Tony Perkins

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Gayle Manchin

Vice Chair

Nadine Maenza

Vice Chair

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Anurima Bhargava

Commissioner

James Carr

Commissioner

Tenzin Dorjee

Commissioner

Sharon Kleinbaum

Commissioner

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Erin D. Singshinsuk

Executive Director

USCIRF’s Mission

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freedom of religion or 

belief, by independently 

assessing and unflinchingly 

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fundamental right.

FACTSHEET

BURMA

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March 2020

The Path Towards Justice: Accountability 

for International Crimes Against the 

Rohingya of Burma

By Kirsten Lavery, International Legal Specialist, and Harrison Akins, Policy Analyst

On January 23, 2020, the International Court of Justice (ICJ) in The Hague announced 

provisional measures requiring that the Burmese government must “take all measures 

within its power” to ensure that the military and any irregular armed units “do not 

commit acts of genocide” against the Rohingya in Burma. This unanimous decision 

by the 17-judge panel was the first international court ruling against Burma and a key 

recognition of the ongoing vulnerability of the Rohingya to genocidal violence by the 

Burmese government and non-state actors. The ICJ case is being conducted at the 

same time as a universal jurisdiction case in Argentina and an International Criminal 

Court (ICC) investigation into Burmese officials’ actions against the Rohingya. 

Collectively, these efforts represent an unprecedented use of the international justice 

system to hold the Burmese government and government officials accountable for 

atrocities committed against the Rohingya.

Many Rohingya victims and refugees have emphasized the importance of justice and 

accountability for the horrors they have suffered. This factsheet provides an overview 

of the legal accountability processes for alleged international crimes—including 

genocide and crimes against humanity—committed against the Rohingya, the 

implications of these actions, and possible outcomes.

Background

The Rohingya are a Muslim-majority group defined by language and ethnicity, 

historically residing in the northern part of Burma’s western Rakhine State (known 

as Arakan prior to 1989), and comprising nearly 3 million people. Following 

independence from British colonial rule in 1948, the Burmese government 

increasingly consolidated a political identity based on the majority Buddhist faith and 

majority Bamar ethnic identity, especially after 1962, when the military junta came 

into power. The military government systematically persecuted the Rohingya, who 

are neither Buddhist nor Bamar, denying their identity and instead labeling them 

“illegal Bengali immigrants” whose presence was a legacy of British colonialism. The 

government subsequently excluded the Rohingya from Burmese citizenship through 

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the 1982 Citizenship Law and conducted a series of 

military operations that pushed hundreds of thousands of 

Rohingya into Bangladesh. 

As anti-Muslim sentiment and Buddhist nationalism 

blossomed alongside the democratization process 

that began in 2011, the Rohingya have continued to 

face intense persecution, including two campaigns of 

egregious violence conducted by both the Burmese 

military and non-state actors. In 2012, local political 

parties and Buddhist monks organized and incited mob 

attacks against Rohingya in Rakhine State. Human Rights 

Watch reported that government security forces “assisted 

the killings by disarming the Rohingya of their sticks 

and other rudimentary weapons they carried to defend 

themselves.” The 2012 attacks left nearly 200 dead. More 

than 140,000 Rohingya were forcibly displaced, including 

75,000 Rohingya fleeing to Bangladesh. In the midst of the 

violence, then President Thein Sein expressed his desire 

to hand over responsibility for the entire ethnic group 

to the United Nations High Commissioner for Refugees 

(UNHCR) and “send the Rohingyas to any third country 

that will accept them.” The 2015 election of Aung San Suu 

Kyi’s National League for Democracy did little to alter the 

Burmese government’s stance in regard to the Rohingya. 

Suu Kyi and other senior government officials, especially 

military officers who hold significant political power under 

the 2008 Constitution, continued to push the narrative 

that the Rohingya are “illegal Bengali immigrants” and 

implement the same policies restricting the Rohingya from 

any citizenship rights, including religious freedom, access 

to education and health services, access to employment 

and, in some cases, even freedom of movement. 

