Dhaka Courier

Can Myanmar hide behind so-called jurisdiction argument?


Dhaka needs to utilise growing global legal pressure on Myanmar

Not a single Rohingya was repatriated over the last two years due to Myanmar’s failure to build confidence among Rohingyas and lack of conducive environment in Rakhine State. Bangladesh has so far handed over names of over 1 lakh Rohingyas to the Myanmar authorities for verification and subsequently expediting their repatriation efforts. Unfortunately, Myanmar is yet to start taking back its nationals from Bangladesh. Trust-deficit is still there among Rohingyas. They do not believe Myanmar leaders.

However, there has been significant progress on legal front that has apparently invited much pressure on Myanmar. Like Myanmar, its friends will also feel the pressure amid the significant development on legal front. Bangladesh needs to utilize it prudently to keep up the growing global pressure on Myanmar until a solution to Rohingya crisis is found.

The pressure is not only building on Myanmar rather it is a pressure for Myanmar’s friends too who kept mum as questions are around why other countries cannot do the same like Gambia and Argentina.

“The pressure on Myanmar should be there until there’s a solution. I think it’ll not be wise for us to give up until a solution is found. I think we shouldn’t stop here,” Prof Imtiaz Ahmed of Dhaka University’s (DU) International Relations department told Dhaka Courier.

He said there should be negotiations with other countries citing example of Gambia and Argentina, and it will be easier for the government (of Bangladesh) to talk about the issue.

Prof Imtiaz said there are already questions around why the European Union (EU), Canada, France or other countries cannot do the same on the legal front as they talk much about human rights.

No Immediate Dramatic Change

“There’ll be no immediate dramatic changes in the situation on the ground despite last few days’ progress on legal fronts, but it’ll definitely create further pressure on Myanmar,” Distinguished Professor, Department of Politics and Government at Illinois State University, USA told Dhaka Courier.

However, he said, in the past whenever Myanmar faced the likelihood of renewed international pressure, its friends - China, Russia and India - encouraged Bangladesh to pursue a bilateral solution to the Rohingya crisis. “This is a kind of diplomatic game.”

Prof Riaz said it is absolutely necessary for Bangladesh to take necessary steps and extend clear support to the legal measures that are being taken internationally.

“It’ll go in favour of Myanmar if Bangladesh hesitates to take steps to that end fearing discord with India and China,” he mentioned.

Positive Changes

Prof Imtiaz, however, said there are some changes in that front as Indian Prime Minister Narendra Modi has recently directly conveyed to Myanmar State Counselor Aung San Suu Kyi to resolve the crisis.

Prime Minister Modi, during his meeting with Suu Kyi on the sidelines of the ASEAN-India Summit in Bangkok, conveyed the importance of speedy, safe, and sustainable” return of Rohingyas to their homes in Rakhine in the interest of the people, and regions of the three  countries -- India, Bangladesh, and Myanmar.

Recently, Japanese Prime Minister Shinzo Abe also had a meeting with State Counsellor Suu Kyi and urged Myanmar authorities to create an environment “conducive” to the repatriation of Rohingyas to their place of origin.

“So, this (position of India and Japan) wasn’t there two years ago. We had waited for two years to solve it bilaterally,” Prof Imtiaz said adding that it is not two months that Myanmar’s friends could ask Bangladesh for a bilateral solution.”

The DU professor said policymakers in Bangladesh need to talk carefully and in a more guarded way as internationalisation of the Rohingya issue is growing. “It’ll not be so easy for Myanmar to escape.”

He said one thing is clear that the issue reaches the international level right now and this no longer remains an issue of Bangladesh and Myanmar as it is clearly understood that Myanmar is not serious about bilateral mechanism.

Possible Consequences

State Minister for Foreign Affairs M Shahriar Alam has indicated that Myanmar’s top 20 individuals, including State Counsellor Aung San Suu Kyi, might face legal music and even arrest on foreign lands if the verdicts from two international courts –ICC and ICJ - demand so.

“This kind of incidents happened in the world,” he said apparently explaining why and how the Myanmar is not out of the jurisdiction of the International Criminal Court (ICC) and International Court of Justice (ICJ) though it is not a party to the Rome Statute, the founding treaty of the ICC.

