Myanmar has a longstanding history of impunity for perpetrators of grave violations of human rights against all people across the country. For decades, a lack of accountability has fuelled devastating cycles of abuse at the hands of the Myanmar military, the Tatmadaw, and, to a lesser extent, other armed actors in Myanmar. Since at least the 1980s, Tatmadaw operations have involved well-documented burning of villages, rape of women and girls and also of men and boys, forced recruitment of men and boys as porters and human minesweepers, and the driving of tens, and then hundreds, of thousands of refugees across borders into Thailand, Bangladesh and China. In 2016 and 2017 these devastating tactics unfolded on a genocidal scale against the Rohingya and drove three quarters of a million people out of the country where they remain.
Successive military regimes, followed by the semi-civilian government that held office from 2016, failed to identify the actual perpetrators of these violations and their commanders and bring them to justice. Leader of the military junta, Senior General Min Aung Hlaing, and other generals have consistently demonstrated their unwillingness not only to ensure accountability, but even to recognize that the gravest violations of international law, such as enforced disappearances, arbitrary executions, acts of sexual violence and torture and probably genocide, have occurred in Myanmar, and continue to occur. Since the 1 February 2021 attempted coup, the junta’s forces have employed systematic violence against civilians, including women, girls and boys, with complete disregard for international law and any universal moral principle that unites humanity. This is the junta’s modus operandi and until the leaders of the junta are held to account, it cannot be expected to change from these tactics. Consequently, the lives and rights of all the ordinary people of Myanmar remain at grave risk.
The Independent International Fact-Finding Mission on Myanmar emphasized that the meaning of accountability goes well beyond international law, treaties and the legal obligations that emanate from them. Accountability for perpetrators of human rights violations is a necessity to establish conditions for just, peaceful, democratic societies and to pursue development that is sustainable and that can benefit all the people of Myanmar. The full enjoyment of the entire spectrum of human rights – civil, political, economic, social, and cultural – depends on the ability and willingness to punish those who have committed and are responsible for the gravest violations. In the words of the Independent International Fact-Finding Mission on Myanmar:
Since Myanmar’s national mechanisms lack the necessary independence and capacity to ensure justice for victims of grave human rights violations, the international community at large has taken a number of legal steps to end the cycle of impunity that is characteristic of Myanmar and the Myanmar military junta. This record covers actions taken through the Independent Investigative Mechanism for Myanmar, the International Court of Justice, the International Criminal Court and the Argentinian Federal Criminal Court. SAC-M intends to maintain this live record with updates of continuing global efforts in the sphere of accountability that contribute to cutting the junta’s impunity. Ultimately, SAC-M’s position remains that the situation in Myanmar as a whole should be before the International Criminal Court. That requires either referral by the Security Council or accession to the Rome Statute of the International Criminal Court by Myanmar’s National Unity Government.
INDEPENDENT INVESTIGATIVE MECHANISM FOR MYANMAR
The Independent Investigative Mechanism for Myanmar (the Mechanism) was established by the Human Rights Council in September 2018 through resolution 39/2. It is mandated to collect evidence of the most serious international crimes and violations of international law that have occurred anywhere in Myanmar since 2011, and to prepare case files for criminal prosecution. In accordance with its Terms of Reference, the Mechanism shall share relevant information, documentation and evidence with competent investigative, prosecutorial or judicial authorities in order to facilitate and expedite fair and independent criminal proceedings. In that regard, in its resolution 39/2, the Human Rights Council requested the Mechanism to cooperate closely with investigations of the International Criminal Court pertaining to human rights violations in Myanmar. The Mechanism can also consider requests for the use of information it has collected for purposes other than criminal proceedings. It reports annually to the Human Rights Council and the General Assembly.
