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‘Atrocity Crime’ against the Rohingyas in Myanmar – An ‘Agency’ Approach
Dr. Mohammad Zahidul Islam Khan — University of Reading, U.K.
Amidst a divided United Nations Security Council (UNSC) in New York, and a brittle equilibrium between the democratic forces and the Tatmadaw (Armed Forces) in Yangon, the international community is once again challenged to uphold and fulfil its moral, ethical and legal obligation to protect the Rohingyas in Rakhine, Myanmar – regarded as the most persecuted people in the world. But how can we hold the perpetrators of ‘atrocity crime’ accountable, and what instruments, mechanism, and institutions are available in this regard?
To answer these questions, this paper first outlines the legal instruments that define and criminalize atrocity crime setting clear boundaries for individuals and states. Second, elucidating the agency-structure framework, it argues in favour of taking an agency centric approach – holding the individuals and not the state, criminally liable for committing atrocity crime. Third, the paper examines the international instruments ratified by Myanmar and its declarations upon ratification, revealing Myanmar’s potential obligations to address the allegations of atrocity crime. Fourth, exploring the mechanism and process of dealing with similar crimes in former Yugoslavia, Sierra Leone, Rwanda and Cambodia, the paper outlines two pathways for establishing an International Crime Tribunal for atrocity crimes committed in Rakhine, Myanmar (ICTM-R). The first pathway involves the UNSC to adopt resolution under relevant chapter of the UN Charter upholding its mandate of responsibility to protect (R2P); the second pathway requires involving the enlightened democratic forces of Myanmar leveraging the mandate of country’s National Reconciliation and Peace Centre (NRPC)to hold individuals criminally responsible for the atrocity crime as part of the reconciliation process. The paper contends that an active formal and informal diplomacy, engagement of different UN agencies, advocacy groups, human right and peace activists are essential for a credible and systematic gathering of evidences and documentation of atrocity crime to facilitate establishing the ICTM-R and uphold the moral, ethical legal obligation of the international community.