Myanmar’s Lawyers Made Feeble Case at ICJ: Legal Expert

By The Irrawaddy 1 February 2020

Kyaw Kha: Welcome to Dateline Irrawaddy! This week we will discuss the International Court of Justice (ICJ)’s decision relating to provisional measures against Myanmar. I am The Irrawaddy chief reporter Kyaw Kha and I am joined by Dr. Salai Ngun Cung Lian, the director of federalism and constitutional reform at the Myanmar Institute for Peace and Study (MIPS).

The ICJ has imposed provisional measures against Myanmar. As a legal expert, could you explain what that means, according to legal procedures?

SNCL: The case was brought by The Gambia against Myanmar for alleged violation of the Genocide Convention. But as it is extremely difficult to prove the intent [to commit genocide], they requested six provisional measures as a temporary solution. And the ICJ judges accepted four of the measures. Whether we like it or not, Myanmar has to implement them.

KK: People are not very clear about those measures. Could you explain further?

SNCL: There are two things — firstly about the question of whether Myanmar violated the Genocide Convention, and secondly about the authority of the ICJ. The first is quite difficult [to prove]. It will take years. And the ICJ has the authority to deliver the ruling. The provisional measures are nothing to do with genocide but with the authority of the ICJ. The people are confused about these two and should be clear on them.

KK: What is your assessment of those four provisional measures?

SNCL: The ICJ has given the ruling but there must be someone to enforce that ruling. That’s why the ICJ did not order that the sixth measure be implemented. According to the four measures, Myanmar has to submit a report in the first four months and submit further reports every six months. According to Article 41 of the Statute of the ICJ, Myanmar has to submit regular reports to the UN Security Council. If Myanmar fails to comply with the provisional measures, the Security Council will take action against Myanmar. So we will get locked in a cycle of having to submit reports every six months for a decade.

KK: It is fair to say that the ICJ gave the ruling based on the fact-finding mission [FFM] report. But the government did not say it accepted the report. The National League for Democracy’s [NLD] spokesman Dr. Myo Nyunt said the party did not accept the report and they are sorry about the ruling. But the ICJ made its decision based on that report. What is your view?

SNCL: Besides that report, there are other reports by international agencies, including Human Rights Watch and Médecins Sans Frontières. The case brought by The Gambia against Myanmar was based on those reports, including the FFM report. How Myanmar views it is not important. Myanmar should have questioned the figures. Suppose Médecins Sans Frontières said 8,000 people died [in Rakhine State] but other reports gave different figures. The government should have asked the ICJ not to accept the lawsuit, citing inconsistent figures. This was our weakness.

KK: Myanmar’s Foreign Ministry issued a statement in response to the ICJ’s ruling but, for many citizens, the statement was too complex to understand. 

SNCL: Governments may issue three types of statement in these cases. The first is to totally oppose it. The second is to accept some parts, and the third is to acknowledge it. It neither accepts nor opposes it. Myanmar’s statement belongs to the third group.

KK: The day before the ICJ delivered its ruling, the government issued its ICOE [Independent Commission of Enquiry] report. Some say the report was too late. What is your view? 

SNCL: There are two parts. There are many reports about the Rakhine issue. But the ICJ’s ruling is largely based on the FFM report. Myanmar failed to complain at the ICJ that the FFM report differs from other studies. We failed to take the chance to argue that the ICJ should not make its decision based on the FFM report. Secondly, why was the ICOE report published late? The report should have been published in December or before we contested the lawsuit at the ICJ. If it had been published then, it could have helped disprove genocide and reduce the charges to war crimes or crimes of aggression. The government only published the ICOE report after the ICJ gave the ruling. I don’t know whether the government did it intentionally or from a lack of knowledge. It was a mistake.

KK: What action can the ICJ take if Myanmar fails to comply with the four provisional measures?

SNCL: Myanmar will face troubles if it complies. Firstly Myanmar may have to grant citizenship to illegal immigrants in Rakhine State. When the government contested the lawsuit at the ICJ, it failed to say the Rohingya are not an ethnic group in Myanmar. It failed to say the ARSA [Arakan Rohingya Salvation Army] is a terrorist group. But it said the AA [Arakan Army] is a Buddhist armed group. So this amounts to granting legitimacy [to the Rohingya]. We will suffer from the consequences for decades. The ICJ gave its ruling based on that. The Chinese judge totally avoided using the term “Rohingya”. She said she agreed because ethnic minorities are being persecuted in Myanmar. The Brazilian lawyer did the same. What is sad was the lawyer for Myanmar did not stress that point. Citizens should know the details about what happened.

KK: Why do you think the situation has deteriorated to the extent that a case was brought against Myanmar at the ICJ? What are our weaknesses?

SNCL: The problems in Rakhine State erupted in 2012. There were problems in the past but the things that led to the current developments started in 2012. The [previous] government was not able to handle that issue properly. Due to this a problem that could have been handled domestically was brought onto the international stage. The previous and current governments share blame for this. I was on the Rakhine Commission under the previous government. I provided recommendations but unfortunately, it was just before the election was held and power was transferred to the [NLD] government. The incoming government ignored our recommendations. It formed commissions and committees only after ARSA launched attacks on security outposts. If they do not accept what the previous government did, we are very likely to face much worse problems.

If they [any party that comes to power] have the attitude not to accept what the previous government did or planned, we are very likely to face much worse problems.

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