By Hamah Hosen –
Over a year since the mass influx of Rohingyas fleeing to Bangladesh, the International Criminal Court (ICC) has decided to conduct a preliminary investigation into Myanmar’s actions against the Rohingyas. While this can be seen as a step to opening up the door to remedy the Rohingya refugee crisis, it has also spurred considerable debate on the legitimacy and effectiveness of this decision. Yet, during this discussion, the Rohingya refugees in Bangladesh remain confronted with the effects of monsoon season and can be expected to meet more challenges if the proposed international action doesn’t also address the realities of these refugees.
The ICC is a court of last resort and has jurisdiction to prosecute individuals for the international crimes of genocide, crimes against humanity, and war crimes from states that are party to the Rome Statute. As such, it seems reasonable that the announcement from ICC’s Chief Prosecutor, Fatou Bensouda, to commence a preliminary investigation over crimes occurring in Myanmar has been met with rejection due to Myanmar’s non-party status to the statute. In particular, the government of Myanmar “resolutely rejects” the decision and has called it as “the result of faulty procedure and is of dubious legal merit”. However, the court determined it has legal jurisdiction on the 6th of September 2018 since the alleged crime of deportation occurred partially in Bangladesh, of which it is a signatory to the statute. This stems from the argument that despite the allegedly coercive acts took place in Myanmar, the crime would not have been completed until the refugees entered Bangladesh. Inevitably, this landmark ruling could enable investigations, and subsequently the prosecution of Myanmar military leaders for alleged crimes against humanity committed during last year’s actions against the Rohingya community.
Upon first glance, the ICC’s decision looks promising in setting up the international community to unlock the door to solutions that adequately deals with the Rohingya refugee crisis. However, delving deeper into the recent decision, prosecution and redress for the Rohingya refugees still remain out of reach. While Bensouda has been instructed to conclude her preliminary examination “within a reasonable time”, Wayne Jordash, a human rights lawyer, stipulates that charges would likely be at least five years away if the court follows its usual timeframe. In addition, Adama Dieng, UN Special Adviser on the prevention of genocide confirms that everything that took place on Myanmar’s territory is unable to be a part of the ICC’s investigation. The ICC also remains limited in its capacity to enforce its decision and would find a challenge from the UN Security Council, as Russia and China have so far blocked resolutions on this issue, to successfully bring Myanmar leaders to the court. Thus even if members of Myanmar’s military were indicted or eventually make a presence at The Hague, there is little reason to believe that Rohingya refugees will receive the legal response they deserve. It is clear that while a key to solving the crisis has been found, it is unknown whether it is the right key to unlock the door. As of this moment, the door remains locked and consequently, the real and immediate experiences of the Rohingya refugees are evidently prolonged.
In particular, the Rohingya refugees in Bangladesh are currently experiencing the effects of the monsoon season. Bangladesh is particularly known for receiving intense cyclonic storms and monsoon rains during the period between June and September. According to the United Nations, it is estimated that about 200,000 Rohingya refugees situated in Cox’s Bazar, including over 100,00 children, are threatened by flooding rains. At the start of the season, 900 shelters and 200 latrines were destroyed, water points were washed away, and there were instances where people had been buried under collapsing mud walls. This is a result of refugee camps being situated in Bangladesh’s southern tip, an area that is frequently flooded due to it being fewer than three meters above sea level, and within the triangular coast that funnels the ocean together during high tides. Thus while the international community attempts to open the door by utilizing the ICC’s decision as the key, there inevitably remains multiple padlocks needing to be unlocked before the crisis can eventually be settled.
While a key was provided by the Bangladesh government to help mitigate the effects of monsoon season for the Rohingya refugees, it doesn’t fit the particular padlock that needs to be opened. The proposed options that are offered, such as moving to higher ground and sheltering under sturdy structures, are not available to the Rohingya refugees given their living conditions. In fact, the majority of Rohingya refugees are living in cramped conditions with unstable shelters made from bamboo and plastic sheeting, and thus making them exceptionally vulnerable during monsoon season. According to Human Rights Watch, the average usable space in the area is 10.7 square metres per person, of which in comparison, the recommended international standard is 45 square metres per person. As such, it seems unlikely that refugees are able to relocate to higher-ground given the existing density within the camp and the lack of available and immediate land in the surrounding area. Their susceptibility is further exacerbated by the 19,000 hectares of deforested land that the camps are built on. In particular, the geography of the area has been altered and has consequently destroyed the root systems that would have previously reduced the possibility of flooding and landslides. The other option proposed also remains locked for Rohingya refugees as the Bangladesh government has blocked the possibility of constructing permanent structures, including monsoon and cyclone-resistant shelters, on campsites as the settlement area is viewed as a temporary solution. While this is an attempt to pressure Myanmar to create conditions necessary for voluntary repatriation, the keys needed to resolve the issue, as seen in the ICC’s progress, can take a considerable amount of time to find and eventually be utilized. It is ultimately unreasonable to let Rohingya refugees remain in these conditions over what seems like an indefinite time frame while the international community continues to debate over which key to use to solve the issue.
Although the ICC’s decision can potentially unlock the door for a sufficient international response to the crisis, the current dangers that the Rohingya refugees face mustn’t be overlooked as an element that hinders this process. The international community should thus not turn its back on the real experiences of the Rohingya refugees and allow them to face ongoing threats to their livelihoods. Thus, in order to solve the crisis and fully open the door, the immediate concerns of the Rohingya refugees needs greater consideration.
