Buyer’s Beware – Is a UN Security Council Referral of Myanmar to the International Criminal Court a Good Idea?

Rohingya refugees at the fence before “no man’s land” between the Myanmar and Bangladesh borders. (Photo: AFP / Getty)

Confirming what close observers have long suspected, investigators from the United Nations have determined that Burmese authorities have committed genocide against the Rohingya population. Without any prospects of the Burmese government investigating and prosecuting atrocities committed against a people they won’t even recognize, the latest revelations have predictably led to renewed calls for the United Nations Security Council to refer Myanmar to the International Criminal Court (ICC).

Before proceeding, let me be unequivocal: the ICC or some other competent judicial body should absolutely investigate crimes committed in Myanmar. While I do not purport to speak on their behalf, the Rohingya deserve justice and accountability. But there are real questions as to whether a UN Security Council is the best way to deliver that. Indeed, experience suggests that such referrals can do more harm than good to victims, survivors, the ICC, and justice itself.

The first Security Council referral of a situation to the ICC came in 2005, when Darfur was referred to the Court. The second came six years later, when the 2011 uprising and civil war in Libya was referred to the ICC. Both referrals have done damage to the institution. They included political carve-outs which ensured that citizens of states that were not members of the Court were excluded from its jurisdiction. This violates the very premise of equality before the law. Despite saddling the Court with a significant and difficult task in both Libya and Darfur, the Council also refused to provide the ICC with any commensurate funding.

The results have been brutal for the Court. Not a single individual for whom the ICC has issued an arrest warrant in Libya or Darfur has ever been convicted. Not one. Making matters worse, the Council’s role in referring situations to the ICC has become a keystone criticism of African states towards the Court. While it is true that the Security Council, and not the ICC, should be criticized for the failures to achieve justice in Darfur or Libya, it is clear that the Court has received the brunt of criticism.

Security Council referrals have also done little for those victims who favour ICC justice. They have elevated expectations that justice will be delivered and that the ICC’s investigations and prosecutions will be supported by a united Council. Not only has no justice been achieved in any Council-referred situation in over thirteen years, but in some cases, victims have resigned from participating in the cases altogether.

We should further avoid an argument which suggests that, because Darfur and Libya received referrals to the ICC, Myanmar should have one too. If the tool is broken, it needs to be fixed – not applied again, in the same way with us expecting different results.

Incredibly, none of the organizations, such as Human Rights Watch, that have pushed for a referral by the Security Council of Myanmar to the ICC, have spelled out why anything would be any different this time. Nor have they put forward a vision of what an appropriate referral would look like – one that would be good for victims, survivors, and the ICC. One possible reason for this is that they know a referral will fail, but that the process is, in and of itself, valuable.

To be clear, it is extremely unlikely that the Security Council will refer Myanmar to the ICC. Both China and Russia vetoed an attempted referral of Syria to the ICC in 2014. China, with its geopolitical interests in the region, would almost surely veto a resolution referring the situation in Myanmar to the Court. Russia, meanwhile, has made it clear that it won’t be supporting referrals to the ICC any time soon. At a recent meeting at the Council, a Russian diplomat stated that it “is determined to do whatever is necessary to enable the members of the Council to avoid repeating the unsuccessful experiment of referring Security Council issues to the ICC.”

Still, there may be an argument that the Security Council referral route must be exhausted. Why? So that the UN General Assembly can then create an investigatory mechanism for Myanmar – as it did following the failed referral of Syria to the ICC. This may be a reasonable approach, but it isn’t clear that naming-and-shaming China and Russia by forcing them to veto a referral would be useful for resolving the crisis facing the Rohingya people. It would also give the perception that the ICC (and not just the Council) is impotent. Surely, given Russian and Chinese antipathy towards the ICC, the Security Council route can already be considered exhausted.

The UNSC referral option is not the only option. In comparison to an ICC referral, there has been scant discussion about creating a hybrid court located in the region. Could the 132 legislators from regional states who have declared their support for accountability for the Rohingya not be asked to push for an ad hoc tribunal? It would be a remarkable opportunity for Asian states to extend their influence and leadership on international criminal justice. There has also been bizarrely little discussion of exercising universal jurisdiction, something that at least eight European are invoking to prosecute crimes committed in Syria.

There has been too little discussion about how to put pressure on, and provide support to, Bangladesh so that authorities in the country can  investigate and prosecute allegations of genocide committed against the Rohingya. Over 900,000 Rohingyas have fled to Bangladesh since the crisis erupted. With them, they carry the testimony and evidence of the Burmese government’s crimes. More can, and should be done, to seek a degree of accountability at the source of the suffering, closer to where victims and survivors live.

Many of those over 900,000 civilians who fled were, in fact, forcibly deported. In a widely praised move, ICC Prosecutor Fatou Bensouda requested to investigate the deportation of Rohingya from Myanmar into Bangladesh, arguing that because it is a crime initiated on the territory of a non-member state (Myanmar) but completed in a member-state (Bangladesh), it gave her jurisdiction to investigate. On 6 September, ICC judges not only approved the Prosecutor’s request to investigate the deportation of the Rohingyas into Bangladesh, but also suggested that other crimes — including persecution — be investigated as well.

