The ICC headquarters at The Hague. Resolving the Rohingyas’ plight may eventually entail bringing the issue here to establish a special tribunal for Myanmar.

CAN Myanmar’s military regime be brought to the International Criminal Court (ICC) at The Hague to face charges of committing crimes against humanity, and genocide?

Since Myanmar has not acceded to the Rome Statute (and, therefore, not a state party subject to the ICC), it has been suggested that the first step to be taken in that direction is to get the United Nations Security Council to refer the Rohingya issue to the ICC under Chapter VII of the UN Charter — principally Article 39, read together with Articles 41 and 42.

In April 2013, the Burmese Rohingya Organisation UK (BROUK) had called on the British government to refer Myanmar to the ICC, so that a full investigation could be carried out and those responsible for committing ethnic cleansing (genocide) and crimes against humanity could be brought to justice.

BROUK did so after considering Human Rights Watch’s (HRW) 153-page report, “All You Can Do Is Pray”, describing the atrocities committed against the Rohingya people in 2012.

Myanmar had ratified the four Geneva Conventions of 1949 in August 1992, but not the additional protocols. It has also ratified the Genocide Convention of 1948 on March 14, 1956.

The crime of genocide is defined in article 2 of the Genocide Convention as the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, such as:

KILLING members of the group;

CAUSING serious bodily or mental harm to members of the group;

DELIBERATELY inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

IMPOSING measures intended to prevent births within the group; and,

FORCIBLY transferring children of the group to another group.

Under Article VIII of the Genocide Convention, any contracting party may call upon the competent organs of the UN to “take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in Article III”.

The acts enumerated in Article III are genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide and complicity in genocide.

Malaysia, having ratified the Genocide Convention on Dec 20, 1994, can call upon the Security Council under the above provision of the Genocide Convention to take such actions as it considers appropriate.

The case of Yugoslavia can be used as an example. When the atrocities in former Yugoslavia made the headlines, the Security Council acted under Chapter VII of the UN Charter and passed Resolution 780, noting that “mass killings” and “ethnic cleansing” mandated the creation of an “Impartial Commission of Experts” to investigate the crimes. The Security Council subsequently created the International Criminal Tribunal for the former Yugoslavia under Resolution 827.

Similar actions had also been taken by the Security Council in the past in respect of incidents in Sierra Leone, Rwanda, Liberia and Darfur.

If referral by the Security Council on Myanmar can be followed by investigations and then prosecutions at the ICC, such prosecutions can only be in respect of crimes committed after July 1, 2002, when the Rome Statute (establishing the ICC) came into force. For crimes committed before that date, an ad hoc Tribunal needs to be published to try the perpetrators of those crimes. In other words, if the Security Council agrees to refer the Rohingya issue to the ICC, it can also establish a special Tribunal for Myanmar.

Will be there any obstacle in obtaining a Security Council referral to the ICC? The answer to that is obviously “Yes”. A veto vote can come from any of its three permanent members — China, Russia and the United States. However, if comparison can be made with the Darfur referral, China and the United States did not veto the resolution, but rather abstained. The referral went through because an abstention is not the same as a veto.

In January 2007, a resolution on Myanmar was put forward by the US, the United Kingdom and Northern Ireland. Although the resolution was supported by nine votes, with three abstentions (Congo, Indonesia and Qatar), there were three “No” votes by China, Russia and South Africa.

The Security Council failed to adopt its resolution on Myanmar because of vetoes by China and Russia.

The arguments given for the veto were that “it was an internal matter of a sovereign state” and that the situation in Myanmar “was not a threat to international peace and security”.

It must be noted that earlier failed attempt by the Security Council took place before the atrocities in Myanmar in 2012, as disclosed in the HRW report. As the international community had witnessed, the genocide and crimes against humanity committed in that state had since led to the massive exodus of the boat people into Malaysia and other countries in this region.

Malaysia became a non-permanent member of the UN Security Council on Oct 16, last year. This membership is for a period of two years, from January until December next year. Currently, Malaysia holds the chair in Asean.

This is the most opportune time for Malaysia to show leadership in resolving the Rohingya humanitarian crisis and to seek justice of the Rohingya people in Myanmar as well as the thousands of refugees and asylumseekers in several countries.

Taking the case under Chapter VII of the United Nations Charter to have the Security Council refer the Rohingya case to the ICC this time around may very well get the full support of all three permanent members of the Security Council. If that happens, the ICC can begin its investigation, followed by prosecution. It can also establish a special tribunal for Myanmar.