This is a guest post (begun as a series of tweets) by Phil Orchard, Senior Lecturer in Peace and Conflict Studies and International Relations at the University of Queensland and the Research Director of the Asia-Pacific Centre for the Responsibility to Protect. He is the author of A Right to Flee: Refugees, States, and the Construction of International Cooperation, the forthcoming Protecting the Internally Displaced: Rhetoric and Reality and, with Alexander Betts, the co-editor of Implementation and World Politics: How International Norms Change Practice. He tweets @p_orchard.

The past three weeks have seen remarkable violence in Rakhine State, Myanmar. On 25 August, the Arakan Rohingya Salvation Army (ARSA) launched a series of coordinated attacks on police posts and a military base which killed twelve government officials. The ARSA, an armed insurgency organization which began its first attacks in October, claims that their goal is have the Rohingya be “a recognized ethnic group within Myanmar.”  While many Rohingya can trace their roots back centuries in Myanmar, the government considers them to be illegal immigrants from Bangladesh. It does not recognize the term Rohingya, and has refused to grant them citizenship; as a result “the vast majority of the group’s members have no legal documentation, effectively making them stateless” and face significant discrimination and government restrictions.

The Myanmar government has responded to the ARSA by branding it a terrorist organization and claiming that the Tatmadaw, the Armed Forces of Myanmar, is using “clearance operations” to target militants. Even Aung San Suu Kyi has “blamed ‘terrorists’ for ‘a huge iceberg of misinformation calculated to create a lot of problems between different countries.’” The government has also claimed that the Rohingya are burning their own villages, however reporters from the AFP and BBC have documented several incidents being staged. The government has also denied requests for UN humanitarian agencies and US government officials to access the area.

The violence has led an estimated 391,000 Rohingya refugees to flee across the border into Bangladesh. There is also evidence that the Tatmadaw, the Armed Forces of Myanmar, have been laying mines along the border with Bangladesh to deliberately target Rohingya refugees crossing the border. And the government has suggested that any civilians seeking to return from Bangladesh will need to show “proof of nationality.”

Over the past week, and following a significant upsurge in reporting on the crisis, the UN system has begun to respond. On September 11^th, Zeid Ra’ad Al Hussein, the UN High Commissioner for Human Rights, labelled the attacks as a “textbook example” of ethnic cleansing, a view which has been supported by UN Secretary-General Antonio Guterres supported. Ethnic cleansing, while it has never been defined as a crime in international law, is included alongside genocide, war crimes, and crimes against humanity in the Responsibility to Protect (R2P) doctrine as mass atrocity crimes. The R2P doctrine recognizes that states have three responsibilities. This has been called the three pillar approach following UN Secretary-General Ban Ki-moon’s 2009 Report on the Responsibility to Protect that states have a responsibility to protect their own populations from these four atrocity crimes (Pillar 1), that the international community has a responsibility to assist states in upholding their own responsibilities (Pillar 2), and that, in cases where states are manifest failing in their responsibility, the UN Security Council can take action under Chapter VII of the UN Charter (Pillar 3).

Pillar 3 R2P actions are rare – the only intervention to occur without the concerned state’s consent was that of Libya in 2011. But it is important to note that the R2P does not require such interventions to occur. Instead, Jennifer Welsh has referred to it as a ‘duty of conduct’ by members of the international community, which requires them “to identify when atrocity crimes are being committed (or when there is threat of commission) and to deliberate on how the three-pillar framework might apply.” Alex Bellamy has similarly argued that what the R2P does is create “shared expectations within international society that (1) governments and international organizations do, in fact, exercise this responsibility; (2) they recognize both a limited duty and a right to do so; and (3) failure to fulfill this duty should attract criticism.”

