Member states of the International Criminal Court (ICC) should address double standards in the administration of international justice and refer the situation in Myanmar to the ICC Prosecutor pursuant to Article 14 of the Rome Statute, Fortify Rights has said.
From December 4-14, representatives from all 124 states who have ratified or acceded to the Rome Statute—the ICC’s founding treaty—will gather for the annual meeting of the Court’s governing body, the Assembly of States Parties, at UN Headquarters in New York.
“For too long, the Myanmar military and its supporters have enjoyed complete impunity for their international atrocity crimes, including war crimes, crimes against humanity, and even genocide,” said Matthew Smith, Chief Executive Officer at Fortify Rights.
“Using Article 14 of the Rome Statute, ICC member states can request the Chief Prosecutor to initiate an investigation into the most serious crimes occurring in Myanmar. This should be done without delay.
“ICC member states have the opportunity to end the cycle of impunity that has plagued Myanmar for too long,” Smith said.
“The Myanmar people feel that the world has abandoned them— ICC member states have an opportunity to change this and to combat the double standard in the administration of international justice. There is no defensible reason why ICC member states should not immediately refer the situation in Myanmar to the Chief Prosecutor."
This year marks the 25th anniversary of the Rome Statute.
Fortify Rights released an animated explainer on Article 14 of the Rome Statute, which empowers ICC member states to request the Prosecutor to investigate international crimes within the Court’s jurisdiction.
The explainer outlines the Article 14 referral process and its unique advantages, including the ability to bypass blockages, such as deadlock at the UN Security Council or the need for pre-authorization from the ICC’s Pre-Trial Chamber.
This process can lower barriers faced by states and other actors seeking accountability for international atrocity crimes.
On September 6, 2018, the ICC granted the Chief Prosecutor jurisdiction to investigate and possibly prosecute the crime against humanity of forced deportation of Rohingyas to Bangladesh, as well as persecution and other inhumane acts. It did so based on the facts that Bangladesh is a state party to the ICC, while Myanmar is not, and that forced deportation is a crime necessarily involving two countries.
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In November 2019, the ICC Prosecutor initiated an investigation into crimes against Rohingyas involving the territory of Bangladesh. Until recently, there has been no basis for ICC jurisdiction over actions taking place in Myanmar. This, however, is no longer the case.
While Myanmar is not an ICC member state, the National Unity Government (NUG)—the body representing Myanmar’s democratically-elected leaders—lodged a 12(3) declaration with the Court’s registrar on July 17, 2021, accepting the jurisdiction of the Court for international crimes committed on Myanmar territory since July 1, 2002, and into the future.
In a 46-page legal analysis, Fortify Rights proved how the NUG can legitimately grant jurisdiction to the ICC under international law.
The NUG’s 12(3) declaration opens the way for ICC member states to make Article 14 referrals of the situation in Myanmar to the Prosecutor. Such referrals are the most direct and effective mechanism for prompting an ICC investigation into genocide, war crimes, and crimes against humanity in Myanmar.
ICC member states have made Article 14 referrals on several occasions, including for situations in non-ICC member states, most recently for the Ukraine situation. Like Myanmar, Ukraine is not an ICC member state, however, the government in Kyiv lodged a 12(3) declaration in September 2015, accepting the Court’s jurisdiction with respect to international crimes committed on Ukrainian territory since February 20, 2014.
ICC member states should urgently pursue a similar trajectory for a full investigation into mass atrocity crimes happening in Myanmar, said Fortify Rights.
The ICC was established in 2002 to hold individuals criminally accountable for the most serious international crimes, including war crimes, crimes against humanity, and genocide. Since its attempted coup d’état on February 1, 2021, the Myanmar military junta has committed war crimes and crimes against humanity and continues to perpetrate genocide against Rohingya in Rakhine State.
Other groups in Myanmar may have also committed atrocity crimes that may fall within the jurisdiction of the ICC.