UN report lays foundation for international prosecution but Asian superpower stands in way
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.
On Monday a damning report by a UN fact-finding mission said members of Myanmar’s armed forces, including military chief Senior General Min Aung Hlaing, should be prosecuted for their roles in violently expelling some 700,000 Rohingya Muslims into neighbouring 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.
What’s the quickest route to justice for the Rohingya?
The International Criminal Court (ICC) in the Hague. For proceedings to begin, the United Nations Security Council needs to refer Myanmar to the court.
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 very complex historic, ethnic and religious background,” Chinese foreign ministry spokesperson Hua Chunying told reporters 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 is discussing Myanmar this week in New York.
What about Plan B?
If legal moves for the ICC 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 cooperation of national authorities in Myanmar.
Another possibility stems from an unprecedented request by the chief prosecutor at the ICC, Fatou Bensouda, to extend its jurisdiction to Myanmar, which has not signed up to the court.
That’s “uncharted territory”, according to Kingsley Abbott of the International Commission of Jurists, who says the move may be possible because they crisis spilled over into Bangladesh, a member of the ICC.
If the court agrees, the prosecutor could launch a preliminary investigation and ultimately issue arrest warrants for Myanmar nationals.
But this would take time, requiring participation from Bangladesh in the investigation and – somewhat implausibly – Myanmar to hand over suspects.
Who could be prosecuted?
The court targets individuals, not countries. On Monday the UN probe named six senior members of the armed forces including military chief Min Aung Hlaing.
Investigators argue they bear responsibility because of their direct command over troops that carried out “clearance operations” in northern Rakhine state. But the ICC 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.
Could Aung San Suu Kyi face trial?
Highly unlikely. The current calls are aimed at the upper echelons of Myanmar’s security forces, and the Nobel laureate 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 to stem 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.”
How is this playing out inside Myanmar?
Myanmar has long denied accusations it committed ethnic cleansing or genocide. It has reserved particular scorn for the ICC prosecutor’s request on jurisdiction.
In August the government branded it “meritless” and called for it to be dismissed.
Myanmar says it has also established its own independent commission of inquiry – a panel critics say is toothless.
The stateless Rohingya garner little empathy inside Myanmar and Min Aung Hlaing’s military campaign has enjoyed support from the public, many of whom see it as a defence of the country from militants.
Rohingya crisis timeline
Rohingya militants attack
On August 25, 2017 hundreds of Rohingya militants stage coordinated attacks on 30 police posts in Myanmar’s Rakhine state, killing 13 police.
The Myanmar army hits back with operations in Rohingya villages, saying it is trying to flush out insurgents.
Witnesses tell of Rohingya civilians being massacred in retaliation, with mortars and machine guns fired at villagers fleeing to the Bangladesh border.
The army in the mainly Buddhist nation says it has killed 400 rebels. Opponents of the regime say most of the victims were civilians. The UN says at least 1,000 were killed in the first two weeks.
By September 5 more than 120,000 Rohingya have flooded into Bangladesh, overwhelming its handful of ill-equipped refugee camps.
Many arrive desperate for food and water after walking for more than a week through dense jungle. Many say they have been victims of abuses by the army and Buddhists. Bangladesh already houses at least 300,000 Rohingya in camps near the border after previous exoduses.
Suu Kyi breaks silence
In her first public statement on the crisis, Myanmar leader Aung San Suu Kyi says on September 19 she is open to resettling some of the Rohingya who have fled, pending a “verification process”. She fails to appease critics around the world. Inside Myanmar her supporters say the Nobel Peace laureate, in power since April 2016, is unable to rein in the army, in charge for nearly half a century. She makes a first visit to the conflict zone on November 2 but issues no statement.
Bangladesh and Myanmar on November 23 ink a deal to start repatriating refugees in Bangladesh in two months, without using the word “Rohingya”. A day later the UN High Commissioner for Refugees says conditions have not been met for their safe and lasting return.
Pope asks for forgiveness
Pope Francis meets 16 Rohingya refugees in a visit to Bangladesh on December 2, asking afterwards for “forgiveness”. In Myanmar for four days, he avoids any direct reference to the Rohingya.
UN rights chief Zeid Ra’ad Al Hussein calls on December 5 warns of possible “elements of genocide”.
Thousands killed: aid group
Medecins Sans Frontieres (Doctors Without Borders) says on December 14 that at least 6,700 Rohingya were killed in the first month of the army crackdown.
Ethnic cleansing continues: UN
On March 6, 2018 the UN rights organisation says Myanmar is continuing its “ethnic cleansing” of the Rohingya with a “campaign of terror and forced starvation” in Rakhine state.
UN cites ‘genocide’
UN investigators on August 27 call for an international investigation and prosecution of Myanmar’s army chief and five other top military commanders for genocide, crimes against humanity and war crimes against the Rohingya. AFP