The International Court of Justice cannot deal with what the military is doing to the people of Myanmar today because Daw Suu and the NLD failed for five years to ratify or accede to the Rome Statute. They have no one to blame but themselves.
On 1 February 2021, Myanmar’s military, the Tatmadaw, launched a coup to topple the civilian side of the government. Its first arrests were of the State Counsellor Aung San Suu Kyi and President U Win Myint. These have been followed by more than 2000 others: leaders of the National League for Democracy, leaders of other political parties and civil society organisations, and protesters. Almost all of those arrested are still detained. Do these detentions violate international law?
The principal prohibition of arbitrary detention is found in the International Covenant on Civil and Political Rights (ICCPR) Article 9, which says:
“Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention”.
The ICCPR also requires humane conditions of detention. It provides for freedom of opinion and expression, freedom of association and the right to peaceful assembly.
Myanmar has not ratified or acceded to the ICCPR (ratification and accession are slightly different legal processes but they have the same legal result: the country become a state party to the treaty and is bound in law by its provisions). Myanmar has also not ratified or acceded to a number of other core international human rights treaties, including:
- the Convention against Torture,
- the Convention on the Elimination of Racial Discrimination and,
- the Convention on Enforced Disappearances.
Because it is not a party to these treaties, Myanmar is not bound by their provisions and cannot be considered to have violated their provisions.
In addition to treaty law, international law has provisions in customary law that bind all states. The content of customary law, however, is contested. It is discerned from the practice of states based on a perceived obligation. There is an argument about what human rights are included in customary law. Certainly, when the Universal Declaration of Human Rights (the UDHR) was adopted in 1948, it was not directly binding, because it was not a treaty, and it was not part of customary law. Some international lawyers argue that since then, all the UDHR has passed into customary law. I’m one of those. Others say some of it has. Others still deny that any part of the UDHR is now customary law.
UDHR Article 9 says:
“No one shall be subjected to arbitrary arrest, detention or exile.”
Perhaps this provision is now part of customary law and so binding on Myanmar. Maybe it’s not and so under international law, the Myanmar generals can detain whoever they like, including Aung San Suu Kyi.
The NLD’s failure
If Aung San Suu Kyi’s arbitrary detention is not unlawful under international law, she has no one to blame but herself. For the last five years, Daw Suu has been State Counsellor and Minister for Foreign Affairs. Her party’s nominee has been President. She controlled around 60 per cent of the seats in the last parliament. The military has no legal or practical power to veto the ratification of treaties. At any time in the last five years, Myanmar could have ratified or acceded to the ICCPR and the other core human rights treaties and would then have been bound by their provisions. Daw Suu and the NLD did not do so.
The Rome Statute of the International Criminal Court
In their five years running the civilian side of the government, Daw Suu and the NLD also failed to ratify or accede to the Rome Statute, the treaty establishing the International Criminal Court (ICC). Therefore, the ICC only has jurisdiction in respect of Myanmar if the Security Council refers Myanmar to the ICC (which the Security Council has not and will not because China and Russia will veto such a resolution) or if a crime under the Rome Statute is partially committed in another state that is a party to the Rome Statute (and thus the forcible deportation of the Rohingya in 2017 comes under the ICC’s jurisdiction because Bangladesh is a party). Daw Suu and the NLD could have brought Myanmar within the jurisdiction of the ICC at any time during the past five years. They could even have backdated the jurisdiction to cover crimes committed since July 2002. They didn’t.
There is a bitter irony for the people of Myanmar, then, when NLD leaders (those not in detention) now describe the military’s actions as crimes against humanity and call for international intervention and referral to the ICC. The ICC cannot deal with what the military is doing to the people of Myanmar today because Daw Suu and the NLD failed for five years to ratify or accede to the Rome Statute. They have no one to blame but themselves.
What is to be done?
Yet all is not lost. No state has yet recognised the military regime as the legitimate government of Myanmar. With Daw Suu and U Win Myint in detention and incommunicado, the recently elected NLD parliamentarians are in the process of establishing an interim government. The Myanmar ambassador to the UN in New York has declared his allegiance to the interim government and the UN may soon recognise him as such. If the UN accepts the NLD-led interim government as the legitimate government of Myanmar, that government will be able to act internationally on behalf of Myanmar. Among other things, it will be able to ratify or accede to international treaties.
One of the first acts of the new government should be accession to the Rome Statute and the international human rights treaties to which Myanmar is not a party. That won’t cost it a cent. All it must do is lodge the necessary documents. Then Senior General Min Aung Hlaing, Vice Senior General Soe Win and all the other generals, colonels, majors and captains, right down through the ranks, can be held to account before the ICC. Then the arbitrary detentions of State Counsellor Aung San Suu Kyi, President Win Myint and all the other 2000 detainees will be violations of international law. So too will be the breaking up of peaceful demonstrations and assemblies, the closure of independent media outlets and the hacking of social media.
The new interim government has an opportunity to correct some of the failings of the NLD government over the past five years. Nothing will send a clearer signal to the generals, to Myanmar’s people and internationally that the military’s time is up.