OPINION: The arc of history can bend towards justice for the Rohingya

Friday, 19 July 2019 12:30 GMT

ARCHIVE PHOTO: Noor Mohol, 60, a Rohingya refugee waits to get herself registered for humanitarian aid at the Kutupalong refugee camp near Cox's Bazar, Bangladesh October 23, 2017. REUTERS/Adnan Abidi

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* Any views expressed in this opinion piece are those of the author and not of Thomson Reuters Foundation.

What happened to the Rohingya is a stain on the history of humanity. But the arc of history has a way of bending towards justice.

Nurul Islam is the Chairman of the Arakan Rohingya National Organisation, Razia Sultana is the founder of the Rohingya Women Welfare Society in Cox’s Bazar and recipient of the U.S. Secretary of State’s International Women of Courage Award, and Thom Woodroofe is a UN Representative with the the non-profit Independent Diplomat advisory firm.

Almost two years on from the orchestrated campaign of violence that led to more than 700,000 Rohingya Muslims fleeing Burma for Bangladesh, justice for what a UN investigation has said likely constituted genocide remains elusive, but not necessarily out of reach.

With the presumption of a Chinese veto, the UN Security Council remains hopelessly divided. So besides issuing a “Presidential Statement” in November 2017, the body responsible for international peace and security has not issued one resolution as one of the world’s gravest humanitarian crises has unfolded. Some fear even bringing on a vote to refer the situation to the International Criminal Court (ICC) could grind to a halt any remaining sense of cooperation.

At the very least it could have imposed an arms embargo or tried to force the Association of Southeast Asian Nations (ASEAN) to adopt a stronger position as it did around the 2011 Preah Vihear border dispute.  But countries like Indonesia – despite their promises – have not done enough stand up for the Rohingya while on the Security Council. Meanwhile atrocities continue to take place to this day, and an internet blackout in Rakhine State ordered by the Burmese regime four weeks ago makes us again fear for the worst.

Despite this, some glimmers of hope are beginning to emerge on the long road to delivering justice and accountability. But without a concerted diplomatic effort in the coming months around a number of key events – including the anniversary of the crisis and a number of crucial UN meetings and reports, we may lose a rare political window to take a step closer to securing the outcomes that the Rohingya people so desperately deserve.

Firstly, the decision of the UN’s Human Rights Council last year to establish a new investigative mechanism to prepare case files for future prosecution was a landmark achievement – but one that passed with relatively little attention.

The big problem now is that it will likely take the new mechanism more than two years to even prepare one case file, and once it does there is no equivalent international mechanism through which these cases can then be brought to trial. While it is possible that some national courts in Germany, Sweden and elsewhere could perhaps use universal jurisdiction to hear cases as we have seen on Syria, this is by no means enough and those responsible remain inside the country. Given the Security Council deadlock, the best option would be for the international community to establish a special tribunal as they did with Rwanda and Yugoslavia – and there is no procedural reason the UN General Assembly could not mount such a push themselves.

Secondly, while the United States, European Union, Canada and Australia have all imposed economic sanctions against some Tatmadaw soldiers (forcing some into “early retirement” in the process), the Commander-in-Chief has not been included despite a UN report’s clear recommendation. And while a travel ban imposed against him by the U.S. this week has by the Tatmadaw’s own admission undermined their ‘dignity’ (even if they do not wish to travel there), thankfully legislation before the U.S. Congress has the potential to apply even more targeted, appropriate and consequential pressure on the senior military leadership if it can get past the cautious approach favourited by Republican Senate Leader Mitch McConnell. Other countries would inevitably follow suit.

Similarly, sanctioning military-owned companies would also help ensure they feel the pinch – and a major forensic report by the UN on these companies due out later this month will hopefully help change that tide as well. At the same time, some countries continue to sell arms to Burma, while others – including Australia – have maintained other forms of cooperation.

Thirdly, last month’s request by the ICC Prosecutor to formally investigate the seemingly narrow, but in fact expansive, crime of forced deportation from Burma to Bangladesh is a potential gamechanger.

Nothing focusses the minds of the leaders of the Tatmadaw forces in Naypyidaw more than the thought of one day ending up in the dock in The Hague – something which many thought would never happen in the former Yugoslavia, but sometimes it is just a matter of time. If an arrest warrant was to come, travel by the Burmese leadership would become impossible to those countries that have signed the Court’s statute – and this is why it was so disappointing for the Rohingya that Malaysia, an ASEAN member, reneged on its intention to join the Court just a few months ago.

And finally, and perhaps most significantly in the short term, a number of countries are now openly floating the possibility of taking Burma to the International Court of Justice for failing to uphold its obligations under the 1948 Genocide Convention.

Whether such a case is filed by The Gambia, Canada, The Netherlands (where there is support at different levels) or another country, the important thing is that a concerted diplomatic and legal effort is mounted to ensure it does not fail and that others are quickly able to support it. While this wouldn’t be able to hold any individuals to account, it could deliver reparations and other sanctions.

What happened to the Rohingya is a stain on the history of humanity. But the arc of history has a way of bending towards justice. And for the roughly one million refugees that continue to languish in makeshift camps in Bangladesh, including more than 400,000 children with no access to education, this cannot come soon enough. The next few months will be a powerful reminder of this, but also present an increasingly rare opportunity that must be seized with both hands.