Criminal Law’s Jurisdictional Tightrope and the Limits of Accountability in Myanmar

by JK

Since 2016, more than 700,000 Rohingya have been forcibly displaced from Myanmar into neighbouring Bangladesh following a coordinated campaign of violence by the armed forces of Myanmar, the Tatmadaw.[i] The situation therefore poses a central challenge for international criminal law: how far can the International Criminal Court stretch jurisdiction in pursuit of justice when state consent is absent and enforcement is elusive?

Introduction

As the world slides back into multipolarity, with power politics and armed conflicts on the rise, international criminal law (“ICL”) continues to face tests of its credibility and enforceability. In Myanmar, the Rohingya people have endured for decades what the United Nations human rights chief has called a “textbook example of ethnic cleansing.”[ii] The situation escalated in 2016 and 2017, when the government launched a brutal campaign of repression against the Rohingya.[iii] Since then, following the 2021 coup d’état, Myanmar’s political crisis has metastasized into a nationwide civil war, resulting in one of the world’s most dire humanitarian crises as widespread human rights abuses and armed conflict have spread across the country.[iv] The Myanmar crisis has thus become yet another challenge to the International Criminal Court’s (“ICC”) jurisdiction and legitimacy. This blog examines how the crisis has pushed the boundaries of ICL, testing the ICC’s jurisdiction and legitimacy in the face of state non-cooperation and ongoing atrocity.

Background

The Rohingya, a predominantly Muslim ethnic minority concentrated in Rakhine State, have long been denied citizenship under Myanmar’s 1982 Citizenship Law, leaving them stateless and subject to systemic persecution.[v] Beginning with two waves of violence in 2016 and 2017, Myanmar’s military, known as the Tatmadaw, launched operations that killed thousands, razed villages, and forcibly displaced over 700,000 Rohingya into neighbouring Bangladesh.[vi] The ICC Prosecutor characterized these acts as crimes against humanity, specifically: (1) deportation; (2) other inhumane acts (namely the infliction of great suffering or serious injury by means of intentional and severe violations); and (3) persecution on ethnic and/or religious grounds.[vii] These charges formed the basis for the ICC’s authorization of an investigation into the situation in Myanmar in 2019.[viii] 

As the ICC’s investigation progressed, the situation in Myanmar descended further into chaos. On February 1, 2021, just a few hours before the National Assembly was to convene, the Tatmadaw, led by General Min Aung Hlaing, staged a coup d’état that overthrew the civilian government of Aung San Suu Kyi.[ix] The military acted out of frustration with the 2020 general election, in which Suu Kyi’s National League for Democracy won majorities in both houses of parliament.[x] Since the coup, the junta has imprisoned opposition leaders, including Suu Kyi, executed pro-democracy activists, and suppressed dissent through lethal force as the civil war continues.[xi] To make matters worse, on March 28, 2025, a catastrophic earthquake devastated the central regions, destroying properties and infrastructure and resulting in thousands of deaths.[xii] To date, it is estimated that more than 3.5 million people have been displaced, nearly 20 million are in need of humanitarian assistance, and over 1.5 million have fled across borders or by sea in search of safety.[xiii] To many in Myanmar, there is no end in sight, and international law is once again being called into action.

Forging Jurisdiction

As it concerns ICL and the ICC, a crucial fact in the Myanmar investigation is that the country is not a State Party to the Rome Statute, which established the ICC.[xiv] Ordinarily, this would preclude the Court from exercising territorial jurisdiction over crimes committed within Myanmar. To overcome this limitation, the Office of the Prosecutor advanced a creative and novel legal interpretation to forge ICC jurisdiction. In 2018, the ICC’s Pre-Trial Chamber I held that the Court may exercise jurisdiction over alleged deportations of the Rohingya because an essential element of the crime—crossing an international border—occurred on the territory of Bangladesh, a State Party.[xv] Under Article 12(2)(a) of the Rome Statute, the Court may assert jurisdiction if at least one element of a crime within the jurisdiction of the Court were committed on the territory of a State Party.[xvi] Building on this reasoning, in 2019, Pre-Trial Chamber III authorized the Prosecutor to open a full investigation into the situation in Bangladesh/Myanmar.[xvii] The temporal scope of the investigation covers crimes allegedly committed on or after June 1, 2010, the date on which the Rome Statute entered into force for Bangladesh.[xviii] Despite the ICC’s ruling, Myanmar’s pre-coup civilian “resolutely rejected”[xix] the initial jurisdiction decision in September 2018, arguing that the decision was made on “dubious legal grounds”[xx] and applied to a situation where domestic remedies had “not yet been exhausted.”[xxi] Myanmar’s post-coup military leadership has maintained this position and continues to deny ICC jurisdiction.[xxii]

The Cross-Border Jurisdiction Theory

The ICC’s jurisdictional theory in Myanmar is narrow as it is limited to crimes with a cross-border element and does not confer general territorial jurisdiction over Myanmar.[xxiii] As such, it is unlikely that the ICC will take up charges of genocide in the situation. While the theory is narrow in scope, it has significant functional implications because it provides a rationale to extend jurisdiction over Non-State Parties whenever a crime involves a border crossing into a State Party. This creates a precedent that could allow the ICC to prosecute crimes committed by other Non-State Party nationals, such as in the case of Syrian refugees fleeing to Jordan.[xxiv] Critics and Non-State Parties like the United States have argued that exercising jurisdiction over non-consenting states undermines the consensual basis of international law established by Article 34 of the Vienna Convention on the Law of Treaties.[xxv] From this perspective, the Court appears to undermine its own legitimacy by favouring outcomes over consent. Put differently, the Court’s reasoning treats the act of crossing into State Party territory as the jurisdictional trigger, even where the criminal conduct began in a Non-State Party that never consented to the Rome Statute.

