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The ICC Must Engage With Myanmar’s Democratic Government and Hold the Junta to Account

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The ICC Must Engage With Myanmar’s Democratic Government and Hold the Junta to Account

There is no way the people of Myanmar will find justice in national courts. The international community must act. 

The ICC Must Engage With Myanmar’s Democratic Government and Hold the Junta to Account

Myanmar nationals living in Thailand protest outside Myanmar’s embassy in Bangkok, Thailand, Tuesday, July 26, 2022.

Credit: AP Photo/Sakchai Lalit

A year ago this week, Myanmar’s democratic, National Unity Government (NUG) made public a declaration that it accepts the jurisdiction of the International Criminal Court (ICC). In effect, the NUG was requesting the ICC to investigate war crimes and crimes against humanity in Myanmar.

It was a watershed moment in the quest for accountability. Suddenly justice looked possible for 55 million Myanmar people, who since the coup on February 1, 2021, have been subjected to what U.N. human rights experts call “a brute force terror campaign.” 

Over 2,000 people have been killed, according to conservative estimates. Around 15,000 have been detained, over a million displaced by conflict, and some 14 million people are in urgent need of humanitarian assistance. 

The shocking executions in July of four prisoners of conscience led to global condemnation and highlighted the urgent need for accountability. 

There is no way the people of Myanmar will find justice in national courts, which have become instruments of repression in the hands of a vindictive regime.

But following the NUG Declaration, which the ICC acknowledged, the court has taken no further steps.

What a contrast with Ukraine, where an investigation was initiated and within days its investigators were on the ground.

We urge Ukraine-style action for Myanmar. There is not just a compelling humanitarian imperative. There is also a solid basis in law.

The ICC has an obligation to accept the NUG declaration, paving the way for an investigation into events in Myanmar since the coup.

The central question is whether the NUG can act on behalf of the State of Myanmar to trigger ICC jurisdiction. In our opinion it can.

The NUG is the legitimate government of Myanmar as a matter of domestic law, since it is formed of members who were elected under the country’s 2008 constitution by a landslide in elections in November 2020. It is committed to democratic, pluralistic, and constitutional governance, the rule of law, and the promotion of human rights.

By contrast, the junta attempted to seize power through a military coup that violated articles 71(a) and 417 of the 2008 constitution (which the military itself wrote). These articles lay out clear conditions for the dismissal of the president and the imposition of a state of emergency. And those articles were patently not followed when the president and other democratic leaders were imprisoned shortly before they were due to take office. 

Thus the military operates on an entirely illegitimate basis.

The U.N. General Assembly (UNGA), made up of all U.N. member states, decided unanimously in December 2021 to continue to accept the NUG ambassador as the legitimate representative of Myanmar, in effect rejecting the nominee of the junta, and determining which entity should represent the state.

This was based on well-established precedent in the UNGA. Since the early 1990s, where there have been competing claims to U.N. recognition, the U.N. has usually sided with those administrations that have democratic legitimacy and a solid human rights record.

Effective control has become less of a necessary determinant, but in any case, the junta no longer exercised effective control, with significant areas and population groupings under the control of ethnic groups aligned with the NUG. In many urban centers, traditionally controlled by the government, there is anarchy.

The UNGA decision effectively to continue to recognize the NUG ambassador is not merely a decision about a particular representative: It is about the general matter of who has the right to be treated as the government of the state before the United Nations as a whole.

Such an implication is illustrated in the way the International Labor Organization describes the effect of the General Assembly decision. It affirmed that the decision determines “which entity is internationally recognized as representing the Government of the Member State in the Organization.”

This collective recognition by states in the UNGA and its subsidiary organizations arguably had general effect in international law, as a determination of the NUG’s right to act as the government of Myanmar. Since this was made unanimously, it can be understood to require, as a matter of international law, the NUG to be accorded this status.

In consequence, the ICC is legally required to accept the NUG Declaration as valid. It flows from this that it could – we would argue that it should — initiate an investigation into potential crimes committed in Myanmar since the coup. 

Such a move accords well with the recent decision of the U.N.’s highest court, the International Court of Justice, to reject the junta’s attempts to halt a case accusing it of genocide. 

It also supports the ultimate aims of the Rome Statute, the ICC’s founding document: to end impunity for serious crimes through the exercise of criminal jurisdiction nationally and, if that is not forthcoming, internationally.

The good news for the ICC is that there is an oven-ready case waiting to be prosecuted. The U.N. Independent Investigative Mechanism for Myanmar, established to investigate the 2017 genocide against Myanmar’s Rohingya population, has a plethora of evidence of alleged crimes, including those committed since the coup. 

The NUG declaration means that the precondition for the ICC to exercise jurisdiction over a situation in a state that is not party to the Rome Statute is now met. This is the same as Ukraine, also a non-party that made two such declarations. 

For the court then to go on to exercise jurisdiction, either the situation needs to be referred to it by one or more of the states parties to the Rome Statute, or the prosecutor needs to initiate an investigation.  

In Ukraine, the day after the prosecutor announced his decision to seek authorization to initiate an investigation, referrals by states parties, which currently stand at over 40, started to be made. 

We call on the states parties to the Rome Statute, and the prosecutor, to demonstrate that the lives of the people of Myanmar count as much as the lives of people in Ukraine. States should make referrals, and the prosecutor should seek authorization to initiate an investigation.    

This would go some way to address the concern that the ICC seems to be prioritizing the lives of Europeans over those in other parts of the world.

Given that the NUG Declaration provides the gateway for action, the ICC prosecutor and the states parties to the Rome Statute have no excuse for further delay. The people of Myanmar have been waiting long enough for justice. States and the ICC prosecutor must act.

Guest Author

John Dugard

John Dugard is an emeritus professor of law at Universities of Leiden and the Witwatersrand, Johannesburg; former ad hoc judge at the International Court of Justice; former member of U.N. International Law Commission and U.N. Special Rapporteur on the Human Rights Situation in the Occupied Palestinian Territory.

Guest Author

Chris Gunness

Chris Gunness is director of the Myanmar Accountability Project (MAP).

Guest Author

Tommy Thomas

Tommy Thomas is a former attorney general of Malaysia.

Guest Author

Yuyun Wahyuningrum

Yuyun Wahyuningrum is the representative of Indonesia to the ASEAN Intergovernmental Commission on Human Rights.

Guest Author

Ralph Wilde

Ralph Wilde, Faculty of Laws, University College London (UCL), University of London, is the author of the legal opinion for the MAP on which the foregoing arguments are based.