The second wave of anti-Rohingya violence began in 

August 2017. Using insurgent attacks as justification, the 

military launched widespread operations in the region 

that targeted Rohingya civilians. During these operations, 

the military forces engaged in indiscriminate extrajudicial 

killings of civilians; mass rape and other sexual violence; 

enforced disappearances; forced starvation; arbitrary 

detentions and arrests; and looting, burning, and property 

destruction, forcing over 700,000 Rohingya across the 

border into Bangladesh. Both prior to these operations 

and for Rohingya that stayed in Rakhine during these 

operations, government authorities and non-state actors 

also have shuttered and burned down mosques, prevented 

Rohingya Muslims from worshipping or attending 

madrassas, interfered with Islamic funeral rites, desecrated 

and burned Qur’ans, and targeted imams for detention, 

torture, and killings. Social media, in particular Facebook, 

has been used extensively to spread hate speech against 

the Rohingya, as well as Muslim communities throughout 

Burma, and incite people to commit violence against 

them. By July 2019, approximately 910,000 Rohingya had 

fled the violence in Rakhine State and settled in refugee 

camps in Cox’s Bazar, Bangladesh. 

Approximately 120,000 internally displaced Rohingya 

remain confined to camps in Rakhine with severe 

limitations on their movement, little access to education or 

healthcare, lack of work, and inability to obtain ID cards. 

In July 2019, the government cut the Internet in areas 

of Rakhine and Chin states, with human rights groups 

expressing concern this would restrict humanitarian aid 

from reaching vulnerable populations and limit the ability 

to monitor military abuses. The Internet restrictions 

were lifted in September but reimposed in February 2020. 

Reports continued of the military indiscriminately killing 

civilians and destroying homes, mosques, and food stores. 

As a result, United Nations (UN) Special Rapporteur on 

Myanmar Yanghee Lee concluded that “it is not safe or 

sustainable for refugees to return.” 

Fact-Finding and Evidence Collection Bodies

The foundation for the legal proceedings, described in 

detail below, was laid through efforts to determine what 

took place in Rakhine State. Through these fact-finding 

efforts, information and evidence regarding alleged 

international crimes were collected and preserved. 

Fact Finding Mission (FFM): In March 2017, the UN 

Human Rights Council created the FFM to establish 

the facts and circumstances of the alleged human rights 

violations by Burmese military and security forces, and 

abuses by other actors, since 2011. The FFM produced 

a series of reports, including its primary report released 

in September 2018 that found “reasonable grounds” to 

believe that security forces, particularly the military, had 

committed crimes against humanity, genocide, and war 

crimes against the Rohingya and other ethnic minorities. 

The FFM also found that the “factors allowing for 

inference of genocidal intent” were present. Additional 

reports were released on sexual and gender-based violence

and the economic interests of the Burmese military. The 

FFM issued a final report when its mandate ended in 

September 2019.
3 USCIRF Legislation Factsheet: BURMA: March 2020

The Independent Investigative Mechanism for Myanmar 

(IIMM): The UN Human Rights Council established the 

IIMM in September 2018 to collect evidence of the most 

serious international crimes and violations of international 

law and prepare files for criminal prosecution. In building 

its case files, the IIMM uses evidence received from 

the FFM, along with other sources. As detailed in U.S. 

President Donald Trump’s first report under the Elie 

Wiesel Genocide and Atrocities Prevention Act, the 

U.S. government provided “publicly available satellite 

imagery and pertinent information” to the IIMM. As an 

investigative mechanism, the IIMM cannot conduct its 

own prosecutions but may contribute to accountability 

efforts by sharing its files with national, regional, or 

international courts that are able and willing to conduct 

fair trials of individuals for crimes committed in Burma. 

Current Justice and Accountability Processes

Legal actions are now being pursued to achieve 

accountability for the mass atrocity crimes identified by the 

FFM and other fact-finding initiatives in three different 

forums: (1) the International Court of Justice (ICJ), 

(2) the International Criminal Court (ICC) , and 

(3) the criminal courts in Argentina. 

(1) The ICJ Suit

Background: The UN Charter established the ICJ in 1945. 

As the judicial organ of the UN, it settles legal disputes 

between states and provides advisory opinions on legal 

matters referred to it by UN bodies. Although the ICJ 

does not conduct criminal investigations or prosecutions, 

Article IX of the UN Convention on the Prevention 

and Punishment of Genocide (“Genocide Convention”) 

provides the ICJ with jurisdiction to decide disputes 

relating to the interpretation, application, or fulfillment of 

the Genocide Convention.

