One situation for two Courts - A thesis about the legal proceedings regarding the Rohingya crisis
Abstract: In August 2017, a deadly crackdown by Myanmar’s army on Rohingya Muslims sent hundreds of thousands fleeing across the border into Bangladesh. The situation in Myanmar has escalated over the last few years. Mass displacements of refugees, sustained allegations of crimes against humanity, and a large-scale intervention has propelled the conflict to centre stage of international human rights. The situation in Myanmar has now reached the highest judicial levels in international law, the ICC and the ICJ. The subject of this thesis concerns the ICC and the ICJ’s legal proceedings regarding the Rohingya crisis in Myanmar. By examining these legal proceedings, the thesis aims to explain what the legal proceedings actually means for the Rohingya and the international community in general. It also aims to give a better understanding on what role politics play in the legal proceedings. By examining the ICC and its legal proceedings regarding the situation in Myanmar one can conclude that the ICC has brought hope for justice to the Rohingya, but the court will likely face several obstacles. By recognising a cross-border element of certain crimes, the ICC managed to exercise jurisdiction over crimes committed in Myanmar, even though Myanmar is not a party to the Rome Statute. Because of the wide interpretation of the Rome Statute, the decision is controversial. Myanmar has rejected the decision, and the ICC will likely have problems in investigating a situation without the cooperation of the country. By examining the ICJ and its legal proceedings, one can conclude that the order on provisional measures is likely to have limited effect. The provisional measures do not bring any new obligations to Myanmar, except for preserving all evidence alleged to the alleged genocide and to submit reports on all measures that have been taken. Myanmar is denying all allegations of genocide and it can therefore be questioned which measures Myanmar will take. Regarding the future of the case, it has been shown that the evidentiary requirements on the crime of genocide is set quite high, and it will be difficult to prove in a court of law. The legal proceedings also fail in being independent from political views. It can be questioned if the ICC’s interpretation of its jurisdiction is reflecting the will and interests of the rules in the Rome Statute and if the ICC instead relies on theories of natural justice. It is also highly remarkable how much influence the UNSC have in the legal proceedings. The UNSC not referring the situation to the ICC has resulted in ICC not being able to exercise jurisdiction over the crime of genocide. Additionally, the ICJ will not be able to legally enforce any of its future decisions without the cooperation of the UNSC.
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