Rohingya refugees walk towards the Balukhali refugee camp in Bangladesh on November 2, 2017, after crossing the border from Myanmar. (AFP)

Justice in the balance as UN considers recognition question

The United Nations is set to consider whether to recognise the military regime or National Unity Government, and its decision could have major implications for a genocide case before the International Court of Justice.

By ANDREW NACHEMSON | FRONTIER

With the United Nations expected to soon decide whether Myanmar is represented in the General Assembly by the military regime or the National Unity Government, another important question may hang in the balance: who will represent Myanmar at the International Court of Justice?

The Gambia brought a case against Myanmar at the ICJ in 2019, accusing it of committing genocide against the Rohingya Muslim minority. The allegations stem from the Tatmadaw’s brutal campaign of violence in 2017, which monitoring groups say killed thousands of Rohingya and forced more than 700,000 to flee across the border to refugee camps in Bangladesh. Nobel Peace Prize laureate State Counsellor Daw Aung San Suu Kyi controversially defended the military’s actions before the ICJ in December 2019. Her administration was overthrown by the generals in February this year, and she is now being imprisoned by the very people she went to the Hague to defend

The NUG was formed in April by lawmakers elected in November’s polls, which the military later annulled, and consists of members from the National League for Democracy as well as representatives from ethnic minority groups and civil society.

With the military back in nominal control of the country but still largely unrecognised on the international stage, the case has become embroiled in the struggle between the regime and the NUG. Unlike the International Criminal Court, which hears cases against individuals, the ICJ is a United Nations body that settles disputes between states, and both the junta and the NUG are apparently eager to take the ICJ case to bolster their legitimacy.

Dr Sasa, the NUG’s Minister for International Cooperation, confirmed that the civilian government is seeking control of the case. “If the ICJ will allow us to represent Myanmar by appointing an agent at the case, then that is what we also will do,” he said in a recent interview with Frontier. Sasa made clear that the legitimacy issue is weighing heavily on the NUG’s decision to try and take the ICJ case. “It’s also very much to do with who will represent Myanmar as a state right now,” he said.

The UN Credentials Committee recommends to the UN General Assembly which government to recognise in the event of a dispute. The nine-member body currently includes Russia and China, who have shielded the junta from consequences at the UN Security Council, as well as the United States, which has already declared the events in Rakhine State ethnic cleansing and imposed sanctions against military-linked entities and individuals. 

The issue could come to a head when the General Assembly meets on September 14. Myanmar’s seat at the UN is occupied by U Kyaw Moe Tun, who has remained loyal to the overthrown government; the junta has not only sought to replace him, it has charged him with high treason and demanded his extradition. Last month, America’s Federal Bureau of Investigation announced details of an alleged assassination plot targeting Kyaw Moe Tun involving Myanmar nationals based in the US. The military regime has denied any involvement in the scheme.

Despite being the target of most of The Gambia’s allegations, the military regime also appears keen to continue engaging with the ICJ; it recently announced a reshuffle of the team overseeing the case, appointing eight junta officials. Mr William Schabas and Ms Phoebe Okowa, foreign lawyers who previously served on Myanmar’s legal team under Aung San Suu Kyi, both confirmed that they are no longer working on the case but declined to comment further. “I resigned from the legal team soon after the military coup and have absolutely no insights into the case except what is publicly available,” Okowa said to Frontier in an email.

The military’s new legal team is led by the junta’s foreign minister, U Wunna Maung Lwin, and also includes Lieutenant-General Yar Pyae, a close ally of commander-in-chief Senior General Min Aung Hlaing who was recently named as minister of the Union Government Office. 

But the NUG remains hopeful that the ICJ will not engage with the military’s legal team.

“I don’t think that the ICJ will accept those people that claim to be representing the state of Myanmar or the people of Myanmar,” Sasa said.

State Counsellor Daw Aung San Suu Kyi arrives to deliver an address on the Rohingya crisis in Nay Pyi Taw on September 19, 2017. (AFP)

A tough spot

Taking charge of the case would put the NUG in a tricky position, however. Aung San Suu Kyi’s decision to defend Myanmar before the ICJ was wildly popular inside the country, where many people consider the Rohingya to be illegal immigrants, but she was condemned by human rights groups and other Nobel Peace Prize winners. Canada and the Netherlands joined the case against Myanmar, and other Western countries like the United Kingdom expressed support for it.