|27 September 2018||Establishment of the Independent Investigative Mechanism for Myanmar.||https://undocs.org/en/A/HRC/RES/39/2||With 35 votes in favour, the Human Rights Council adopted the resolution establishing the Mechanism.|
|9 September 2019||First annual report presented to the Human Rights Council.||https://iimm.un.org/wp-content/uploads/2020/07/HRC-42-IIMM-report.pdf|
|14 September 2020||Second annual report presented to the Human Rights Council.||https://iimm.un.org/wp-content/uploads/2020/08/G2016493.pdf|
|2 February 2021||Statement of Nicholas Koumjian, Head of the Mechanism, on recent developments in Myanmar.||https://iimm.un.org/statement-of-nicholas-koumjian-head-of-the-independent-investigative-mechanism-for-myanmar-on-recent-developments-in-myanmar/||Statement announced that, in accordance with its mandate, the Mechanism is closely following recent events surrounding the military’s seizure of power in Myanmar.|
|11 February 2021||Statement of Nicholas Koumjian, Head of the Mechanism, on the reports of violence in Myanmar.||https://iimm.un.org/statement-of-nicholas-koumjian-head-of-the-independent-investigative-mechanism-for-myanmar-on-the-reports-of-violence-in-myanmar/||Statement announced that the Mechanism is closely following reports regarding the use of lethal force against peaceful protesters and the detention of political leaders, members of civil society and protesters. The statement reiterated that the mandate of the Mechanism is ongoing and continues to cover all such crimes and violations of international law committed in the territory of Myanmar.|
|6 November 2021||UN Press conference by Nicholas Koumjian, Head of the Mechanism, on verifying preliminary evidence and patterns of violence.||The Head of the Mechanism told reporters that after observing events in Myanmar since the military coup and collecting preliminary evidence, the facts show a widespread and systematic attack on a civilian population, amounting to crimes against humanity.|
INTERNATIONAL COURT OF JUSTICE
The International Court of Justice (ICJ) is the principal judicial organ of the United Nations. It was established in June 1945 by the Charter of the United Nations and began work in April 1946. The ICJ, which is composed of 15 judges serving for a nine-year period, is mandated to settle disputes between States and give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies. The ICJ is also competent to decide on violations of the Convention on the Prevention and Punishment of the Crime of Genocide. The Genocide Convention has been ratified by 152 UN Member States, including Myanmar and The Gambia. The Gambia considers Myanmar to be in breach of its obligations under the Genocide Convention, and on 11 November 2019 instituted proceedings against Myanmar before the ICJ, alleging violations of the Genocide Convention through “acts adopted, taken and condoned by the Government of Myanmar against members of the Rohingya group”. The Republic of the Maldives, Canada and the Netherlands have decided to intervene in the case to support The Gambia. In the specific case of The Gambia v. Myanmar, the ICJ is competent to decide on violations that have occurred since October 2016 primarily in Rakhine State against members of the Rohingya community. In terms of standard of proof, it is for the ICJ to determine whether the standard is “by a preponderance of the evidence” or “beyond reasonable doubt” depending on the gravity of the case.
|11 November 2019||The Gambia files an application to institute proceedings against Myanmar and request the imposition of provisional measures||https://www.icj-cij.org/public/files/case-related/178/178-20191111-APP-01-00-EN.pdf|
|10 - 12 December 2019||Public hearings||https://www.icj-cij.org/public/files/case-related/178/178-20191210-ORA-01-00-BI.pdf|
|The Gambia (10 December) and Myanmar (11 December) had the opportunity to present their cases and a rebuttal during a second round of oral observations (12 December).|
|23 January 2020||Issuance on the order on provisional measures||https://www.icj-cij.org/public/files/case-related/178/178-20200123-SUM-01-00-EN.pdf||The ICJ imposed provisional measures to prevent the commission of all acts within the scope of Article II of the Genocide Convention and imposed six-monthly reporting obligations on their implementation. The parties submitted the reports which, however, have not been made public.|
|23 January 2020||Order setting deadlines for written pleadings||https://www.icj-cij.org/public/files/case-related/178/178-20200123-ORD-02-00-EN.pdf||The ICJ set 23 July 2020 for the Memorial of the Republic of The Gambia and 25 January 2021 for the Counter- Memorial of the Republic of the
Union of Myanmar.
