Burma’s military can be prosecuted for crimes against humanity
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Burma’s military can be prosecuted for crimes against humanity

THE International Criminal Court (ICC) on Thursday said it has the jurisdiction to prosecute Burma (Myanmar) for alleged crimes against humanity, opening the door to possible charges against the country’s military leaders and politicians.

The court’s announced the unprecedented decision in a statement, saying the court was able to investigate Burma’s leaders despite the country not being a signatory of the court.

The ICC’s “pre-trial chamber… decided by majority the court may exercise jurisdiction over the alleged deportations of the Rohingya people from Myanmar to Bangladesh”, the Hague-based tribunal said.

The decision follows a filing from chief prosecutor Fatou Bensouda in April, asking the court for jurisdiction over the “deportation” of Rohingya refugees from Burma to neighbouring Bangladesh.

Besouda was seeking a ruling to “verify that the Court has territorial jurisdiction when persons are deported from the territory of a State which is not a party to the Statute directly into the territory of a State which is a party to the Statute.”

Unlike Burma, Bangladesh is a member of the ICC. Bensouda argued that, given the cross-border nature of the crime of deportation, a ruling in favour of ICC jurisdiction would be in line with established legal principles. On Thursday, the court agreed.

More than 700,000 Rohingya Muslim have fled violence in northern Rakhine state since violence broke out in August 2017.

SEE ALSO: Will anyone pay for crimes against the Rohingya?

A fact-finding mission by the United Nations found evidence of ethnic cleansing and accused Burma’s military of genocide. The final report, released last week, documented patterns of gross human rights violations and abuses that included killing indiscriminately, gang-raping women, assaulting children, and burning entire villages.

The military has repeatedly denied any wrongdoing and de facto leader Aung San Suu Kyi has remained largely silent on the atrocities.

The Nobel laureate has received widespread criticism for being complicit in the military’s brutal crackdown. This was compounded this week when she failed to step in in defence of two Reuters journalists.


Rohingya refugee carries an old man in an area near no man’s land on the Bangladesh side of the border with Myanmar after crossing the Naf River, after being told by border guards they were not allowed to leave the area and reach the refugee camps near Ukhia. October 17, 2017. Source: Munir Uz Zaman/AFP

On Monday, Wa Lone and Kyaw Soe Oo were jailed for seven years after being found guilty under the colonial-era Official Secrets Act. The charges are widely acknowledged to be political and the result of a police setup as, in the weeks leading to their arrest, the two were working on an investigation that implicated the military in the death of 10 Rohingya men found in a mass grave in the village of Inn Dinn.

Suu Kyi not only failed to speak out in defence of free press – something she once espoused as a vital part of democracy – but reportedly called the pair “traitors” during a private exchange.

Thursday’s ruling now leaves a path for the ICC to announce the formal opening of a preliminary investigation into the Rohingya crisis.

If enough evidence is found, a full probe will be opened which could result in a trial.

SEE ALSO: Burma: Journalists’ ‘hammer blow’ guilty verdict could spell end of democracy

The UN listed a number of military generals who they feel are responsible for the war crimes, among them is Burma’s commander in chief general Min Aung Hlaing.

Even if the case gets to trial, the ICC would likely struggle to get such prominent leaders to appear and will be limited in its capacity to enforce any rulings.

The ICC has no forces of its own, so it relies on national police services to make arrests and transfer suspects to the Hague to be tried.

Given those implicated in the Rohingya crisis are top generals with an overarching presence across public bodies, it’s unlikely the national police will turn them in.