How then would the NUG, which has Aung San Suu Kyi still nominally as its state counsellor, fight the case, if it were accepted as Myanmar’s representative? Continuing to deny allegations of genocide would harm its efforts to secure international support for its cause, but conceding that genocide occurred is unlikely to go over well domestically, where anti-Rohingya sentiment is widespread even among pro-democracy supporters. This could be ameliorated to some extent by heaping the blame onto the Tatmadaw, and saying that it misled the NLD government about events on the ground in Rakhine State back in 2017, but accepting that genocide occurred could still cost the NUG some support.

Political analyst Mr David Mathieson said the NUG would be “deplored internationally if they argued against genocide and pilloried domestically if they agreed it was a genocide”.

There are some signs that attitudes towards the Rohingya are changing. The NUG has pledged to grant the Rohingya equal rights and replace the 1982 Citizenship Law, and some activists and protesters have apologised for their treatment or advocated for their rights – public displays of sympathy and support were rarely seen before the coup. Even the use of the word “Rohingya” in such a public manner would have been unthinkable before the coup.

But Mathieson said he didn’t think attitudes had changed that much. “I can’t imagine any deep-seated anti-Rohingya sentiments would have completely evaporated since the coup. They may well have altered, but I seriously doubt there has been a nation-wide epiphany of compassion. More likely there has been a nationwide awakening as to the brutality, oppression and greed of the Tatmadaw.”

But Rohingya activist U Tun Khin, president of the Burmese Rohingya Organisation UK, said he believes perceptions have genuinely shifted. “There’s no question that we have seen a real change in public opinion since the coup. I and many other Rohingya have been flooded with messages on social media from people apologising for spreading hatred against us in the past,” he told Frontier.

Although some members of the NUG had denied atrocities were perpetrated against the Rohingya when the NLD was in power, Tun Khin said he believes the parallel government’s recent statements were a “step in the right direction”. 

“We welcome the fact that the NUG is seeking to engage with the ICJ, and there is no question that it is a better choice to [represent Myanmar] than the Tatmadaw,” Tun Khin said.

The NUG’s position is made more difficult by the fact that the case has been brought under the Genocide Convention. This means the ICJ can only rule on whether genocide occurred, and cannot, for instance, dismiss the genocide accusation but confirm a charge of crimes against humanity – a middle ground that might have been acceptable to most of the NUG’s international and domestic supporters.

When Aung San Suu Kyi defended the case, she did not even acknowledge crimes against humanity, however, saying instead that any alleged war crimes were committed by individual soldiers who would be held accountable domestically. The Tatmadaw has tried some soldiers accused of atrocities at military tribunals, but these trials were widely seen as attempts to deflect responsibility from more senior officers. They were also not open to the public and some of those convicted were soon amnestied and freed from prison. 

One of Myanmar’s former lawyers, Schabas, was more explicit, acknowledging during the ICJ hearing that the UN Fact-Finding Mission “concluded without equivocation that crimes against humanity and war crimes had been committed” but was “more circumspect” on the allegations of genocide. He noted at the time that the ICJ lacks jurisdiction to address those crimes.

Frontier asked Sasa several times whether the NUG would accept the allegations of genocide or argue against them in court, but he evaded the question each time.

“It is for the court to decide based on the evidence and proof if genocide happened or not. It’s not for the government or an organisation to decide. If it is found that there is evidence of genocide, who are we to say no?” he said.

When the NUG released a statement on the fourth anniversary of the crackdown on the Rohingya, it condemned “atrocity crimes” but did not explicitly call it a genocide. But even within the NUG there are divisions. The Ministry of Women’s Affairs released a statement calling the crackdown a genocide and highlighted acts of sexual violence, which the NUG did not mention and which Aung San Suu Kyi’s Facebook page previously referred to as “fake rape”.

Mathieson said the NUG could look foolish if it argued that genocide did occur, and then the court determined the crackdown did not qualify as genocide, an outcome he said “is not unlikely”.

Tun Khin argues it is crucial that the NUG publicly recognises the treatment of the Rohingya as a genocide. “Only by accepting the realities of the past will we be able to build a common future, and to take effective and genuine steps to end the ongoing genocide,” he said.

Sasa said the NUG is also working with its law firm, Volterra Fietta, to build a case against military leaders at the ICC. “We have received thousands of videos of atrocities” committed by the military since the coup, he said, pledging that the NUG will also “bring justice to our Rohingya brothers and sisters” either through the ICC or domestic legal mechanisms. 

