UPDATED at 8:21 P.M. EST on 2018-04-13
Myanmar’s State Counselor's Office expressed “serious concern” on Friday with a statement issued by a prosecutor at the International Criminal Court claiming jurisdiction over the deportation of Rohingya Muslims from Myanmar to neighboring Bangladesh.
Nearly 700,000 Rohingya fled Myanmar’s Rakhine state during a brutal army crackdown that began late last August in response to attacks by a Muslim militant group, and now live in squalid displacement camps in southeastern Bangladesh.
The Myanmar government and military have defended the crackdown, which included large-scale killings, rape, and arson, as a counter-insurgency campaign, though United Nations officials have called the campaign “a textbook example of ethnic cleansing” that potentially “bears the hallmarks of genocide.”
On Monday, Gambian lawyer and ICC prosecutor Fatou Bensouda asked The Hague, Netherlands-based international tribunal’s judges to rule on whether the ICC “can exercise jurisdiction over the alleged deportation of the Rohingya people from Myanmar to Bangladesh.”
She raised the jurisdiction issue because Bangladesh is a member of the ICC, while Myanmar is not.
Bensouda's argument — the first request of its kind filed at the ICC — is an attempt to assert jurisdiction over “deportation” of the Rohingya by Myanmar army soldiers during the crackdown.
“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,” wrote Param-Preet Singh, associate director of the International Justice Program at Human Rights Watch, in a statement on Tuesday.
“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, she wrote.“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.”
On Wednesday, ICC judge Antoine Kesia-Mbe Mindua issued a decision that Bensouda's request for a ruling on jurisdiction over the Rohingya deportation met existing criteria and assigned the request to a pretrial chamber.
The Myanmar government said Bensouda's assertion of the extension of jurisdiction is not in line with the Rome Statute, the treaty that governs the ICC and to which Myanmar is not a party.
“The extension of jurisdiction to non-parties may have a reverberating effect on all non-parties in the world challenging long established principles such as legal certainty,” the statement issued by Aung San Suu Kyi’s office said.
“What the prosecutor is attempting to do is to override the principle of national sovereignty and non-interference in the internal affairs of other states in contrary to the principle enshrined in the U.N. Charter and recalled in the ICC’s Charter,” it said.
“Myanmar reiterates that it has not deported any individuals in the areas of concern and in fact has worked hard in collaboration with Bangladesh to repatriate those displaced from their homes,” the statement said.
Rohingya repatriation plans
Myanmar and Bangladesh signed an agreement in November for the return of Rohingya refugees who are living in sprawling displacement camps in the southeastern part of the country.
They signed a second agreement in January to complete the repatriation program within two years, though the returns have yet to get under way.
Myanmar government officials say they are prepared to begin the program but that incorrectly completed applications by refugees who want to voluntarily return have delayed the process.
During a visit to Bangladesh on April 11-12, Win Myat Aye, Myanmar’s minister of social welfare, relief, and resettlement, met with Bangladeshi government officials, U.N. representatives, and Rohingya refugees to brief them on the plan for the return and resettlement of Rohingya living in displacement camps.
It remains unclear how many Rohingya refugees would willingly return to villages from which they were driven by Myanmar army, abetted in many cases by local Buddhist residents.
Myint Thu, permanent secretary of Myanmar’s Ministry of Foreign Affairs, told RFA’s Myanmar Service on Thursday that the country will sign memorandums of understanding with the United Nations Development Programme and U.N. refugee agency (UNHCR) on the repatriation and resettlement of refugees.
Both agencies have raised concerns about the safety of the Rohingya, whom Myanmar considers illegal immigrants from Bangladesh and subjects to systematic discrimination, once the refugees return to Rakhine state.
The Bangladeshi government and the U.N. refugee agency finalized a similar document on Friday ensuring the safe and voluntary repatriation of Rohingya refugees to Myanmar in line with international standards once conditions are conducive to returns.
The UNHCR has engaged with the government of both countries separately in the absence of a tripartite agreement between all three parties.
Later this month, the 15 ambassadors of the United Nations Security Council will travel to Myanmar and Bangladesh for a week to observe the Rohingya refugee crisis on the ground.