The international community has often proven incapable of dealing with state led crimes against humanity, and Myanmar could prove another missed milestone.
The International Criminal Court (ICC) issued a decision in early September this year ruling that it has jurisdiction over the deportations (ethnic cleansing) of the Rohingya people from Myanmar to Bangladesh.
The landmark decision by the ICC was based on the prosecution’s request dated for a ruling on jurisdiction for the crime of deportation under the Rome Statute, the founding document of the Court.
The prosecutor Fatou Bensouda filed that the coercive acts relevant to the deportations occurred on the territory of Myanmar, which is not a party to the Rome Statute. However, Bensouda considered that the court may nonetheless exercise jurisdiction under the statute, but on another ground. Since the Rohingya people crossed an international border to Bangladesh, the court can establish a jurisdiction through Bangladesh, which is a signatory state to the Rome Statute.
On the other hand, the UN fact-finding mission has called for the prosecution of Myanmarese officials to the full extent of the law. The mission recommended that the United Nations Security Council (UNSC) either should refer the situation to the ICC or to establish a court similar to the one for Rwanda and former Yugoslavia.
In addition, the UN fact-finding mission further urged that the UNSC should impose targeted sanctions such as travel bans, asset freezes and an arms embargo.
As for the UNSC referrals to the ICC, the path for this seems to be blocked by China, Russia and the United States.
During a briefing of the report in a UNSC meeting, the representatives of China and Russia claimed that Myanmar has been put under pressure and the settlement of this issue needs to be through diplomatic efforts instead of seeking individual criminal responsibility. Hence, a UNSC referral is unlikely to happen unless a radical change in the policy of primarily China, and additionally, Russia and the US occurs.
The same applies for establishing an ad hoc court for Myanmar, as it requires the consent of the permanent members of the UNSC.
A new court requires; new statutes, new rules of procedure and evidence; new buildings, staff and resources. This would take a very long time. Instead of forming a new court, referring the ethnic cleansing in Myanmar to the ICC is more practical in terms of time and efficiency.
By the same token, the inclusion of the Myanmarese officials to the sanction list is also not an entirely appropriate way to establish accountability. Sanctions are not a coercive instrument to prevent the perpetrators from wrongdoing. The inefficiency of targeted sanctions can be clearly seen by looking at the 30-year-old US targeted sanctions aimed at curbing human rights violations in Myanmar.
Similarly, human rights law has failed to improve in Myanmar and the military has continued its violations leading to acts of genocide, crimes against humanity and war crimes. The international community needs to change the voting behaviour of the permanent members of the UNSC, so they do not use their veto power for Myanmar, in order to open an avenue for accountability.
An alternative direction is asserting universal jurisdiction through national courts. However, even this path has its shortcomings. First the states should criminalise international crimes in their domestic codes and prosecution depends on the physical presence of the accused on the territory of relevant state. In addition, the immunity that a head of state has from foreign criminal prosecution is another obstacle.
The good news is that the ICC has established that it has jurisdiction over the crimes because of their trans-border nature. Furthermore it allowed the prosecution to examine any other crimes and other inhumane acts. Hence, now there is no need for a referral from the UNSC to initiate an investigation against the alleged direct perpetrators in the report.
In addition, the prosecution is not limited with the six chief commanders and prosecution can affect the Nobel Prize holder Aung San Suu Kyi.
Not all the crimes attributed to the Myanmar military commanders bear an international character. Yet, the harmful and murderous effects of persecution and inhumane treatment have occurred outside of Myanmar, particularly in Bangladesh.
Professor Kevin J. Heller of Amsterdam University has suggested that if the UN Mission finds elements of genocide in Bangladesh as it did in Myanmar, the Court may have jurisdiction over genocide of the Rohingya people pursuant to the recent decision.
The ICC has long been accused of being biased against leaders from Africa. This is a substantive criticism considering that to date, all the 26 individuals indicted by the Court are from Africa. Despite the existence of high number of conflicts on the continent and the self-referral of the situations to the court by some of the African member states, the narratives circulated around that the ICC have portrayed it as a new form of Western neocolonialism.
Although the prosecutor opened investigations into crimes committed in Georgia and examines many other non-African crimes, such as in Ukraine, Palestine, Afghanistan and Colombia, there is no doubt that this potential investigation can go try and correct the previous impartiality and strengthen the court's legitimacy.
The member states of the UN should make an effort to refer the situation to the UN General Assembly to establish an independent commission, to collect, preserve and analyse evidence of violations for prosecution on the national, regional and international levels.
Last but not least, states and regional organisations such as the EU and ASEAN should impose sanctions and an arms embargo regardless of a UNSC decision. It should be kept in mind that genuine success can only come with successful implementation of the sanctions - only that can change Myanmar's behavior.
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