In April 2017, the UN Human Rights Council established the Independent International Fact-Finding Mission on Myanmar to investigate alleged human rights abuses by military and security forces. The Fact-Finding Mission issued an initial summary reportin August 2018, followed by a 444-page report of detailed findingsin September.
Among other things, the Fact-Finding Mission found that after an armed group called the Arakan Rohingya Salvation Army launched a series of small-scale attacks against government military outposts on 25 August 2017, a government campaign aimed at Rohingya communities in Rakhine State resulted in at least 10,000 deaths and caused 725,000 Rohingya to flee, mainly to neighbouring Bangladesh. The Myanmar authorities termed their actions “clearance operations” meant to eliminate a terrorist threat. The Fact-Finding Mission described a campaign of indiscriminate killing and maiming, rampant sexual violence, and widespread destruction of Rohingya villages—a “human rights catastrophe”, but one long in the making because of a history of state-sanctioned discrimination against the Rohingya, a Muslim minority in a predominantly Buddhist country.
The Fact-Finding Mission (which Myanmar refused to admit into its territory) concluded that the actions of Myanmar’s forces constituted crimes against humanity and war crimes. It also found sufficient evidence to warrant the investigation and prosecution of senior officials for the crime of genocide. Among other recommendations, the Fact-Finding Mission urged the UN Security Council to refer the situation to the International Criminal Court (ICC) (Myanmar is not a party to the Rome Statute) or to establish an ad hoc international criminal tribunal. (After the Fact-Finding Mission issued its August report, a Pre-Trial Chamber of the ICC determinedthat the ICC has jurisdiction over the alleged deportation of Rohingya individuals from Myanmar to Bangladesh, and possibly over additional other crimes; ICC prosecutor Fatou Bensouda has since announceda preliminary examination into the situation.) The Fact-Finding Mission also recommended targeted sanctions against government officials and an arms embargo. The Chair of the Fact-Finding Mission, Marzuki Darusman, addressed the Security Council last month (over the objections of China and Russia) to reiterate these conclusions. In the meantime, the UN Human Rights Council responded by establishing a mechanismto collect and preserve evidence of international law violations in Myanmar (discussed here).
The emphasis of the Fact-Finding Mission and the UN Human Rights Council on individual criminal accountability is unsurprising. Many other fact-finding missions and commissions of inquiry that have investigated large-scale human rights violations have been similarly focused—a reflection of the extent to which international criminal law has become the central or even dominant narrative of the international response to so many crises. Indeed, advocacy groups have long campaigned for an ICC-focused response to the Rohingya crisis, alongside the urgent need to provide humanitarian assistance to the thousands of Rohingya refugees now living in difficult conditions in camps across the border in Bangladesh. (A dealnegotiated by UNHCR and UNDP with Myanmar in May 2018 to facilitate the repatriation of the Rohingya has been widely criticizedand remains unimplemented.)
The increased focus on Myanmar in 2018 is to be welcomed. UN officials and some governments have already characterized the conduct of the Myanmar authorities as acts of genocide (see here, here, here, and here), and the reputation and credibility of Myanmar’s de facto leader, the Nobel peace laureate Aung Sung Suu Kyi, has seen a rapid and precipitous decline (see here, here, and here). Yet amidst all of these developments, the almost singular focus on an international criminal justice response to the plight of the Rohingya is striking. The idea of seeking legal accountability at the level of State responsibility has gone largely unmentioned, a further example of what Laurel Fletcher has called the “effacement of state accountability for international crimes”. In that vein, the remainder of this post will consider the prospects for a case against Myanmar at the International Court of Justice (ICJ). Read the rest of this entry…