Case in point: Myanmar. Last year the Myanmar military led horrific attacks against Rohingya civilians in response to a dozen killings by militants. Building off similar attacks one year prior, soldiers, police, and civilians razed hundreds of villages and shot, slashed, and in some cases burned men, women and children alive. Soldiers gang-raped women and girls in plain view, killing at least several thousand civilians in the first two weeks of their self-described “clearance operations.” More than 700,000 Rohingya fled to Bangladesh.
The closest the Security Council came to action was sending a mission to meet Rohingya refugees in April.
For the past several years, my colleagues and I have supported Rohingya survivors to navigate the halls of governments and the U.N., where they’ve advocated for the Security Council to refer the situation in Myanmar to the International Criminal Court (ICC). Diplomats and officials have often cited China and the United States as two unmovable obstacles to international justice.
But our meetings with senior Trump appointees suggest otherwise.
Many in the Trump administration as well as members of Congress on both sides of the aisle are horrified by the crimes against Rohingya and want to see justice served. They know what’s at stake for Myanmar and the world if we let those who are responsible for genocide live out their lives with impunity.
Nevertheless, fierce opposition to the ICC remains in the Trump administration, championed by national security adviser John Bolton. In September, Bolton publicly denounced the ICC as “illegitimate” and threatened to impose sanctions if it attempted to prosecute U.S. nationals for any alleged crimes in Afghanistan. Bolton’s view of the court isn’t new — it goes back to the court’s founding in 2002 and hinges on an opposition to the idea that the ICC would ever have jurisdiction over U.S. nationals and officials.
Despite Bolton’s famous ire for the court, the United States could still help ensure international justice for the Rohingya. In 2005, President George W. Bush assented to the Security Council’s referral of the situation in Sudan to the ICC, despite the fact that Bolton had effectively pulled the United States out of the ICC three years earlier on Bush’s behalf.
There are other options as well. Pompeo could activate the United States’ unmatched political and economic leverage to ensure the Security Council exercises its authority under Chapter VII to establish a separate tribunal, as it has on multiple occasions, to investigate and try the crimes committed against the Rohingya. This would be consistent with recommendations by the independent U.N. Fact-Finding Mission on Myanmar as well as Rohingya advocates, and it would go a long way to addressing Pompeo’s concern that the U.N. is not serving its mission “faithfully.”
The United States and other sympathetic governments would have to incentivize China and Russia and other would-be spoilers to let justice run its course, which is not unthinkable. In the past, China and Russia stepped aside to allow referrals to the ICC and the creation of tribunals.
An ICC referral or the creation of an international tribunal to prosecute atrocity crimes in Myanmar would send helpful shock waves through the country and could deter the next round of mass killing. Sources tell us senior generals in Myanmar are worried about international justice, and as well they should be.
Critics will say the international justice system is slow and expensive, often taking decades and tens of millions of dollars to secure a single conviction. They’re correct. That’s precisely why the United States and others should work to improve it. Accepting impunity for genocide is not an option.
Nevertheless, legal accountability is not a silver bullet, which is why Pompeo should also urgently pursue other policy options on Myanmar. He should declare the crimes against Rohingya to be genocide and crimes against humanity, and then establish benchmarks for progress with the Myanmar authorities coupled with tactical support. Benchmarks could draw on 88 recommendations by a commission led by the late Kofi Annan and include targets for the restoration of full citizenship rights for Rohingya, freedom of movement, and free and unfettered access for aid groups, human rights monitors and the media. If Myanmar fails to show progress over a specified period of time, the U.S. government should consider additional sanctions.
It’s one thing to question the effectiveness of the U.N. It’s another to stand by and watch another genocide unfold — and do nothing.