The Gambia v. Myanmar: On November 11, 2019, The 

Gambia instituted proceedings against Burma before the 

ICJ, alleging violations of the Genocide Convention. While 

the other 56 member countries of the Organization of 

Islamic Cooperation supported The Gambia’s submission, it 

alone filed this legal case under Article 9 of the Genocide 

Convention, which allows any state party to bring a claim 

against another party that it believes is not upholding its 

obligations under the Convention. According to news 

reports, the genesis for The Gambia to file the case came 

from its Justice Minister Abubacarr Tambadou, who spent 

over a decade prosecuting cases in the wake of the 1994 

genocide in Rwanda. When he visited Rohingya refugees 

in Cox’s Bazar, he noticed striking similarities to the 

atrocities in Rwanda and saw “genocide written all over 

[their] stories,” compelling him to move forward with the 

suit.

Relying on the FFM’s reports, The Gambia accused the 

state of Burma of violating the Genocide Convention 

by committing, failing to prevent, and failing to punish 

genocide. The suit also alleged that Burma failed to pass 

domestic legislation to enact the required provisions of 

the Genocide Convention. The Gambia requested relief, 

including the cessation of genocidal acts, prosecution of 

those responsible, and reparations for the victims.

The Gambia requested six provisional measures, which 

are similar to preliminary injunctions, to mitigate 

further harm during the pendency of the litigation. From 

December 10-12, 2019, the ICJ hosted public hearings to 

consider The Gambia’s request for provisional measures, 

which require a showing that there is a reasonable 

basis for the claim. State Counsellor Aung San Suu Kyi 

appeared as the agent for Burma during these hearings. 

Among other legal arguments presented, she claimed that 

the necessary genocidal intent was not present within 

the Burmese government to bring a claim under the 

Genocide Convention.

On January 23, 2020, the ICJ found that The Gambia’s 

claims were plausible and that “there is a real and 

imminent risk of irreparable prejudice to the rights of the 

Rohingya.” Based on this, the ICJ unanimously granted

four of the requested provisional measures. Specifically, 

Burma must:

 refrain from acts of genocide against the Rohingya;

 ensure that the military and other groups subject to its 

control refrain from genocide or related acts;

 prevent the destruction and ensure the preservation of 

evidence related to the alleged genocide; and

 submit a report in 4 months on the steps taken to 

implement the provisional measures and then submit a 

report every 6 months.

The ICJ found the other two requested measures—to 

not aggravate the dispute and to grant access to UN 

investigative mechanisms—to be unnecessary. 

The Gambia’s suit is the first time that a country without a 

direct connection to the crimes brought a case of alleged 

genocide to the ICJ based on its status as a signatory to 

the Genocide Convention. The ICJ found in its decision 

on provisional measures that all parties to the Genocide 

Convention have a “common interest” in preventing 
USCIRF Legislation Factsheet: BURMA: March 2020 4

genocide and ensuring accountability when genocidal 

acts occur. As a result, the ICJ noted that any signatory 

to the Genocide Convention, including The Gambia, can 

bring suit for failure to enforce the treaty’s provisions. The 

ICJ also found that the Rohingya “appear to constitute a 

protected group within the meaning of Article II of the 

Genocide Convention.” While this preliminary finding 

could change once the case proceeds on the merits, it is 

significant because Burma has refused even to recognize 

the Rohingya as a distinct minority group. For example, in 

State Counsellor Suu Kyi’s speech defending Burma in the 

hearing on provisional measures at the ICJ, she failed to 

use the word “Rohingya” and only referenced Muslims in 

Rakhine State.

Next Steps: The decision on provisional measures was 

the first step in the ICJ’s proceedings. The ICJ will next

determine whether it has jurisdiction to proceed to a full 

hearing on the merits. If it finds that it does, it will then 

move forward with hearing the case. If the ICJ ultimately 

rules in The Gambia’s favor, it would grant some of its 

requests of relief. The average duration of ICJ cases from 

initial filing to final decision is 4 years, but some cases take 

significantly longer. For example, it was 14 years between 

the initiation and the final judgment in another Genocide 

Convention case, Bosnia and Herzegovina v. Serbia 

and Montenegro.

There are several challenges ahead. The ICJ case is 

focused on making a legal determination regarding 

state responsibility; it is not a criminal prosecution of 

officials within Burma. The goal is to ensure that the 

Burmese government honors its commitments under the 

Genocide Convention. Since the ICJ does not itself have 

investigatory power, it must rely on evidence gathered 

from other cases and investigations. 

