Myanmar’s Referral to the International Criminal Court: Five Things You Should Know

2. Does the International Criminal Court have the jurisdiction to investigate the allegations?

There has been extensive documentation of violence and atrocities committed by the Myanmar military by independent organizations. Ensuring accountability, however, has been riddled with challenges. At the domestic level, Myanmar continues to deny the scale of crimes that have occurred and has failed to take action. Internationally, Myanmar is also not a signatory to the International Criminal Court (ICC).

In such instances, the United Nations Security Council (UNSC) can make a referral to the court. But in this case, China would veto any such resolutions, given its extensive economic and political relations with the country. China has consistently refrained from criticising the Myanmar government stating that it is an internal matter for the country.

In April 2018, the prosecutor of the ICC, Fatou Bensouda, called for a hearing on whether the court had jurisdiction over the deportations of the Rohingya from Myanmar to Bangladesh. Bensouda compared the deportations to ‘a cross-border shooting’ since the crime was ‘not completed until the bullet fired in one state strikes and kills the victim standing in another state.’

This is the first time a request of this kind has been made on the court and touches on an important issue: how do you ensure justice and accountability when crimes occur in one country that is not a signatory to the court but impact another country which is a signatory to the court. Could the court still claim it could have jurisdiction in Myanmar despite it not being a signatory?

3. What did the independent international UN fact-finding mission on Myanmar find?

In August 2018, the UN fact-finding mission, released a damning report that put further pressure on the Myanmar authorities. They called for the country’s military chief, Min Aung Hlaing, and five other top commanders to be investigated for war crimes, crimes against humanity and genocide. They argued that there was clear evidence of the gravest crimes possible under international law and that the army’s tactics were shocking in their ‘denial, normalcy and impunity’ and ‘consistently and grossly disproportionate’ to security threats.

While the report concluded that the civilian government, led by Nobel laureate Aung San Suu Kyi, was not as culpable as the military in their actions, they also found that there was a lack of moral authority in addressing the crisis, which contributed to the ongoing perpetration of atrocities. The report urged the UNSC to refer Myanmar to the ICC. But this has remained a slim possibility given China could exercise its veto.

(4) The ICC has made its ruling but what does it mean?

On the 6 September 2018, the ICC ruled that it has jurisdiction over Myanmar’s forced expulsion of the Rohingya to Bangladesh as a possible crime against humanity. The three-judge panel argued jurisdiction arose because of the cross-border nature of the alleged crimes. Interestingly, their ruling also allowed for a wider enquiry beyond deportations.

In an unexpected turn of events, they argued that the prosecutor could also consider ‘crimes against humanity of persecution and/or other inhumane acts.’ Bensouda, the ICC chief prosecutor, can now decide to open a preliminary investigation and decide whether to press charges.

This is an important development because it shows that even if a country is not a signatory to the ICC, where elements of their crimes occur in a signatory state, the court can still intervene.

It sends a warning shot not just to Myanmar, but to other non-signatory states who commit war crimes and crimes against humanity with cross-border implications, that there can still be international avenues to justice.

5. What has been the response of the Myanmar authorities?

The Myanmar authorities have issued a response arguing that the court’s ruling is an over-extended application of jurisdiction and that it is willing and able to investigate crimes in its own territory. This is clearly not the case as the entire crisis has been marked by widespread impunity. Meanwhile, Aung San Suu Kyi continues to maintain her silence failing to speak out on what is happening to the Rohingya.

Undoubtedly, there will be challenges ahead — any road to accountability will be long and complex especially when one party is likely to not cooperate — but for the Rohingya, there is finally a glimmer of hope as an important new avenue opens for justice and accountability.