Opinion: ICC must investigate and arrest Min Aung Hlaing for crimes against humanity

On Friday—World Human Rights Day—the Myanmar Accountability Project (MAP) submitted to the International Criminal Court (ICC) incontrovertible evidence that Myanmar’s coup leader, Snr-Gen Min Aung Hlaing, is guilty of crimes against humanity. 

MAP, of which I am the director, has been discussing with international officials the possibility of issuing an arrest warrant against the military chief so that he can be brought to justice.

We sent a criminal file to The Hague evidencing torture committed against a named individual as well as a legal analysis showing that the use of torture in Myanmar is widespread, systematic and the result of statewide policies, thus reaching the threshold of crimes against humanity, as UN Special Rapporteur Tom Andrews and other senior UN officials have said on numerous occasions.

MAP also submitted the testimony of a military defector who we believe will make himself available to the ICC; the testimony of this individual demonstrates that responsibility for the act of torture goes all the way up to Min Aung Hlaing himself. 

This corroborates the conclusions of the Independent International Fact-Finding Mission on Myanmar, which said in its 2018 report to the UN Human Rights Council that “the Tatmadaw command exercises effective control over its own soldiers, as well as over other armed actors deployed in military operations. The consistent tactical formula employed by the Tatmadaw exhibits a degree of coordination only possible when all troops are acting under the effective control of a single unified command.”  

It is worth quoting this report at length as its findings will be important in the ICC case. The mission concluded that within the Myanmar military’s high command, “effective control, combined with the knowledge of crimes committed by subordinates, a failure to take necessary and reasonable measures to prevent and punish crimes, and a causal link between these failures and the atrocities committed, indicate that individual criminal liability would extend beyond individual perpetrators to their hierarchical commanders.” 

The fact-finding mission compiled—and subsequently passed on to the current Independent Investigative Mechanism for Myanmar—a non-exhaustive list of alleged perpetrators of crimes under international law, indicating priority subjects for investigation and prosecution. The list includes the names of alleged direct perpetrators, but focuses on those exercising effective control over them; at the top is the military’s commander-in-chief, Min Aung Hlaing.

MAP’s request that the ICC immediately open an investigation into and issue an arrest warrant for Min Aung Hlaing, is supported by some of the world’s most prominent authorities on the ICC, such as Justice Richard Goldstone, the founding chief prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda, and John Dugard, former member of UN International Law Commission and UN Special Rapporteur on the Human Rights Situation in the Occupied Palestinian Territory.

There is a sound legal and diplomatic basis for robust action against Myanmar’s military chief by the ICC.

Myanmar’s democratically elected National Unity Government (NUG) has made a declaration under Article 12(3) of the Rome Statute—which saw the establishment of the ICC—that the NUG accepts the jurisdiction of the Court. In addition, the UN General Assembly has voted by acclamation to reject the credentials of the junta and leave the NUG Ambassador in his seat. 

These two actions have huge symbolic and practical significance and pave the way for ICC action. 

As MAP made clear in its submission, the ICC is the court of last resort for the people of Myanmar. The country’s judicial system has become a politicised and punitive tool in the hands of the junta, making justice for victims impossible. 

This reality is of particular significance to the ICC, because the Court’s new chief prosecutor, Karim Khan, has stated that where victims are unable to find just redress within their own court systems, the ICC could—and we at MAP argue should—get involved. 

And so I say again, just as I have said to the officials of the ICC, that with more than 1,300 people killed in Myanmar by the junta since the February coup and many more threatened with a similar fate, ICC action has become a matter of life and death. 

Along with the people of Myanmar, MAP looks to Karim Khan and the ICC, to fulfil the noble aspirations embodied in the Rome Statute. 

This watershed document affirms that “the most serious crimes of concern to the international community as a whole must not go unpunished” and that there must be an end “to impunity for the perpetrators of these crimes” through the “enforcement of international justice.”

For the sake of Myanmar today and for that of future generations, we implore the ICC to live up to the promise of its founding document and take robust action against Min Aung Hlaing now.

Chris Gunness is the Director of the Myanmar Accountability Project, which works with civil society to build criminal cases against individual members of the Myanmar security forces.

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