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ICC can exercise its jurisdiction for trial

Ex-prosecutor for Yugoslavia Tribunal says on forced deportation of Rohingyas

Staff Correspondent
The International Criminal Court can exercise the territorial jurisdiction to try the perpetrators who forcibly drove out Rohingyas from Myanmar into Bangladesh, a former ICC prosecutor said yesterday.
"The Rohingya have been forced
at an international seminar in the city.
When a person is driven out directly into the territory of a second state, the ICC may exercise the jurisdiction under the article 12(2)(a) if either of the originating or receiving state is a state party to the court, she said.
to flee to Bangladesh after members of their community faced killings and other forms of torture," said Kate Vigneswaran, former ICC prosecutor for the Yugoslavia Tribunal,
"Deportation and other acts constitute apartheid and persecution as a crime against humanity, both of which are continuing," said Kate Vigneswaran at the seminar titled "Accountability: The ICC and the Rohingya Crisis".
Centre for Genocide Studies of Dhaka University, ActionAid Bangladesh and Centre for Peace and Justice of Brae University jointly organised the programme at the DU’s Nawab Ali Chowdhury Senate Bhaban.
The ICC on May 9 wrote a letter to Bangladesh seeking its observations on its jurisdiction over the expulsion of Rohingyas from Myanmar to Bangladesh, possible crimes against humanity.
Bangladesh is yet to respond to the ICC letter.
Earlier on April 7, the ICC prosecution sought the court's opinion over its jurisdiction to investigate the forcible deportation of the Rohingya.
Over 700,000 Rohingyas fled to Bangladesh amid a military crackdown against them in Myanmar's Rakhine state since August 25 last year. Thousands were reportedly killed, women raped and the Rohingya villages burned.
Legal experts, academics and rights activists called upon the Bangladesh government to submit the observations to the ICC.
Justice Syed Refaat Ahmed of Bangladesh High Court said Bangladesh, as a state party to the Rome Statute, should provide the observations, including the evidence, to the ICC.
In a presentation, Kate said almost all the Rohingyas have faced persecution in Myanmar since late 1970s, but nothing has been done about the accountability for these crimes.
"There have been various steps here and there, but nothing significant has been done really to try the crimes. ”
The lawyer said Myanmar was concerned about accountability.
"Without accountability, [there is] no question for them to change this systemic discrimination, perpetration of abuses."
Kate said the Rohingyas would be persecuted again if their repatriation took place without making the conditions conducive in Rakhine.
Bangladesh itself is in a position to prosecute the crimes against the Rohingya if the ICC grants jurisdiction
to investigate the crimes and if the country has the domestic law and a fair trial procedure that satisfies the Rome Statute, she observed.
"If Bangladesh decides to prosecute, the Court would refer them," Kate said.
Justice Refaat said the most compelling argument for the exercise of the jurisdiction by the ICC is that the Rohingya were specifically and intentionally driven out by the Myanmar authorities into the territory of Bangladesh.
"As such, the receiving state and by extension, the ICC has sufficient interest in the matter to assert its criminal jurisdiction over the crimes in question," he said.
In the case of the Rohingya, although the alleged perpetrators were not nationals of state party, it may be plausibly argued that the offences in question have been partly committed in the territory of Bangladesh, and that the ICC has jurisdiction in respect of the offence, the HC judge said.
Once it is established that ICC has jurisdiction over the crimes, Bangladesh may request the ICC prosecutor to carry out an investigation into such crimes, he told the programme.
"Even if the Bangladesh government does not make a request under article 14, it is open for the prosecutor to act on its initiative under article 15 of the Statute to open an investigation into the matter," Justice Refaat said.
Prof Imtiaz Ahmed, director of Centre for Genocide Studies, said while Bangladesh can continue bilateral negotiations for repatriation of the Rohingya, it should also submit the observations to ICC before the June 11 deadline to contribute to establishing accountability.
"There is enough evidence of ethnic cleansing and genocide."
Philip M Ruddock, mayor of Hornsby Shire, Australia, called for imposing UN-led sanctions on Myanmar to put pressure on it.
He stressed the need for systematic collection of evidence of the crimes committed against the Rohingya.
Manzoor Hasan, executive director at Brae University's Centre for Peace and Justice, and ActionAid Country Director Farah Kabir also spoke.