The International Criminal Court Says It Can Rule on Alleged Crimes Against Myanmar’s Rohingya

In a ruling that could open the door for the first criminal prosecution of the Myanmar military’s ethnic cleansing campaign, the International Criminal Court said Thursday that it has jurisdiction to probe the forced expulsion of Rohingya as a possible crime against humanity.

More than 700,000 people from the stateless Muslim minority were driven from their homes in Myanmar’s northern Rakhine state and into neighboring Bangladesh since last August. Survivors described fleeing a military-led frenzy of gang rapes, arson and mass murder.

Thursday’s decision allows chief prosecutor Fatou Bensouda to open a preliminary investigation into whether there is sufficient evidence of forced deportations, or other crimes against humanity, to press charges.

“The decision represents a significant moment in the search for accountability for international crimes allegedly committed against the Rohingyas,” says Kingsley Abbott, senior legal adviser at the International Commission of Jurists. “The onus is now on the Prosecutor to initiate an investigation as soon as possible.”

In a statement, Adilur Rahman Khan, vice-president of the International Federation for Human Rights, said the ruling “offers a glimmer of hope for justice for the thousands of Rohingya victims who were deported…and continue to suffer in Bangladesh as a result of this serious crime.”

The announcement follows a damning report from U.N. investigators last week that called for Myanmar’s military chief and five other top commanders be investigated and prosecuted for genocide, war crimes and crimes against humanity. In the strongest language yet used by U.N. officials, the experts condemned the military’s “genocidal intent,” and said the long-standing abuse of several ethnic groups “undoubtedly amount to the gravest crimes under international law.”

By what they termed a conservative estimate, the U.N. fact-finding team estimated some 10,000 people had died in the most recent violence in Rakhine.

Since Myanmar is not a member of the Hague-based court, it had previously seemed as though any potential prosecution would depend on a referral from the U.N. Security Council, where Russia and China could block the motion with a veto.

However, in April, the ICC’s chief prosecutor Bensouda asked judges to examine the court’s jurisdiction over deportations to Bangladesh, which is a signatory to the Rome Statute which governs the court.

Bensouda compared the deportations to “a cross-border shooting,” since the crime “is not completed until the bullet (fired in one state) strikes and kills the victim (standing in another state),” according to Agence-France Presse.

In a summary of their decision, the three-judge panel agreed that the cross-border nature of the alleged crimes gives the court jurisdiction. Their ruling also paves the way for a wider inquiry than just the deportations.

“The court may also exercise its jurisdiction with regard to any other crime set out in article 5 of the statute, such as the crimes against humanity of persecution and/or other inhumane acts,” the judges said in a written account of their decision.

Effectively, the decision means that just because “Myanmar is not a Party to the Rome Statute does not prevent an investigation and possible prosecution of any persons, including Myanmar nationals, for perpetrating crimes where one element — or part of the crime — occurred on the territory of Bangladesh,” says Abbott.

He added that ultimately, the process could lead to “arrest warrants, indictments and trials if an accused is brought before the Court.”

However, the scope of the investigation would not cover Kachin or Shan states, where the U.N. has also found evidence of war crimes. It would also not encompass the full array of charges Myanmar could theoretically face if referred by the Security Council.

Myanmar’s government spokesperson did not respond to request for comment about the ICC’s ruling. Officials, including civilian leader Aung San Suu Kyi, have staunchly rejected accusations of military atrocities, and have previously called the ICC’s attempts to open a probe “meritless.”