In times of conflict and large scale violence, many people put their hope on the International Criminal Court. They call on the ICC to act, to go after the perpetrators and stop the suffering. They want justice to be done.

Many people are begging the court to address the shocking atrocities committed against the Rohingyas. @Aungaungsittwe tweeted: ‘Without action no solution of #Rohingya: all #Genociders must be brought to #ICC immediately.’

For decades this ethnic minority in Rakhine state, in the west of Myanmar, has been suffering from extreme oppression, persecution and violence. It is a complex matter, with a long history. But following attacks last August by a radical Rohingya-group on police stations, the security forces have now gone into an all-out offensive. Rohingya-villages have been burned. People are being shot, massacred and wounded. The violence has pushed almost 300,000 of the 1.1 million Rohingyas over the border into Bangladesh. ‘The situation seems a textbook example of ethnic cleansing,’ said UN human rights chief, Zeid Ra’ad al-Hussein.  http://www.aljazeera.com/news/2017/09/myanmar-crisis-textbook-ethnic-cleansing-170911081528888.html

The ICC

Despite the calls for action, the reality is that the ICC doesn’t have (automatic) jurisdiction in Myanmar, because the country never became a member of the court. That’s how the rules are. This means that the ICC doesn’t have the power to initiate by itself investigations into the violence in Rakhine state.

The only way that the court could become active in non-member states such as Myanmar, is when the United Nations Security Council agrees to refer the situation in Rakhine state to the ICC. In the past this happened with Sudan/Darfur (in 2005) and Libya (in 2011). But with China being a permanent member of the council, this is extremely unlikely in the case of Myanmar. The big neighbour will say: no. China has huge geopolitical and economic interests. Instead of seeking a confrontation with the Myanmar authorities – by giving the ICC’s investigators the green light to go after the individuals organising the violence – China will prefer to work on good relations with its southern neighbour. Russia won’t be keen to refer the situation either, as it has been supplying weapons to the Myanmar military.

Aung San Suu Kyi

On social media many are urging the ICC to prosecute Myanmar’s leader Aung San Suu Kyi, as they see her as the main culprit. For instance @Elmileedo tweeted: ‘She don’t deserve to hold such Nobel Peace prize. #ICC Must bring her in front of the court.’

The ICC has the task to investigate international crimes (genocide, crimes against humanity and war crimes) and to charge the individuals most responsible for these atrocities. The court has no mandate in Myanmar, but if it had, it would be doubtful whether Aung San Suu Kyi would be the main target of ICC investigations. She fails terribly in her duty as the country’s leader by keeping silent and not protecting her people, but she is confronted with huge political constraints and has no say over the security apparatus. In Rakhine state a military operation is taking place, which is organised, planned and ordered by the army. If one day a criminal court or tribunal would get the go ahead to investigate the violence in Rakhine state – indeed Bangladesh is calling for this – the chain of command will probably lead from soldiers on the ground, directly involved in the violence, to the generals, who are calling the shots.