A Rohingya refugee family cross the Naf River at the Bangladesh-Myanmar border in Palong Khali, near Cox’s Bazar, Bangladesh November 1, 2017.

© 2017 Reuters/Adnan Abidi

(New York) – The United Nations Security Council should refer Burma to the International Criminal Court (ICC) because of Burma’s failure to investigate mass atrocities against ethnic Rohingya, Human Rights Watch said today in releasing a new question-and-answer document. UN member countries should also pursue processes for gathering criminal evidence to advance prosecutions in the ICC and other courts.

Burmese authorities have failed to credibly investigate security force operations since late August 2017 that have resulted in mass arson, killing, rape, and looting, destroying hundreds of villages and forcing more than 600,000 Rohingya Muslims to flee to neighboring Bangladesh. Human Rights Watch field research found that Burmese military abuses amount to crimes against humanity.

“Justice is desperately needed for the Rohingya population targeted by the Burmese military’s campaign of ethnic cleansing,” said Param-Preet Singh, associate international justice director. “The UN Security Council should refer the situation in Burma to the ICC, which was created precisely to address situations in which grave crimes were committed without consequences.”

The UN Security Council should refer the situation in Burma to the ICC, which was created precisely to address situations in which grave crimes were committed without consequences.

Param-Preet Singh

Associate Director, International Justice Program

The Burmese government’s support both for the military operations against the Rohingya and its repeated discounting and dismissal of alleged abuses make it extremely unlikely that the government will press for the credible investigation and prosecution of crimes against humanity. Historically, courts in Burma have tried soldiers for human rights violations only infrequently and have never held soldiers to account for war crimes. Civilian courts have rarely had jurisdiction over soldiers implicated in criminal offenses.

In April, the UN Human Rights Council created a Fact-Finding Mission for Burma because of credible and serious allegations of human rights abuses. While the Fact-Finding Mission will document patterns of abuse, it does not have the mandate to investigate abuses to a criminal standard, though its findings could be used in eventual prosecutions.

The ICC is a court of last resort and only acts when there are grave crimes and national authorities are unwilling or unable to prosecute and try those responsible. But the ICC only has jurisdiction over crimes committed by states parties to its founding treaty, the Rome Statute, and Burma is not a member. Only the UN Security Council can refer the situation to the ICC for further criminal investigation.

Achieving an ICC referral in the current political environment in the council will be difficult, notably because of China and Russia’s likely opposition to referring the situation in Burma to the court. This difficult landscape highlights the importance of also pursuing parallel tracks to bring justice to victims of atrocities in Burma.

In the face of Security Council deadlock on justice in Syria and in North Korea, the UN General Assembly and the UN Human Rights Council have each created bodies to collect information about human rights violations and to prepare case files for eventual prosecution in courts with jurisdiction to try these crimes. UN member countries should consider a similar initiative for Burma.

“UN member countries should explore concrete measures to build criminal files against those responsible for major crimes in Burma for eventual prosecution,” Singh said. “Identifying perpetrators can help raise the political cost of abusive military operations, and bring victims closer to the justice they deserve.”