See More on Facebook

Opinion

From a high moral ground to a high legal perch

That Bangladesh offered a safe haven to close to a million Rohingya refugees fleeing wholesale persecution from Myanmar put Dhaka on a high moral pedestal.


Written by

Updated: June 1, 2018

Bangladesh’s humanitarian position got her accolades, even though moral and material support fell short of exerting any effective pressure on Myanmar to take back their abandoned nationals.

All that was, in fact, soured by a certain resigned attitude of the regional/international players that the refugees are there in Bangladesh for the long haul. Countries with levers to press on Myanmar to behave in a civilised, responsible manner chose not to, pampering the junta to a point of being a perpetual regional bully boy!

It is time for the international legal system to end the impunity culture of the recalcitrant Burmese regime. For this to happen, the Rome Statute, the bed-rock of the International Criminal Court (ICC), is going to be invoked at long last.

Presumably, it has the stamp of the use of motu proprio power by the ICC to investigate the crimes in question. The ICC has taken up the matter of its own volition realising its gravity—there was no UNSC referral nor any move that we know of from the Bangladesh side with the ICC.

Needless to say, the ICC initiative presents Bangladesh, a party to the Rome Statute, with an opportunity to hold Myanmar to account through international legal means.

With that hopefully in prospect, Bangladesh will be poised to move from the high moral ground to the high legal ground.

The preamble to the Rome Statute affirmed that “the most serious crimes of concern to the international community as a whole must not go unpunished” and there should be determination “to put an end to impunity for the perpetrators and thus to contribute to prevention of such crimes.”

The procedure followed in a bid to invoke the Rome Statute which repudiates “deportation or forcible transfer of population” as crime against humanity is as meticulous as it is fair. As a first step, the ICC Prosecutor Fatou Bensouda asked the court to rule on whether it has jurisdiction over the matter. Then, the ICC pre-trial chamber, on May 7, invited Bangladesh to submit written observations by June 11 on whether the court can exercise jurisdiction over forced deportation of Rohingyas from Myanmar to Bangladesh.

Usually one would have expected—since Myanmar triggered a wholesale exodus—she would be the first to be approached by the court to elicit her opinion on its culpability. But this was not to be because Myanmar is not a state party to the Rome Statute. All the more reason though to subject Myanmar to an ICC investigation. This brings to the fore the compelling necessity for the ICC to gather all information on atrocities before bringing them up to the offending party to establish its guilt. Bangladesh being a repository of evidence deserves to be the first port of call for the ICC as procedural requirement.

Barrister Manzoor Hasan in these columns on Tuesday put the matter of territorial jurisdiction succinctly: “According to the Rome Statute, territorial jurisdiction is not limited to the place where the coercive acts took place, Myanmar in this case, but to all states involved in the deportation across the international border, concluding at the receiving state, Bangladesh in this case.”

There are three valid reasons for Bangladesh to respond to the pre-trial chamber’s letter seeking her opinion on the ICC proposing exercise of jurisdiction over deportation of Rohingyas from Myanmar to Bangladesh: First, as the unfortunate receptacle of the fall-out of Myanmar’s despicable waves of ethnic cleansing; and secondly, as a signatory to the Rome Statute.

Lastly, our own history prods us to demand justice; we suffered from war crimes and brought those responsible to justice, a legacy worth replicating as template to combat the sinister side to human affairs.

Even the states within the ICC which are not party to the Rome Statute—USA, China and Russia—can play a major role in ICC investigations. “They can ensure the ICC to act or prevent countries from cooperation with it.” Again, the ball rolls into the court of super-powers to act in favour of the aggrieved party.

The UNSC used the ICC as a diplomatic instrument to deal with the crisis in Sudan. Three out of five permanent members of the UNSC are not party to the Rome Statute, including the USA. But Washington has been making the right noises for Bangladesh on Rohingya crisis in so many ways. Would the US and India help Bangladesh come out of the repatriation tunnel closed on the receiving side?

The overarching signal we need to put across is a carefully calibrated response in particular to the humanitarian part of the challenge. We need to refrain from conveying a sense of semi-permanence, let alone permanence in our approach to the Rohingya rehabilitation issues. As it is, going by Myanmar’s present indication of an intake of 300 refugees per day, the repatriation process will take up to eight years. But not even a stuttering start has been made yet! Indeed, are we looking for a messiah in the international community not to allow us to be condemned to a long haul?

– Shah Husain Imam is adjunct faculty at East West University, a commentator on current affairs and former Associate Editor, The Daily Star.



Enjoyed this story? Share it.


Daily Star
About the Author: The Daily Star is a leading English-language daily newspaper in Bangladesh.

Eastern Briefings

All you need to know about Asia


Our Eastern Briefings Newsletter presents curated stories from 22 Asian newspapers from South, Southeast and Northeast Asia.

Sign up and stay updated with the latest news.



By providing us with your email address, you agree to our Privacy Policy and Terms of Service.

