's military might retaliate by attacking more than 150,000 Rohingya and Kaman Muslims in internally displaced peoples (IDP) camps in central Rakhine, he said.
"At this point, without any international accountability possible, there is little that can stop the Myanmar military from attacking those IDP camps if they wanted — and if that happens, more people will flee across the border," Robertson said.
He insisted that Bangladesh should recognize that by only demanding Myanmar troops be held accountable for rights abuses is there any hope that such abuses might end in the future.
"The Rohingya don't want to stay in Bangladesh — they want to go back home to northern Rakhine State. But they don't want to go anywhere under the current conditions which fail to ensure safe, dignified and voluntary returns," said Robertson.
Among those Rohingya refugees aware of the ICC's move there was a mixed reaction, but largely positive.
Noor Muhammad, 45, from Balukhali refugee camp in Cox's Bazar, said he welcomed the news about the ICC judge's decision in holding the hearing. But he was somewhat skeptical.
"The ICC's move brings hope for justice over the crimes committed against the Rohingya," Norr said. "It can hold Myanmar accountable for atrocities only if the United Nations intervenes," he said.
"But the problem is international politics with some powerful nations supporting Myanmar, despite the world being aware about the plight of the Rohingya," he added.
Noor moved to Bangladesh from Maungdaw of Rakhine in December last year.
He said the Rohingya faced "unspeakable brutality" in Myanmar at the hands of the security forces. "I cannot believe how human beings could carry out such heinous atrocities on fellow human beings," he said.
Muhammad Jamal, 29, a former resident of the Buthidaung area in Rakhine has been in Kutupalong refugee camp since October 2017. He said the Myanmar military and Rakhine Buddhists burned down his house and grocery store, and slaughtered two of his cousins.
"[They] must face prosecution and punishment for the brutalities committed against the Rohingya," said Jamal, a father of four.
"I believe the ICC move was in response to pressure from human rights groups and I welcome it," he said.
"We want to see those perpetrators punished, and a guarantee of our safe, peaceful and dignified return to our homeland," he added.