Hundreds of Rohingya refugees enter
Bangladesh from Budichong, Myanmar through the Palongkhali border in Cox's Bazar,
Bangladesh. Photo: EPA
Following the
military-led "clearance operation" that forced 750,000 Rohingya to
flee from Myanmar to neighbouring Bangladesh, Gambia, a West African nation, in
November 2019, brought a case to the International Court of Justice (ICJ),
accusing Myanmar of violating the 1948 Genocide Convention.
Later on, in response to the
court’s unanimously indicated legally binding provisional measures to protect
the Rohingya from further atrocities, on January 2021, the then National League
for Democracy-led government filed preliminary objections to the jurisdiction
of the Court and the admissibility of the Application.
In this context, the ICJ recently
announced that it will hold a fresh round of hearings from February 21–28 in
the Great Hall of Justice in which the regime’s leaders will be potential
defendants, sparking speculation that the Court is implicitly taking a position
in the ongoing Myanmar crisis and civil war and legitimizing the unrecognized
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.
When UN investigators concluded
that 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. Even in 2019, 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 organized a new legal team led by
its foreign minister, Wunna Maung Lwin, to act as defence in the genocide case.
Accepting representation from the
illegitimate military regime under the UN system would contradict the UN
General Assembly stance taken in December 2021 that firmly rejected the Junta’s
credentials, leaving Kyaw Moe Tun (aligned with the NUG) as Myanmar's incumbent
permanent representative to the United Nations, because it would imply that the
ICJ acknowledges the Tatmadaw as the rightful representatives of Myanmar,
despite the fact that no UN member state, UN agency, or other international
organization has formally recognised the junta government.
Although 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
in Myanmar.
Whoever represents Myanmar must
represent its people. However, following the junta's mass killings and
atrocities in the ethnic states of Rakhine, Chin, Kachin, Shan, and Kayin since
the February 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 unlawful officials who overthrew a civilian government
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
mass-murderous military acceptance 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
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 legitimizing 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. Because the regime, however, lacks effective control over the
administration of the Arakan or Rakhine state's key functions like taxation,
revenue collection, and territorial stability, the Arakan Army (an anti-junta
ethnic armed organization based in Arakan) claims to control 60 percent of the
Rakhine State administration and collects household revenues 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 Rohingya from accessing livelihoods, health care, and
other aspects of basic survival. The National Unity Government (NUG), on the
other hand, has proposed two realistic measures for a sustainable solution of
the crisis. The first is agreeing to grant full citizenship rights to all
Rohingya people, and the second is formally withdrawing all preliminary
objections in the case by admitting past atrocities committed against Rohingya people.
So, if the ICJ considers NUG’s request, the hearings on preliminary objection
will become obsolete. Similarly, allowing Kyaw Moe Tun to act as Myanmar's
legal representative at the ICJ would allow him to provide the court with all
the evidence it possesses, effectively moving the substantive case forward
within the timetable.
However, it is unlikely that the
NUG’s or Junta’s representation in the ICJ has any direct practical
ramifications on the court proceedings. Because defining the legal authority of
Myanmar is not the subject of the Gambia v. Myanmar case. So, whoever
represents Myanmar, the International Court of Justice (ICJ) should proceed on
substantive grounds that war crimes, crimes against humanity, and/or genocide
have occurred in Rakhine.
Parvej Siddique Bhuiyan, a security
and strategic affairs analyst, Dhaka, Bangladesh.
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