Can Myanmar's generals be prosecuted for genocide against the Rohingya? It's unlikely

What is the modern-day threshold for prosecuting war crimes and genocide?

The crimes perpetrated against Rohingya Muslims in Myanmar have made that as much of a legal question as a fraught political one.

The UN fact-finding mission that interviewed nearly 900 Rohingya eye-witnesses concluded in a damning report Monday that the threshold had been met.

It said there is evidence that Myanmar's top military brass, including the commander in chief, had "genocidal intent," and should stand trial — either before the International Criminal Court, or a special tribunal.

It implicates Aung San Suu Kyi, Myanmar's de facto leader, for her silence in the face of atrocities committed during a a coordinated offensive by the military on the Rohingya minority in the Buddhist-majority country last year.

Ten thousand dead, it adds, was a "conservative" estimate.

Legal politics

Myanmar vehemently disagrees. And because the country isn't party to the ICC statute, the United Nations Security Council must refer the case to the court if it is to hear it.

This is where politics factors in: Russia and China have indicated they would veto any plans to bring an ally and a business partner before the international court.

It is partly the reason why the United Kingdom, the UNSC's lead on Myanmar, said a reference to the court "would not be productive," to "ensure accountability" or to persuade Myanmar to repatriate refugees. The U.K.'s representative made these statements despite concurring that the panel has provided "yet more damning evidence of [the Myanmar military's] culpability."

A year after some 700,000 traumatized people fled across the border to Bangladesh — the report is the most complete record yet of the evictions, murders and gang rapes members of the Rohingya community endured at the hands of Myanmar's military.

Despite that detailed evidence, on top of a trove uncovered by other investigators, human rights groups and the victims themselves: the Security Council is a dead end, the legal threshold trumped by political considerations.

"This report is unequivocal about what took place and what must be done about it," said Mark Farmaner of Burma Campaign U.K., a human rights group.

As the lead on Myanmar, Britain, he added, should push to implement its recommendations. "All they said is they'll discuss it, not that they support the recommendations or that they will push for the UNSC to implement them." 

So will anyone ever appear in court to answer to such serious charges?

Back door to prosecution?

There may be another option for getting the case before the international court that relies more on legal arguments instead of political ones.

Earlier this year, the ICC prosecutor asked for a ruling on whether the court has jurisdiction to look at the very narrow issue of deportation: whether Myanmar forcibly evicted all those Rohingya people to Bangladesh.

Bangladesh is party to the ICC statute, so in theory, the court would have jurisdiction, said Payam Akhavan, a Canadian former UN prosecutor at The Hague who recently visited Rohingya refugee camps to advise on a potential ICC case.

"If the response is positive, then the Prosecutor can initiate an investigation and in due course issue arrest warrants against members of the Myanmar leadership that bear responsibility for the ethnic cleansing campaign against the Rohingya."

Myanmar has argued against the court's jurisdiction. The country "also sought to downplay the ethnic cleansing by saying that it is willing to allow for the repatriation of refugees," Akhavan said.

But repatriation won't be simple, he added, given longstanding discrimination against the Rohingya inside Myanmar.

It is a point that the panel report emphasizes.

"The gross human rights violations and abuses committed …. are also shocking because they stem from deep fractures in society and structural problems that have been apparent and unaddressed for decades," said the report.

UN Secretary-general Antonio Guterres told a meeting of the Security Council Tuesday that the report's findings show abuses that "undoubtedly amount to the gravest crimes under international law."

"I believe this report's findings and recommendations deserve serious consideration by all relevant United Nations bodies," said Guterres.

The panel, and many refugees, insist there can be no return until fundamental changes are made in how they are treated.

In the meantime, that underscores the monumental challenge of caring for nearly a million traumatized people living in difficult conditions in Bangladesh.

More pressure on everyone

While the report may not immediately deliver justice, or end their wretched exile, it could be the Rohingya population's best chance at persuading the international community not to avert its eyes to their challenges both inside and outside of Myanmar.

"The report adds great weight to the issues of accountability and responsibility. And puts more pressure on everyone," said Bob Rae, the Canadian government's special envoy to Myanmar, who will be in New York on Tuesday as the Security Council convenes to discuss the matter.

That will undoubtedly mean fresh appeals for funding to alleviate the harrowing conditions in which refugees will continue to live for the forseable future.

It will also mean pressure on countries like Canada, which have used a phased approach that focused sanctions on lower rungs of the military, to aim higher, at the army commander, or perhaps at Aung San Suu Kyi herself.

That too is a political question, and countries will have to decide for themselves whether the threshold has been met for that.