The International Court of Justice (ICJ) begins hearings on Monday over Myanmar’s preliminary objections to a genocide case brought over the military’s brutal 2017 crackdown on the mostly Muslim Rohingya. The proceedings have been given added urgency and complicated by the coup that took place in Myanmar a little more than a year ago.
The case was filed by The Gambia, a small West African country, with the backing of the Organisation for Islamic Cooperation (OIC) after more than 700,000 Rohingya fled into neighbouring Bangladesh amid reports the Myanmar military burned entire villages and carried out “large-scale” killings, gang rape and other abuses.
A United Nations investigation found the crackdown had been carried out with “genocidal intent” and recommended Commander in Chief Min Aung Hlaing, and five generals be prosecuted.
Then civilian leader Aung San Suu Kyi travelled to The Hague to lead Myanmar’s defence in December 2019, but after removing her from office in a coup in February last year, Myanmar’s military leaders said their representatives would argue the preliminary objections in court.
The National Unity Government (NUG), which includes elected legislators who were removed by the military, announced last week that it was withdrawing the objections and wanted the ICJ to proceed to the merits of the case.
It has said UN Ambassador Kyaw Moe Tun, who was appointed by Aung San Suu Kyi’s government and remains in office, is “the only person authorised to engage with the Court on behalf of Myanmar”. The UN General Assembly’s credentials committee in December said Kyaw Moe Tun can remain in his post until it decides who should represent Myanmar.
A briefing from Human Rights Watch and Global Justice Center said that the military’s participation at the ICJ hearings would have “no bearing on its recognition at the United Nations” noting that under ICJ rules “[s]tates have no permanent representatives accredited to the court. They normally communicate with the Registrar through their Minister for Foreign Affairs, or their ambassador accredited to the Netherlands”.
Rohingya and rights groups say despite the issue of representation, the case has gained added urgency because of the crackdown on the anti-coup movement since February 1, 2021. The Assistance Association for Political Prisoners (AAPP), which has been tracking developments, says more than 1,560 people have been killed since the generals seized power, and that violence has also increased in ethnic minority areas.
“As the Myanmar military continues to commit atrocities against anti-coup protesters and ethnic minorities, it should be put on notice there will be consequences for these actions — past, present, and future,” said Akila Radhakrishnan, president of the Global Justice Center. “The ICJ’s proceedings are laying the groundwork for accountability in Myanmar — not only for the Rohingya, but for all others who have suffered at the hands of the military.”
The estimated 600,000 Rohingya who remain in western Rakhine State also continue to live under severe restrictions on their movement and increasing military intimidation.
Tun Khin, president of United Kingdom rights organisation BROUK, says the hearings “are an important opportunity for justice for the Rohingya people, more than four years after the military committed its atrocities against them” adding that “genocidal acts” were still being committed against the minority group inside Myanmar.
“The Myanmar people have clearly rejected the junta, making it clear the military does not represent them,” Tun Khin said in an email to Al Jazeera. “All in the international community, including ICJ, should hear this, and not lend any form of legitimacy to the junta. However, we mustn’t lose sight of the fact that this case is about justice for the Rohingya.”
Myanmar’s preliminary objections in the case have not been made public, but they relate to issues of jurisdiction and whether The Gambia’s application is admissible.
Both countries are parties to the 1948 Genocide Convention, and The Gambia considers Myanmar to have violated its obligations under the convention, building its case on the evidence gathered by the UN investigators.
When Aung San Suu Kyi spoke in court in 2019, she said the situation was “complex” and that the military had been responding to attacks by Rohingya “militants”.
She said Myanmar had taken steps to investigate the crackdown and take action against the perpetrators.
“Can there be genocidal intent on the part of the state that actively investigates, prosecutes and punishes soldiers and officers, who are accused of wrongdoing?” asked the Nobel Peace Prize laureate who shocked many human rights advocates by defending the military at The Hague. “Although the focus here is on members of the military, I can assure you that appropriate action will be taken on civilian offenders, in line with due process.”
A month after she addressed the court, the ICJ ordered Myanmar to protect the Rohingya, with presiding Judge Abdulqawi Ahmed Yusuf saying Myanmar had “caused irreparable damage to the rights of the Rohingya”.
According to the ICJ’s statutes, the court has the power to order provisional measures when “irreparable prejudice could be caused to rights which are the subject of judicial proceedings”.
The court found that the condition of urgency had been met in the case and required that the country prevent all genocidal acts against the Rohingya, ensure that the military and other security forces do not commit acts of genocide, and take steps to preserve evidence related to the case.
Myanmar was also told to provide an initial report on its compliance within four months and updates every six months.
“The International Court of Justice hearings are the next step in the landmark case to break the cycle of violence and impunity in Myanmar,” Nushin Sarkarati, associate international justice director at Human Rights Watch said in a statement. “The case could build a pathway to justice, not only for the Rohingya, but for everyone in the country.”
The hybrid hearings are due to start at 1:30pm local time (12:30 GMT) and will continue for a week.