ISSN 2330-717X

Myanmar’s Exile Government Signs Up To ICC Prosecutions – Analysis

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By Adam Simpson*

A recent decision by Myanmar’s National Unity Government (NUG) may offer a path to justice for the victims of war crimes, crimes against humanity or genocide in Myanmar. The NUG was formed by elected representatives of the parliament and others who were ousted by the February military coup. On 20 August the NUG announced that it had lodged a declaration with the International Criminal Court (ICC) accepting the court’s jurisdiction with respect to all international crimes in Myanmar since 2002.

The NUG had been considering this option since March, but this was the first formal submission by the government-in-exile under Article 12(3) of the Rome Statute. The day prior to the announcement, Fortify Rights, an NGO, released a lengthy report on the legal basis for the diplomatic manoeuvre.

This announcement was significant for four reasons. First, this was a major shift in policy regarding the ICC since the former National League for Democracy (NLD) government led by Aung San Suu Kyi was openly hostile to any prosecutions under the auspices of either the ICC or the International Court of Justice. The NLD government refused to accede to the ICC under the Rome Statute or respect its rulings and repeatedly aligned itself with Myanmar’s military over the ethnic cleansing of the Muslim Rohingya population in 2017.

Second, it would mean that the ICC could investigate crimes against the Rohingya in Rakhine State itself, as well as any crimes committed in ethnic conflicts within Myanmar dating back to 2002.

Since November 2019, the prosecutor of the ICC has been undertaking an investigation of crimes against the Rohingya, but the case has been strictly limited to those crimes that occurred ‘at least in part’ in Bangladesh, a signatory of the ICC. This included ‘crimes against humanity of deportation across the Myanmar-Bangladesh border and persecution on grounds of ethnicity and/or religion against the Rohingya population’.

However, individuals could not be charged for crimes committed only within Myanmar.

In addition, the prosecutor was only examining events since August 2017, when the most significant wave of refugees flooded across the Bangladesh border despite historical and ongoing ethnic conflicts in the region.

Third, it would allow the court to prosecute the Myanmar military for crimes committed during the coup and its ongoing repression of the opposition. Over 1000 opponents of the regime have been killed since the coup, with over 6000 currently under arrest and another 2000 in hiding. Most of these events cannot be examined under the existing ICC case since there is no link to Bangladesh or other signatories of the Rome Statute.

Fourth, the announcement effectively legitimises the historically ignored grievances of the Rohingya ethnic minority. The previous government argued that the military operations against the Rohingya only targeted militants and were therefore justified, even while all evidence pointed to the contrary.

In early June, the NUG challenged this argument and decades of settled policy on the Rohingya in Myanmar by promising to repeal the 1982 law on ‘national races’, base citizenship on birth in Myanmar and abolish the process of issuing National Verification Cards.

This commitment of citizenship for the Rohingya was followed up by another statement on the fourth anniversary of the atrocity crimes committed against the Rohingya people, acknowledging the ‘horrendous violence, gross human rights violations and massive displacement’ experienced by the Rohingya. In another unprecedented move, a Rohingya activist, Aung Kyaw Moe, was appointed as an advisor within the NUG’s Ministry of Human Rights. These changes have reflected a broader reassessment of the treatment of the Rohingya in Myanmar following the coup.

While some argue that the ICC is irrelevant in bringing autocrats to justice, just a week prior to the NUG announcement Sudan informed the ICC prosecutor that former dictator of Sudan Omar al-Bashir and other ‘wanted officials’ would be extradited to the ICC.

The next step for the NUG will be to sign up to the Rome Statute, which is a complicated process. While any country acceding to the ICC is welcome, an impending ICC prosecution may inadvertently extend military rule in Myanmar because the military leadership could be concerned about future prosecution.

A contributing factor in the coup may have been Commander-in-Chief of the Myanmar military Min Aung Hlaing’s concern over being prosecuted under the existing ICC case. But immunity from prosecution in an active ICC case could bring the military junta to the negotiating table.

The NUG’s announcement tightens its embrace of a federal democracy that respects international human rights norms. The more the international community supports the NUG with recognition and resources, the more the NUG will stay true to these policy commitments.

States within the international community must decide whether to accept the Article 12(3) submission and thereby implicitly accept the NUG as Myanmar’s legitimate government and international voice rather than the military junta. There have already been ‘weeks of behind-the-scenes diplomatic negotiations’ at the United Nations and elsewhere regarding the status of Myanmar’s ambassadors and diplomats abroad who have spoken out against the coup. While some of these diplomats, and members of the NUG, have defended the actions of Myanmar’s military against the Rohingya in the past, the recent efforts towards reconciliation should provide sufficient impetus for granting international recognition.

Russia and China — which would likely veto the ability of the NUG to speak for Myanmar if this were a UN Security Council resolution — are not members of the ICC and therefore have no say in the approval of representatives. This submission therefore provides an ideal opportunity to increase the legitimacy and recognition of the NUG while bolstering the international criminal justice framework for war crimes and crimes against humanity.

*About the author: Adam Simpson is Senior Lecturer in International Studies at the University of South Australia.

Source: This article was published by East Asia Forum

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East Asia Forum is a platform for analysis and research on politics, economics, business, law, security, international relations and society relevant to public policy, centred on the Asia Pacific region. It consists of an online publication and a quarterly magazine, East Asia Forum Quarterly, which aim to provide clear and original analysis from the leading minds in the region and beyond.

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