Jessica Honan
The ongoing persecution and forced removal of Rohingya people from the Rakhine state in western Myanmar is an acknowledged breach of International Human Rights Law standards.
With calls to strip leader Suu Kyi of her Novel Prize, refer the situation to the International Criminal Court (ICC) and the debate over whether the persecution is a ‘genocide,’ the situation has been widely scrutinized by the public and law experts alike. But while the international community is focussing on the crimes against the Rohingya, further war crimes against groups other than the Rohingya are being perpetrated by the Tatmadaw – Myanmar’s military–predominantly in the Kachin and Shan states.
In April 2020, the UN’s departing Special Rapporteur on the situation of Human Rights in Myanmar, Yanghee Lee, called for an investigation into crimes against civilians in the Chin and Rakhine states. Lee has indicated that recent Tatmadaw air and artillery strikes in Rakhine and Chin state resulted in the death of numerous civilians. She also flagged that the crimes against civilians extend to preventing civilians access to medical care, and the targeted destruction of civilian objects such as schools, houses and temples.
Ending these crimes necessarily requires a stronger domestic policy addressing the root causes of injustice in Myanmar’s ethnic conflicts. However, the significant influence and control of the military on Myanmar’s government means this is unlikely to happen. This is especially given the case given Myanmar’s instance that there are no war crimes anywhere within their territory.
Instead, a response from the international community may be a solution. An emerging doctrine in International Law is the Responsibility to Protect (R2P). R2P is the concept that countries may lawfully intervene in another country if it is failing to protect its population. Aside from the political complications with implementing this strategy–namely, the absence of political will from other governments and legal complications which hamper intervention.
This legal complication is that the R2P doctrine is not yet normative. In the 2005 World Summit Outcome Document (A/RES/60/1), countries indicated the existence of collective responsibility to ensure other countries protect their populations from genocide, war crimes and crimes against humanity. Yet although the resulting General Assembly Resolution has a significant political meaning, it has little normative legal value. Rather, there remains significant ambiguity as to whether R2P is a legally valid grounds for military intervention.
As a result of this ambiguity, a more legally sound solution to the war crimes in Rakhine and Chin states is to end the impunity of the perpetrators through international tribunals and courts. The two most obvious solutions are the International Court of Justice (ICJ) and ICC.
The ICC has the most obvious jurisdiction over war crimes and, theoretically, would try individuals responsible for the atrocities in Myanmar. However, the first and most significant hurdle for the ICC hearing a case against Myanmar nationals is that Myanmar is not a signatory to the Rome Statute, the treaty giving jurisdiction to the ICC. As such, it does not accept the Court’s jurisdiction, and the Court cannot proceed without this. The Prosecution seems to have found a way around this problem for the persecution of Rohingya–by investigating the crimes’ spillage into Bangladesh–a signatory of the Rome Statute. However, the other war crimes against civilians in Rakhine and Chin states are largely contained to these two states, making this solution unavailable for the ICC.
Under Article 38(1) of the Statute of the International Court of Justice, the ICJ has jurisdiction to make decisions on international law disputes. As illustrated by The Gambia’s recent successful claim against Myanmar in the ICJ, it may be possible for countries to hold Myanmar accountable for the crimes of the Tatmadaw via this accountability mechanism. But what value is an ICJ decision? There is sufficient evidence to suggest that international institutions do not outright deter possible offenders from committing war crimes.
Nonetheless, creating consequences for the Myanmar government and the individual perpetrators is a first step to effectively combatting the ongoing crimes. It may only be a short-term solution, but once there is some control over the current conflict, it will be easier for international actors to target grassroots causes, change the norm of violence in the region, and effectively deter would-be criminals.
Ultimately, while the war crimes against the Rohingya and other civilians differ in nature and scale, the possible International Law solutions are comparable. That their availability depends on international action which requires the international community’s awareness of the full scale of war crimes being perpetrated in Myanmar. Only with the pressure of their citizens will other governments feel pressure and seek to hold Myanmar’s government accountable.
Jessica Honan is a third-year Bachelor of Laws (Honours) and Bachelor of Arts (Human Rights and French) student at the Australian National University with a professional interest in International Humanitarian Law.