Myanmar: ICC examination prompts polarised response

The Chief Prosecutor of the International Criminal Court, Fatou Bensouda, has opened a preliminary examination of Myanmar’s forced displacement of Rohingya Muslims after the Court announced there is sufficient jurisdiction.

Ensuing protests held by Myanmarese and Rohingya groups – held less than a week apart – could not have been more different.

In early October, thousands of Myanmar civilians marched through Yangon, wielding photos of the country’s top general, waving flags and chanting their unwavering support of the Tatmadaw, Myanmar’s armed forces. ‘The day when the ICC comes here… is the day that Wirathu holds a gun,’ the ultranationalist monk Wirathu said in a speech outside Yangon’s City Hall.

Four days earlier, a few-dozen Rohingya refugees crowded under a tent in Cox’s Bazar, Bangladesh, grasping photos detailing the crimes committed against them over the past two years and demanding justice. ‘Burmese Army is a genocidal military,’ read one poster. ‘They deserve to be at international criminal court.’

Muslim Rohingya have been a persecuted minority for decades, denied citizenship rights and sporadically facing bouts of sectarian violence and army clearance operations. In recent years, the situation has worsened in Rakhine State, with hundreds of thousands of Rohingya refused schooling and healthcare, shut out of jobs and shunted into appalling conditions in displacement camps.

Members of Myanmar's Muslim Rohingya minority in Bangladesh

In August 2017, a small group of self-styled Rohingya militants attacked security posts in Rakhine, killing 12. In retaliation, the Myanmar army launched a large-scale clearance operation. Within just a few months, more than 700,000 Rohingya had fled to Bangladesh.

Witness testimony, news reports and fact-finding missions by the United Nations and other organisations have detailed massacres, gang rapes and the razing of villages. One year after the attacks, UN investigators recommended the military’s top brass be investigated and tried for genocide.

In September, after months of reviewing submissions detailing crimes against the Rohingya ethnic minority, Prosecutor Bensouda announced that she would begin a ‘fully-fledged preliminary examination’. While Myanmar is not a party to the Rome Statute, neighbouring Bangladesh is. And it is to Bangladesh that more than a million Rohingya fled amid the brutally violent campaign by the Myanmar military.

‘The Court may therefore exercise jurisdiction over conduct to the extent it partly occurred on the territory of Bangladesh,’ Bensouda explained in her statement. ‘In this context, the preliminary examination may take into account a number of alleged coercive acts having resulted in the forced displacement of the Rohingya people, including deprivation of fundamental rights, killing, sexual violence, enforced disappearance, destruction and looting.’

Also in September, the Independent International Fact-Finding Mission (FFM) on Myanmar released its full report, after 15 months of investigation. It details a litany of crimes that would support charges of genocide, crimes against humanity and war crimes — not just against Rohingya in Rakhine but against indigenous minorities in Kachin and Shan States.

‘During their operations the Tatmadaw has systematically targeted civilians, including women and children, committed sexual violence, voiced and promoted exclusionary and discriminatory rhetoric against minorities, and established a climate of impunity for its soldiers,’ Marzuki Darusman, Chair of the FFM, said in a statement. ‘I have never been confronted by crimes as horrendous and on such a scale as these.’

Commander-in-Chief Senior-General Min Aung Hlaing, the Tatmadaw’s top commander whose portrait protestors carried through Yangon on Sunday, has called the army’s clearance of the Rohingya ‘unfinished business’. The FFM report recommends Min Aung Hlaing, alongside five other senior generals and other unnamed alleged direct perpetrators be investigated and prosecuted.

“The preliminary examination may take into account a number of alleged coercive acts … including deprivation of fundamental rights, killing, sexual violence, enforced disappearance, destruction and looting

Fatou Bensouda
Chief Prosecutor, the International Criminal Court

But both the military and the civilian government have brushed aside the findings of the FFM. On his website, Min Aung Hlaing refers to such efforts as ‘meddl[ing] in internal affairs’. De facto leader Aung San Suu Kyi has stressed that the ICC has no jurisdiction over Myanmar, and called the prosecutor’s efforts an overreach. In a lengthy statement posted on the official State Counsellor website, the office of Aung San Suu Kyi wrote ‘Myanmar is concerned with the lack of fairness and transparency of the ICC proceedings.’

Legal experts say that bringing a case forward will be far from simple. Federica D'Alessandra, Co-Chair of the International Bar Association's War Crimes Committee, notes that Prosecutor Bensouda’s argument over jurisdiction, ‘as innovative as it was, was met with scepticism by observers and international criminal law experts, who thought it to be a stretch of the statute’.

While the pre-trial chamber did indeed rule in the end that the ICC has jurisdiction, D’Alessandra says pushing a case forward will be an uphill battle. It is evident that Myanmar will not cooperate with the Court, which will ‘face a number of extremely difficult challenges in investigating and prosecuting alleged crimes committed by government actors and their proxies’.

Elise Tillet-Dagousset, a Southeast Asia-based rights researcher and analyst who documented abuses against the Rohingya, echoes the statement. ‘The chances to one day see Myanmar army generals standing trial for their crimes at the ICC or in an ad-hoc tribunal are slim,’ she says.

‘However, in case it one day happens, the UN should create an independent and impartial mechanism to collect, consolidate, preserve and analyse evidence for future trials as soon as possible. Whatever the way forward is or will be, for it to be safe and sustainable, it needs to ensure the Rohingya’s own views and concerns are taken into consideration, especially in discussions about their potential return to Myanmar. That has not been the case so far. Otherwise, the decades-long cycle of their displacement and abuse will keep repeating itself.’