WILL MYANMAR MILITARY FACE JUSTICE OVER ‘GENOCIDE’?
China likely to block prosecution of ally Myanmar at ICC
AUNITED Nations probe has called for Myanmar’s military leaders to face justice for alleged genocide and crimes against humanity against the Rohingya, but the road to a tribunal will be long and complex, with China likely to block any prosecution of its ally at the International Criminal Court (ICC).
On Monday, a damning report by a UN fact-finding mission said members of Myanmar’s armed forces, including military chief Senior General Min Aung Hlaing, should be prosecuted for their roles in violently expelling some 700,000 Rohingya Muslims into neighbouring Bangladesh.
Refugees have recounted widespread stories of rape, murder and arson by security forces as they were driven from their homes.
The report was the most serious step towards accountability in the crisis to date but experts warn of major legal and diplomatic obstacles ahead.
For proceedings to begin, the UN Security Council needs to refer Myanmar to ICC in the Hague.
But geopolitics is likely to get in the way with China and Russia — which last week hosted Min Aung Hlaing — able to veto any referral.
China has refrained from condemning Myanmar for its treatment of the Rohingya, describing it as an internal matter.
“Rakhine State has a very complex historic, ethnic and religious background,” Chinese Foreign Ministry spokesman Hua Chunying said yesterday.
“So, how to resolve this problem? Through negotiation and dialogue,” she said, adding: “I think that blame on any side, or pressure, does not help resolve anything.”
The Security Council was set to discuss Myanmar in New York.
If legal moves for ICC stall at the Security Council, it could consider an ad hoc or mixed tribunal similar to ones created for Rwanda, Yugoslavia, Lebanon and Cambodia.
This would, in theory, require the cooperation of national authorities in Myanmar.
Another possibility stems from an unprecedented request by the chief prosecutor at the ICC, Fatou Bensouda, to extend its jurisdiction to Myanmar, which has not signed up to the court.
That’s “uncharted territory”, according to Kingsley Abbott of the International Commission of Jurists, who said the move might be possible because the crisis spilled over into Bangladesh, a member of ICC.
If the court agrees, the prosecutor could launch a preliminary investigation and ultimately issue arrest warrants for Myanmar nationals.
But this would take time, requiring participation from Bangladesh in the investigation and — somewhat implausibly — Myanmar to hand over suspects.
The court targets individuals, not countries.
On Monday, the UN probe named six senior members of the armed forces, including military chief Min Aung Hlaing.
Investigators argued that they bore responsibility because of their direct command over troops that carried out “clearance operations” in northern Rakhine State.
But ICC cannot forcibly bring suspects from Myanmar, and would have to rely on member states to detain them in the event they travel abroad.
This has been problematic in the past.
In December last year, war crimes judges criticised Jordan for failing to act on the Hague’s warrant to arrest Sudanese leader Omar al-Bashir.
The current calls are aimed at the upper echelons of Myanmar’s security forces, and State Counsellor Aung San Suu Kyi had no control over the military.
But the UN probe did call her out for not using her position as leader of the civilian government or her “moral authority” to try to stem the violence.
It also accused her administration of denying any wrongdoing, blocking the UN investigation, and spreading false narratives.
“Through their acts and omissions, the civilian authorities have contributed to the commission of atrocity crimes.”
Myanmar has long denied accusations it committed ethnic cleansing or genocide.
It has reserved particular scorn for the ICC prosecutor’s request on jurisdiction.
Earlier this month, the government branded it “meritless” and called for it to be dismissed.
Myanmar said it had also established its own independent commission of inquiry — a panel critics said was toothless.
The stateless Rohingya garner little empathy inside Myanmar and Min Aung Hlaing’s military campaign has enjoyed support from the public, many of whom see it as a defence of the country from militants.