The United Nations Security Council should refer Myanmar to the International Criminal Court (ICC) because of its failure to investigate mass atrocities against ethnic Rohingyas, Human Rights Watch has said while releasing a new question-and-answer document.
UN member countries should also pursue processes for gathering criminal evidence to advance prosecutions in the ICC and other courts, HRW said Thursday.
Myanmar authorities have failed to credibly investigate security force operations since late August 2017 that have resulted in allegations of mass arson, killing, rape, and looting, destroying hundreds of villages and forcing more than 600,000 Rohingya Muslims to flee to neighbouring Bangladesh, claims HRW.
Its field research found that Myanmar military abuses amount to crimes against humanity.
“Justice is desperately needed for the Rohingya population targeted by the Burmese military’s campaign of ethnic cleansing,” said Param-Preet Singh, associate international justice director at Human Rights Watch. “The UN Security Council should refer the situation in Burma to the ICC, which was created precisely to address situations in which grave crimes were committed without consequences.”
The Myanmar government’s support both for the military operations against the Rohingya and its repeated discounting and dismissal of alleged abuses make it extremely unlikely that the government will press for the credible investigation and prosecution of crimes against humanity, HRW says that historically courts in Myanmar have tried soldiers for human rights violations only infrequently and have never held soldiers to account for war crimes.
Civilian courts have rarely had jurisdiction over soldiers implicated in criminal offenses.
In April, the UN Human Rights Council created a Fact-Finding Mission for Myanmar because of credible and serious allegations of human rights abuses.
While the Fact-Finding Mission will document patterns of abuse, it does not have the mandate to investigate abuses to a criminal standard, though its findings could be used in eventual prosecutions.
The ICC is a court of last resort and only acts when there are grave crimes and national authorities are unwilling or unable to prosecute and try those responsible.
But the ICC only has jurisdiction over crimes committed by states parties to its founding treaty, the Rome Statute, and Myanmar is not a member. Only the UN Security Council can refer the situation to the ICC for further criminal investigation, the HRW statement said.
Achieving an ICC referral in the current political environment in the council will be difficult, notably because of China and Russia’s likely opposition to referring the situation in Myanmar to the court.
This difficult landscape highlights the importance of also pursuing parallel tracks to bring justice to victims of atrocities in Myanmar, Human Rights Watch said.
In the face of Security Council deadlock on justice in Syria and in North Korea, the UN General Assembly and the UN Human Rights Council have each created bodies to collect information about human rights violations and to prepare case files for eventual prosecution in courts with jurisdiction to try these crimes. UN member countries should consider a similar initiative for Myanmar, it added.
“UN member countries should explore concrete measures to build criminal files against those responsible for major crimes in Myanmar for eventual prosecution,” Singh said.
“Identifying perpetrators can help raise the political cost of abusive military operations, and bring victims closer to the justice they deserve.”