The Rohingya, Justice and International Law

315 Pages·2021·10.351 MB·English

by  Kriangsak Kittichaisaree

THE ROHINGYA, JUSTICE AND
INTERNATIONAL LAW
Written by an international judge, professor and former ambassador with decades
of experience in the field, this is an incisive and highly readable book about
international law as well as realpolitik in bilateral and multilateral diplomacy in
the quest for justice by victims of serious human rights violations amounting to
grave crimes of international concern.
Focusing on the plight of the ethnic and religious group of persons called the
‘Rohingya’, normally residing in Myanmar, as the case study, the book elaborates
the complex legal technicalities and impediments in international courts and
foreign domestic criminal courts exercising ‘universal jurisdiction’ in relation to acts
amounting to genocide, crimes against humanity and/or war crimes. It builds on and
adds value to existing literature on the international law applicable to the protection
of human rights as interpreted by the International Court of Justice as well as that
on the international criminal justice meted out by domestic criminal courts, ad hoc
international criminal tribunals and the permanent International Criminal Court.
The book will be essential reading for students, researchers and academics
in public international law, international criminal law, international human
rights law as well as government officials and those working for NGOs and
international organizations with mandates in these fields.
Kriangsak Kittichaisaree is a Judge of the International Tribunal for the
Law of the Sea. He has served as Chairperson of the UN International Law
Commission’s Working Group on ‘The Obligation to Extradite or Prosecute
(aut dedere aut judicare)’; and Thailand’s Ambassador to Iran, Australia and Russia.
He has taught international law at renowned law schools in four continents.
His publications include International Criminal Law, Public International Law of
Cyberspace, The Obligation to Extradite or Prosecute and International Human Rights
Law and Diplomacy.

