On Monday, International Criminal Court (ICC) prosecutor Fatou Bensouda asked the court’s judges to rule on whether the ICC “can exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh.”
Bangladesh is a member of the ICC, but Myanmar isn’t. This distinction is critical because, since the ICC lacks jurisdiction over Myanmar, the most obvious path to justice for victims of crimes committed against ethnic Rohingya is through a United Nations Security Council referral to the court.
The prosecutor’s legal argument – the first ever request of its kind – is an attempt to assert jurisdiction over “deportation,” one of the well-documented crimes attributed to Myanmar’s armed forces against the Rohingya. It is based on the ICC’s ability to assert jurisdiction if the “conduct in question” for a deportation was committed on the territory of a member state. Since crossing a border is a legally required element of the crime of deportation, Bensouda argues, victims being forced to cross into the territory of Bangladesh would be a part of that “conduct.”
It’s for the judges to decide on the merits of the argument. But the prosecutor’s decision to seek a ruling on whether the ICC can act based on existing jurisdiction speaks to the gravity of the situation.
Regardless, the Security Council shouldn’t wait on a ruling to exercise their authority to refer the situation in Myanmar to the ICC.
The mass flight of hundreds of thousands of Rohingya into Bangladesh – more than 670,000, according to the UN – is only one aspect of the Myanmar security forces’ brutal campaign of ethnic cleansing.
In addition to deportation, Human Rights Watch research found abuses in Rakhine State amounting to crimes against humanity of murder and attempted murder, rape and other sexual assault, forced population transfers, and persecution. One UN official warned the Security Council of the widespread and systematic use of sexual violence “as a tool of dehumanization and collective punishment.” The UN human rights expert on Myanmar said last month that she was increasingly of the opinion that events in Myanmar “bear the hallmarks of genocide.”
The Security Council should refer the situation in Myanmar to the ICC so that the thousands of victims of horrific crimes have a chance at justice. On the contrary, for the council to do nothing would give Myanmar’s military a free pass to continue their ethnic cleansing of the Rohingya with impunity.