This article is more than 2 years old

This article is more than 2 years old

The international criminal court has ruled it can prosecute Myanmar for alleged crimes against humanity against the Rohingya people, an unprecedented decision that could expose the country’s politicians and military leaders to charges.

Myanmar's military accused of genocide in damning UN report Read more

A pre-trial chamber at the court in The Hague said on Thursday that even though Myanmar was not a signatory to the court, its leaders could still be investigated for the crime of deportation, the forcible transfer of a population.

ICC prosecutors had mounted a novel argument that even though the allegedly coercive acts that forced the Rohingya to flee took place in Myanmar, the crime would not have been completed until the refugees entered Bangladesh, which is a party to the Rome statute that governs the court.

Chief prosecutor Fatou Bensouda likened deportation to “a cross-border shooting”, arguing the crime “is not completed until the bullet (fired in one state) strikes and kills the victim (standing in another state)”.

The decision opens the doors for ICC prosecutors to apply for a full-blown investigation into Myanmar for deportation and other crimes against humanity, including persecution.

Prosecutors are currently conducting a preliminary examinationin a bid to gather enough evidence to convince the court to open a formal investigation.

Play Video 5:56 'They slaughtered our people': Rohingya refugees on Myanmar’s brutal crackdown - video

Should the court follow its usual timeframe, any charges against Burmese leaders would likely be at least five yearsaway. “Preliminary examinations are measured in years, and so are full investigations,” Wayne Jordash, an international human rights lawyer, told the Guardian in August.

The UN last month issued a damning report accusing Myanmar’s military of genocide and other crimes against the Rohingya and minorities in the country.

More than 700,000 Rohingya fled to Bangladesh, starting in August 2017, after the Burmese army launched “clearance operations” against what they called terrorists in northern Rakhine state.

The refugees say they were indiscriminately shot at, burned and raped by Burmese soldiers and Buddhist militiamen. More than a million now live in camps in southern Bangladesh that are so densely populated and sprawling they constitute the fourth-largest city in the country.

'We cannot go back': grim future facing Rohingya one year after attacks Read more

The UN report said it found conclusive evidence that the actions of the Burmese armed forces, known as the Tatmadaw, “undoubtedly amounted to the gravest crimes under international law” in Rakhine as well as in Kachin and Shan, states also riven by internal conflicts.

The Myanmar government is yet to react to the decision but argued last month that the ICC prosecutors’ request was “meritless and should be dismissed”.

If any Burmese leaders were eventually charged, the ICC would also be limited in its capacity to enforce the decisions and bring them to trial in The Hague. “The ICC doesn’t have its own police force, its ability to enforce its own decisions is limited by the functionality – or lack of function – of the UN security council,” Jordash said.

Scrutiny of Myanmar’s action in Rakhine state in the security council has so far been blocked by Russia and China, both veto-wielding powers.