Five years after the Myanmar military launched its clearance operation targeting the Rohingya in Rakhine State, the wheels of international justice continue slowly to turn. On July 22, the International Court of Justice (ICJ) dismissedMyanmar’s preliminary objections in the genocide case against it, allowing the proceedings to move forward on the merits. In the following weeks, Myanmar’s National Unity Government (NUG) welcomed the judgment, five States and the European Union jointly affirmed their support for the case, and the U.K. and Germany announced their intention to intervene in support of Gambia (the applicant State). Meanwhile, the 77th annual session of the United Nations General Assembly has further promoted discussion over the question of who represents Myanmar: the National Unity Government (NUG) or military junta. That debate unfolds amid the ICJ’s persisting acceptance of the junta, which is coming under increasing criticism.
Many challenges lie ahead in the pursuit of justice for the Rohingya, not least the task of establishing genocidal intent on the part of Myanmar, and the ICJ’s continuing recognition of the junta. States can help to maximize the prospect of an outcome that provides real benefits to the Rohingya, including by intervening on behalf of Gambia and accepting the NUG’s delegates as representing Myanmar at the General Assembly and in other diplomatic engagements.
The ICJ’s Decision on Preliminary Objections
In January 2021, Myanmar (or rather, the junta) made four objections to the genocide case, arguing that the ICJ lacked jurisdiction or that the case was otherwise inadmissible. The objections were:
- Gambia was not the “real applicant,” but rather a proxy of the Organisation of Islamic Cooperation;
- Gambia lacked standing to bring the case before the Court because it was not an “injured State”;
- Myanmar’s reservation to Article VIII of the Genocide Convention, which allows States Parties to call on the “competent organs of the U.N.” to take action to prevent and suppress genocide, ought to preclude action by the ICJ; and
- there was no “dispute” between the Parties.
The ICJ rejected each argument. In short, it ruled:
- the fact that a State may have been supported by an intergovernmental organization to bring a case before the Court does not detract from its status as the applicant before the Court;
- any Party to the Genocide Convention may invoke the responsibility of any other Party for an alleged breach of its obligations under the Convention;
- the reference in Article VIII of the Genocide Convention to “competent organs of the U.N.” does not encompassthe ICJ; and
- there is a dispute between Gambia and Myanmar over the interpretation, application, and fulfilment of the Genocide Convention.
Thus, the Court ruled that it has jurisdiction to hear the case, and that Gambia’s application is admissible.
Whose Preliminary Objections?
Throughout its judgment, the ICJ referred to the “preliminary objections of Myanmar.” But the objections were in fact those of the military junta that attempted to illegally seize power in February 2021. Sometimes, the unlawful toppling of a democratically elected government results in a change of government for purposes of international law. International law accepts the illegal regime as the State’s new representative because it would be impractical to do otherwise. But in Myanmar, the junta has failed to consolidate control and the question of governance is contested. The NUG – established in April 2021 – has appointed a Cabinet and government ministries, represents Myanmar at the General Assembly, has appointed diplomatic representatives to several countries, and has established armed forces. According to a recent briefing paper by the Special Advisory Council for Myanmar, “resistance forces and organisations [aligned with the NUG] are now the de facto authorities in the majority of the territory of Myanmar.”
So when the ICJ speaks of the “preliminary objections of Myanmar,” this belies the complexity of the question – who speaks for Myanmar? In fact, in February 2021 the NUG advised the ICJ that it “accepts the jurisdiction of the Court and withdraws all preliminary objections in the case.” The NUG further advised the Court that Ambassador, Kyaw Moe Tun – Myanmar’s representative to the U.N., and endorsed by the NUG – was the “only person now authorized to engage with the Court on behalf of Myanmar.”
The organs of the U.N. are supposed to follow the General Assembly’s lead on the question of who represents a government in international bodies. This is stipulated in General Assembly Resolution 396(V), which says that whenever the issue of the representation of a State is disputed, U.N. organs should take the “attitude adopted by the General Assembly” into account. But the ICJ has flouted this rule. In its judgment, the Court noted without analysis that in April 2021, “Myanmar informed the Court of the appointment of [representatives of the junta] in place of H.E. Ms Aung San Suu Kyi and H.E. Mr. Kyaw Tint Swe.” Legal scholars and human rights advocates (see here and here) have condemned the ICJ’s acceptance of the junta. With the preliminary objections dismissed, the significance of the representation issue seems temporarily diminished, but it will again become significant if Gambia succeeds in proving the genocide allegations and Myanmar is asked to provide reparation to the Rohingya.
What Happens Now?
The ICJ will now proceed to hear the case on its merits, itself a monumental step. Genocide cases in international courts and tribunals are rare because the crime is so hard to prove. The ICJ has only considered a State’s responsibility for genocide twice before – the Bosnian Genocide Case judgment of 2007 and Croatia v Servia in 2015. Moreover, because the ICJ has never found a State responsible for genocide, it has never considered a State’s responsibility to provide restitution and compensation to the victims, which is part of Gambia’s application in this case. The ICJ’s decision will thus likely break new ground in relation both to the interpretation of the crime of genocide and the issue of reparation.
Establishing Genocidal Intent
On the question of the alleged commission of genocide, the legal question, as defined in the Genocide Convention, is whether officials of the State of Myanmar killed or harmed members of the Rohingya, or inflicted conditions of life calculated to bring about the destruction of the Rohingya as a group, or imposed measures intended to prevent births within that group, pursuant to an intent on the part of the State to wholly or partially destroy the Rohingya as a group.
