Explained: India's Opposition to ICC Probe on Myanmar's Rohingya Crisis

The support for the ICC probe is part of Bangladesh’s diplomatic effort to put more pressure on Myanmar. However, in New Delhi, such efforts are seen to have questionable impact.

New Delhi: India’s diplomatic balancing act with Bangladesh and Myanmar over the controversial Rohingya crisis was tested once again at the United Nations Human Right Council (UNHRC) recently.

After choosing to abstain from voting on a resolution backed by Bangladesh criticising the Myanmar government, the Narendra Modi government also for the first time publicly opposed a probe by the International Criminal Court (ICC), in a move that demonstrated the complicated path that it has to take to balance its loyalties to Dhaka and Nay Pyi Taw.

The March 22 resolution was passed with 32 votes in favour, five against and ten abstentions.

India and Japan abstained on the resolution, co-sponsored by the EU and Bangladesh, that expressed grave concern over human rights violations by Myanmar security forces.

The resolution had called for a quick operationalisation of the independent international mechanism that would collect and preserve evidence of the “most serious international crimes”. It noted that this ‘mechanism’ could also support a future probe by the Hague-based ICC.

The preambular portion of the resolution stated that the UN Security Council has the authority to refer Myanmar to the ICC and also called on Nay Pyi Taw to sign onto the Rome Statute.

While India did not join China in opposing the resolution, the reference to the UN world court was explicitly mentioned in its explanatory statement after the vote.

“Supporting extensive recommendations regarding legislative and policy actions and threatening Myanmar with punitive action, including at the ICC, to which that State is not a signatory, will only be counter-productive,” said India’s permanent representative to the UN in Geneva, Rajiv Chander. India is not a signatory of the Rome Statute.

India’s argument that an investigation by the ICC could backfire was not just made at the passage of the resolution, but also during an informal interaction with the special rapporteur on Myanmar earlier during the Council’s 40th session.

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In August 2018, the UN Fact Finding mission had recommended that the UNSC should refer Myanmar to the ICC or create an ad hoc international criminal tribunal. A month later, the ICC’s office of special prosecutor opened a “preliminary examination” of the exodus of Rohingya from Myanmar to Bangladesh. It began after ICC’s pre-trial chamber confirmed that the court had jurisdiction, since Bangladesh is a state party to the Rome Statute.

Underlining her interest, Bangladesh Prime Minister Sheikh Hasina had met with the ICC chief prosecutor Fatou Bensouda on the sidelines of the Munich Security Conference in February this year. As local media reports indicated, discussions between the two also involved the trial of the assassins of her father, Bangladesh’s founder Sheikh Mujibur Rahman.

Within a month, an ICC team was in Bangladesh for its first field visit, which included a trip to the massive refugee camps at Cox’s Bazar.

Battling for influence with China, India has been a strong votary of Myanmar at international platforms, following the gradual thawing in New Delhi’s policy towards the military junta.

“Regarding India’s position, it took side with Myanmar in the UN meetings on the issue of HR violations, genocide, ethnic cleansing in Rakhine from the beginning. At that time, Bangladesh was not in the parties of the plaintiff yet overtly,” Ko Ko Hlaing, chairman of the Yangon-based think-tank the Centre for Strategic and International Studies told The Wire. He had served as chief political advisor under President Thein Sein.

New Delhi’s sensitivity towards Myanmar is illustrated by the fact that the term ‘Rohingya’ is not used in public statements or documents on behalf of the Indian government.

The entrance of the International Criminal Court (ICC) is seen in The Hague, Netherlands. Credit: Reuters/Jerry Lampen

The entrance of the International Criminal Court (ICC) is seen in The Hague, Netherlands. Credit: Reuters/Jerry Lampen

Since the establishment of the UNHRC in 2006, there has been at least one censorious resolution every year on Myanmar’s human rights atrocities. However, till just over a year ago, all those resolutions were adopted by consensus. Since there was no voting, India’s tactic had been to announce in their statements that they formally “disassociated” from these routine resolutions.

But the influx of over 700,000 Rohingya fleeing from their homes in August 2017 forced India to nuance its position on Myanmar, but only in the face of rising public anger in Bangladesh that New Delhi wasn’t supporting a friendly Dhaka government on its core foreign policy issues.

At the next regular UNHRC session in September 2017, India made familiar supportive noises for resolution, but did not specifically use the word “disassociate” in its statement.

Two months later, UNHRC convened a special one-day session on the Rohingya. It was the first time ever that a resolution on Myanmar was put to vote in the Human Rights Council, after China insisted. New Delhi informed Dhaka that it could not support the resolution, but abstained. This set the template for the subsequent sessions over 2018.

However, India was out of the human rights council last year. After being re-elected, the March 22 resolution was therefore, only the second time that India had cast a vote on a Myanmar-related motion in Geneva.

Myanmar and Bangladesh have apparently not raised the issue of the proposed ICC probe during official interactions with India. As per a senior government official, the lack of lobbying on this specific aspect of the Rohingya was likely due to India’s well-known position on ICC.

Citing opposition to the Rome Statute, India has used this argument of a “direct reference” to ICC to abstain on resolutions on Israel, Syria and North Korea at United Nations bodies.

However, it is not a written-in-stone edict. India had voted in favour of two UNHRC resolutions in 2012 that mentioned the human rights commissioner’s recommendation to refer Syria to the ICC. A year earlier, India as a non-permanent member of the United Nations Security Council voted for resolution 1970 that had referred Libya to the ICC.

The former Myanmarese presidential advisor noted that Bangladesh has been “getting more frustrated on the matter of repatriation and point at us to be blamed for every problem”.

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Despite a bilateral agreement between Myanmar and Bangladesh, repatriation of the Rohingya refugees has yet to begin after the first batch refused to go as scheduled in November last year. Bangladesh has blamed Myanmar for not creating adequate conditions in Rakhine for the return of the refugees.

The support for the ICC probe is part of Bangladesh’s diplomatic effort to put more pressure on Myanmar. However, in New Delhi, such efforts are seen to have questionable impact.

Hlaing said that with Bangladesh increasingly “frustrated”, the Indian government “might have difficulties to continue to support us as both countries are (India’) neighbours”.

“As a Myanmar analyst, India’s position of equal distance toward both is understandable,” he stated.

Former Bangladeshi high commissioner to India, Tariq Karim, however, cautioned that India’s self-perceived ‘course correction’ on Rohingya is not seen as adequate from Dhaka.

On India’s opposition to ICC probe, he said, “India’s stance has been looked askance by many in Bangladeshi, but appears to them to be consistent with India’s perceived attitude of taking Bangladeshi good will and unqualified friendship for granted and relegating to the sidelines matters of important to Bangladesh and her people.”

He cautioned that there was rising discomfort in Bangladesh against the Indian government. “In private conversations people question the motives of the present government in India, particularly as they see top politicians from ruling party and its allies whip up anti-Bengali and Muslim sentiments in the ongoing election campaigning,” stated Karim, who had been Bangladesh’s envoy to India for five years till October 2014.

By terming it as India’s internal affairs, Dhaka has largely kept silent on political statements or the National Register of Citizenship process in Assam which have direct reference or impact on Bangladesh.

But Sheikh Hasina, in her third consecutive term, may not have enough political capital domestically to tide over inevitable public anger, stated Karim.

“I fear that should anti-incumbency start gathering steam (and it is bound to sooner or later) it will be accompanied (and fuelled) by anti-Indianism. This would undermine many of the good things I struggled and worked hard to put in place for better bilateral and sub-regional relations,” he explained to The Wire.

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