Long road to Myanmar tribunal
Hurdles ahead as probe calls for generals’ prosecution
Bangkok — A UN 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.
According to a damning report by a UN fact-finding mission on Monday, members of Myanmar’s armed forces, including military chief Gen Min Aung Hlaing, should be prosecuted for their roles in expelling about 700,000 Rohingya Muslims into 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 the court 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 consistently 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 spokesperson Hua Chunying said on Tuesday. "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 later on Tuesday in New York.
If legal moves for the court 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 co-operation of national authorities in Myanmar.
Another possibility stems from an unprecedented request by the chief prosecutor at the court, Fatou Bensouda, to extend its jurisdiction to Myanmar, which has not signed up to the court.
That is "uncharted territory", according to Kingsley Abbott of the International Commission of Jurists, who says the move may be possible because the crisis spilled over into Bangladesh, a member of the court.
If the court agrees, the prosecutor could launch a preliminary investigation and ultimately issue arrest warrants for Myanmar nationals.
This would require Bangladesh to participate in the probe and 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 Hlaing.
Investigators argue they bear responsibility because of their direct command over troops that carried out "clearance operations" in Rakhine state.
But the court 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 2017 war crimes judges criticised Jordan for failing to act on The Hague’s warrant to arrest Sudanese leader Omar al-Bashir.
The calls are aimed at the upper echelons of Myanmar’s security forces. The country’s de facto civilian leader, Nobel peace prize winner Aung San Suu Kyi, has 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 stemming 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 International Criminal Court prosecutor’s request on jurisdiction.
In August the government branded it "meritless".