Failure to act would not just let the generals off the hook - it could spell the end of the ICC

The UN report on violence inflicted on Rohingya Muslims and other minorities by Myanmar’s security forces is damning, but whether the guilty will ever face justice is open to serious question. Much now depends on the willingness of the UK and other veto-wielding UN security council members to forcefully pursue the allegations of genocide and crimes against humanity.



The facts of the case are not in much doubt. Investigators found patterns of gross human rights violations and abuses committed in Kachin, Rakhine and Shan states that “undoubtedly amount to the gravest crimes under international law”, Monday’s report said. They include murder, torture, sexual slavery, extermination and forced deportation – meaning ethnic cleansing.

Enough talk. Let’s have action on Rohingya massacres | Jan Figel and Benedict Rogers Read more

The army’s claim to be fighting a large terrorist insurgency was effectively dismissed. “Military necessity would never justify killing indiscriminately, gang raping women, assaulting children, and burning entire villages. The Tatmadaw’s [army’s] tactics are consistently and grossly disproportionate to actual security threats, especially in Rakhine state, but also in northern Myanmar,” the report said.

While horrifying, much of what the report records of events in Rakhine last year, when 700,000 Rohingya fled across the border to Bangladesh, is not new. Nor is its strong criticism of Myanmar’s nominal leader, Aung San Suu Kyi. What is new is the official conclusion that sufficient grounds exist “to warrant the investigation of senior officials … so that a competent court can determine their liability for genocide”.

Facebook Twitter Pinterest Aung San Suu Kyi and the head of Myanmar’s military, General Min Aung Hlaing. Photograph: Hein Htet/EPA

The international criminal court, founded in 1998, is the obvious choice to prosecute the army generals named by the report. Alternatively, a special UN tribunal could be created, as happened in Rwanda and the former Yugoslavia. But both courses of action rely on the security council’s political willingness to act, and that appears lacking.

One reason is China’s resistance to punishing the Myanmar regime, with which its has extensive investment, trade and energy links. Beijing has long opposed outside – meaning western – intervention in countries its considers part of its back yard. Diplomats suspect a concerted move to refer Myanmar to the ICC, which must be agreed by the security council, would draw a Chinese veto.

The US this month imposed unilateral economic sanctions on Myanmar’s security forces, but despite the large-scale human suffering, Myanmar – like Yemen, Syria and Afghanistan – does not appear to register on Donald Trump’s political radar. Unlike Barack Obama, Trump has shown no interest in advancing democratic reform there.

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

Trump is also struggling to induce China to back his North Korea sanctions while simultaneously waging a trade war on Beijing. He is unlikely to risk further problems. In any case, Trump is no fan of the UN system or of transnational justice in general.



Like China and Russia, which also advocates non-interference when it suits, the US is not a state party to the ICC. The UK, in contrast, is a founding member. It is also the former colonial power, and the lead country on Myanmar at the security council. To date, however, Britain has refused to support calls for referring Myanmar to the court, arguing there is a lack of international consensus and backing the generals’ bogus internal inquiry into Rakhine.

I am a Rohingya refugee: we will become like animals if we stay in these camps | Noor Ilyas Read more

Perhaps the UN report will change minds in Whitehall. Or it may be that worries about upsetting China, or appearing weak on the world stage, or sheer inertia will discourage firm British action. Campaigners called on Monday for the prime minister, Theresa May, to take the lead.

Facebook Twitter Pinterest Hundreds of thousands of Rohingya refugees still live in squalid conditions in Bangladesh after fleeing Myanmar a year ago. Photograph: Mohammad Ponir Hossain/Reuters

“It is simply not credible for the British government to claim it supports justice and accountability and then refuse to support referring Burma to the ICC, which was specifically set up for cases like this,” said Mark Farmaner of Burma Campaign UK. “It doesn’t get worse than genocide.”



Given the gravity of the allegations, the international response may prove a key test for global law enforcement. The ICC already has a credibility problem. Sudan’s president, Omar al-Bashir, continues to behave with impunity, defying genocide and other ICC charges brought against him in 2009-10.

A failure by leading UN states to act collectively and decisively in Myanmar not only potentially lets the generals off the hook. It could spell the end for the whole idea of extra-territorial, transnational justice.

