Legal wars: NUG vs the military Junta in court (eng+ita)Last week the National Unity Government (NUG, the parallel government that opposes the military coup), accepted the International Criminal Court (ICC) jurisdiction. The move is an attempt to hold bring the Burmese military in front of a court for its (past and present) crimes against humanity.
By ratifying or acceding the Rome Statute or by lodging article 12(3) (as NUG did), States can delegate their jurisdiction the ICC to investigate and prosecute mass-atrocity crimes committed in their territory or by their nationals.
Today the military Junta amended Section 311 of the Penal Code, adding “genocide” to a series of other crimes, making it punishable with death and a fine (!).
One possibile reason for this amendment is article 17(1)(a) of the Rome Statute of the International Criminal Court:
Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where:The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;
By starting its own investigation, the Tatmadaw probably hopes to block the case from being admitted to the ICC. But the “key” word is “unwilling” to carry out the prosecution.
As explained in article 17(2)(a):
The proceedings were or are being undertaken or the national decision was made for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court referred to in article 5;
If the Tatmadaw’s intention is to start an investigation on the Rohingya crisis, for example, it would pretty clear that its purpose is to shield itself from criminal responsibility. The fact that the Tatmadaw itself amended the penal code, and the fact that the Judiciary system is controlled by the Tatmadaw itself, would turn any investigation in a farce.
It is also possible that the Junta is trying to buy time with this move. General Min Aung Hlaing is 65 years old.
Sudan’s dictator Al-Bashir case started in 2005, when the UN referred the 2003 Darfur Genocide to the ICC. The first warrant for arrest was issued in 2009. In 2019, after 5 months of protests, Al-Bashir was removed by the Sudanese Armed Forces and arrested. Few days ago the Sudanese Council of Ministers finally decided to hand Al-Bashir over to the ICC.