Myanmar junta must face international court for atrocity crimes, say human rights experts

Calls for Myanmar’s military regime to face an international criminal tribunal for war crimes are gaining strength, as the International Criminal Court’s (ICC) governing body meets in New York this week. Seated in The Hague, Netherlands, the ICC is the only permanent international court with jurisdiction to prosecute perpetrators of so-called “atrocity crimes:” acts considered to be the most serious crimes against humankind, including genocide, war crimes, and crimes against humanity—all three of which the Myanmar junta stands accused of committing. Human rights experts, however, argue that the Court is not doing enough to hold the regime leaders accountable. Representatives from the ICC’s 124 member states—which include all the countries of South America, the majority of Europe, most of Oceania, and about half of Africa—will gather at the Assembly of States Parties’ annual meeting from December 4 to 14. On Tuesday, the first day of the meeting, human rights group Fortify Rights called on member states to “address double standards in the administration of international justice and refer the situation in Myanmar to the ICC Prosecutor.” Fortify Rights cited Article 14 of the Rome Statute, the ICC’s founding treaty, which authorises parties to call upon the ICC to bypass the UN Security Council and investigate atrocity crimes. “For too long, the Myanmar military and its supporters have enjoyed complete impunity for their international atrocity crimes, including war crimes, crimes against humanity, and even genocide,” said Matthew Smith, chief executive officer at Fortify Rights. “Using Article 14 of the Rome Statute, ICC member states can request the Chief Prosecutor to initiate an investigation into the most serious crimes occurring in Myanmar.” “This should be done without delay.” Three days later, on Friday, the independent international group of experts known as the Special Advisory Council for Myanmar (SAC-M) published a briefing paper calling for the establishment of a separate International Criminal Tribunal for the junta. The paper urged the international community to hold military leaders accountable for their ongoing crimes against the Myanmar people—a move SAC-M said would be in keeping with global calls for justice as well as recommendations made by the UN. “We are calling for an international criminal tribunal to be established, because Myanmar is at a critical juncture in its history,” said Marzuki Darusman, SAC-M founder and former chair of the UN Independent International Fact-Finding Mission on Myanmar. “People are striving to finally free their country from decades of military violence and oppression, and to rebuild a democratic Myanmar on foundations of peace, freedom and equality.” Crucially, this tribunal would have the jurisdiction to try under international law all atrocity crimes that have occurred in Myanmar since July 1, 2002. In order to protect it from interference by the Myanmar military and the “historical lack of independence and impartiality of many Myanmar judges,” it would also be composed of international judges and prosecutors and be located outside of Myanmar and its justice system. Darusman argued that because the military regime has completely crippled the domestic judicial system, the only way to achieve justice in the country is through international intervention. SAC-M’s proposal offers multiple pathways for the creation of an international tribunal, taking into account the unique context of Myanmar. The National Unity Government (NUG), representing Myanmar, could request the General Assembly or the Human Rights Council to establish it; the NUG could write directly to the Secretary-General requesting he negotiate a bilateral treaty between the UN and Myanmar to establish it; or the NUG, along with ASEAN and any other supporting states, could enter into a treaty to establish it outside of the UN system. A fourth option would be for the Human Rights Council to expand the mandate of its Independent Investigative Mechanism for Myanmar and attach a special tribunal where prosecutions of alleged perpetrators can take place. “Prosecuting the leaders of the Myanmar military is the job of the Prosecutor of the International Criminal Court (ICC),” said Chris Sidoti, another of SAC-M’s founding members and a former member of the Independent International Fact-Finding Mission on Myanmar. “The ICC has jurisdiction over international crimes in Myanmar because the NUG has accepted the Court’s jurisdiction. But the ICC’s Prosecutor is not acting on this, so that is why we are proposing an international criminal tribunal be established as an alternative.” “We have identified several ways in which it can be done,” said Sidoti. “There is no more time to lose.” The ICC has faced a litany of criticisms over the years, including that it is Eurocentric, neo-colonial, and biassed against African states. Its efficacy has also been challenged, including by those it seeks to prosecute. In March 2023, Russian president Vladimir Putin’s press secretary, Dmitry Peskov, announced that Russia did not recognize the ICC’s decision to issue an arrest warrant for Putin on account of war crimes in Ukraine. Peskov further noted that Russia, like many other countries, did not recognise the ICC’s jurisdiction, and that “accordingly, any decisions of this kind are null and void for the Russian Federation from the point of view of law." Meanwhile, research indicates that ICC prosecutions could make leaders who are culpable of atrocity crimes less likely to peacefully step down because they lack exit options, potentially prolonging conflicts in the process.

Myanmar junta must face international court for atrocity crimes, say human rights experts

As the ICC’s governing body meets in New York, rights advocates call for the establishment of a separate International Criminal Tribunal for Myanmar’s military regime

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