ICC's leap in the dark
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ICC's leap in the dark

The United Nations Human Rights Council (UNHRC) has issued a clear and compelling case against Myanmar -- both its armed forces and its leaders. A UN-ordered investigation of the Rohingya tragedy is described unequivocally and credibly as genocidal. The UNHRC says government and army then tried to cover up crimes by multiple fabrications. It specifically names Sen Gen Min Aung Hlaing, the commander of the armed forces (tatmadaw) and the national leader Aung San Suu Kyi.

The crimes against the Rohingya are undeniable except by the Myanmar authorities. They include mass murders, organised rape, burning out homes and whole villages and ethnic cleansing. This good work by the UNHRC in detailing exact responsibility raises the obvious question of "what next?" and last week, the International Criminal Court claimed boldly that it has jurisdiction. The ICC wants to step in to arrest, deport and try the tatmadaw command and senior generals for crimes against humanity.

However unlikely this is to occur under current and likely future circumstances within Myanmar, it is a legally interesting claim because it is highly controversial. It puts the ICC on a legal course it has not previously considered in its 20-year history. And it pits the court against nations including world powers and most of Asean.

The UNHRC's report stated the virtually self-evident charges that Ms Suu Kyi failed to speak out against anti-Rohingya atrocities, and then suborned them. Immediately after and ever since the massacres and ethnic cleansing, she has led her government in unbelievable denials, counter-charges that the Rohingya caused the army's actions and claims her country is the victim -- yes, the victim -- of an organised international conspiracy.

The tiny and still diminishing corps of remaining defenders state Ms Suu Kyi was helpless to halt the army's atrocities. The point is that she didn't try. In fact, by all subsequent statements and actions, detailed in admirably concise UNHRC paragraphs, she approved. She and her government lied about the scope of the "clearing" of the Rohingya, never sought mediation, destroyed evidence, blocked investigations by media and by every United Nations arm including the UNHRC. Then they compounded all this with false, cover-up statements which, thankfully, few honest people have believed.

It is evident that the world and particularly the victimised Rohingya deserve justice. But this does not mean that the ICC has either the responsibility or the right to administer it. For a start, it is not at all clear whether it has any jurisdiction. Myanmar, most of Asean including Thailand, and the world's most prominent countries -- the US, China and Russia among them -- are not members and do not recognise any ICC enforcement powers.

All cases actually brought before the ICC benches at The Hague involve former dictators and power-holders. Indeed, this was always the stated reason for forming the ICC in the first place. Preventing or even halting the worst of crimes against humanity is not the court's charter. Indeed, it was concerned that ICC members would seek "mission creep" to act against sitting governments that kept China, the US and Thailand from ratifying the International Criminal Court Statute 20 years ago.

Preventing, halting and punishing terrible crimes by terrible regimes is a serious subject. The ICC is not a likely remedy. As the human rights expert Vitit Muntarbhorn wrote a week ago, one should look first to the neighbours to step in. It is obvious that Asean has repeatedly failed its obligation. But for the ICC to create more disorder by trying to prosecute Myanmar leaders would do nothing to solve the desperate plight of 700,000 Rohingya.


Bangkok Post editorial column

These editorials represent Bangkok Post thoughts about current issues and situations.

Email : anchaleek@bangkokpost.co.th

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