Report from UCAN
The National Unity Government [NUG] of Myanmar, established by ousted lawmakers, has been urged to engage the International Criminal Court [ICC] to hold the country’s military accountable for atrocities. According to a legal analysis by Fortify Rights, a non-government human rights advocacy group, the NUG can delegate jurisdiction to the ICC to investigate and prosecute mass atrocities that occurred in the country since 2002
In its 48-page legal analysis, released on August 19, titled, Ending Impunity in Myanmar, the group said that the NUG can do this in two ways: first, by lodging what is known as an Article 12 (3) declaration with the ICC and second, by formally acceding to the Rome Statute, the treaty that established the court.
An Article 12 (3) declaration could provide immediate jurisdiction to the court to address specific crimes. Full accession to the Rome Statute would further entitle Myanmar to all the rights of a state party to the statute.
Fortify Rights said only states who are party to the Rome Statute can challenge a validly deposited accession. States that would be expected to challenge the NUG’s accession, such as China, Russia or certain Southeast Asian governments, are not parties to the statute, meaning they have no standing to challenge the NUG’s accession.
“The NUG has an opportunity to bring Myanmar significantly closer to justice and accountability,” said Fortify Rights chief executive, Matthew Smith.
The report explained that past practice suggests that governments with some level of international recognition can act on behalf of the state even in situations where the government does not exercise effective control over the territory or people, such as in the case of a coup
“Our analysis finds that the NUG can enter Myanmar into the Rome Statute under international law, and UN member states would do well to support these efforts,” he said.
Smith stressed that “states that historically protected the Myanmar military from legal accountability would have no direct power to block this.”
Ethnic minorities in Myanmar have faced mass atrocities at the hands of the military for decades with little to no access to justice or accountability.
The report explained that past practice suggests that governments with some level of international recognition can act on behalf of the state even in situations where the government does not exercise effective control over the territory or people, such as in the case of a coup.
Myanmar’s army was widely accused of committing crimes against humanity in a crackdown on Rohingya Muslims that led to over 700,000 people fleeing to Bangladesh in August 2017.
UN investigators have called for the prosecution of military leaders including Min Aung Hlaing, the coup leader, at the ICC over atrocities committed against the Rohingya and other ethnic minorities.
The military is also accused of committing crimes against humanity over the killing of peaceful protesters and rights abuses including arbitrary arrests, torture and burning villages since the February 1 coup.
