The chief prosecutor of the International Criminal Court (ICC) has asked judges to issue an arrest warrant for the head of Myanmar’s military junta for crimes committed against the country’s Rohingya Muslim minority in 2017.
Senior Gen. Min Aung Hlaing, who led the coup that removed elected leader Aung San Suu Kyi from power in February 2021, has been accused of crimes against humanity for the deportation and persecution of the Rohingya under Aung San Suu Kyi’s government.
In a statement, the court’s top prosecutor, the British barrister Karim Khan, said the warrant request was just the first and that “more will follow.”
“In doing so, we will be demonstrating, together with all of our partners, that the Rohingya have not been forgotten. That they, like all people around the world, are entitled to the protection of the law,” Khan said.
The statement was issued a day after Khan visited Kutupalong refugee camp in Cox’s Bazar, Bangladesh, one of several heaving settlements that is home to around 1 million Rohingya refugees. Most were driven out of Myanmar’s Rakhine State after the military launched a “clearance operation” in August 2017, in response to scattered attacks by Rohingya militants. The offensive, which has been described by U.N. experts both as “genocide” and a “textbook case of ethnic cleansing,” saw Myanmar soldiers and local vigilantes kill at least 6,700 people and expel more than 740,000, while shooting livestock and torching dozens of villages.
A panel of three ICC judges will now decide if they agree there are “reasonable grounds” to believe Min Aung Hlaing bears criminal responsibility for the crimes alleged by the prosecutor’s office. As Reuters explains, “there is no set time frame for their decision but it generally takes around three months to rule on a warrant.”
The ICC opened the investigation in 2019 but has been forced to proceed within relatively narrow boundaries, given that Myanmar is not a signatory of the Rome State that created the ICC. It has therefore been restricted to gathering evidence on the territory of Bangladesh, which is a member of the court.
Khan said in his statement that his office had concluded that there are “reasonable grounds” to believe that Min Aung Hlaing bears “criminal responsibility for the crimes against humanity of deportation and persecution of the Rohingya, committed in Myanmar, and in part in Bangladesh.” The alleged crimes took place between August 25 and December 31, 2017, “by the armed forces of Myanmar, the Tatmadaw, supported by the national police, the border guard police, as well as non-Rohingya civilians.”
Khan said in his statement that the application “draws upon a wide variety of evidence from numerous sources such as witness testimonies, including from a number of insider witnesses, documentary evidence and authenticated scientific, photographic and video materials.”
The announcement was immediately hailed by international rights groups, Rohingya advocates, and Rohingya refugees in Bangladesh. Tun Khin, the president of the Burmese Rohingya Organisation U.K. described it as “a rare day of celebration for the Rohingya,” while Zin Mar Aung, the minister for human rights of the opposition National Unity Government, called it “a critical moment in Myanmar history.”
Matthew Smith of Fortify Rights, which has focused much of its advocacy efforts on the Rohingya, described it as “a historic moment for Rohingya and all people of Myanmar.” Nicholas Koumjian, head of the U.N. Independent Investigative Mechanism for Myanmar, which assisted the ICC investigation, said that seeking a warrant for the highest ranking military officer in the country “sends a strong message to perpetrators that no one stands above the law.”
At the same time, all of these groups emphasized that justice is only possible if the warrant is issued and executed. As always with the ICC, this is the problem. In a statement to Reuters, Myanmar’s military regime said that the country was not a member of the court and that it does not recognize its statements.
As we have seen with the ICC’s recent issuing of arrest warrants against Israeli Prime Minister Benjamin Netanyahu and his former defense minister, Yoav Gallant, there are certainly countries that would pledge to implement a possible ICC arrest warrant, should Min Aung Hlaing enter their jurisdiction. The problem is that these are likely the exact countries Min Aung Hlaing would be likely to visit, even prior to Khan’s announcement. Conversely, those nations that would be most likely to welcome him –Russia and China – are not members of the court and would almost certainly ignore the arrest warrant.
The chances are also scant that a Southeast Asian government would take action to apprehend Min Aung Hlaing. The ICC is poorly represented in the region; only Cambodia and Timor-Leste are state parties of the Rome Statute, and neither presents a particularly hopeful prospect. There is little chance that the Cambodian authorities would enact an arrest warrant, given their own hostile orientation toward human rights norms and the strong regional norm against “interference” in neighbors’ internal affairs.
The leaders of Timor-Leste would be more inclined to act on the warrant, but even if Min Aung Hlaing decided to take the risk of traveling there, Dili might think twice about taking action out of concern that it might impact its outstanding application for Association of Southeast Asian Nations (ASEAN) membership. (Executing ICC arrest warrants against regional leaders is certainly not in conformity with the “ASEAN way.”)
Of the remaining Southeast Asian nations, Thailand has signed the Rome Statute but not yet ratified it, while the Philippines withdrew from the Rome Statute in 2019, due to the ICC’s investigation into then-President Rodrigo Duterte’s bloody “war on drugs.”
The only realistic path forward runs through Myanmar itself, where the military junta has recently experienced a series of humiliating defeats that have significantly weakened its hold over much of the country. Should the resistance eventually prevail over the armed forces, or help precipitate an internal coup that removes Min Aung Hlaing from power, it is faintly conceivable that he might be handed over to the ICC’s custody – if he survives the initial collapse.
For Rohingya refugees and advocates, there is some solace to be taken in the fact that the ICC prosecutors have recognized their suffering, and done what it can to bring their oppressors to justice. But whether they will ever get to see Min Aung Hlaing in a jail cell at The Hague is a separate and much less certain question.