It is not a popular position to argue against a Security Council referral of Myanmar to the ICC. But as advocates of international justice, we need to think through the consequences of what we advocate – as well as the expectations we are setting for victims and survivors. If the Darfur referral was fooling us once, and the Libya referral was fooling us twice, why would we accept, even advocate, to be fooled for a third time? Instead of repeating the same mistakes and reifying the problematic relationship between the Council and Court, it behooves us to reimagine it.

Advocates of a Security Council referral cannot claim ignorance this time. Groups pushing for a referral may get pro-ICC states to support a referral of Myanmar to the Court, but these states may only do so to show that they are “doing something” and not out of any faith that it will be successful in producing accountability. We have ample evidence of the negative consequences of such decisions. It won’t be good enough to only blame the Security Council if a referral is passed and leads to unmet expectations and no accountability. This time, advocates will have to own it too. This time, they can’t claim to be surprised if it doesn’t work out.

Again, victims and survivors of genocide in Myanmar deserve justice. The ICC should investigate these atrocities. But let us not repeat the same mistakes with the same tools that failed us before. Let us be creative and re-imagine how to best pursue accountability for those suffering from unconscionable crimes. We owe it to them and the project of international justice.

A version of this article was first published at UN Dispatch

About Mark Kersten

Mark Kersten is a consultant at the Wayamo Foundation, a Senior Researcher at the Munk School of Global Affairs, and a law student at McGill University Law School. He is also author of the book, 'Justice in Conflict - The Effects of the International Criminal Court's Interventions on Ending Wars and Building Peace' (Oxford University Press, 2016).
This entry was posted in Burma/Myanmar, Genocide, International Criminal Court (ICC), International Criminal Justice, UN Security Council. Bookmark the permalink.

7 Responses to Buyer’s Beware – Is a UN Security Council Referral of Myanmar to the International Criminal Court a Good Idea?

  1. The referral allows for the judiciary to take a substantive apolitical decision on the matter. In particular to rule on the evidence presented before it.
    The Security Council would have taken a political decision to delegitimise or legitimize the actions of the state of Myanmar.

    I support the decision for the referral albeit more than 100 states stand against the human rights violations. However the general perception of guilt, it is clear that the UN Security Council was not convinced on the alleged guilt charge.

  2. Martin Witteveen says:

    Very well articulated and only part of the problem. UNSC referrals are political by definition. Political reasons are probabaly the only reasons for UNSC referrals. That’s why Myanmar will not be referred. It’s hardly a political issue the UNSC cares about.

  3. Pingback: Buyer’s Beware – Is a UN Security Council Referral of Myanmar to the International Criminal Court a Good Idea? – Jehtro Lewis – Blog

  4. El roam says:

    Important issue , but with all due respect , baseless analysis . There were only two referrals so far ( emphasizing “ only two ” ) it is far right now , to conclude that such doctrine is a failure generally speaking . But let’s observe it more closely :

    The whole issue , has to do simply , with South Africa (speaking of African states ) . It is a leading state in that continent , yet , and although party member to the Rome statute , they didn’t comply with the arrest warrant against Omar Al Bashir , letting him attending the AU summit , and escape manipulatively so from arrest . After that , African states , became bolder , starting to follow South Africa , and challenging the court .

    In Libya , we deal with lawlessness state , very hard to trace a person , and let alone , arrest him , and deliver him to the court .

    So , something should be fixed here . But not as argued in that post , it wouldn’t be the very UN referral , but rather the contrary :

    To enforce , more cooperation , and global one . That is to be done , by the only body which can do it effectively ( but doesn’t really do it , among other due to lack of assertiveness from the part of ICC ) and it is the SC . Imposing sanctions , on states ( Chapter VII to the UN charter ) which don’t cooperate with the ICC .

    That is the real issue , although not the only one , but we fall short here , and won’t stay young no more .


  5. El roam says:

    Just a clarification :

    Omar Al Bashir , visited Chad , also party member , before visiting South Africa . Yet , didn’t create of course , the same level of harm as in South Africa , after the latter , the real game changer started the effect of senseless International debate , concerning apparent conflict between CIL and immunity of heads of states , and the Rome statue .

    And just to quote from the ruling of :

    The high court of South Africa ( Gauteng division , Pretoria )

    concerning the manipulative manner , with which , Omar Al Bashir avoided the arrest , here , the court calls also for cosideration of criminal investigation , I qoute :

    We stated earlier that the departure of president Bashir from this country before the finalization of this application and in the full awareness of the explicit order of Sunday 14 June 2015 , objectively viewed , demonstrates non – compliance with that order . For this reason we also find it prudent to invite the National Director of Public Prosecutions to consider whether criminal proceeding are appropriate .

    End of quotation :

    So , this has nothing almost to do , with UN referral of course , but the conduct of South Africa for example .


  6. El roam says:

    Just the link to the ruling mentioned ( look to paragraph 39 in the page itself , not in the links there directing to PDF , and RTF formats ) here :


  7. Pingback: Part 3: Justice for the Rohingya: Issues and Possible Solutions | Lex lata, lex ferenda

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