View Today's Newsletter Here

Opinion

Previewing Sheikh Hasina’s fourth term

A unanimous poll decision leaves Sheikh Hasina with many decisions to make. It is the huge gaps in the numbers of votes polled by the winners and the losers in the 11th national election that apparently unveiled a “controlled and patterned” nature of the process of polls. A foreign media commentator wondered why any “control” was exercised over BNP activists since the announcement of election schedule in September last. In his opinion, the ruling coalition or Mahajote contestants would have won by a handsome margin without keeping BNP workers at bay anyway! More so when the BNP was waffling and unprepared! In fact, a hundred BNP candidates’ deposits have been forfeited as they couldn’t even secure one-tenth of their adversaries’ tally. In BNP’s last election debacle when they had around 30 seats, deposits of only 10 contestants were forfeited. But I have


By Daily Star
January 4, 2019

Opinion

Thailand staggering back towards democracy

With political restrictions eased, confidence is stirring that the people’s voice will be heard again in two months’ time. Thailand appears to be returning to a modicum of political normalcy now that the National Council for Peace and Order (NCPO), the ruling junta, has lifted its ban on political activity. The NCPO partially repealed nine of its prior restrictions imposed following the 2014 military coup. It has effectively lifted the ban on political gatherings of five or more people and is allowing parties to organise meetings and other activities of a political nature. Prime Minister Prayut Chan-o-cha and his government had deservedly come under blistering attack from politicians who were gagged for the past four and a half years because of the junta clampdown. Much of the criticism came from politicians linked to self-exiled former premier Thaksin Shinawatra, ousted in the 2006 coup and then widely bl


By The Nation (Thailand)
December 20, 2018

Opinion

China has ‘open attitude’ on US trade

China has no set agenda when it comes to trade negotiations with the United States. China is adopting an open stance toward not only the next round of trade talks with the United States but also importing more quality goods, such as soybeans, from the country, according to the Ministry of Commerce. Ministry spokesman Gao Feng said on Thursday that China would welcome any US trade delegation to visit the country and is keeping an “open attitude” to visiting the US for trade talks. The two sides’ economic and trade teams were maintaining close contact, discussing the details of trade negotiations and making smooth progress, the spokesman said at a news conference in Beijing. His comments came after foreign media reported that Chinese companies bought at least 500,000 metric tons of US soybeans for no less than $180 million. The purchases would be the first major move made after a


By China Daily
December 16, 2018

Opinion

Kidnapping of Meng due to US worries that it is in decline

An editorial in the China Daily argues that America’s insecurities are behind its arrest of a Huawei executive. Obviously, Washington intended to use Meng as a weight to gain an upper hand in the 90-day trade negotiations with China. Facing a rising China, the anxiety of Washington is understandable. Otherwise, it would not have risked everyone’s condemnation to ask Canada to hold Meng for ransom, a dirty trick. If the plot of Meng’s case becomes a conventional practice, large numbers of entrepreneurs around the world face the threat of losing their freedom because of unilateral long-arm law enforcement. The US is abusing its power. The country takes it for granted that all its illnesses can be cured by coercing others to take the medicines it prescribes. This trend has become increasingly evident since the presidential election in 2016. Beijing has made the sensible deci


By China Daily
December 14, 2018

Opinion

Help Change the Narrative of Sexual Violence: Cindy Bishop

The host of Asia’s Next Top Model and feminist activist speaks about using video to spark important dialogues, and how social change starts with each of us. It’s funny, because I didn’t intend to spark a campaign. It all came from a moment of emotion. Back in March, ahead of the Songkran festival, I’d read a message from an official in a newspaper suggesting that women should dress conservatively to avoid sexual harassment. I was incensed. Sexual harassment, assault, and rape is never the woman’s fault. And yet it is the survivors who are scrutinized, not the perpetrators. Victim-blaming marginalizes the survivor and make it much more difficult to come forward and report the abuse. Not only do perpetrators of violence not get blamed, but they mostly go unpunished. 


By Asia News Network
November 26, 2018

Opinion

Has the Khmer Rouge tribunal lived up to expectations

Quinn Libson examines whether the expensive and long lasting tribunal has been worth the money. The Extraordinary Chambers in the Courts of Cambodia, also known as the Khmer Rouge tribunal, delivered a historic verdict on Friday. The court has found two former high-ranking Khmer Rouge cadres guilty of genocide against Cambodia’s Cham Muslim minority and ethnic Vietnamese. The two, Nuon Chea, 92, and Khieu Samphan, 87, are the last two surviving senior members of the brutal group that ruled Cambodia in the 1970s. Both men are already serving life sentences related to previous tribunal verdicts. When this case began, it initially included four Khmer Rouge senior officials. Two of the co-defendants died of old age before the trial could be completed. It is possible that this is the last case the tribunal will ever hear. It has thus far only convicted three individuals at a cost of more than US$300


By Quinn Libson
November 19, 2018