Myanmar: ICC Prosecutor Requests Arrest Warrant

 

Key Step Toward Justice for Rohingya

Rohingya refugees walk through rice fields after crossing the border from Myanmar into Palang Khali, Bangladesh, October 19, 2017. © 2017 Jorge Silva/Reuters

(New York) – The International Criminal Court (ICC) prosecutor’s request for an arrest warrant for Myanmar military commander-in-chief, Sr. Gen. Min Aung Hlaing, for alleged crimes against humanity is a major step towards justice for the country’s Rohingya population, Human Rights Watch said today. ICC Prosecutor Karim Khan’s announcement during a visit to Bangladesh on November 27, 2024, opens the door to seeking accountability for the atrocities of 2016-2017, and eroding the impunity fueling the military’s ongoing abuses.

Khan requested the arrest warrant for Min Aung Hlaing, alleging his responsibility for the crimes against humanity of deportation and persecution of the Rohingya committed in Myanmar and in part in Bangladesh between August and December 2017. Min Aung Hlaing led the February 2021 coup and remains head of the State Administration Council junta.

“The ICC prosecutor’s request for this arrest warrant is a strong warning to Myanmar’s abusive military leaders that they’re not beyond the reach of the law,” said Maria Elena Vignoli, senior international justice counsel at Human Rights Watch. “And it sends the Rohingya community an important message that their struggle for justice has not been forgotten.”

In his announcement, Khan stated that the alleged crimes were committed by “the armed forces of Myanmar, the Tatmadaw, supported by the national police, the border guard police, as well as non-Rohingya civilians.” He also noted that this is the first request by his office for a warrant against a senior Myanmar official, but “more will follow.”

In August 2017, Myanmar security forces began a sweeping campaign of massacres, rape, and arson against Rohingya in northern Rakhine State that forced more than 700,000 to flee to Bangladesh. Human Rights Watch determined that the atrocities amounted to crimes against humanity and acts of genocide.

Although Myanmar is not an ICC member country, in 2019 the ICC prosecutor opened an investigation into alleged grave crimes against the Rohingya population that were committed, at least in part, in Bangladesh or another ICC member country. The ICC can only exercise its jurisdiction over crimes committed by nationals of, or on the territory of a member country, unless the situation is referred to the court by the UN Security Council, or if the nonmember country in question accepts the court’s jurisdiction. 

The prosecutor’s request has been submitted to ICC judges, who will determine whether to issue the warrant. No time limit is imposed on the judges’ decision. If the judges issue the warrant, ICC member countries will be under a legal obligation to arrest and transfer Min Aung Hlaing to the court if he enters their territories. The ICC does not permit trials in absentia.

No one has yet been held accountable for the 2016-2017 crimes against the Rohingya, while the international response to the Myanmar crisis has been fragmented and halting. The UN Security Council, which has the authority to issue legally binding resolutions, has remained paralyzed. Council members have yet to follow up on the council’s December 2022 resolution, which denounced the military’s postcoup abuses, with tangible measures. Anticipating vetoes by China and Russia, the deadlocked council has not referred the situation in Myanmar to the ICC, which would expand the court’s jurisdiction to crimes allegedly committed on Myanmar territory. 

Emboldened by decades of impunity, Myanmar’s military has committed numerous war crimes and crimes against humanity since the 2021 coup. In the past year, fighting against opposition forces and ethnic armed groups has engulfed much of the country. 

Human Rights Watch has found that the junta’s systematic abuses against the Rohingya in Rakhine State amount to the crimes against humanity of apartheid, persecution, and severe deprivation of liberty. Currently, the estimated 630,000 Rohingya remaining in Myanmar are facing the gravest threats since 2017. 

The junta has arrested thousands of Rohingya for “unauthorized travel,” and imposed new movement restrictions and aid blockages in Rakhine State. Over the past year, the Myanmar military and the ethnic Arakan Army have committed mass killings, arson, and unlawful recruitment against the Rohingya population. Both the Myanmar military and the Arakan Army have laid landmines along the Myanmar-Bangladesh border while fighting for control of the area.

An estimated 40,000 Rohingya have arrived in Bangladesh in recent months to escape ongoing abuses in Myanmar, joining about one million refugees who had fled atrocities in 2016-2017 and earlier. The security situation and living conditions in the refugee camps have deteriorated. 

To bring comprehensive accountability, the UN Security Council should expand the ICC’s jurisdiction to address the full scope of criminality by referring the situation in Myanmar to the court, Human Rights Watch said. An ICC referral would broaden the scope of the investigation to include, among others, grave crimes committed by the military against other communities in Myanmar. 

The UN-backed Independent Investigative Mechanism for Myanmar – mandated to collect evidence and build case files for criminal prosecution of individuals responsible for serious crimes – reported in July 2024 that it “has accumulated and analysed a diverse range of evidence of serious international crimes committed in Myanmar, including evidence bearing on the criminal responsibility of specific individuals.” The investigators noted that from July 2023 to June 2024, they had shared “an unprecedented volume of evidence and analysis” with the ICC, the International Court of Justice (ICJ), and authorities in Argentina who are investigating crimes against the Rohingya under the principle of universal jurisdiction.

The ICJ is currently hearing a case brought by Gambia against Myanmar, supported by seven other countries, for alleged violations of the Genocide Convention. On January 23, 2020, the ICJ imposed provisional measures directing Myanmar to prevent all genocidal acts against the Rohingya, to ensure that the military and other security forces do not commit acts of genocide, and to take steps to preserve evidence related to the case. The military’s escalating abuses underscore its blatant disregard for the ICJ’s provisional measures, Human Rights Watch said. In a June 2024 report, the UN High Commissioner for Human Rights found that “actions taken by all parties that endanger the Rohingya appear inconsistent with the provisional measures ordered by the International Court of Justice.”

Security Council members should hold an open meeting to address the deteriorating situation in Myanmar and the military’s violations of the provisional measures, while building momentum for a strong follow-up resolution under Chapter VII of the UN Charter. In addition to referring the country situation to the ICC, such a resolution should institute a global arms embargo, impose targeted sanctions on junta leadership and military-owned companies, and request regular reporting by the UN secretary-general on the situation.

In addition to Bangladesh/Myanmar, the ICC is currently working in 15 other situations across the globe. The court faces renewed threats of sanctions from US legislators following the issuance of arrest warrants, against two senior Israeli leaders as well as a Hamas official on November 21, in the context of the Palestine investigation. 

The ICC’s 124 member countries preparing to meet for their annual session in The Hague should stand ready to protect the court against any efforts aimed at undermining its mandate, Human Rights Watch said. 

“Addressing the abuses happening today in Myanmar means holding those responsible accountable for the grave crimes that paved the junta’s way,” Vignoli said. “With few other options for justice, the ICC is doing exactly the job it was set up to do. ICC member countries should fully back the court and speak up to support and defend its independent global mandate.”