Earlier this week, the Independent International Fact-Finding Mission on Myanmar released its report on the human rights situation in Myanmar, covering the atrocities committed against the Rohingya people in Rakhine state in August last year.
The report describes unimaginable horrors. It describes a 'scorched earth campaign' in which entire villages were destroyed, and mass killings, in some cases involving hundreds of people. It describes soldiers firing indiscriminately, houses locked up and set on fire, and large-scale gang rapes – often in public spaces in front of families and communities. Children were killed in front of their parents, and parents in front of their children. The report described as 'conservative' an earlier estimate that at least 10,000 people were killed.
The report said that the Myanmar military, known as the Tatmadaw, were responsible for the crimes, and that there was sufficient information to warrant senior Tatmadaw officials being tried for genocide.
You'd like to think that now the crimes have been so authoritatively documented, we can rest assured that the perpetrators will be held to account. The International Criminal Court (ICC) was established for just these sorts of situations, and has jurisdiction over the types of crimes committed against the Rohingya. Myanmar is not a party to the ICC Statute, but the jurisdiction of the Court can be invoked if the Security Council passes a resolution referring the situation to the ICC. This was the course of action recommended by the Fact-Finding Mission, and is the only morally defensible path available to the Security Council.
Unfortunately, recent years have shown that the Security Council cannot always be relied upon to do the right thing when it comes to international peace and security. The aspiration in 1945 that Council members would act as trustees for the international community, setting aside national interests to act in the common good, has been debunked.
Despite overwhelming evidence regarding the atrocities against the Rohingya last year, which the UN High Commissioner for Human Rights described as a 'textbook case of ethnic cleansing', the Security Council has failed to take any meaningful action to either deter further atrocities or hold perpetrators to account. The Council did have a series of meetings on Myanmar last year, and in November France and the UK drafted a resolution condemning the atrocities and calling for an end to the violence, but the initiative was blocked by China who didn't want a Security Council 'outcome' on Myanmar. To get China onboard the Council settled for a non-binding 'presidential statement', which said nothing much about accountability.
In May this year a group of diplomats from the Security Council visited Myanmar, and they pledged that on return to New York, they'd do something. But nothing was done then, and there's reason to fear nothing will be done now. When the Council was briefed on the findings of the Fact-Finding Mission on Tuesday, Russia and China (both of whom have the power of veto over any resolution passed by the Security Council) urged a 'patient approach', and for the situation to be resolved through bilateral diplomacy.
The UN Charter endows the Security Council with primary responsibility for the maintenance of international peace and security. But this responsibility is not exclusive. Maintaining international peace and security is a purpose of the UN writ large, not just of the Security Council, and thus it's also the responsibility of the General Assembly. That the General Assembly has a secondary responsibility in relation to international peace and security is well established in international jurisprudence.
In other words, if the Security Council fails to exercise its responsibility, the international community cannot just shrug and put accountability for crimes against the Rohingya in the too-hard basket. The General Assembly should act, and it can do so in three ways.
First, it should establish an independent mechanism to collect, preserve and analyse evidence of violations and abuses and to prepare files to facilitate and expedite criminal proceedings. This was recommended by the Fact-Finding Mission.
Second, the General Assembly could pass a resolution urging the Security Council to refer the situation in Myanmar to the ICC. The Assembly is authorised by the UN Charter to make recommendations to the Security Council, and it has done so in the past, including specifically to urge referrals to the ICC (in relation to North Korea in 2014).
Third, and in the likely event that the entreaties of the General Assembly prove insufficient to move the Security Council to act, there is a solid argument in international law that the General Assembly can assume functions analogous to the Security Council, where the Council has failed to exercise its primary responsibility for international peace and security. It's competency to do so was articulated in 1950 in the Assembly's Uniting for Peace resolution, passed to circumvent the Soviet veto in relation to the Korean War. That resolution resolved that if the Council failed to exercise its primary responsibility for international peace and security, the Assembly would consider the matter in relation to which the Security Council had failed, and make appropriate recommendations, including on the use of force.
In relation to Myanmar, the assumption of such a role by the General Assembly could feasibly enable it to establish an ad hoc tribunal with jurisdiction over the crimes described by the Fact-Finding Mission (a similar recommendation to the General Assembly was made by former High Court Judge Michael Kirby in relation to North Korea in 2014). Such an ad hoc tribunal could not enforce cooperation from States, because General Assembly resolutions are not binding, but General Assembly resolutions have significant legitimacy, and failure to cooperate could be politically difficult for Myanmar.
It's not a silver-bullet solution, and it shouldn't even be necessary to examine ways to mitigate the impact of Security Council failure, because the Security Council should just do its job. But it's better than shirking responsibility altogether, and we owe it to the Rohingya people to explore all possible means for holding the perpetrators of the crimes against them to account.