The Next Best Hope for Justice in Burma: The International Criminal Court

By on August 30, 2018

Earlier this week, UN monitors announced the results of a year-and-a-half-long fact-finding mission to Burma. The data is damning evidence showing the Burmese military’s deliberate campaign of persecution and extermination against the Rohingya people, which reached its most extreme form beginning in August 2017.

Among the atrocities the report documents are the burning and destruction of villages and homes, systematic segregation and restriction of freedom of movement, the deliberate targeting of civilians, and sexual violence used as a weapon of war. None were isolated war crimes, but the planned and coordinated policies of the Burmese military, aimed at the stigmatization and annihilation of the Rohingya as a people.

As the report concludes, this evidence more than justifies the immediate investigation and prosecution of senior members of the Burmese military for some of the worst crimes of which human beings are capable: genocide, war crimes, and crimes against humanity. While the Rohingya have suffered the worst of this violence, the mission collected evidence of similar atrocities committed against ethnic Rakhine, Shan, and Kachin people – other minorities in Burma who have long been marginalized by the government.

UUSC joins the call for accountability for these crimes. The UN Security Council should take action now to refer the case for prosecution to the International Criminal Court (ICC) in order to ensure that this violence will never be repeated.  

What is the ICC?

The ICC is a permanent international tribunal dedicated to prosecuting war crimes and crimes against humanity. Created in 1998, the ICC was born out of a recognition that national governments are often unable or unwilling to prosecute crimes ordered by state officials, and that a higher recourse is therefore needed to ensure accountability. The legal and institutional roots of the Court, as well as its moral mandate, extend back to the Nuremburg war crimes trials after World War II, which prosecuted the German officials responsible for the Holocaust, and the 1948 UN Genocide Convention.

The principle underlying these institutions is that some crimes are so heinous that they violate the fundamental norms of the human community. Genocide – the deliberate destruction of a people – is perhaps the ultimate example of such a violation. When the laws and governments of individual states refuse to bring perpetrators to justice for these crimes, the international community is obliged to act.

In the case of Burma, the government has shown time and again that it has no intention of holding accountable those who commit atrocities against the Rohingya and other ethnic minorities. The Burmese government largely refused to cooperate with the UN fact-finding mission, according to the mission’s report. While civilian authorities in Burma – such as State Counsellor Daw Aung San Suu Kyi – have little control over the actions of the military (which is exempt from civilian oversight under Burma’s constitution), they have nevertheless refused to condemn the atrocities against the Rohingya, and Burmese officials have already lined up to reject the findings of the UN report.

Given this persistent impunity for crimes against humanity in Burma, the International Criminal Court is the next best hope for justice.

Time for Moral Leadership

Typically the body that refers cases to the ICC is the UN Security Council; immediate responsibility for initiating a prosecution therefore falls to this body. When the Security Council met on Tuesday, however – a day after the mission’s findings were released – it still failed to agree on a course of action. This was in spite of the fact that the Council heard moving testimony related to the persecution of the Rohingya, and U.S. Ambassador to the United Nations Nikki Haley acknowledged that internal U.S. government findings are “consistent” with the fact-finding mission’s report.

Two permanent Security Council members – China and Russia – have close ties to the Burmese government and so far have resisted efforts to refer military officials for prosecution. The United States as well, however, has for too long failed to be a moral leader in upholding the mandate of the ICC. To this day, the United States is one of the few countries in the world that is not a member of the Court, and legislation passed in 2002 still limits U.S. officials from cooperating with ICC investigations. In large part this is due to U.S. officials’ unwillingness to be held accountable for their own human rights violations (indeed, the ICC is currently investigating war crimes committed by the United States in Afghanistan and Eastern Europe in the name of the “War on Terror”).

On the other hand, the U.S. government recently imposed targeted sanctions on senior members of the Burmese military and Border Guard – recognizing the gravity of the military’s crimes and the need for accountability. However, these sanctions do not include Senior General Min Aung Hlaing, commander-in-chief of the Burmese military, whom the UN report names as an architect of the violence and a spokesperson for the genocidal ideology that informed it.

The United States and the other members of the Security Council need to take these measures to the next level by pressing for a full investigation and prosecution of the Burmese military’s crimes against humanity.

This is especially the case today, as August 30 marks the International Day of Victims of Enforced Disappearances. As UUSC’s partners in Mexico and Honduras commemorate this day by taking action on behalf of the disappeared, our thoughts likewise turn in solidarity with all the people murdered, disappeared, and displaced by violence in Burma and around the world. Together, we continue to keep faith with the possibility of a better future.