|25 February 2020||The Maldives announces its intention to intervene||https://www.foreign.gov.mv/index.php/en/mediacentre/news/5483-the-republic-of-maldives-to-file-declaration-of-intervention-in-support-of-the-rohingya-people-at-the-international-court-of-justice||The decision to file a declaration of intervention was taken after President Ibrahim Mohamed Solih along with the Cabinet concluded that there are strong grounds for the Maldives to intervene in the case submitted by The Gambia in support of the Rohingya people.|
|18 May 2020||Extension of the deadlines||https://www.icj-cij.org/public/files/case-related/178/178-20200518-ORD-01-00-EN.pdf||Upon request by The Gambia, the deadlines for the submissions of the written pleadings have been extended to 23 October 2020 for The Gambia and 23 July 2021 for Myanmar.|
|2 September 2020||Canada and the Netherlands announce their intention to intervene||https://www.government.nl/documents/diplomatic-statements/2020/09/02/joint-statement-of-canada-and-the-kingdom-of-the-netherlands-regarding-intention-to-intervene-in-the-gambia-v-myanmar-case-at-the-international-court-of-justice||As part of the intervention, Canada and the Kingdom of the Netherlands will assist with the complex legal issues that are expected to arise and will pay special attention to crimes related to sexual and gender-based violence, including rape.|
|28 January 2021||Setting of a deadline for The Gambia to respond to the preliminary|
objections to the jurisdiction of the Court and the admissibility of the Application filed by Myanmar on 20 January 2021
|https://www.icj-cij.org/public/files/case-related/178/178-20210128-ORD-01-00-EN.pdf||On 20 January 2021, Myanmar filed preliminary objections to the jurisdiction of the Court and therefore to the admissibility of the case. The ICJ reserved its judgement on the matter after the submission of the response by The Gambia. No time limit for a decision is set.|
|30 May 2021||National Unity Government announces commitment to cooperate with the Court and ensure continuity of representation before the Court.||https://progressivevoicemyanmar.org/2021/05/30/press-statement-1-2021/||The statement referred to the Government’s concern for the difficult situation of the Rohingya, especially those who fled to Bangladesh in 2016 and 2017. However, it did not go as far as to accept the Court’s jurisdiction; the Government announced that it is considering accepting the jurisdiction of the Court.
During an online press conference on 4 June, National Unity Government Deputy Foreign Minister U Moe Zaw Oo said that the government would no longer offer a defense in the case. It vowed to work with the ICJ and said it would accept the court’s decision in the case.
|24 June 2021||Military junta announces formation of new committee to present defense before the Court||https://www.irrawaddy.com/news/burma/myanmar-junta-reorganizes-legal-team-for-icj-rohingya-genocide-case.html||The members of the committee and their titles as designated by the junta are: Wunna Maung Lwin, the junta’s Foreign Minister (Committee chairperson); Ko Ko Hlaing, the junta’s International Cooperation Minister (co-chairperson); Thida Oo, the junta’s Attorney General (co-chairperson); Lieutenant General Yar Pyae, the junta’s Union Government Office Minister (member); Win Shein, the junta’s Finance, Planning and Industry Minister (member); Lieutenant General Myo Zaw Thein, the junta’s Adjunct General of the Office of the Adjunct General (member); Kyaw Myo Htut, the junta’s Deputy Foreign Minister (secretary); and Khin Oo Hlaing, member of the junta’s State Administration Council Advisory Board (joint secretary).
Three members of the committee - Win Shein, Thida Oo and Ko Ko Hlaing – are currently under US and / or EU sanctions.
For more information, see: https://specialadvisorycouncil.org/cut-the-cash/
INTERNATIONAL CRIMINAL COURT
The International Criminal Court (ICC) is a permanent international court established to investigate, prosecute and try individuals accused of committing the most serious crimes of concern to the international community as a whole, namely the crime of genocide, crimes against humanity, war crimes and the crime of aggression. Whereas the ICJ settles disputes between States, the ICC is concerned with individual criminal responsibility. The Court is based on an international treaty known as the Rome Statute. Among other things, the Statute sets out the crimes falling within the jurisdiction of the ICC. A State only submits itself to the jurisdiction of the ICC with respect to the crimes set out in the Rome Statute when it becomes a State party to the Statute by accession or ratification. A State can also make a declaration accepting the jurisdiction of the ICC in relation to crimes committed when it was not a State party, back to 1 July 2002.
In 2019, the ICC opened a formal investigation into alleged crimes against the Rohingya population, including but not limited to crimes against humanity, such as deportation and persecution, committed at least in part on the territory of Bangladesh. While Myanmar is not a State member of the ICC, Bangladesh has ratified the Rome Statute, thus accepting the jurisdiction of the Court. Therefore, the ICC can investigate any crimes under its jurisdiction where a part of the actus reus is committed on the territory of a State party to the Rome Statute after 1 June 2010 following the submission of ratification instruments by Bangladesh. As a criminal court, the ICC follows the standard of proof of “beyond reasonable doubt”.
