National Security Adviser John Bolton reiterated his longstanding belief that the International Criminal Court is “dead” to the United States, and told the Federalist Society last week that one of his “proudest achievements” occurred in 2002 when he helped “negotiate about 100 binding, bilateral agreements to prevent other countries from delivering U.S. personnel to the ICC.”
Bolton’s speech trashing the ICC comes at a time when hundreds of thousands of Rohingya, who have been murdered, raped, tortured and pushed out of Myanmar by that country’s military, are living in vast refugee camps across the border in Bangladesh. It could be difficult for the ICC to bring Myanmar’s military leaders to trial for their grave crimes, but things are moving in that direction.
First, a United Nations Fact Finding Mission issued a damning report in August based on more than 800 interviews with witnesses, extensive video footage, and satellite photos. The satellite images helped to show that at least 319 Rohingya villages were destroyed by fire after August 25, 2017.
The Mission found that military leaders had organized and carried out crimes against humanity, including thousands of killings based on the ethnic and religious identity of the Rohingya. Some were burned alive while many women died of injuries they suffered during gang rapes.
The UN declared that the Myanmar military’s actions amounted to “genocidal intent” and called on the UN Security Council to refer the matter to the International Criminal Court or for an ad hoc international criminal tribunal to be created.
Second, just after the report was issued earlier this month, a Myanmar court sentenced two Reuters journalists Wa Lone and Kyaw Soe Oo to seven years in prison for violating Myanmar’s State Secrets Law for reporting on the crimes against the Rohingya. Aung San Suu Kyi, Myanmar’s civilian leader, defended the court’s decision. The treatment of the two journalists—who were held in pre-trial detention for nine months—makes it even more evident that the Myanmar authorities are intent on preventing international scrutiny of their crimes against the Rohingya.
Finally, on Sept. 6, a three-judge panel of the ICC ruled 2 to 1 that the Court has jurisdiction over the crimes against the Rohingya. Myanmar is not one of the 123 countries that is a party to the ICC as it has not ratified the Rome Statute, the treaty that established the Court. Hence, crimes committed on its territory ordinarily may not come before the ICC except on the basis of a Security Council referral.
But neighboring Bangladesh is a party to the ICC. One of the crimes against the Rohingya has been the forcible deportation of several hundred thousand of them into Bangladesh.
Under the ICC treaty, forced deportation is a crime against humanity. Because part of this crime took place on the territory of Bangladesh, the ICC prosecutor, Fatou Bensouda, asked the pretrial chamber to rule in favor of giving the ICC jurisdiction. The judges accepted her argument.
Under ICC rules, the prosecutor can now begin to investigate the forcible deportation and persecution that this entailed. On Tuesday, Bensouda, announced she is launching a preliminary investigation. This is one of the steps required before an indictment can be issued. Even so, it would be far better if the jurisdiction of the ICC is also given broader political support by a Security Council referral. This would heighten pressure on Myanmar to submit to the jurisdiction of the Court by sending the officials who may be indicted to The Hague to stand trial.
Even before Bolton’s speech, it was not going to be easy to obtain action by the Security Council. The most important obstacles involve permanent members of the Council who could veto referral. Certainty that Russia would veto any referral of Syria to the ICC has prevented accountability for countless war crimes in that country since the beginning of the uprising against the regime of Syrian President Bashar al-Assad began in 2011. In keeping with its general effort to block enforcement of international human rights norms, the government of Russian President Vladimir Putin may also veto a Security Council referral of Myanmar to the ICC.
China, which considers Myanmar an important source for natural resources that include oil, seafood, high quality hardwoods, jade and other gem stones, would also likely veto a referral.
But it’s possible Russia and China would wish to avoid antagonizing the many predominantly Muslim countries who sympathize with the Rohingya, a Muslim minority that has been persecuted for both ethnic and religious reasons by Myanmar’s armed forces, and by mobs who have been egged on by extremist Buddhist monks. In such circumstances, Russia and China may not want to be blamed for permitting genocide to go unchecked.
It is up to other members of the Security Council, particularly the United Kingdom, as the former colonial power in Myanmar, and the United States, to mobilize support for referral of Myanmar’s crimes to the ICC.
The U.S. Ambassador to the UN, Nikki Haley, has been outspoken in condemning the crimes against the Rohingya. If the U.K. and the U.S. make this a priority, those responsible for the terrible crimes against the Rohingya could be held accountable and that genocide will not go unpunished. But now, with Bolton’s scathing remarks about the ICC and its legitimacy, that hope for justice appears even more elusive.