Although Myanmar is not yet a state party to the ICC because it has not ratified the Rome Statute, soon after his interview with Frontier Sasa the NUG announced that it lodged a formal declaration in July to accept the ICC’s jurisdiction as a non-state party for crimes committed since 2002. 

Legitimacy not necessarily at stake

While the question of who represents Myanmar at the ICJ is symbolically important, the court adjudicates disputes between states, not governments. Legal experts say that if the junta were allowed to represent Myanmar, it would not imply legal recognition.

Mr Arsalan Suleman, a lawyer on The Gambia’s legal team, said they would continue to pursue the case even if the military regime is representing Myanmar.

“The Gambia sued the State of Myanmar in the ICJ. Since then, The Gambia has followed the procedures established by the Court, and it will continue to do so until a final judgment has been issued by the Court. This does not imply The Gambia’s diplomatic recognition of Myanmar’s current de facto government,” he said in an email.

Ms Emma Palmer, a senior lecturer at Australia’s Griffith Law School and an expert on international law, said the ICJ’s decision over who represents Myanmar could be “persuasive” in terms of popular perception of legitimacy, but is not legally binding.

“It would be the ‘state’ that the ICJ has jurisdiction over, rather than a particular government, so I agree that a change in government does not affect the ICJ case’s ability to proceed,” she said. Allowing the military to take the case “would not amount to any kind of formal change to the status of the military”.

Palmer said she would expect the ICJ to “avoid the issue” by delaying proceedings or waiting for the UN to make a decision.

This may already be happening. The last update on the ICJ website is from January 28, days before the coup, setting a deadline of May 20 for The Gambia to respond to Myanmar’s preliminary objections, which challenged the court’s jurisdiction over the case. These objections mean the case will not move forward until the court makes a decision on whether it has the authority to proceed.

Suleman confirmed that The Gambia countered Myanmar’s objections, and said he expects the court to set a date soon for oral arguments on the preliminary objections. But more than three months after the deadline for The Gambia’s response, the court is still yet to make any public statement on the case, let alone schedule oral hearings. In contrast, the January update came just eight days after Myanmar filed its preliminary objections on January 20. 

The ICJ did not respond to Frontier’s request for comment.

Myanmar's ambassador to the United Nations U Kyaw Moe Tun gives a three-finger salute as he addresses an informal meeting of the UN General Assembly on February 26 in New York. (AFP/United Nations via YouTube)
Myanmar’s ambassador to the United Nations U Kyaw Moe Tun gives a three-finger salute as he addresses an informal meeting of the UN General Assembly on February 26 in New York. (AFP/United Nations via YouTube)

No decision 

A further complication for the court would be if the UN General Assembly does not make a definitive decision later this month on who should represent Myanmar.

Ms Sarah Williams, a professor in the Faculty of Law & Justice at the University of New South Wales in Sydney, said the UN could theoretically leave Myanmar’s seat at the UN empty or maintain the status quo, allowing the incumbent ambassador, Kyaw Moe Tun, to retain his seat – at least for now – without deciding between the military regime and the NUG.

Williams said that if this happens, she would expect the ICJ to “say that it is unable to determine which person/entity is entitled to represent Myanmar and will not accept instructions from anyone” – a scenario that is likely to further stall the case. Even though the ICC is not a UN body and therefore “in theory has more flexibility”, it would still most likely take its cues from the UN and be reluctant to make its own determination.

Palmer said there is another scenario where the military takes the ICJ case, but then refuses to cooperate with the proceedings, given its history of rejecting the authority of international legal mechanisms. “If the military does notappear in Court, which seems potentially likely, then the Court will most likely just proceed with the case without ‘Myanmar’,” she said, adding that this has happened before, in a case between Nicaragua and the United States.

On August 24, the military regime filed a legal amendment criminalising genocide in Myanmar’s domestic law, and defining it by the recognised international standard. It has said little about the reasons behind the amendment, but observers say it could be an attempt by the military to undermine international legal mechanisms, as it can now try to argue that the crime of genocide can be investigated and prosecuted domestically and international action is therefore not needed.

But Tun Khin said only international mechanisms will suffice.

“The military has committed genocide, crimes against humanity and war crimes with impunity in Myanmar for decades,” he said. “They must be held to account, and only the international community is in a position to provide justice.”

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