Paths Towards Justice for the Rohingya? - An Analysis of the Cases on the Rohingya and Myanmar in the International Court of Justice and the International Criminal Court

Sammanfattning: Atrocities against members of the Rohingya group in Myanmar have since August 2017 resulted in over 10 000 deaths and close to one million people being forced to flee into neighbouring Bangladesh. In response to these events, The Gambia instituted proceedings against Myanmar before the International Court of Justice (ICJ) in November 2019. A few days later, the Prosecutor of the International Criminal Court (ICC) was authorized to commence investigations into alleged crimes under the ICC’s jurisdiction in relation to the same events. With focus on questions of jurisdiction, victims’ perspective and standards of proof, this essay lays out an overview of the above-mentioned processes by comparing the preconditions of the proceedings before the ICJ and the ICC, in order to understand the two processes and their roles in potentially bringing justice to members of the Rohingya group in (and outside of) Myanmar, and to identify challenges in that regard. In summary, the two processes regard different legal aspects of the same events. The ICJ will assess alleged state responsibility for violations of the Genocide Convention while the process in the ICC regards individual criminal responsibility under the Rome Statute. Questions of jurisdiction affect both processes. Especially, jurisdictional limitations, due to the fact that Myanmar is not a State Party to the Rome Statute, limit the process in the ICC as the Court in this case is limited to conduct proceedings in relation to crimes under its jurisdiction with a cross-border element. This further puts the ICJ in a position where it is the only existing international judicial court capable of dealing with alleged genocide in the present situation. Victims’ interests are, due to the different purposes of the two organs, at a starting point satisfied to a higher degree through the ICC than through the ICJ. However, this difference levels out to some degree due to the jurisdictional limitations to the ICC in the present situation. Finally, standards of proof, arguably, are similarly high in both processes. What regards the process in the ICJ, a key challenge will be to satisfy the applicable standard of proof, especially so in relation to the alleged genocidal intent of Myanmar. What regards the process in the ICC, a key challenge will be to conduct successful proceedings in absence of state cooperation from Myanmar. Despite the uncertainties of both processes, the mere existence of them brings a high symbolic value as it shows that events like the present ones in Myanmar, at least in this case, do not go under the radar of the existing international judicial institutions.