There has been renewed interest among experts and non-governmental organizations in the International Criminal Court (ICC) taking a role in the case of crimes against the Rohingya Muslims in Myanmar.
A recent article by Matthew Smith of Fortify Rights, a human-rights organization based in Southeast Asia, and reports by Human Rights Watch, for example, conclude that both crimes against humanity and genocide are indeed occurring in Rakhine state. These assessments are often followed by calls for ICC involvement through a referral by the United Nations Security Council (UNSC) or the initiative of the ICC’s own prosecutors, but they stop short of identifying the possible obstacles to a successful prosecution.
Given the increasing demand for ICC involvement in the crisis, it is essential to evaluate the challenges in holding those who are responsible for the brutality in Rakhine state accountable. The question is: Under what conditions would prosecution by the ICC be successful? And are these conditions present in the case of Myanmar?
There are at least four possible obstacles to prosecuting individuals committing abuses in Rakhine state. They are all related to the great-power politics within the UNSC.
First, the threat of prosecution by the ICC or legal deterrence is unlikely to work once the perpetrators have already embarked on such action. Without coercive actions taken by external powers either within or outside the UNSC, subjecting an abusive government to criminal scrutiny will not lead to the cession of violence against civilians.
As the cases of Sierra Leone, Rwanda and Bosnia show, external states may use force either to defeat or inflict damage on the perpetrators. In the case of the latter option, the purpose is to raise the costs and risks of continued criminal violence. If the perpetrators have been physically harmed or defeated, they can be put on trial as they lack the power to avoid it.
The question now is who among the UNSC and UN member states are willing to bear this responsibility. The Association of Southeast Asian Nations has always refused to back military intervention in its member states. The great powers might agree to send their troops for peacekeeping purposes, but not when it comes to peacemaking. As the case of Croatia and Bosnia shows, the United States was reluctant to risk the lives of its soldiers on a mission that did not rank highly in the US national interest.
Second, China might veto any efforts to prosecute Myanmar officials responsible for the intentional and systematic attempt to destroy Rohingya. A UNSC referral is needed when the wrongdoer is not a member of the ICC. For the ICC prosecutors to start an investigation, the decision of the UNSC must not be vetoed by any of the big five (China, France, Russia, the United States and the United Kingdom). Even if US Secretary of State Rex Tillerson and the US ambassador to the UN, Nikki Haley, who have condemned the Myanmar military for its attacks on Rohingya, are willing to raise the issue in the UNSC, China might block any effort to refer this case to the ICC.
China has invested billions of dollars and provided loans and developmental aid to Naypyidaw. Therefore, China will not support UNSC sanctions that would infuriate powerful elites in Myanmar
China’s influence in Myanmar should be seen in the context of great-power politics in Asia. China intends to maintain Myanmar as a buffer state, a tool to counter India’s influence in the Indian Ocean and gain access to vital sea lanes, especially in the event of a blockade of the Malacca Strait or a crisis in the Taiwan Strait.
To draw Myanmar into its sphere of influence, China has invested billions of dollars and provided loans and developmental aid to Naypyidaw. Therefore, China will not support UNSC sanctions that would infuriate powerful elites in Myanmar that have been cordial toward China, and let China’s money go down the drain.
Third, China and the other UNSC members still rely heavily on the military in Myanmar to accomplish various policy objectives. When external states are highly dependent on the perpetrators, support for ICC involvement is likely to decrease.
China’s and the other major UNSC members’ reluctance to refer the case to the ICC is not related to their vulnerability to domestic separatism, or fear of setting a precedent by allowing any international intervention in domestic affairs.
In the cases of Libya and Yugoslavia, where the UNSC showed a unified stance to refer these states to the ICC, China’s and the other great powers’ decision seems to have been driven less by their own vulnerability to separatism, but rather by the fact that they needed the cooperation of the powerful elites in the targeted state.
In the case of Myanmar, international actors are limited by the fact that current constitution ensures that the military is a dominant veto-wielding power. The armed forces control the Defense, Home Affairs and Border Affairs ministries.
Therefore, international actors will need the military’s cooperation to reach a peace settlement to bring the atrocities to end in Rakhine state, allow peacekeepers to be deployed there, grant permission for access of humanitarian aid, to address the refugee issues. They cannot simply bypass the military and deal only with Aung San Suu Kyi, or the National League for Democracy.
Thus UNSC referral to the ICC or the threat of prosecution of low-, mid- or high-ranking military and government officials could create a backlash from the military and intensify the abuse.
Fourth, even if the UNSC and the ICC prosecutors agree to investigate the atrocities in Myanmar and prosecute the perpetrators, it does not necessarily mean that the great powers will devote resources to court staff to facilitate the gathering of evidence in Myanmar.
In the case of Sudan, the effort to arrest President Omar al-Bashir had to give way to other priorities. The external powers believed that securing a peace agreement in Darfur and engineering the peaceful independence of South Sudan involved negotiations with Bashir, and an arrest warrant was viewed as an obstacle to this effort.
In contrast, some major powers were supportive of the court’s effort to arrest the perpetrators of brutality in Uganda and Congo. Simply put, the major powers have been inconsistent in providing support for the court. Their support varies depending on the political context.
In dealing with atrocities, policymakers and scholars are often caught in a tension between defending victims and their own self-interests. The primary challenge for the international community, specifically the UNSC, has been the reluctance to risk their material gain and the life of their soldiers to facilitate ICC prosecution of wrongdoers.