Case Explained: Symposium on Prosecuting Heads of State for International Crimes: The Lengthy Wait for an Arrest Warrant for the Acting Head of State of Myanmar Before the ICC – Legal Perspective

[Muhammad Tanvir Hashem Munim is a Barrister of Lincoln’s Inn, a Counsel of the International Criminal Court, an Advocate of the Appellate Division of the Supreme Court of Bangladesh, and a defence counsel at the International Crimes Tribunal – Bangladesh (ICT-BD). He is a Lecturer on the Bar Training Course at the University of the West of England (UWE) Bristol]

Introduction

It’s been around one year and two months since the International Criminal Court (ICC) Prosecutor applied for an arrest warrant before Pre-Trial Chamber I for the Senior General and Acting President Min Aung Hlaing, Commander-in-Chief of the Myanmar Defence Services, in the Situation in Bangladesh/Myanmar. Min Aung is the head of the military junta that took power in Myanmar in a 2021 coup. While it lacks international recognition as a legitimate government, the military junta (Tatmadaw) exercises de facto control over most of the territory and has been allowed by the International Court of Justice (ICJ) to represent Myanmar in the pending proceedings for the alleged genocide against the persecuted Rohingya minority (The Gambia v Myanmar).

The Prosecutor alleges the commission of the crimes against humanity of deportation and persecution of the Rohingya, committed in Myanmar and, in part, Bangladesh, between 25 August and 31 December 2017. The crimes thus started under Myanmar’s previous, democratically elected government, but were committed by the military forces guided by the current Acting President, subject to the arrest warrant request. While there are allegations of ongoing crimes against the wider civilian population, the arrest warrant request is limited to crimes committed against the Rohingya within that timeframe. The scope of the investigation, however, is broader, as it includes any crimes within the subject-matter jurisdiction of the ICC committed after 1 June 2010, at least in part on the territory of Bangladesh or any other State Party, provided that they are sufficiently linked to the situation.

Within the “accountability ecosystem” – the available mechanisms within the existing system of international justice – for the atrocities committed against the Rohingya, the request of an arrest warrant against the de facto Head of State was a remarkable step. However, the Pre-Trial Chamber is taking an unusually long time to respond. As the request is still pending, this post advocates for the prompt issuance of an arrest warrant against Senior General Min Aung Hlaing as a necessary and urgent step to support accountability efforts.

An Arrest Warrant: A Pivotal Path towards Prosecution and Accountability

Prosecution for international crimes before the ICC only starts, technically, when a Pre-Trial Chamber issues an arrest warrant or summons an individual. The suspect is then brought before another Pre-Trial Chamber for official confirmation of charges for the alleged commission of crimes within the jurisdiction of the Court. The confirmation of charges hearing takes place either in the presence of the person post-arrest or surrender, or in absentia, under Article 61 of the Rome Statute. Only after the charges are confirmed the person becomes an accused and stands the possibility of trial.

At this stage, the prosecution of Min Aung Hlaing by the ICC thus hinges entirely on the issuance of an arrest warrant by Pre-Trial Chamber I. If the Chamber is satisfied that there exist reasonable grounds to believe that the Head of State has committed a crime under the jurisdiction of the Court – and that his arrest is necessary to ensure his presence at trial; or that he does not obstruct or endanger the investigation or Court proceedings; or to prevent him from continuing with the commission of a crime within the Court’s jurisdiction arising out of the same circumstances – it shall issue an arrest warrant under Article 58(1) of the Rome Statute.

The fact that the Chamber is taking so long to arrive at a decision is problematic. Compared to other instances of allegations against a Head of State, the time between Min Aung Hlaing’s warrant application and issuance is the lengthiest thus far. The issuing of arrest warrants against Putin and Duterte took less than a month, whereas warrants against Gaddafi and Netanyahu took one month and six months respectively. The wait for a warrant for al-Bashir had previously been the longest (eight months).

Historically, international criminal prosecution of Heads of State faced significant setbacks. Efforts following the First World War to prosecute the Ottoman Grand Vizier and Kaiser Wilhelm II never saw daylight as the Treaty of Sèvres negotiated in Paris was never ratified by any Turkish regime. The attempt to prosecute German Emperor Kaiser Wilhelm also could not materialize as the “special tribunal” provided for by the Treaty of Versailles was never established in practice. While the Nuremberg and Tokyo trials after the Second World War successfully prosecuted senior officials like Hideki Tojo, they were criticized for failing to hold Allied leadership accountable for atrocities such as the Katyn Massacre or the atomic bombings of Hiroshima and Nagasaki, as advocated both within and outside the International Military Tribunals. After a long “hibernation,” the establishment of the ICTY and ICTR marked a turning point with the trials of Slobodan Milošević and Jean Kambanda. Building on this momentum, the ICC has since proven relatively “successful”, moving beyond early failures to address crimes by Heads of State.

While historical attempts to prosecute Heads of State were fraught with challenges, the more recent relative successes of the ICTY, ICTR, and ICC make the request for Min Aung Hlaing’s arrest warrant look promising. That the ICC has already issued warrants against sitting Heads of State signals a growth in institutional confidence and a heightened commitment to dismantling impunity at the highest levels of government, even when confronted with substantial political resistance. However, as mentioned, the decision on the request has remained pending for an unprecedented duration. Meanwhile, other initiatives outside the ICC may assist in building the case for an arrest warrant.