The UN Security Council did meet on Wednesday and issued a statement following the meeting – a major shift as the Council had not been able to agree on a common stance on Myanmar for nine years. The statement (which was circulated on twitter by Human Rights Watch’s Ken Roth) is relatively innocuous. The Council members note their deep concern and call for immediate steps to end the violence, ensure the protection of civilians and resolve the refugee problem, but does not specifically identify perpetrators. In fact, it spends more time on the issue of aid, noting that the government of Myanmar had made commitments “to provide humanitarian assistance to all displaced individuals” and that the government needed “to fulfil these commitments.”

Two elements suggest the Council is unlikely to take other action. The first is the politics of the Council – China continues to support the government of Myanmar and is unlikely to authorize further action. China’s foreign ministry spokesperson noted on September 12^th that while China condemns the violent attacks, “the international community should support the efforts made by Myanmar to maintain national development and stability and create enabling external conditions for the proper settlement of the issue of Rakhine State.” Any further actions would need China’s support.

The second is that the Council has been far slower to take action in situations where there is just large scale displacement, as opposed to large scale killings. While the cleansing has been brutal, it appears to have led to relatively few deaths. The government suggests 430 people have been killed, mostly insurgents, while the government of Bangladesh has estimated the death toll at 3,000. States deliberately displacing their own populations is surprisingly common. The Council’s past practice has simply been to condemn large scale displacement, and only rarely has it taken action when refugee flows were large enough to potentially a threat to regional or international peace and security. Combined, therefore, these two elements suggest the Council is unlikely to take further concrete actions unless the situation further deteriorates.

Other UN mechanisms have been similarly stymied. The UN Human Rights Council created a Fact-Finding Mission to investigate the situation in Rakhine State in March, but the government has refused it entry.

But there is also another path forward on this crisis, a path that goes to the International Criminal Court.

Ethnic cleansing is not an international crime, but in a report released on Thursday based on widespread satellite imagery, photographs, videos, and interviews, Amnesty International noted that: “There is a clear and systematic pattern of abuse here. Security forces surround a village, shoot people fleeing in panic and then torch houses to the ground. In legal terms, these are crimes against humanity – systematic attacks and forcible deportation of civilians.”

I’ve argued that forced displacement can constitute an international crime if it includes either the forcible transfer of civilians within a state’s territory or the forced deportation of civilians across an international border. Forced deportation can constitute a crime against humanity, meaning the “forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law” as established by  Article 7(1)(d) and Article 7(2)(d) of the ICC’s Rome Statute. This does not require an armed conflict to be present. For it to be widespread requires it to be a large-scale action involving a substantial number of victims, while for it to be systematic requires a high degree of orchestration and planning, both of which appear to be the case here.

How does the ICC become involved? Bangladesh has ratified the Rome Statute, and therefore has the ability to refer a case to the Court. The Rome Statute establishes only that a “State Party may refer to the Prosecutor a situation in which one or more crimes within the jurisdiction of the Court appear to have been committed…” (Art 14(1)). And Article 12(2) establishes that jurisdiction applies if it is “the state on the territory of which the conduct in question occurred…” or if “the State of which the person accused of the crime is a national.” So, the Court’s jurisdiction would appear to be clear – it is only on the territory of the state where the conduct occurred, which would mean that Myanmar would need to refer the issue. But forced deportation – perhaps uniquely – is a crime by definition that includes people being forced to cross borders. This leads to a possible argument by Bangladesh that the Court would have jurisdiction as the conduct is occurring across the border between Myanmar and Bangladesh.

Would the Court accept such an argument? It would be an important precedent if it did. Even if it did not, though, a Bangladeshi referral might have important immediate deterrent effects. Right now, the Tatmadaw is operating with impunity against the Rohingya. Yet, there is increasing evidence that the ICC may be having a deterrent effect. As Jo and Simmons argued last year, among the effects are a “reduction in intentional civilian killing by government actors when states implement ICC-consistent statutes in domestic criminal law…” Such effects would certainly be limited in this case, but it would demonstrate a credible form of international action in response to this crisis, and at least put the Tatmadaw on notice.