Is ICJ genocide case legitimising junta?
Following the military-led “clearance operation” that forced 750,000 Rohingya to flee neighbouring Bangladesh, the West African nation of Gambia brought a case to the International Court of Justice (ICJ) in November 2019 accusing Myanmar of violating the 1948 Genocide Convention.
Secondary photo File photo dated Dec 11, 2019 shows then Myanmar’s leader Aung San Suu Kyi defends Myanmar government on the alleged genocide against the minority Muslim Rohingya population, at ICJ, The Hague, the Netherlands. The Myanmar junta recently appointed replacement as Suu Kyi, has been jailed since Feb 2021’s coup.
In response to the court’s unanimously indicated and legally binding provisional measures to protect the Rohingya from further atrocities, Myanmar’s then-civilian government filed a preliminary objection to the jurisdiction of the court and the admissibility of the application in January 2021.
On Monday, the ICJ started a fresh round of hearings in the Great Hall of Justice. In the hearing, which will wrap up at the end of this month, the regime’s leaders are contesting the Rohingya case. This has sparked speculation that the court is implicitly taking a position in the ongoing civil war and legitimising the unrecognised military regime. It is worth noting that the junta-formed State Administrative Council (SAC) and the National Unity Government (NUG) have been struggling for recognition from the international community since the coup d’état in February 2021.
On the first day of the hearing, Myanmar’s junta was set to replace Aung San Suu Kyi, who had previously represented Myanmar’s arguments at the ICJ since the case was first handled in December 2019. It is reported by Myanmar state’s media that the junta has appointed new delegation led by Ko Ko Hlaing, the international cooperation minister, and Thida Oo, its attorney general, who would attend the hearing virtually. Both have faced US sanctions in relation to the coup.
When UN investigators concluded the military’s crimes against Rohingya Muslims in 2017 had “genocidal intent”, both the civilian government led by Aung San Suu Kyi and the military denied the accusation. In 2019, Ms Suu Kyi personally attended hearings to defend the military against genocide and crimes against humanity charges. However, the army’s takeover has put an end to Myanmar’s “quasi-democratic process”, preventing her from representing the country at the ICJ, the UN’s top judicial body. Meanwhile, the military administration has organised a new legal team led by its foreign minister, U Wunna Maung Lwin, to handle the genocide case.
Yet, acknowledging such representation by the illegitimate military regime under the United Nations (UN) system would contradict the mandate of the UN. The General Assembly’s stance taken in December 2021 firmly rejected the junta’s credentials, leaving U Kyaw Moe Tun (aligned with the NUG) as Myanmar’s incumbent permanent representative to the international body. This is because it would imply the ICJ has acknowledged the Tatmadaw as the rightful representatives of Myanmar, despite the fact that no UN member state, UN agency, or other international organisation has formally recognised the junta government. Though the ICJ has no jurisdiction to decide who lawfully represents Myanmar, UN General Assembly Resolution 396 (V) (1950) specifies that the decision of the Credentials Committee should be taken into consideration by other UN bodies when deciding on member state representation.
Again, the court cannot disregard the UN resolution passed in June 2021 that condemned the coup in the “strongest terms” and demanded a fully inclusive civilian government.
Whoever represents Myanmar must represent its people. However, following the junta’s atrocities in the ethnic states of Rakhine, Chin, Kachin, Shan and Kayin since the coup, the people of Myanmar have clearly rejected the regime, which could be charged with “crimes against humanity” by the International Criminal Court (ICC). So, allowing the Tatmadaw, which is responsible for overthrowing civilian governments, would thus undermine the UN charter and call the court’s role in promoting the rule of law into question. According to a recent statement issued by the NUG, the court risks setting a “dangerous precedent” that would be detrimental to Myanmar and its people, including the Rohingya.
It is understandable that the junta will leverage the hearings to gain substantial de jure recognition as the legitimate government of Myanmar within other UN bodies and beyond. As a result, the moral and strategic positions of international state actors to deny the junta’s recognition-seeking will be weakened to some extent. Similarly, it would send a terrible message to the civil society groups that are demanding the restoration of democracy and human rights in Myanmar. In a joint letter to the ICJ’s president, Legal Action Worldwide (LAW), along with Fortify Rights and the Myanmar Accountability Project (MAP), argued that the court’s acceptance of the junta to represent the country “would risk legitimising the junta’s unlawful seizure of power”. Importantly, in a letter, 807 Rohingya refugees in Bangladesh’s Cox’s Bazar camp urged the president of the ICJ to reconsider any act that could give legitimacy to the junta and move forward with substantive hearings on the case.
The junta’s representation in the legal proceedings could further complicate the implementation of the ICJ ruling. The regime, however, lacks effective control over the administration of the Arakan state’s key functions like taxation, revenue collection, and territorial stability. The Arakan Army (an anti-junta ethnic armed organisation based in Arakan) claims to control 60% of the Rakhine state administration and collects household revenue from both the Rohingya and the rest of the population.
The ICJ should also note the junta’s failure to uphold the “provisional measures of protection”. In a flagrant violation of the ICJ’s decisions, new evidence revealed in an order issued by the junta-run General Administration Department of Buthidaung Township in Rakhine State demonstrates the draconian denials of freedom of movement, preventing the Rohingya from accessing jobs, health care, and other aspects of basic survival. The NUG, on the other hand, has proposed two sustainable solutions. The first is agreeing to grant full citizenship rights to all Rohingya, and the second is formally withdrawing all preliminary objections in the case by admitting past atrocities committed against them.
However, it is unlikely that the NUG’s or junta’s representation in the ICJ has any direct practical ramifications in the court proceedings. Because defining the legal authority of Myanmar is not the subject of the Gambia vs Myanmar case. So, whoever represents Myanmar, the ICJ should proceed on substantive grounds that war crimes, crimes against humanity, and/or genocide have occurred in Rakhine.