Rights campaigners have dozens of names to recommend for prosecution at the ICC for crimes against the Rohingya. Aung San Suu Kyi may be one of them.
A collective of international human rights groups gathered at the UN Secretariat Building in New York this week to call on the UN Security Council to refer Myanmar leaders to the International Criminal Court (ICC) for crimes against humanity and genocide. While they stressed that any possible prosecution should focus on perpetrators of military atrocities against the Rohingya and other ethnic minority communities, they also suggested that Myanmar’s civilian leaders, particularly State Counsellor Aung San Suu Kyi, could be targeted for prosecution as well.
The prospect of an ICC referral for the perpetrators of crimes against the Rohingya has been gaining momentum since the beginning of this year. In February, more than 100 British lawmakers called on UK Foreign Secretary Boris Johnson to support the referral of Supreme Commander Min Aung Hlaing to the court.
Last month, ICC prosecutor Fatou Bensouda requested jurisdiction to bring a case against Myanmar leaders for violating Article 7(1)(d) of the Rome Statute, which outlaws “deportation or forcible transfer of population” as a crime against humanity. A few days later, Suu Kyi’s office issued a statement accusing Bensouda of attempting to “override the principle of national sovereignty” since Myanmar is not a party to the Rome Statute or a member of the court.
Nevertheless, on Monday, the ICC issued a request from Bangladesh to submit observations that would help determine whether the court has jurisdiction over the mass deportation of Rohingya. Since Bangladesh is a party to the Rome Statute, the court may be able to rule on transnational crimes that have affected it.
According to the rights groups that gathered this week to encourage the ICC’s involvement, Min Aung Hlaing will not be the only target.
“A proper investigation would, first and foremost, focus on military personnel,” Fortify Rights CEO Matthew Smith told Coconuts following the event. “But Suu Kyi may be liable for international crimes as well. Investigators would naturally probe what her role has been in the attacks on Rohingya civilians.”
Smith was one of four rights experts at the press conference on Monday who called for Myanmar’s referral to the ICC. While most of the event was dedicated to outlining the alleged crimes that warrant prosecution of Myanmar’s military leaders, he and one other panelist also detailed the actions that have made Aung San Suu Kyi, a former human rights activist, an accomplice to those crimes.
“At this stage, State Counsellor Suu Kyi is part of the problem. Her office has consistently denied human rights violations. Her office referred to allegations of ‘Fake Rape’ and consistently claimed that Rohingya civilians were themselves burning their own homes down. These really outrageous denials have been coming from both military and civilian leadership. So, at this point, we do regard Aung San Suu Kyi as part of the problem,” Smith said.
Param-Preet Singh, an associate director for Human Rights Watch’s International Justice Program, pushed back against the claim that Suu Kyi is waiting for more evidence before initiating a proper investigation of Myanmar’s crimes. Singh said: “There are levers available for her to get the evidence she’s asking for. She could let the [UN-appointed] fact-finding mission into the country. She could allow the [banned] special rapporteur [Yanghee Lee] to come into the country. I think this claim that there isn’t evidence and that she is in fact open to receiving evidence is disingenuous.”
To Smith, the grouping of Aung San Suu Kyi with the perpetrators of military atrocities is not merely rhetorical. During the press conference, he referred to a list of dozens of names that his organization has offered to provide to international law enforcement authorities. He hinted that Suu Kyi may be on that list.
“We are collecting names that we, at this point, are comfortable to make available to relevant authorities that would be interested in pursuing some measure of accountability. I can say the names go straight to the top within the Myanmar armed forces,” he said. “It’s worth mentioning, though, there are civilian leaders as well who may be liable for international crimes in this situation.”
When asked whether this suggestion was meant to elicit any particular reaction from the state counsellor, Smith told Coconuts: “If any civilian leaders are responsible for international crimes, there’s nothing they could do to undo that. But they could start doing the right thing from here on out.
“The state counsellor could cooperate with UN monitors, ensure humanitarian aid is delivered to all in need, and ensure perpetrators are prosecuted. She’s doing none of that right now. If she did take concerted action to protect rights and ensure justice, that would send a strong message to prosecutors.”
