Following the military-led “clearance operation” that forced 750,000 Rohingya to flee 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, in January 2021, the then NLD government filed a 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 on 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 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. In 2019, Suu Kyi personally attended hearings to defend the military against charges of genocide and crimes against humanity. However, the army’s takeover has put an end to Myanmar’s “quasi-democratic process,” preventing her from representing the country at the ICJ. Meanwhile, the military administration has organized a new legal team led by its foreign minister, U Wunna Maung Lwin, to contest the genocide case.
Accepting representation from the illegitimate military regime under the UN system would contradict the UN. The General Assembly stance taken in December 2021 that firmly rejected the junta’s credentials, leaving U 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. 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.
However, it is unlikely that the NUG’s or junta’s representation in the ICJ has any direct practical ramifications in the court proceeding because defining the legal authority of Myanmar is not the subject of the Gambia v. 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
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 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 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 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.
However, it is unlikely that the NUG’s or junta’s representation in the ICJ has any direct practical ramifications in the court proceeding because defining the legal authority of Myanmar is not the subject of the Gambia v. 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.