Consequently, To find the State Counsellor liable, it must

Consequently, there is sufficient evidence to suggest that
General Min Aung Hlaing could be liable through indirect perpetration or via
direct superior responsibility for Crimes Against Humanity.

The de facto leader of Myanmar (State Counsellor), Aung San
Suu Kyi, may also be liable under international law.
Indirect superior responsibility concerns a failure to prevent or punish those
responsible. To establish liability in this regard, the accused must first have
effective control in relation to the subordinates and must have the ‘material
ability’1
to prevent or punish commission of the crimes. As the de facto leader of the
civilian government, Aung San Suu Kyi should have the material ability to
punish and prevent the commission of offences.

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However,
under Article 28(b)(ii)2
of the Rome Statute, a superior can only be responsible for acts within their ‘effective
responsibility and control.’ Here, although the State Counsellor is the leader
of the civilian government, she ‘has little if any control over the country’s
military forces that are enacting the brutal campaign.’3
Under the Constitution, the State Counsellor does not dictate the actions of
the Commander-in-Chief.4
Therefore, it is debateable whether Aung San Suu Kyi would in fact have control
over the subordinates in this instance.

Although
doubtful given the current situation, if it was argued that the State
Counsellor did have an influence over the subordinates, the mental element of
indirect superior responsibility would also have to be established. A lower
standard applies to non-military superiors. Under Article 28(b)(i) of the Rome
Statute, the State Counsellor must have either known or ‘consciously
disregarded’ any information indicating that crimes were about to be, or were
already being committed. Here, the State Counsellor is aware the crimes
committed, demonstrated by her avoidance of public questioning.5

To
find the State Counsellor liable, it must also be proven that she failed to
take preventative measures to repress the commission of crime.6
By doing nothing, there is clearly liability in this regard. The superior is not
required to punish the subordinates herself7
although she must do what is necessary and reasonable in the circumstances.8
Under the Rome Statute, there is an additional element of causation. However,
despite the Statute suggesting that the failure to act should have caused the
attacks to happen, case law has held otherwise.9
The superior’s omission must now increase the risk of the commission of certain
crimes by subordinates.10
It is also doubtful that her omission has done so, as it appears she has little
influence over the General.

In
conclusion, it is unlikely that the State Counsellor will be found liable for
Crimes Against Humanity, although her lack of action is highly problematic.

Other leaders, such as Major Maung Maung Soe11,
may also be liable for this offence. Although he has recently been relieved of
his duties for unspecified reasons, reports indicate that his unit ‘was
disproportionately involved in some of the worst crimes.’12

 

Conclusion

The Government support for military operations against the
Rakhine State, as well as its repeated dismissal of alleged abuses make it
highly unlikely that the Government will press for the credible investigation
and prosecution of Crimes Against Humanity in Myanmar. The only method
available to bring those responsible to justice is through the ICC, as above.

However, Myanmar are not a party to the Rome Statute. Therefore
the easiest way to seek justice in this instance, would be through a United
Nations Security Council referral. Nevertheless, achieving an ICC referral in
the current political environment would be problematic due to China and
Russia’s likely opposition, based on their current relationship with Myanmar.

It is therefore highly unlikely that the General will ever be
brought before the ICC, or at least not in the foreseeable future, prompting melancholic
questions about the future of the Rohingya ethnic minority.

Statute has developed and codified Crimes Against Humanity
precisely to address the sort of criminal conduct being perpetrated in Myanmar.
Whilst the ICC is ‘predominately a signal of hope for people who have endured
unspeakable atrocities’13,
it is evident that Myanmar’s path to prosperity via the ICC has been be
derailed.

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