In 2019, the International Fact-Finding Mission on Myanmar (IIFFM) concluded that there were reasonable grounds to believe that “genocidal intent on the part of the State of Myanmar can be inferred.” The IIFFM said that genocidal intent could be inferred from, among other things: the brutality of the military’s attacks on the Rohingya; the organized nature of the destruction; the insulting, derogatory, racist and exclusionary utterances of Myanmar officials; the existence of discriminatory plans and policies, as well as the Government’s efforts to “clear, raze, confiscate or build on land in a manner that sought to change the demographic and ethnic composition of Rakhine State”; and the Government’s tolerance for public rhetoric of hatred and contempt for the Rohingya.
It is beyond the scope of this post to consider the likelihood of the ICJ agreeing with the IIFFM that these indicators show an intent to destroy the Rohingya; but what can be said is that Gambia’s lawyers face a difficult road. The ICJ has said that “destroy” in this context means the “physical or biological destruction of the group” (Croatia v Serbia, para. 136; Bosnian Genocide Case, para. 344). Not the forced expulsion of a group from territory, nor – as numerous scholars have argued – the destruction of the myriad social, cultural, historical and religious elements that together define a “group” (see this discussion by Melanie O’Brien). Moreover, the genocidal intent must be attested to by a “concertedplan” or “pattern of conduct which could only point to the existence of such intent” (Croatia v Serbia, para. 376). Unsurprisingly given the stringency of this test, no State has ever been found responsible for having committed genocide, despite findings that genocides have occurred. Serbia was only found responsible for failing to prevent one, and individuals have faced criminal responsibility for committing them.
What bears reflecting is that the Rohingya have faced decades of State-sponsored assaults – including forced migration, population control measures and the attempted erasure of the group’s ethnic, social and historical identity, even before the clearance operation of 2017 (see discussion here). A finding that this pattern of conduct is not genocide, would beg the question whether the Genocide Convention is serving its purpose. In interpreting the crime of genocide, the ICJ has referenced the Convention’s drafting history, and specifically the decision not to include “cultural genocide” in the list of genocidal acts. But one wonders if the Convention’s drafters really intended for it to apply only to “Rwanda or holocaust-type situations” (see discussion here by Leila Sadat), as the ICJ’s jurisprudence seems to suggest. Might the situation of the Rohingya give the ICJ pause to consider whether there is really no way to destroy a group other than by physically exterminating them? If not, we are left only to hope that a way can be found to expedite the adoption of the proposed Convention on Crimes against Humanity, to fill the gap.
As reparation, Gambia asked the ICJ to require that Myanmar provide the Rohingya with restitution and compensation, and to offer assurances and guarantees of non-repetition. But because the ICJ has never before substantively considered the issue of reparations for genocide, if the Court gets to this stage it will be quite unchartered territory.
Among other things, Gambia asked that Myanmar: allow the safe and dignified return of the Rohingya to their places of residence; return property taken from the Rohingya; protect the Rohingya against discrimination and persecution; and provide the Rohingya with citizenship, freedom of movement and access to employment and livelihoods without discrimination. These are things the Rohingya and human rights organizations have advocated for years. The IIFFM and the Advisory Commission on Rakhine State have also called for many of these same things.
And this is where the question of which government represents Myanmar before the ICJ becomes critical. If the ICJ were to order Myanmar to provide reparation to the Rohingya, in some or all of the forms Gambia requested, it is inconceivable that the junta would comply in good faith considering its refusal to even recognize the Rohingya as a persecuted group. Because the ICJ lacks the means to enforce its judgments, the case would thus be of limited use to the Rohingya. By contrast, the NUG has announced that “reparation and justice [for the Rohingya] will be ensured in the future Federal Democratic Union Constitution.” This is not to say that the NUG currently has the power to do this, but at least the political will is there.
What Needs to Happen Now?
- The ICJ should accept the NUG as representing Myanmar. Continuing to accept the junta’s appointees runs counter to the General Assembly’s approach and risks undermining the prospects of the genocide case tangibly benefiting the Rohingya.
- States should follow the example set by the K., Germany, Canada and the Netherlands and intervene in the case in support of Gambia. Such interventions, as Judge Cançado Trindade observed in the 2013 Whaling Case, can “provid[e] additional elements to the Court for its consideration and reasoning” and “contribute to the progressive development of international law” when matters of collective interest are at stake. Given the mountain of evidence and legal arguments that will be required to establish Myanmar’s genocidal intent, and the unchartered territory of reparation, Gambia is going to need all the support it can get.
- The General Assembly should accept the NUG’s delegate(s) as representing Myanmar. This would send a clear message to other parts of the U.N., including the ICJ, that they should follow suit. The General Assembly should moreover consider passing a resolution explicitly describing the NUG as the legitimate representative of Myanmar and calling on other parts of the U.N. to recognize it as such (see discussion here).
- States should take steps to bolster the legitimacy of the NUG, for example through diplomatic engagement, public statements, and financial support, and they should refrain from conduct that could be interpreted as conferring legitimacy on the junta.
There is a long road ahead to achieve justice for the Rohingya, and the jurisprudential odds are not in favour of a judicial finding of genocide and award for reparations. But Myanmar’s crimes against the Rohingya have already propelled the wheels of international justice to turn in unprecedented ways. With the support of the brightest legal minds and the political backing of States, perhaps they can continue to do so.