Published: 16 December 2019 Author: Stefan Talmon DOI: 10.17176/20220127-112409-0
On 11 November 2019, the Republic of The Gambia instituted proceedings against the Republic of the Union of Myanmar before the International Court of Justice, alleging violations of the Convention on the Prevention and Punishment of the Crime of Genocide through “acts adopted, taken and condoned by the Government of Myanmar against members of the Rohingya group”. The Gambia argued that during military operations against the Rohingya group, in particular since August 2017, the Myanmar military and other Myanmar security forces had committed genocidal acts which were intended to destroy the Rohingya as a group, in whole or in part, by the use of mass murder, rape and other forms of sexual violence, the systematic destruction by fire of their villages, as well as so-called “clearance operations”.
While Germany did not provide any legal assessment of the events in Myanmar and, in particular, did not pronounce on the question of whether the events in Rakhine in August 2017 amounted to genocide the Federal Government made several declarations on what it termed the “Rohingya crisis” or the “Rohingya refugee crisis” which may help to shed some light on these events. In August and September 2017, the Federal Government referred to the events as “violent clashes between Rohingya rebels and the military.” It described the situation as follows:
“To the knowledge of the Federal Government, the ‘Arakan Rohingya Salvation Army’ [ARSA] is an armed group that – like many other armed groups in Myanmar – has been repeatedly involved in violent clashes with the Myanmar military and other Myanmar security forces.”
“After attacks on security forces [by the ARSA] in late August 2017, Myanmar’s military launched large-scale military countermeasures in North Rakhine, causing more than 700,000 Rohingya to flee across the border into Bangladesh where they have been living since in refugee camps under difficult conditions.”
Due to a lack of verifiable information on events on the ground the Federal Government initially called on “all sides” to refrain from any violence against unarmed civilians, exercise restraint, de-escalate tensions and fully observe international human rights law. On 25 October 2017, the German ambassador to Myanmar stated:
“The humanitarian and human rights situation in Rakhine state is extremely serious and deeply worrying. Some of the facts are very hard to ascertain. We know of the terrorist attacks by the ARSA. But we are not quite sure what happens [sic] afterwards. The reactions of the army was expected and would have happened in other countries, but we do not know how widespread and intense it was […]. When we looked at the burned villages from the helicopters it appears to be very systematic burning […] there must have been a lot of intimidation for 600 000 people to flee their homes.”
Subsequently, however, the language used by the Government changed. In the second half of 2018, the Federal Government referred to the events in Rakhine state as “widespread and severe violations of human rights by the Myanmar armed forces and security forces.” On 18 September 2018, Germany stated in the Human Rights Council:
“We are alarmed by the well-documented cases of most severe human rights violations, which point to crimes against humanity and war crimes as well as genocide. Civilians in Rakhine, Kachin and Shan have suffered from mass killings, large-scale rape and other sexual violence, grave violations against children, and the systematic destruction of entire villages. These crimes built up on decades of discrimination and marginalization of the targeted communities. In Rakhine, hundreds of thousands of Rohingya were forced to leave their homes.”
In March 2019, Germany reiterated that in “particular in Rakhine, Kachin and Shan states we witness massive violations, some of which seem to amount to genocide and crimes against humanity.”
From the outset, the Federal Government was aware that some of these serious human rights violations may have amounted to crimes against humanity. As early as 6 September 2017, the Federal Government referred to reports of “crimes against humanity” in Rakhine but noted that an “independent verification of these allegations is not possible due to lack of access.” The German ambassador to Myanmar also pointed out in abstract terms that crimes against humanity were not acceptable and had consequences without, however, labelling the events in Rakhine as such. Once a clearer picture of the events emerged, the Federal Government became more outspoken. When asked about its activities in connection with alleged crimes against humanity, war crimes and genocide against the Rohingya, the Federal Government declared:
“The Federal Government supports the referral of the entire situation in Myanmar to the International Criminal Court by the United Nations Security Council. From the Federal Government’s point of view, only a referral by the Security Council can establish the comprehensive jurisdiction for the entire situation.”
The jurisdiction of the International Criminal Court (ICC) is limited to the crime of genocide, crimes against humanity and war crimes. By advocating referral of the situation in Myanmar to the Prosecutor of the ICC by the Security Council acting under Chapter VI of the UN Charter, the Federal Government made it clear that, in its view, one or more of such crimes “appears to have been committed” in Myanmar. This view also seems to have been shared by the Federal Prosecutor General who opened a case file observing the situation in Myanmar with regard to its implications under the German Code of Crimes against International Law which provides for universal jurisdiction for the investigation and prosecution of the crime of genocide, crimes against humanity and war crimes.
The Federal Government was in favour of including in the resolutions on the human rights situation in Myanmar an express call upon the Security Council to refer the situation in Rakhine to the ICC. No such call was included in the resolutions of United Nations General Assembly and the Human Right Council. However, in September 2018 the Human Rights Council established “an ongoing independent mechanism to collect, consolidate, preserve and analyse evidence of the most serious international crimes and violations of international law committed in Myanmar since 2011, and to prepare files in order to facilitate and expedite fair and independent criminal proceedings”, inter alia, in “international courts or tribunals that have or may in the future have jurisdiction over these crimes, in accordance with international law” – leaving open the possibility of a referral to the ICC at a later stage. The Federal Government took the view that the remit of the independent mechanism includes “the prosecution of serious crimes that affect the international community as a whole. These include genocide, crimes against humanity and war crimes as codified in Articles 6 to 8 of the Rome Statute.”
The Federal Government is not a court of law. It is therefore neither called upon nor equipped to pronounce on whether the situation in Rakhine amounted to the crime of genocide, crimes against humanity or war crimes. On the basis of the information available to it and in light of the culture of impunity at the domestic level, the Federal Government however seems to have taken the position there is a reasonable basis for the ICC Prosecutor to conduct an investigation into the situation in Myanmar with regard to these crimes.
Category: International criminal law