The Special Advisory Council for Myanmar is calling for a global three cuts strategy against the Myanmar military junta: cut the weapons, cut the cash and cut the impunity.

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.

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.

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.

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”.