THE public statement of ICC prosecutor Karim Khan KC on the arrest warrant application against General Min Aung Hlaing during his recent visit to Bangladesh is a long-awaited but anticipated development in the ICC鈥檚 quest to ensure justice for the deported Rohingya population currently taking shelter in Bangladeshi refugee camps.
It is alleged that the acting president of Myanmar and commander-in-chief of the Myanmar Defence Services bears criminal responsibility for the crimes against humanity of deportation and persecution of the Rohingya. Now, the matter is pending final determination before a pre-trial chamber of the ICC. The ICC prosecutor further indicated that he may come up with more arrest warrant applications against top-ranked Burmese leaders in the Bangladesh-Myanmar situation.
The arrest warrant application resulted from the five-year-long investigation of the ICC鈥檚 Office of the Prosecutor. This development surfaced at a time when the ICC has been struggling with the fallout of its activities in other situations, notably the Palestine situation. Though the Office of the Prosecutor began its formal investigation in November 2019 following the authorisation of the pre-trial chamber, its procrastination in issuing arrest warrants against alleged Myanmar accused, despite mounting evidence, was widely criticised by the international community.
The Bangladesh/Myanmar situation is noted for its unique procedural history. The ICC, being a treaty-based international court, can generally exercise its jurisdiction over its member states. It was initially believed that the ICC did not enjoy any jurisdiction over the Rohingya situation due to Myanmar鈥檚 status as a non-party state to the Rome Statute.
Nevertheless, given the transboundary nature of the Rohingya deportation and Bangladesh鈥檚 status as a party to the Rome Statute, the then ICC prosecutor Fatou Bensouda took the unbeaten path to request the pre-trial chamber for a ruling to confirm the ICC鈥檚 jurisdiction over the deportation. Finally, the chamber confirmed the ICC鈥檚 jurisdiction over the Rohingya deportation on September 6, 2018 since the alleged crimes commenced in Myanmar but were completed in Bangladesh. However, the ICC does not enjoy jurisdiction over all the crimes committed completely in Myanmar for the same.
In the aftermath of the ICC鈥檚 confirmation of jurisdiction over the Rohingya deportation and persecution, the erstwhile prosecutor commenced the preliminary examination on the basis of her proprio motu power. She subsequently requested authorisation for an investigation before the pre-trial chamber on June 12, 2019, which was duly confirmed on November 14, 2019. As mentioned earlier, the prosecutor finally filed an arrest warrant application against General Hlaing on November 27, 2024.
This complex and time-consuming procedural patchwork is important to understand the nature of the arrest warrant application and its prospects. In fact, the ICC is reputed for its lengthy procedural timelines. It has been evident that the Office of the Prosecutor was relatively abrupt in commencing its investigation. On the contrary, it took an unusually lengthy time to proceed to the arrest warrant application despite having a wealth of incriminating evidence at its disposal, primarily collected by UN investigative bodies and subsequently by the Office of the Prosecutor itself.
While the ICC was deeply involved in the Ukraine and Palestine situations with investigations and arrest warrant applications in the last three years, its omission to shed light on the Bangladesh/Myanmar situation was marked by dismay among the Rohingya community. Ultimately, the prosecutor鈥檚 announcement of the arrest warrant application while standing in the Rohingya refugee camp in Cox鈥檚 Bazar is really significant for the Rohingya community.
The arrest warrant application has both symbolic and legal value. Legally, the application is subject to confirmation by a pre-trial chamber. It is very unlikely that the pre-trial chamber will decline to confirm the same. Very recently, the ICC issued arrest warrants against Russian president Vladimir Putin and Israeli prime minister Benjamin Netanyahu despite their political sensitivity. Though the Myanmar leadership has some politically powerful allies, including China, the fact that the president of a permanent member of the UN Security Council has been subject to an ICC arrest warrant indicates that the ICC will rely on legal considerations rather than political repercussions while ruling on the arrest warrant.
The arrest warrant application against General Hlaing invites some inevitable legal complications. Most importantly, the Rome Statute does not provide for trials in absentia. Consequently, the issue of producing General Hlaing comes to the forefront. At this instance, his status as the head of state will be a hurdle in securing his presence before the ICC. This is due to the question of the immunity of high-ranking government officials, which is alleged to be unsettled in international law.
The ICC has been struggling to arrest several incumbent heads of state and heads of government of non-party states to the ICC. It has been an issue of legal and political discontent between the ICC and a number of ICC member states. These include Omar al-Bashir, Vladimir Putin, and, very recently, Benjamin Netanyahu. The arrest warrant application against General Hlaing, if ultimately issued, will resurface the same issue.
The absence of the accused before the ICC means the halt of the proceedings of a case. In that case, General Hlaing may succeed in escaping ICC proceedings by avoiding the arrest warrant. But it will not prevent him from facing the political consequences. He will be forced to rethink his international travel routes for the rest of his life. Global leaders will also reconsider their political and financial dealings with an ICC accused like him.
It has been seen in the past that arrest warrants issued by international criminal courts and tribunals have also impacted the ground realities of conflicts. When Myanmar is struggling in its domestic war theatre against rebels, this arrest warrant application, coupled with the prosecutor鈥檚 intention to lodge additional applications, will certainly affect the morale of the Myanmar military leadership. It will not be completely surprising if this arrest warrant application impacts the overall conflict situation in Myanmar.
The arrest warrant application can also be seen as a symbolic victory for the Rohingya community. It has already been seven years since the Rohingya were deported from their homeland to Bangladesh. Despite the hope for justice brought by the ICC in the early days of its investigation back in 2019, its delay in issuing arrest warrants despite two rounds of visits by prosecutor Karim Khan to Bangladesh raised questions about the effectiveness of the ICC itself. With this arrest warrant application in place, the Rohingya community will regain the moral strength to rethink their quest for justice and accountability.
This arrest warrant application also coincides with Myanmar鈥檚 application for extending the deadline for submitting its response to The Gambia鈥檚 allegation of the Rohingya genocide before the International Court of Justice, ICJ. It indicates that the junta-led Myanmar government will contest the ICJ case. It was speculated that Myanmar might opt to remain absent in the merits stage before the ICJ after its defeat in the preliminary objections stage. However, the indication that Myanmar will participate in the ICJ proceedings should be welcomed by the Rohingya community because it is preferable to have a hard-won legal battle than an overwhelming ex parte judgement.
Bangladesh should also take this moment to reinforce its diplomatic efforts to secure the safe and dignified repatriation of the Rohingya community at both bilateral and multilateral levels. At the same time, Bangladesh should reconsider intervening in the Rohingya genocide case before the ICJ.
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Quazi Omar Foysal is an international law expert. He was part of the amicus curiae observation submitted by Bangladeshi non-government representatives in support of the ICC Prosecution鈥檚 request for jurisdiction over the Rohingya deportation.