Here’s Why the Security Council Should Not Refer Burmese Authorities to the International Criminal Court

Ed note. This is a special guest post from Mark Kersten, who is the Deputy Director of the Wayamo Foundation as well as a fellow and lecturer at the Munk School of Global Affairs, University of Toronto, and the author of the blog Justice in Conflict. All opinions expressed are his own.

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 don’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. 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 Court. Both referrals have done damage to the ICC. 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 done little for those victims who favor ICC justice. They have elevated expectations that justice will be delivered, and 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 also 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.

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 has to 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 also been too little discussion about how to put pressure on, and provide support to, Bangladesh in order to 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 decision, ICC Prosecutor Fatou Bensouda requested to investigate the deportation of Rohingya from Myanmar into Bangladesh, arguing because it is a crime initiated on the territory of a non-member state (Myanmar) but completed in a member-state (Bangladesh), therefore giving her jurisdiction to investigate. If Judges at the ICC approve the Prosecutor’s request to investigate the deportation of the Rohingyas into Bangladesh, Bensouda has hinted at the possibility of potentially investigating other crimes as well.

It is not a popular position to argue against a Security Council referral of Myanmar to the ICC. But advocates of international justice 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 referrals. It won’t be good enough to only blame the Security Council if a referral is passed and it 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.