THE ROHINGYA,
JUSTICE AND
INTERNATIONAL LAW
Kriangsak Kittichaisaree
First published 2022
by Routledge
2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN
and by Routledge
605 Third Avenue, New York, NY 10158
Routledge is an imprint of the Taylor & Francis Group, an informa business
© 2022 Kriangsak Kittichaisaree
The right of Kriangsak Kittichaisaree to be identified as author of this
work has been asserted by him in accordance with sections 77 and 78 of
the Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this book may be reprinted or reproduced
or utilised in any form or by any electronic, mechanical, or other
means, now known or hereafter invented, including photocopying and
recording, or in any information storage or retrieval system, without
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Trademark notice: Product or corporate names may be trademarks
or registered trademarks, and are used only for identification and
explanation without intent to infringe.
British Library Cataloguing-in-Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging-in-Publication Data
Names: Kriangsak Kittichaisaree, 1958- author.
Title: The Rohingya, justice, and international law /
Kriangsak Kittichaisaree.
Description: Abingdon, Oxon [UK] ; New York, NY : Routledge,
2022. | Includes bibliographical references and index.
Identifiers: LCCN 2021022402 | ISBN 9781032123448 (hardback) |
ISBN 9781032123417 (paperback) | ISBN 9781003224211 (ebook)
Subjects: LCSH: Crimes against humanity (International law) |
Crimes against humanity--Law and legislation--Burma. | Genocide
(International law) | Genocide--Law and legislation--Burma. |
Rohingya (Burmese people)--Crimes against--Burma. | International
law and human rights--Burma. | Human rights--Burma.
Classification: LCC KZ7145 .K75 2022 | DDC 345/.0238--dc23
LC record available at https://lccn.loc.gov/2021022402
ISBN: 978-1-032-12344-8 (hbk)
ISBN: 978-1-032-12341-7 (pbk)
ISBN: 978-1-003-22421-1 (ebk)
DOI: 10.4324/9781003224211
Typeset in Bembo
by Deanta Global Publishing Services, Chennai, India
CONTENTS
Preface viii
Abbreviations x
PART I
Introduction 1
1 Narratives about the ‘Rohingya’ and their plight 3
Who are the people widely called the ‘Rohingya’? 4
The accusation about the plight of the Rohingya 10
The Myanmar Government’s defence 19
The Myanmar National Human Rights Commission 29
2 The Rohingya situation and international reactions 32
ASEAN 32
OIC 39
Human rights treaty bodies 43
United Nations 49
UN Security Council 50
Human Rights Council and UN General Assembly 60
PART II
The International Court of Justice: State responsibility 69
3 The Gambia’s case before the ICJ 71
Introduction to the ICJ 71
vi Contents
The Gambia’s Application 74
The Gambia’s legal standing to institute the Application against
Myanmar 77
Existence of a dispute between The Gambia and Myanmar 81
4 Proving violations of the 1948 Genocide Convention 91
Genocide Convention 91
Burden and standard of proof 100
Provisional measures indicated by the ICJ 116
Possible outcomes if Myanmar is held to have breached the Genocide
Convention 130
PART III
The International Criminal Court: Individual criminal responsibility 135
5 Introduction to the International Criminal Court 137
The ICC 137
Crimes under the ICC’s jurisdiction 141
Trigger mechanisms and preconditions for the ICC’s exercise of
jurisdiction 152
Complementarity 157
Direct responsibility or command/superior responsibility 162
Investigation, trial, appeal and punishment 175
Prosecution of high-ranking civilians in international criminal tribunals 181
6 Practical difficulties faced by the ICC 186
The ones in the dock 186
The ones not (yet) in the dock 189
Will the Office of the ICC Prosecutor be capable of discharging its
mandate in relation to the Situation in Bangladesh/Myanmar? 206
PART IV
Justice in foreign domestic courts 213
7 Exercise of universal criminal jurisdiction by Argentina and
other nation States 215
Criminal jurisdiction 216
Decline or rise in the exercise of universal jurisdiction? 224
Contents vii
8 Sanctions and redress under domestic law for victims of
serious human rights violations abroad 238
Unilateral sanctions 238
Damages and other forms of reparation under the domestic law of
foreign States 248
PART V
Stock taking 255
9 Lessons learnt and future possibilities 257
Where are we now? 257
Alternatives to prosecution 262
Amnesty and pardon 263
Statute of limitations 267
International cooperation to extradite or prosecute perpetrators of
serious crimes of international concern 268
Business as usual with Myanmar, especially after the February
2021 military takeover? 271
Epilogue 276
Index 293
PREFACE
This book is about the ongoing quest for justice for the group of persons
widely known around the world as the ‘Rohingya’, launched simultaneously in
November 2019 in the International Court of Justice, the International Criminal
Court and a criminal court in Argentina, which have attracted widespread inter-
national interest. This is an area where the international community’s human
rights concerns face the daunting challenges of complex legal technicalities and
practical impediments, including realpolitik. The cases will take years before their
eventual conclusion, with multifarious possible scenarios and implications for all
involved, prior and subsequent thereto.
Rather than determining whether Myanmar and/or Myanmar government
officials has or have violated applicable rules of international law, this book will
endeavour to objectively and pragmatically explain to readers practical lessons
from international responses to situations like the ones faced by the Rohingya,
including the applicable international instruments and their supporting mecha-
nisms as well as the overlap or differences between diplomatic responses and
legal claims, at multilateral and bilateral levels. The situations concerning the
Rohingya covered by the book are all quite current. After the publication of
this book, there will be new developments on the various fronts. By presenting
the Rohingya’s quest for justice as the case study so that lessons can be learned
when similar situations arise in the future in various scenarios, whatever the
developments in the judicial and diplomatic forums concerning the Rohingya,
the analyses in this book will still be useful, and not outdated in five years or
so after its publication. Above all, insofar as the Myanmar persons wanted by
the International Criminal Court and foreign domestic courts like the one in
Argentina are never brought before these forums where they cannot be tried in
absentia, this book will never be obsolete.
Preface ix
The Rohingya issue is an Asian one, and an authoritative book about their
quest for justice should, ideally, be written by an Asian international lawyer
with decades of diplomatic experience whose view is not considered inher-
ently Western-centric. I do hope that what I have learnt as Chairperson of
the United Nations International Law Commission’s Working Group on the
topic ‘The obligation to extradite or prosecute (aut dedere aut judicare)’; as head
of delegations to bilateral as well as multilateral negotiations; as an ambassa-
dor; as a visiting professor at some renowned law schools in four Continents
teaching International Criminal Law, International Human Rights Law, Public
International Law, United Nations Law and so forth; as the author of several
books and peer-reviewed articles in this field; and as a judge of an international
tribunal will be put to good use here.
I have tried to write this book in such a way as to make it a highly readable
text and useful not only to those coming to the subject with little prior specialist
knowledge, but also those already engaged in international law scholarship.
Sincerest thanks are due to Alison Kirk, Senior Commissioning Editor of
Routledge, and her efficient team for bringing this book to life. The painting
which has become the cover of this book is by Wadhanee Xivivadh, to whom
I am grateful. I also very much appreciate the valuable assistance and support in
one way or another from Tsvetelina van Benthem and Gayathree Devi Kalliyat
Thazhathuveetil, both of whom are DPhil candidates in public international law
at the University of Oxford, and Amanda Wallin, LL.M. (Leiden).
All the webpages referred to in this book are accessible as of 6 August 2021.