Myanmar Says It Will Not Work with ICC on the Court's ‘Meritless’ Rakhine Case

By The Irrawaddy 9 August 2018

YANGON—The Myanmar government announced on Thursday that it will not engage with the International Criminal Court (ICC) as it considers whether to open a case over the alleged deportation of hundreds of thousands of Rohingya Muslims to Bangladesh.

In June, the ICC asked Myanmar to respond by July 27 to a request made in April that the ICC exercise jurisdiction over the alleged crimes. The ICC asked Myanmar to submit its views on the court’s jurisdiction and the circumstances surrounding the movement of Rohingya across the border into Bangladesh.

Around 700,000 people, mostly Rohingya, have fled to Bangladesh since the Myanmar military (or Tatmadaw) launched clearance operations in northern Rakhine State in response to the Arakan Rohingya Salvation Army (ARSA)’s attacks on security outposts in August 2017. The government denounced ARSA as a terrorist group, while the UN has called the Tatmadaw’s operations “ethnic cleansing”.

In June, the Myanmar President’s Office said it would not respond to the request and called the ICC’s demand a deliberate attempt to increase international pressure on the government.

Myanmar’s official response to the court’s request came in the form of a statement released on Thursday by the State Counselor’s Office. The statement said that in its view, the court’s jurisdiction was ‘meritless and should be dismissed.’ In support of this position it cited 20 points in five categories including bad faith, procedural framework irregularities and lack of transparency.

The government’s first point was that Myanmar is not a State Party to the Rome Statute, the treaty that established the ICC.

The statement goes on to say that the prosecutor appeared to have ignored the fact that the UN Security Council issued a presidential statement stressing the need for a transparent investigation into alleged human rights abuses while, at the same time, recognizing Myanmar’s sovereignty and territorial integrity.

“Respect for Myanmar’s sovereignty would permit [the continuation of investigations into] violations of international humanitarian law, whether committed by [Myanmar’s] own forces or by elements hostile to the Government authorities such as the forces of the Arakan Rohingya Salvation Army,” it said.

Pointing to what it claimed were irregularities in the court’s procedural framework, the government pointed out that the ICC prosecutor “had not sought the opening of an investigation by virtue of her proprio motu powers.” “Proprio motu” refers to an act taken at the initiative of an agency or authority, often a court, without being requested to do so by another party.

“By her actions she has ‘put the cart before the horse’ by approaching the pre-trial chamber for a ruling on jurisdiction before conducting a preliminary examination,” the announcement said.

It added that Myanmar and Bangladesh had signed agreements to facilitate repatriation of verified residents of Rakhine State who crossed over to Bangladesh after terrorist attacks in 2016 and 2017. The announcement also mentioned other MoUs signed between the government and the UNDP and UNHCR securing UN participation in humanitarian aid and development in Rakhine, as well as the recent formation of an independent commission of enquiry into allegations of human rights violations and related issues following the attacks by ARSA.