Consequently, there is sufficient evidence to suggest thatGeneral Min Aung Hlaing could be liable through indirect perpetration or viadirect superior responsibility for Crimes Against Humanity.The de facto leader of Myanmar (State Counsellor), Aung SanSuu Kyi, may also be liable under international law.Indirect superior responsibility concerns a failure to prevent or punish thoseresponsible. To establish liability in this regard, the accused must first haveeffective control in relation to the subordinates and must have the ‘materialability’1to prevent or punish commission of the crimes. As the de facto leader of thecivilian government, Aung San Suu Kyi should have the material ability topunish and prevent the commission of offences. However,under Article 28(b)(ii)2of the Rome Statute, a superior can only be responsible for acts within their ‘effectiveresponsibility and control.
‘ Here, although the State Counsellor is the leaderof the civilian government, she ‘has little if any control over the country’smilitary forces that are enacting the brutal campaign.’3Under the Constitution, the State Counsellor does not dictate the actions ofthe Commander-in-Chief.4Therefore, it is debateable whether Aung San Suu Kyi would in fact have controlover the subordinates in this instance. Althoughdoubtful given the current situation, if it was argued that the StateCounsellor did have an influence over the subordinates, the mental element ofindirect superior responsibility would also have to be established. A lowerstandard applies to non-military superiors.
Under Article 28(b)(i) of the RomeStatute, the State Counsellor must have either known or ‘consciouslydisregarded’ any information indicating that crimes were about to be, or werealready being committed. Here, the State Counsellor is aware the crimescommitted, demonstrated by her avoidance of public questioning.5Tofind the State Counsellor liable, it must also be proven that she failed totake preventative measures to repress the commission of crime.6By doing nothing, there is clearly liability in this regard.
The superior is notrequired to punish the subordinates herself7although she must do what is necessary and reasonable in the circumstances.8Under the Rome Statute, there is an additional element of causation. However,despite the Statute suggesting that the failure to act should have caused theattacks to happen, case law has held otherwise.9The superior’s omission must now increase the risk of the commission of certaincrimes by subordinates.10It is also doubtful that her omission has done so, as it appears she has littleinfluence over the General.
Inconclusion, it is unlikely that the State Counsellor will be found liable forCrimes 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 ofhis duties for unspecified reasons, reports indicate that his unit ‘wasdisproportionately involved in some of the worst crimes.’12Â ConclusionThe Government support for military operations against theRakhine State, as well as its repeated dismissal of alleged abuses make ithighly unlikely that the Government will press for the credible investigationand prosecution of Crimes Against Humanity in Myanmar.
The only methodavailable to bring those responsible to justice is through the ICC, as above.However, Myanmar are not a party to the Rome Statute. Thereforethe easiest way to seek justice in this instance, would be through a UnitedNations Security Council referral. Nevertheless, achieving an ICC referral inthe current political environment would be problematic due to China andRussia’s likely opposition, based on their current relationship with Myanmar. It is therefore highly unlikely that the General will ever bebrought before the ICC, or at least not in the foreseeable future, prompting melancholicquestions about the future of the Rohingya ethnic minority.
Statute has developed and codified Crimes Against Humanityprecisely to address the sort of criminal conduct being perpetrated in Myanmar.Whilst the ICC is ‘predominately a signal of hope for people who have enduredunspeakable atrocities’13,it is evident that Myanmar’s path to prosperity via the ICC has been bederailed.
