On June 26, the International Criminal Court (ICC) announced that Prosecutor Fatou Bensouda will request that the court’s judges open an investigation into crimes relating to two waves of violence in Myanmar’s Rakhine State. Myanmar is not an ICC member. But last year, the court confirmed its jurisdiction over crimes where an element occurred in Bangladesh, an ICC member since June 2010.
The prosecutor’s move to bring victims, survivors, and their families, the vast majority of whom are Rohingya Muslims, one step closer to justice comes after the United Nations created a body to gather and preserve evidence of all possible crimes in Myanmar that could be used in future trials.
Both developments throw into sharp relief Myanmar’s farcical accountability efforts to date. In December, the chair of its justly maligned commission of inquiry created to look into abuses in Rakhine State said the commission had so far found “no evidence” to support allegations of grave abuses. In February, Myanmar told the UN women’s rights committee there was “no evidence” to support the “wild claims” that the military carried out brutal and widespread sexual violence during the 2017 operations. And Myanmar’s recently self-created military court to probe Rohingya atrocity allegations promises more of the same, judging from the country’s dismal track record on accountability.
But the military’s lengthy list of atrocities in Myanmar demands an even bolder response. Last August, UN appointed fact-finders concluded that Myanmar’s top generals, including Commander-in-Chief Sr.-Gen. Min Aung Hlaing, should be investigated and prosecuted for genocide in northern Rakhine State, as well as for crimes against humanity and war crimes in Rakhine, Kachin, and Shan States. If the ICC prosecutor’s proposed investigation moves ahead, she couldn’t touch most of these crimes, as they were committed solely in Myanmar.
Though the UN Security Council should refer the entire situation in Myanmar to the ICC, council dynamics – notably Chinese and Russian opposition – make this extremely unlikely for now. UN member states, including those on the Security Council, should continue to call for a resolution referring Myanmar to the ICC. Doing so keeps focus on, and the political cost high for, those that stand in the way. Current Security Council dysfunction is no reason to give spoilers a free pass and absolve the council of its responsibility to act to end impunity for the worst crimes in Myanmar.