Concerns persist that violence directed at the Rohingya 

will continue during the duration of the suit. Notably, the 

Srebrenica genocide occurred after two ICJ provisional 

measures had been ordered in the Bosnia and Herzegovina 

v. Serbia and Montenegro case. Here, the ICJ’s order 

issuing provisional measures is legally binding on Burma. 

In theory, the Burmese government must comply with 

it while the case is proceeding. However, in practice, the 

impact relies on political and other pressures being placed 

on the Burmese government, as the ICJ does not have any 

enforcement mechanisms. 

Despite these challenges, Burma has accepted the 

authority of the ICJ and participated in the court 

proceedings. As it proceeds, the ICJ case provides an 

important opportunity for the international community 

to determine whether the violence and persecution of the 

Rohingya constitutes genocide.

(2) The ICC Investigation

Background: The Rome Statute, signed by 120 states in 

1998, established the ICC as a permanent court based in 

the Netherlands. The ICC can investigate and prosecute 

individuals for serious international crimes including 

genocide, crimes against humanity, and war crimes. 

Unless the UN Security Council refers a case to the Office 

of the Prosecutor, the ICC’s jurisdiction only extends to 

crimes committed on the territory or by the nationals 

of states that have accepted its jurisdiction. The ICC’s 

jurisdiction complements national jurisdiction, meaning 

the ICC can only take up cases where the states concerned, 

including those without a link to the crimes, are incapable 

of pursuing the perpetrators or unwilling to do so.

Burma/Bangladesh Situation: While Burma is not a 

signatory to the Rome Statute, Bangladesh ratified 

the Rome Statute in 2010. On November 14, 2019, 

the ICC authorized the Prosecutor to proceed with a 

limited investigation into crimes under ICC jurisdiction 

committed against Rohingya in Burma’s Rakhine State, 

where at least one element occurred in the territory 

of Bangladesh or another party to the Rome Statute. 

This is the first time the ICC has found jurisdiction for 

cross-border acts based on one state having ratified the 

Rome Statute.

Although the Prosecutor may investigate additional 

crimes, the Court specifically found a reasonable basis 

to believe that since October 2016, the Burmese military, 

other security forces, and some local civilians have 

committed acts that qualify as crimes against humanity, 

including deportations and persecution of the Rohingya 

population, and fall under the ICC’s jurisdiction. The 

investigation is limited temporarily to crimes that took 

place within the 2016 and 2017 “clearance operations,” 

along with other crimes that are “sufficiently linked” to 

these events.

Next Steps: The Prosecutor will conduct an independent 

investigation and collect further evidence. Burma has not 

accepted the jurisdiction of the ICC and stated that it will 

not allow ICC investigators to enter the country, which 

may hamper the ability of the Prosecutor to collect the 

evidence needed to build criminal case(s).
5 USCIRF Legislation Factsheet: BURMA: March 2020

If sufficient evidence is gathered to establish the criminal 

responsibility of any specific individual, the Prosecutor 

will request the Pre-Trial Chamber to issue a summons 

or arrest warrant to proceed with a trial. If a defendant is 

found guilty, the ICC can sentence the individual to prison 

and establish a reparations regime for victims.

Absent a full referral of the situation in Rakhine State to 

the ICC by the UN Security Council, which is unlikely, 

the ICC’s efforts will be limited to crimes where one 

element occurred in the territory of Bangladesh or another 

party to the Rome Statute. Additionally, given that the 

investigation is also limited to crimes allegedly committed 

since October 2016, the Prosecutor will not address 

the full scope of the crimes that have occurred against 

the Rohingya. 

If the Argentine courts move forward with the universal 

jurisdiction case, discussed in the following paragraphs, 

it will be the first time that a universal jurisdiction case 

is occurring in parallel with an ICC investigation. As the 

ICC Prosecutor moves forward in the investigation and 

focuses on the specific perpetrators, a jurisdictional issue 

based on the principle of complementarity (as described 

above) may arise. However, because the Argentine 

complaint focuses on crimes that occurred in Burma 

and the ICC’s investigation involves alleged crimes with 

a connection to Bangladesh, the two cases may both be 

able to proceed.

(3) Universal Jurisdiction Case in Argentina

Background: Universal jurisdiction allows states to 

prosecute in their domestic courts serious international 

crimes committed by any person, anywhere in the 

world, based on the principle that such crimes harm 

the international community or international order. 