Parallel Proceedings Before the ICJ

In parallel, the Gambia instituted proceedings in 2019 before the International Court of Justice (“ICJ”) under the Genocide Convention, alleging that Myanmar’s actions constituted genocide.[xxvi] In 2020, the ICJ ordered provisional measures obliging Myanmar to prevent genocidal acts and preserve evidence, and in July 2022 it allowed the merits phase to proceed.[xxvii] Although the ICJ and ICC operate independently (the former adjudicating state responsibility, the latter individual criminal responsibility), their concurrent proceedings form a dual-front pursuit of justice for the Rohingya. The ICJ’s recognition that the Rohingya constitute a protected group under the Genocide Convention bolsters the ICC’s legal framing of the atrocities as crimes against humanity and, potentially, as genocide.

Current Situation

As of 2026, both the ICC and ICJ proceedings remain active, though progress has been slow. At the ICC, Prosecutor Karim A.A. Khan KC continues to investigate alleged crimes against humanity committed by senior members of the Tatmadaw, including deportation, persecution, and other inhumane acts.[xxviii] On November 27, 2024, Khan requested an arrest warrant for the Tatmadaw leader and Myanmar’s acting president, Min Aung Hlaing, for the alleged crimes against humanity of deportation and persecution of the Rohingya committed in Myanmar, and in part, Bangladesh.[xxix] The application is currently pending before Pre-Trial Chamber I.[xxx] 

Despite General Min Aung Hlaing’s rejection of the ICC’s jurisdiction, the Office of the Prosecutor continues to gather evidence through cooperation with Bangladesh and international organization.[xxxi] It has reaffirmed that accountability for the Rohingya remains a priority despite Myanmar’s ongoing non-cooperation.[xxxii]

Jurisdictional Criticisms

The ICC has faced controversy not only from Myanmar’s government but also from the wider international community. While the jurisdictional decision certainly enabled the ICC’s pursuit of justice, it has been criticized for potentially creating an inexhaustible rationale for extending jurisdiction over non-state parties, especially as it concerns the crime of deportation, a common occurrence in conflicts.[xxxiii] Moreover, exerting jurisdiction in this way could call into question the ICC’s efficacy by appearing to encroach upon state sovereignty, which in turn would affect its performance-based social legitimacy.[xxxiv] Yet, oppositely, the ICC would face equally harsh criticism if it were to ignore one of the world’s most severe contemporary humanitarian crises.

The Court thus finds itself between a rock and a hard place: should it pursue justice through new and creative, but legally contentious, jurisdictional reasoning, or restrict itself to investigating nations that have assented to its authority? The ICC cannot abandon the pursuit of justice in conflict zones, but by the same hand, its authority, and that of international law more broadly, is bound to its reverence for state sovereignty, which cannot be eroded by jurisdictional wandering. In the case of Myanmar, the Court chose jurisdiction over inaction; yet both paths were bound for criticism and ultimately reflect the continuing difficulty that international law faces in reconciling universal justice with state consent.

Enforceability Criticisms

In an interview with Voice of America in December 2024, Prosecutor Khan warned that the ICC’s mandate extends to addressing ongoing violations if they continue to escalate, and escalate they have.[xxxv] The UN Refugee Agency (“UNHCR”) chief Filippo Grandi stated in September 2025 that “the suffering of millions of people across Myanmar is immense…with aerial bombardments, destruction of property, and forced recruitment, they live in daily fear for their lives.”[xxxvi] Prosecutor Khan has given those responsible for these crimes a choice: “comply with the law or continue ignoring the rights of individuals and the principles of international law. If they choose the latter, we have the International Criminal Court, and we have jurisdiction because Bangladesh is a State Party.”[xxxvii] 

Prosecutor Khan’s ultimatum brings up the age-old enforceability conundrum of international law. The ICC can issue as many arrest warrants as it wants for Tatmadaw officials, but if nothing is done to enforce these warrants, critics may wonder if the arrest warrants are for appearances sake and not the pursuit of tangible justice. History has shown with the former tribunals of Yugoslavia (“ICTY”) and Rwanda (“ICTR”), however, that the pursuit of justice takes time. The final ICTY fugitive to be captured was Goran Hadžić, who was indicted for persecution, murder, and deportation in 2004 but only arrested seven years later in July 2011.[xxxviii] The final fugitive of the ICTR, Fulgence Kayishema, was arrested in May 2023 after he was indicted in 2001 for genocide and crimes against humanity, meaning he was a fugitive for roughly 22 years.[xxxix] While these accounts mean nothing to those suffering in Myanmar, they provide a glimmer of hope that someday, somehow, those responsible will be brought to justice.

