26 Mar UK: Send Burma to the ICC
Every time that I teach international criminal law, at least one student writes on whether you could prosecute the Burmese junta for crimes against humanity. As a matter of substantive ICL, the answer is clearly yes. The problem is jurisdictional — who is going to prosecute them? Apparently, the UK thinks it should be the ICC via a Security Council referral:
Britain is backing moves to refer Burma’s military leaders to the international criminal court for investigation into war crimes and crimes against humanity. The move is part of a heightened campaign to force the junta to embrace genuine democratic reforms, diplomatic and government sources told the Guardian today.
In a tough démarche that will increase pressure on the isolated regime ahead of planned elections this autumn, Britain’s ambassador to the UN said the UK supported a recommendation by the UN special rapporteur on human rights in Burma that The Hague-based international court opens a war crimes investigation.
[snip]
Welcoming Britain’s backing for an ICC referral, Anna Roberts, the director of Burma Campaign UK, said: “The generals in Burma will never allow justice and democracy … Rather than engaging with the fake elections, the international community should focus on putting the generals in jail, where they belong.”
The campaign to bring war crimes charges against junta members, including General Than Shwe, Burma’s de facto head of state, received a boost this month when the UN’s special rapporteur, Tomás Ojea Quintana, described “a pattern of gross and systematic violation of human rights” of Burmese civilians. The abuses, including killings, rape, torture, ethnic cleansing and forced labour, were the result of long-standing state policy, he said.
This is an excellent idea — but, as the UK representative notes, the Security Council is “not sufficiently unanimous.” What he means is that any attempt to refer Burma to the ICC would almost certainly be vetoed by Russia and China, both of whom (see here and here) have major energy interests in Burma and who have vetoed previous Security Council attempts to condemn the regime.
I couldn’t think of anything better for the ICC to do.
The real problem is that referral to the ICC requires a UNSC Resolution specifically based on Chapter VII of the UN Charter -“Threat to the Peace” – and China and Russia, like every country within a radius of 2,000 miles of Burma, says there is no threat to the peace. In the case of Darfur, China and US abstained in the voting on doctrinal grounds in 2005, but Russia voted in favour even though, like China and the US, they have not acceded to the Rome Statute. The US would no doubt vote for a Burma referral, but Russia and Chia would oppose. For the present, then, end of story.