Shahriar said though Myanmar is not a signatory to the Rome Statute, other countries which are parties to the ICC and ICJ have a responsibility to follow the verdicts that will come from these two top courts on Rohingya issue.

“If the verdicts name top 20 individuals of Myanmar – Suu Kyi, Myanmar’s senior general or ministers, if they visit countries like the UK and Japan and if verdicts say they’ve to be arrested, it’ll be their (foreign countries) responsibility to arrest them. This kind of incident happened in the world,” said the State Minister explaining the possible consequences.

Considering these aspects, he said, it is clearly understood where Myanmar’s position will ultimately land internationally.

That is why, Shahriar said, Myanmar in other words, is not out of the jurisdiction of the ICC and ICJ, no matter who says what.

The State Minister said one thing is clear that the member countries of the ICC and ICJ who are still supporting Myanmar and will support it in the coming days will be under pressure afresh through the beginning of the processes at the ICC and ICJ on legal front against Myanmar.

“And this (progress on legal front), I think, will help Bangladesh find a solution to the Rohingya crisis in the coming days,” Shahriar said.

Citing example of Argentina and Gambia which other countries might follow, Prof Imtiaz said if they look at Argentina case, it is clear that there is no question Suu Kyi will visit there.

He also said Gambia filed the case on behalf of the Organisation of Islamic Cooperation (OIC) and it will be difficult for Myanmar to go to the OIC countries.

On the other hand, Myanmar on Friday claimed an investigation by the International Criminal Court (ICC) is "not in accordance with international law".

About Myanmar’s reaction over ICC investigation, Prof Riaz said Myanmar’s reaction is not surprising and it is trying to deflect the pressure by questioning the legality of it.

“But there’s little doubt that the crimes committed by Myanmar falls within the jurisdiction of the ICC,” he said.

The global affairs analyst said preliminary examination of the ICC’s Prosecutor’s office found “a reasonable basis” for the allegations of crimes committed by Myanmar and pre-trial Judges accepted that ‘there exists a reasonable basis to believe’ of widespread and systematic acts of violence.

“Myanmar can’t hide behind this so-called jurisdiction argument,” said Prof Riaz.

Govt Remains Supportive

Foreign Minister Dr AK Abdul Momen said as victim of the world’s horrific genocide, Bangladesh from the very beginning of its statehood, always has been supporting the oppressed and violated people around the globe.

“The Rohingya crisis was created by Myanmar and indeed it has been a problem of long decades in Myanmar. To stop the recurrence of Rohingya persecution, exodus and bringing the perpetrators of this crisis into justice is crucially important,” he said.

To that end, Dr Momen said Bangladesh remained “supportive” to the international mechanisms currently in the process towards ensuring justice for the Rohingyas.

Bangladesh welcomed the initiative of ICC and is encouraged by the recent submission of the case by Gambia to the ICC on behalf of OIC group under the Genocide Convention 1948.

“We believe, ending of the culture of impunity would bring some positive development towards the solution to Rohingya crisis,” Dr Momen said.

Recent Dev on Legal Front

On November 14, pre-trial Chamber III of the International Criminal Court has authorised the Prosecutor to proceed with an investigation for the alleged crimes within the ICC’s jurisdiction committed against the Rohingya people from Myanmar.

ICC Prosecutor Fatou Bensouda said her investigation will seek to uncover the truth. “My Office will now focus on ensuring the success of its independent and impartial investigation."

Meanwhile, Suu Kyi is among several top Myanmar officials named in a case filed in Argentina for crimes against Rohingya Muslims and it shows the Nobel Laureate, for the first time, has been legally targeted over the crisis.

On November 11, Gambia filed a case at the United Nations’ highest court, accusing Myanmar of “genocide” in its campaign against its Rohingya Muslim minority.

Gambia, which filed the case on behalf of the Organization of Islamic Cooperation (OIC), asked the International Court of Justice (ICJ) to urgently order measures “to stop Myanmar’s genocidal conduct immediately.”

Rohingya and Latin American human rights groups submitted the lawsuit in Argentina under the principle of “universal jurisdiction,” a legal concept enshrined in many countries’ laws.

  • Can Myanmar hide behind so-called jurisdiction argument?
  • Vol 36
  • Issue 20
  • AKM Moinuddin
  • DhakaCourier

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