In the meantime, routine public reporting by the Prosecutor on concrete cooperation steps taken with Bangladesh and other partners would help ensure that the enforcement gap remains visible rather than abstract. This should further be complemented by the preparation of arrest-readiness dossiers coordinated in advance with likely transit states, so warrants can be executed the moment Tatmadaw officials leave Myanmar, and by the establishment of a formal non-cooperation register that publicly identifies states failing to comply with Part 9 obligations.[xl] The hope with a non-cooperation register would be to render obstruction reputationally costly rather than politically invisible. Here the ICC would have to play a balancing act of not ostracizing State Parties while simultaneously holding them accountable.

Conclusion

The case of Myanmar shines a light on the paradox that lies within international criminal justice, a system that aspires to universality yet depends on the consent of states. As Myanmar is a Non-State Party to the Rome Statute, the ICC’s Office of the Prosecutor was forced to rely on unprecedented legal rationale to assert jurisdiction solely because neighboring Bangladesh is a State Party. On one hand, this creative interpretation reflects the courage of ICL to reach across sovereign borders, while on the other, it exposes the system’s vulnerability to allegations of judicial lawmaking. Yet, as history has shown, accountability often comes slowly, sometimes decades later, but it remains a valued pursuit in humanity’s search for universal justice. Regardless of their eventual outcome, the Myanmar proceedings affirm a simple axiom: justice is always worth pursuing.

Endnotes

[i] Request for Authorisation of an Investigation Pursuant to Article 15, Office of the Prosecutor, ICC Doc No ICC-01/19-7 (4 July 2019) online: < https://www.icc-cpi.int/court-record/icc-01/19-7> at 23 [Office of the Prosecutor].

[ii] United Nations, “UN human rights chief points to ‘textbook example of ethnic cleansing’ in Myanmar” UN News (11 September 2017) online: <https://news.un.org/en/story/2017/09/564622-un-human-rights-chief-points-textbook-example-ethnic-cleansing-myanmar>

[iii] Situation of Human Rights in Myanmar, UNHCHR, 59th Sess, UN Doc A/HRC/59/57 (2025) at 3.

[iv] Ibid.

[v] Office of the Prosecutor, supra note 1 at 23.

[vi] Ibid at 36.

[vii] Ibid at 40.

[viii] Ibid.

[ix] Hitomi Takemura, The Rohingya Crisis and the International Criminal Court (Singapore: Springer Nature, 2023) at 24 [Takemura].

[x] Ibid at 4-5.

[xi] Ibid.

[xii] Ibid at 2.

[xiii] Ibid at 3.

[xiv] Takemura, supra note 9 at 27.

[xv] Ibid at 39.

[xvi] Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002), at s 12(2)(a) [Rome Statute].

[xvii] Takemura, supra note 9 at 39

[xviii] International Criminal Court, “Bangladesh/Myanmar”, online: <https://www.icc-cpi.int/bangladesh-myanmar> [ICC].

[xix] Takemura, supra note 9 at 42.

[xx] Ibid at 43.

[xxi] Ibid.

[xxii] Ingyin Naing, “ICC prosecutor to Myanmar: Obey international law or face justice” Voice of America (10 December 2024) online: <https://www.voanews.com/a/icc-prosecutor-to-myanmar-obey-international-law-or-face-justice/7897010.html> [Naing].

[xxiii] Takemura, supra note 9 at 4.

[xxiv] Ibid at 45-46.

[xxv] Ibid at 40.

[xxvi] Human Rights Watch, “Developments in Gambia’s Case Against Myanmar at the International Court of Justice” (14 February 2022) online: <https://www.hrw.org/news/2022/02/14/developments-gambias-case-against-myanmar-international-court-justice>.

[xxvii] Takemura, supra note 9 at 37-38.

[xxviii] ICC, supra note 18.

[xxix] Ibid.

[xxx] Ibid.

[xxxi] Office of the Prosecutor, supra note 1 at 17.

[xxxii] Ibid.

[xxxiii] Takemura, supra note 8 at 45-46

[xxxiv] Ibid at 45-46.

[xxxv] Naing, supra note 22.

[xxxvi] United Nations, “Wars, disasters, displacement, hunger’ continue to burden Myanmar” UN News (11 September 2025) online: <https://news.un.org/en/story/2025/09/1165826>.

[xxxvii] Naing, supra note 22.

[xxxviii] Ian Traynor, “Goran Hadzic capture a milestone for Yugoslav war crimes tribunal” The Guardian (20 July 2011) online: <https://www.theguardian.com/world/2011/jul/20/goran-hadzic-capture-war-crimes-milestone>.

[xxxix] International Residual Mechanism for Criminal Tribunals, “IRMCT Prosecutor announces all ICTR Fugitives successfully accounted for”, online: <https://www.irmct.org/en/news/irmct-prosecutor-announces-all-ictr-fugitives-successfully-accounted>.

[xl] Rome Statute, supra note 16 at s 86-102.