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Rohingya ICC Case Should Sit In Asia

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09th-Sep-2020       
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Dr. Azeem Ibrahim :
News has emerged that two Australian lawyers acting on behalf of the Rohingya before the International Criminal Court (ICC) are calling for the court to sit in Asia for the first time. These calls should be heeded.
There are two main reasons why it would be sensible to hold the court in Asia. The first is to do with legitimacy. Unfortunately, the ICC has a less than stellar history and reputation, especially in South East Asia. Its handling of the cases brought before it against Cambodia's Khmer Rouge is often cited as one of the most glaring failures of the global international law regime.
Time has passed since those failures, but this will be one of the first major proceedings specifically regarding the region of South East Asia to be held since the Cambodia trials. It is incumbent on the ICC to actively seek out the recognition and respect of the people of the region, where it would expect to have a justified deficit.
Conversely, the International Court of Justice (ICJ) is already holding proceedings against Myanmar for the alleged crime of genocide against the Rohingya at The Hague. It is certainly not a good look for all these rulings to be coming down from on high in Europe, thousands of kilometers away. There is a real need for the international law system to become a more immediate presence for the people affected by crimes against humanity, and certainly also for the perpetrators and would-be perpetrators of such crimes.
The second reason is that, unfortunately, it is never enough for justice to be served: It must also be seen to have been served. That is just as essential to any legal regime. And, of course, it must be seen to be served by the people who will be affected by the law and the court's rulings on that law.
Separate to the ICC's specific reputation in South East Asia, as a matter of fundamental principle, any court of law should sit in the geographical area where the alleged crimes it seeks to adjudicate on are believed to have happened, among the people who have been affected by those crimes, and the people who would be affected by its rulings. Following such a principle, the ideal place for the court to sit would be on the Myanmar-Bangladesh border, near Cox's Bazar. This would be close to the scene of the alleged crimes and near both the alleged perpetrators and the alleged victims.
Of course, practical considerations will come into play here and, without deploying UN peace-keeping forces, such a court would not be assured to be a safe place for the carrying out of justice. Nor is there any precedent for deploying UN security forces in this way. So the much more likely location for an ICC tribunal to be held would be nearby Singapore, Malaysia or Indonesia.
But besides institutional inertia and perhaps a lack of imagination on behalf of the court's administrators, there is no reason why this should not happen. Singapore, in particular, is notable as a globally recognized neutral territory where, for example, the leaders of China and even North Korea have recently met with US leaders. And it would also have all the requisite infrastructure to serve the needs of the court. Witnesses could easily be flown in from both Myanmar and Cox's Bazar, investigators would be close to the scene of the alleged crimes, and all parties would be safe and under no immediate and undue threat by any other party while in the territory of Singapore.
Court proceedings would also be easier to follow throughout the region's tight-knit media ecosystem, and findings and rulings would have much more immediate reverberations through the local populations of all countries in the area. Aside from the logistics of setting up the court in a new place, there really are only upsides to actually holding ICC sessions in this part of Asia.

(Dr. Azeem Ibrahim is the director of the Displacement and Migration Program at the Center for Global Policy, and author of "Rohingyas: Inside Myanmar's Genocide" (Hurst: 2016). Twitter: @AzeemIbrahim)

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