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uch has been discussed about the current crisis in Myanmar’s Rakhine state and the consequent exodus of more than 620,000 Rohingya to Bangladesh. Yet there is little to no discourse on what the international community and ASEAN should do after the crisis.

 There should be a legal redress mechanism for the Rohingya subjected to ethnic cleansing and genocidal practices by the Myanmar government.

 Given the inability of the international and regional community to immediately end their persecution, it is ironically the same community that must work toward establishing a redress mechanism. Such a mechanism should provide accountability for the crimes the military of Myanmar is causing and send a clear message to the world that such action cannot and will not be tolerated with silence.

 Southeast Asia is not alien to such mechanisms. The Extraordinary Chambers in the Courts of Cambodia, which was established to prosecute the crimes of the Khmer Rouge, and the UN Special Crimes Panel in East Timor are the two most prominent legal redress mechanisms in ASEAN countries.

Indonesia is also familiar with such mechanisms with its ad hoc human rights courts to deal with human rights violations, which so far have never been used.

 Punishing genocide is a moral and legal obligation under international law as reflected in the 1948 Genocide Convention, which has evolved into an obligation that legally mandates all countries to abide by it. Although establishing genocide would be left to a tribunal, a study by Yale Law School in 2015 found ample evidence that violence against the Rohingya violates the Genocide Convention. The UN human rights chief has also recently voiced similar concern that elements of genocide may have been committed against the Rohingya.

 Therefore, a similar hybrid tribunal, as has been established in Cambodia and East Timor, could be established for the Rohingya. However, it is unlikely that the Myanmar government would accede to any request for such a tribunal to be situated in Myanmar itself, so a neutral ASEAN country could offer to host such a tribunal. ASEAN would need to actively step away from its comfort zone of non-interference.

A tribunal could be situated in Bangladesh, which has already had its own International Crimes Tribunal set up in 2009 to investigate and prosecute suspects of the genocide committed in 1971 by the Pakistani Army and local collaborators.  

 If there is resistance to set up such an ad hoc tribunal from Bangladesh and ASEAN, we should be able to turn to the International Criminal Court (ICC). However, it is unlikely that any such momentum will come from a United Nations Security Council referral, as China is likely to veto such action given its vested economic interests in Myanmar. The ICC Prosecutor could open an investigation if a state party to the ICC’s Rome Statute refers a situation to it or, if based on sufficient information, decides to investigate the situation.

 Who should be charged or prosecuted is another issue that any legal mechanism would have to decide. An ad hoc tribunal or proceeding before the ICC could mean investigating the Myanmar military and political leaders, or at the very least, the armed forces chief.

 Given the international community’s desire to protect any progress achieved by Myanmar in the last few years, it is critical that accountability for the Rohingya comes in the form of a legal mechanism.

While Indonesia is seeking to be a non-permanent member of the UN Security Council in 2019, and as Singapore takes over as chair of ASEAN, the issue of having a redress mechanism for the Rohingya becomes more relevant.  

 In campaigning for a non-permanent seat on the UN Security Council, Indonesia has been projecting itself as an advocate of international peace and security. The practices of international criminal tribunals show that international peace and security is intertwined with the notion of justice.

 In establishing the criminal tribunals for Rwanda and the former Yugoslavia, the UN Security Council repeatedly affirmed that pursuing justice for heinous crimes such as genocide and crimes against humanity was paramount to achieving international peace and security.

Championing the notion of reforming the UN as its flagship campaigning tool, Indonesia should seize the chance by leading the campaign to not let the UN sit idly by while yet more mass atrocities are committed.

 Meanwhile, as ASEAN chair in 2018, Singapore could drive the regional grouping to commit to the organization’s purposes of adhering to the rule of law and protection of human rights enshrined in the ASEAN Charter. The Charter also mandates all ASEAN members to be collectively responsible in enhancing peace and security.

As chair, Singapore will be in a unique yet strategic position to show to the international community that ASEAN’s commitment to peace and security is beyond a black and white commitment.

 Lastly, as two of ASEAN founding members, Indonesia and Singapore bear the moral responsibility to ensure all countries in the region adhere to international law, UN principles and purposes and ASEAN principles and purposes. It is high time for ASEAN to seize the moment toward a legal redress mechanism for the ethnic cleansing and genocidal practices against the Rohingya.
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Christian Donny Putranto, an Indonesian human rights lawyer, obtained a Masters of Laws (LLM) in human rights from the University of Melbourne as an Australia Awards Scholar. Sangeetha Yogendran is a qualified lawyer from Singapore and obtained a Masters in Public and International Law from the University of Melbourne. All views expressed here are entirely the authors’ own and do not represent any affiliations.