Many states maintain laws that empower their courts 

to exercise universal jurisdiction, particularly when the 

states with connections to the mass atrocity crimes are 

unwilling or unable to hold perpetrators accountable. 

Some treaties, such as the Genocide Convention, require 

states to implement legislation that provides for universal 

jurisdiction for specific international crimes.

Argentine Case: On November 13, a group of Rohingya 

and Latin American human rights groups filed a criminal 

complaint against a number of Burmese officials under 

Argentina’s universal jurisdiction law, which gives 

Argentine courts jurisdiction over crimes in the ICC’s 

Rome Statute. Like the ICC case, this case focuses 

on individual responsibility for the alleged crimes. 

Specifically, the case alleges genocide and crimes against 

humanity committed by Burmese civilian and military 

officials, including State Counsellor Suu Kyi and Army 

Chief Min Aung Hlaing, relying on the findings of 

the FFM. 

Next Steps: Now that the complaint is lodged, the 

Argentine court will consult a federal prosecutor to 

determine whether an investigation will proceed. 

Although Argentina has prosecuted cases under the 

principle of universal jurisdiction, it is difficult to predict 

whether the federal prosecutors will opt to proceed 

with the case. If the case moves forward, the court 

would then collect evidence, which can be particularly 

difficult in universal jurisdiction cases involving crimes 

committed in a foreign jurisdiction. The process of issuing 

arrest warrants to extradite defendants can also be an 

uphill battle.

Conclusion

These cases represent a significant step forward in 

pursuing justice and holding accountable the Burmese 

government and individuals responsible for mass 

atrocities committed against the Rohingya. 

The U.S. government should cooperate with and support 

efforts to collect, preserve, and analyze evidence of the 

international crimes committed against the Rohingya. In 

connection with broader U.S. actions to hold Burmese 

officials accountable for their crimes, including through 

the use of targeted sanctions, U.S. support for these legal 

processes would signal U.S. support for accountability and 

help to increase international pressure on the Burmese 

government to cooperate with these legal institutions, 

including complying with the provisional measures 

ordered by the ICJ.

The U.S. government should also refocus efforts to 

conclude definitively and publicly whether atrocities 

against the Rohingya meet the legal definition of crimes 

against humanity and/or genocide. Previous efforts, 

such as the U.S. Department of State’s 2018 survey 

Documentation of Atrocities in Northern Rakhine State, 

fell short of providing a legal determination and only 

described actions taken against the Rohingya as “ethnic 

cleansing,” an act not recognized as a crime under 

international law. While the U.S. determination of 

genocide or crimes against humanity would not carry legal 

weight in the ongoing cases, this public declaration could 

be an instrument to leverage international pressure against 

the Burmese government and individuals responsible for 

these acts.
UNITED STATES COMMISSION on INTERNATIONAL RELIGIOUS FREEDOM

732 N. Capitol Street, NW, Suite #A714,

Washington, DC 20401

202-523-3240 (p) 202-523-5020 (f)

www.USCIRF.gov

@USCIRF

Media@USCIRF.gov

Professional Staff

Harrison Akins

Policy Analyst 

Danielle Ashbahian

Communications Specialist 

Keely Bakken

Policy Analyst

Dwight Bashir

Director of Outreach and Policy

Elizabeth K. Cassidy

Director of Research and Policy

Patrick Greenwalt

Researcher

Roy Haskins

Director of Finance and Office Management

Thomas Kraemer

Senior Advisor for Strategic Outreach

Kirsten Lavery

International Legal Specialist

Jason Morton

Policy Analyst

Dominic Nardi

Policy Analyst

Jamie Staley

Senior Congressional Relations Specialist

Zachary Udin

Project Specialist

Scott Weiner

Policy Analyst

Kurt Werthmuller

Supervisory Policy Analyst

These investigations and cases face many challenges. 

The simultaneous pursuit of these cases increases the 

likelihood of achieving meaningful justice. Notably, the 

precedent set by these cases may also have a broader 

impact in helping victims of crimes against humanity 

or genocide in other contexts by defining a path 

towards justice. 

The U.S. Commission on International Religious Freedom (USCIRF) is an independent, bipartisan federal government entity established by the 

U.S. Congress to monitor, analyze, and report on threats to religious freedom abroad. USCIRF makes foreign policy recommendations to the President, 

the Secretary of State, and Congress intended to deter religious persecution and promote freedom of religion and belief.