Why the ICC Investigation of Forced Displacement in Myanmar Is a Big Deal

In September, Fatou Bensouda, chief prosecutor of the International Criminal Court (ICC), announced that she was opening a preliminary examination of forcible deportations of the Rohingya people from Myanmar to Bangladesh. Bensouda’s action is much more significant than people may have realized. The ICC – and by extension the international community – has finally indicated they will start to take forcible displacement seriously and prosecute it as a crime against humanity.

Overall, fatalities from war are decreasing at a steady and consistent rate. While recent conflicts in the Middle East, particularly the Syrian civil war, have temporarily bumped up war time casualties, broader trends indicate a steady drop. This is particularly true when comparing the numbers of people killed from twentieth century conflicts, such as the Korean or Vietnam War, and those killed in twenty-first century wars. For example, researchers estimate that the Korean War led to1.2 million fatalities, and that fatalities from the Vietnam war totaled over two million. In contrast, total fatalities associated with the Syrian civil war are approximately 500,000. Likewise, fatalities from the Afghanistan conflict (2001-16) stand at 114,000. As experts like Steven Pinker and Joshua Goldstein have documented, the world is becoming safer, more peaceful and less prone to violence over time.

But there is one major exception to these conflict trends: levels of forcible displacement from conflict have skyrocketed worldwide. The latest figures from UNHCR, the U.N. Refugee Agency, for 2017, show that cumulative displacement around the world exceeded 71 million persons including 16.2 million individuals newly displaced. Both numbers represent record highs. And both figures build on millions of displaced individuals from prior years.

When comparing historical ratios of displacement to fatalities in war, the traditional ratio is approximately 5:1. But the Syrian civil war, for example, shows a displacement to fatality ratio of 25:1. Likewise, the ratio from the Iraq War (2003 to 2011) indicates a ratio of 21:1. In other words, war is displacing civilians beyond historical proportions at levels not witnessed in the modern era. It is vital to unpack what is driving this change.

A major reason for this shifting trend is due to the international community’s reluctance to enforce the norm against forcible displacement. International humanitarian law is very clear when it comes to forced deportations: Parties to armed conflicts are specifically forbidden to deport or forcibly transfer civilians except to protect civilians or for exceptional military necessity. Along with prohibitions against genocide, torture, enslavement and war crimes, the proscription against forced displacement is a fundamental principle of international law from which no derogation is permitted. And yet, the international community has repeatedly failed to act when it comes to preventing mass displacements. One of the great ironies is that while the international community has strongly signaled that wartime atrocities will be met with ICC prosecutions and even Chapter VII  interventions (which authorize the U.N. Security Council to take military action to “restore international peace and security”), it has remained conspicuously silent on forced deportations. As a consequence, armed actors appear to be shifting tactics: Rather than authorize mass civilian killings in order to consolidate control over territory, they are instead making forced displacement a key part of their war strategies.

The ongoing persecution of the Rohingya minority in Myanmar is a good case in point. Starting in August 2017, the current wave of fighting in Rakhine State has caused over 905,000 refugees to cross the border into Bangladesh, “making this the fastest growing refugee crisis in the world.” In comparison, civilian fatality estimates range from approximately 6,700 to 9,800 killed. While these fatality figures are appalling, they pale in comparison to the number of individuals forcibly removed from their communities by Myanmar security forces.

International officials publicly acknowledge that Myanmar’s principal military strategy is the permanent expulsion of the Rohingya population. Former U.N. High Commissioner for Human Rights Zeid Ra’ad al Hussein has asserted that these tactics are “a textbook example of ethnic cleansing” and a “cynical ploy to forcibly transfer large numbers of people without possibility of return.” Instead of using mass killings to perpetuate ethnic cleansing, Myanmar’s government is primarily relying upon mass displacement to accomplish their objectives. Their bet seems to be paying off. The international community has been noticeably reticent to take concrete action against Myanmar. Aside from applying limited sanctions against select military leaders and releasing critical public statements, the United States and other governments have refrained from taking more serious action.

This is why the ICC’s decision to launch a preliminary investigation of forcible displacement in Myanmar is such a big deal. Not only does it send a strong signal to armed actors that the international community’s reluctance to confront forced displacement may be changing, but if Bensouda brings formal charges, this will be the first time an international tribunal prosecutes perpetrators of forcible displacement since the International Criminal Tribunal for the Former Yugoslavia (the ICTY included forcible displacement charges in certain indictments but they generally targeted low-level officials and were part of a broader array of offenses). Some argue that the ICC’s action has more to do with finding a means to gain jurisdiction over crimes committed in Myanmar (which is not a signatory to the Rome Statute), but this does not change the fact that culpable actors may finally be held to account. Such actions can lead to major impact. In 1998, for example, the International Criminal Tribunal for Rwanda handed down the first conviction for rape as a crime against humanity and a crime of genocide in the Jean-Paul Kayesu case. This became a watershed moment for gender-related war crimes. It spawned subsequent jurisprudence that established specific standards and associated penalties, and it also led to significant changes in the U.N., including appointing the first U.N. senior representative for sexual violence in conflict. Similarly, an international conviction for violating forced displacement standards could foster equivalent momentum and strengthened accountability.

The ICC’s September 18 announcement is merely the first phase in a long process yet to unfold. The legal and policy implications will not be known for several years. But some facts remain beyond dispute: Forcible displacement has exponentially increased in recent years even while fatalities from war have declined. Without clear signals from the international community about its willingness to hold perpetrators of forced deportation to account, the global displacement crisis will only get worse.

Image: Rohingya women and children wait in line for food distribution in Cox’s Bazar, Bangladesh. Photo by Paula Bronstein/Getty Images


About the Author(s)

Steven Feldstein

Frank and Bethine Church Chair of Public Affairs and Associate Professor at Boise State University; nonresident fellow at the Carnegie Endowment. He served as U.S. Deputy Assistant Secretary of State for Democracy, Human Rights and Labor. You can follow him on Twitter (@SteveJFeldstein).