The Broader Accountability Ecosystem

The efforts of the ICC Prosecutor do not happen in a vacuum. While a speedy issuance of the arrest warrant is important, it should also be acknowledged that the attempts to provide accountability for the atrocities against the Rohingya are multilayered and do not depend on a single legal battle. The United Nations International Investigative Mechanism for Myanmar (IIMM) is investigating international crimes committed in Myanmar since 2011 and building a repository of evidence to complement the efforts of bringing the perpetrators to account at all levels. While the ICC focuses on individual criminal responsibility, the ICJ case of The Gambia v Myanmar – alleging genocide against the Rohingya – has State responsibility as its focus. The Myanmar junta has been accepted to represent the State at the ICJ, bringing into focus questions regarding governmental legitimacy and Head of State immunity. While Heads of State do not enjoy immunity before the ICC, questions remain whether members of an illegitimate government retain such protections within domestic jurisdictions.

At the national level, some States have adopted unilateral measures against the regime. For instance, since 2021, the UK has imposed 19 sanction packages on Myanmar as part of its efforts to promote accountability. Universal jurisdiction cases have also been initiated against alleged perpetrators. An Argentinian court has already issued arrest warrants for several perpetrators – including Min Aung Hlaing – for the crime of genocide and crimes against humanity. Meanwhile, civil claims for reparations for survivors of the Rohingya genocide have been filed in another Argentine court, targeting the economic assets of senior Myanmar military leaders and demanding that these assets be used to compensate the victims.

Prosecution is also pending before a Turkish court following the filing of a universal jurisdiction complaint by the Myanmar Accountability Project against Myanmar generals and commanders for the alleged crime against humanity of torture against the Rohingya. In 2023, a case was filed in Germany for alleged genocide, war crimes, and crimes against humanity against the Rohingya people between 2016 and 2017, as well as against other civilians since the 2021 coup. However, the German Federal Public Prosecutor General decided not to initiate an investigation, citing the lack of suspects present in Germany and the intention not to duplicate the ongoing work of the IIMM.

There have also been pushes for accountability from within the Southeast Asian region, specifically in Indonesia and the Philippines, despite ASEAN’s (Association of Southeast Asian Nations) strong emphasis on the principle of non-interference in the domestic matters of neighbouring states (ASEAN non-interference policy). A petition was filed with the Constitutional Court of Indonesia aimed at introducing universal jurisdiction within Indonesian law for human rights violations and atrocities against the Rohingya in Myanmar, amongst others. However, the petition was ultimately rejected in 2023 on the grounds that the Indonesian legal system does not automatically apply to non-citizens; the court held inter alia that universal jurisdiction is better exercised by countries in closer proximity to the location of the crime, where evidence is more readily available.

In the Philippines, an appeal has been filed against the Philippine authorities’ omission in proceeding with a complaint by way of opening an investigation against the senior leadership of Myanmar, including Min Aung Hlaing, for atrocities committed against another ethnic group (the Chin people from Western Myanmar) under universal jurisdiction. Although this concerns a different ethnic group, any progress in that regard will likely be relevant to the Rohingya; as an ethnic group originating from the same country, their plight would deserve similar treatment by the judiciary of the Philippines, should a complaint under universal jurisdiction is filed.

The accountability ecosystem for the Rohingya atrocities thus operates through a network of mechanisms designed to secure justice. As progress is achieved on each front, perpetrators are drawn ever closer to meaningful accountability. But an arrest warrant from the ICC would trigger cooperation from 125 States Parties aimed at arresting the Acting Head of State. It could also result in an INTERPOL Red Notice – a request to law enforcement worldwide to locate and provisionally arrest a person based on an arrest warrant or court order issued – as a potential outcome of an Article 87(1)(b) request under the Rome Statute. This would significantly limit the free movement of the alleged perpetrator.

Most importantly, an arrest warrant would pave the way for the submission of charges and a confirmation of charges hearing, even in absentia, which, after the ICC Kony decision, stands as a vivid possibility. And any such hearing will pull together the different efforts taken at the national level – especially the universal jurisdiction cases, as these cases have the potential of international collaboration and engagement with ICC mechanisms. In this “third wave of accountability” in international criminal justice – where national prosecutorial and judicial initiatives in different States and grassroot efforts by different interested parties attempt to fill the vacuum resulting from lack of political will – an arrest warrant would give a positive message to all the stakeholders in the ecosystem, contributing to the key goal of international criminal justice: ending impunity.

Conclusion

In the battle against impunity, it is important to hold the alleged perpetrator on trial. But without an arrest warrant, this remains a distant possibility. If an accused stands a fair trial and is found not guilty, that too is a significant achievement for the prosecution, whose goal is to establish the truth about the responsible person for the atrocities, not to ensure a conviction at any cost. The issuance of an arrest warrant against Min Aung Hlaing would play a pivotal role within the broader accountability framework for crimes against the Rohingya. As the ICC has demonstrated institutional maturity in issuing arrest warrants taking into account restorative justice and particular considerations for victim reparation, it should do the same considering the plights of the Rohingya – the most persecuted minority in the world.

Finally, the Court may already have issued an arrest warrant against the acting president under seal, which is impossible to verify due to confidentiality. Arguably, a public arrest warrant, as for other Heads of State, would be more appropriate given the message it would deliver to both perpetrators and victims. Public awareness of the warrant may contribute to the prevention of further crimes. To address concerns regarding the protection of victims and witnesses and the safeguarding of the investigation, the warrant itself may remain confidential while its existence is publicized, mirroring the situation in Ukraine, where the Court only disclosed the existence of the warrants, the names of the suspects, the specific crimes, and the modes of liability.