Engage ICC to hold Military perpetrators of mass atrocity crimes accountable
The National Unity Government (NUG) of Myanmar can delegate jurisdiction to the International Criminal Court (ICC) to investigate and prosecute mass atrocity crimes that occurred in the country since 2002, according to a legal analysis published by Fortify Rights on Thursday (Aug 19).
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.
“The NUG has an opportunity to bring Myanmar significantly closer to justice and accountability,” said Matthew Smith, Chief Executive Officer of Fortify Rights. “Our analysis finds that the NUG can enter Myanmar into the Rome Statute under international law, and U.N. member states would do well to support these efforts.”
The 48-page legal analysis, entitled Ending Impunity in Myanmar, explains how the NUG could address past, present, and future atrocity crimes in the country by issuing a declaration under Article 12(3) of the Rome Statute while also initiating the process to accede to the Rome Statute.
An Article 12(3) declaration could provide immediate jurisdiction to the Court to address specific atrocity crimes in Myanmar, including past and future crimes. Full accession to the Statute would further entitle Myanmar to all the rights of a State Party to the Statute. Fortify Rights recommended the NUG pursue both paths without delay.
“There are limits to the power of spoiler states to block international justice and accountability,” said Matthew Smith. “States that historically protected the Myanmar military from legal accountability would have no direct power to block this. The people of Myanmar are demanding justice, and while it will take time, the NUG can do its part to help deliver it.”
In recent months, Fortify Rights presented the findings of this report to NUG Vice-President Duwa Lashi La and four NUG ministers in separate briefings. Representatives of the NUG have spoken publicly about engaging the ICC since the coup.
Fortify Rights recommended the NUG delegate jurisdiction to the ICC for any atrocity crimes that may have occurred since 2002—the date that the Rome Statute came into force—and all future crimes.
Myanmar’s many diverse ethnic minorities—the NUG’s constituents—collectively comprise a sizable share of the national population. They have faced mass atrocity crimes for decades with little to no access to justice or accountability.
By lodging an Article 12(3) declaration and acceding to the Rome Statute, the NUG could help deter future crimes in Myanmar by requiring military leaders to consider the possibility of prosecution by a neutral international court.
“While these measures alone would not suffice to end and remedy all ongoing atrocities, they would bring the country closer to ending deadly cycles of impunity,” the report says. The Myanmar military has long committed atrocities, including rape, against women and girls with impunity.