The current ICC investigation is limited in scope because Myanmar is not a State party. The ICC’s jurisdiction could be extended to any crime committed anywhere in Myanmar as far back as 1 July 2002 the Myanmar National Unity Government accedes to or ratifies the Rome Statute or if the Security Council refers the situation to the ICC.
|9 April 2018||Request on the jurisdiction of the ICC pursuant to article 12(2)(a) of the Rome Statute||https://www.legal-tools.org/doc/4af756/||The ICC Prosecutor sought a ruling on whether the ICC may have jurisdiction in relation to the crime of deportation that ended in Bangladesh, which is a party to the Rome Statute.|
|6 September 2018||Granting of the request||https://www.icc-cpi.int/CourtRecords/CR2018_04203.PDF||Pre-Trial Chamber I recognized the jurisdiction of the ICC as requested by the Prosecutor.|
|4 July 2019||Request for authorization to open a formal investigation||https://www.icc-cpi.int/Pages/item.aspx?name=pr1465||The ICC Prosecutor requested the Court to authorize an investigation into alleged crimes against humanity, namely deportation, other inhumane acts and persecution committed against the Rohingya. The Prosecutor sustained that the ICC had jurisdiction since the crime of deportation was initiated in Myanmar and ended in Bangladesh, which is a party to the Rome Statute.|
|14 November 2019||Authorization to initiate an investigation issued||https://www.icc-cpi.int/Pages/record.aspx?docNo=ICC-01/19-27||Pre-Trial Chamber III of the ICC authorized the investigation.|
|17 July 2021||Declaration of acceptance of exercise of jurisdiction by the Court lodged with the Registrar pursuant to article 12(3) of the Rome Statute||Announced during a press conference on 19 August 2021, the Vice President and Acting President of the NUG lodged a declaration accepting the exercise of jurisdiction by the Court with respect international crimes committed in Myanmar since 1 July 2002.|
ARGENTINIAN FEDERAL CRIMINAL COURT
The Burmese Rohingya Organization UK, on the basis of the principle of universal jurisdiction, submitted a request to the Federal Criminal Court of Argentina to open a case for genocide and crimes against humanity committed against the Rohingya between 2012 and 2018. The Second Chamber of the Federal Criminal Court in Buenos Aires confirmed that it would launch a case against senior Myanmar officials under the principle of universal jurisdiction. The principle of universal jurisdiction provides for a state’s jurisdiction over crimes against international law even when the crimes did not occur on that state’s territory, and neither the victim nor perpetrator is a national of that state. It is drawn from the concept that the nature of international crimes is so serious they constitute offenses against all humanity and therefore efforts to end impunity for them are borderless. In Argentinian Federal Criminal Court case, the Court will use as standard of proof “beyond reasonable doubt”.
|11 November 2019||Complaint filed.||https://burmacampaign.org.uk/media/Complaint-File.pdf||The complaint requests the opening of a case for genocide and crimes against humanity committed against the Rohingya between 2012 and 2018. The complaint names these individuals as alleged perpetrators or bearing criminal responsibility for the roles and actions at the moment of the commission of the alleged crimes:
Tatmadaw Commander-in-Chief, Senior-General Min Aung Hlaing;
Deputy Commander-in-Chief, Vice Senior-General Soe Win;
Commander, Bureau of Special Operations-3, Lieutenant-General Aung Kyaw Zaw;
Commander, Western Regional Military Command, Major-General
Commander, 33rd Light Infantry Division, Brigadier-General Aung;
Commander, 99th Light Infantry Division, Brigadier-General Than Oo;
State Counsellor Daw Aung San Suu Kyi;
President of the Party of Peace and Diversity of Myanmar, Nay Myo Wai;
Buddhist monk Ashin Wirathu.
|9 December 2019||Rejection of the complaint.||https://www.burmalibrary.org/en/argentinian-court-decision-brings-hope-for-rohingya||A Court reviewing the request decided that there was no ground for jurisdiction over the case.|
|29 May 2020||Decision overturned.||https://www.brouk.org.uk/argentinean-judiciary-moves-closer-to-opening-case-against-myanmar-over-rohingya-genocide/||A Federal Appeal Court, deciding on the appeal against the rejection, recognized that Argentina may have jurisdiction over the case and ordered that more information be sought from the ICC.|
|September 2020||Request for information to the ICC submitted.||https://opiniojuris.org/2020/10/23/universal-jurisdiction-the-international-criminal-court-and-the-rohingya-genocide/||The Ministry of Foreign Affairs of Argentina sent a diplomatic note to the Office of the ICC Prosecutor seeking clarifications on whether a universal jurisdiction investigation would duplicate, or could even be disruptive to, the ICC’s investigation.|
|November 2021||Investigation confirmed.||On the 26 November 2021 the Second Chamber of the Federal Criminal Court in Buenos Aires confirmed that it would launch a case against senior Myanmar officials.
The Second Chamber of the Appeal Court reaffirmed in its resolution that “the gravity of the facts and the violation of ius cogens norms permit that those facts are investigated in our country”.