On Feb. 21, the Hague-based International Court of Justice (ICJ) held a fresh round of hearings into the genocide case brought by Gambia against Myanmar in 2019 concerning the military operations against the Rohingya in 2017.
The ICJ allowed the junta to represent Myanmar despite objections from international organizations and Myanmar’s shadow National Unity Government (NUG), which said the move risked legitimizing the junta’s unlawful seizure of power in a coup on Feb. 1, 2021.
Ahead of the planned court hearings, the NUG government released a statement saying it “accepts the jurisdiction of the court and withdraws all preliminary objections in the genocide case” and unsuccessfully urged the international body to cancel the planned hearings.
Junta-appointed representatives led by its international cooperation minister U Ko Ko Hlaing and advocate general Daw Thidar Oo presented four points at the hearings insisting that the case was inadmissible because the court lacks jurisdiction.
Human rights lawyer and Legal Aid Network founder U Aung Htoo recently talked to The Irrawaddy about the latest developments in the case.
Both Myanmar and Gambia have presented arguments at the ICJ. What is your overall assessment of the case? Do you think the junta-appointed defense team has made a better or worse defense than the team of the ousted National League for Democracy (NLD) government led by Daw Aung San Suu Kyi?
Overall, the regime’s lawyers were not able to present new facts. Most of the facts they presented were old ones [presented by the NLD government’s team]. So I assume Gambia’s rebuttals are more legally plausible. I don’t know how the court will decide. But in my opinion, the court will decide that it has jurisdiction over the case.
The ICJ accepted the regime as the representative of Myanmar at the hearings in February. Many raised objections to that. Is it fair to say that the regime has an advantage due to the court’s acceptance of it as representing Myanmar?
The regime might have calculated so. It is possible that the court’s acceptance [of the regime’s representatives] could have a political impact on the NUG’s bid for legitimacy on the international stage. The NUG might be concerned about that. But there are many legal problems on the side of the ICJ, I think.
Firstly, the ICJ is a part of the United Nations [UN], so it must comply with the principles and norms of the UN. The ICJ needs to acknowledge that the UN retains U Kyaw Moe Tun [who has declared his support for the NUG] as Myanmar’s representative to [the UN]. What the NUG has pointed out is correct. The ICJ is responsible for seeing that fact.
Secondly, international law states that there must be a fair and public trial. The ICJ is well aware that the defense team was led by [civilian leader] Daw Aung San Suu Kyi when Myanmar offered its defense before the coup, that the Myanmar military has since seized power in a coup, and that the new representatives of Myanmar are appointed by the junta. The NUG has proposed sending its own representative to the court hearings. The ICJ however did not make enquiries in response to the NUG’s request, and allowed the junta-appointed representatives to speak at the court hearings on Feb. 21. This is contrary to a fair and public hearing, which is the established norm of international law.
Section 31 of the ICJ’s Rules of Court state that “the President shall ascertain the views of the parties with regard to questions of procedure, and for this purpose he shall summon the agents of the parties to meet him as soon as possible after their appointment.” But in the case of its latest hearings on Myanmar, the president did not apply that procedure. He made the decision on his own [to accept the junta as representing Myanmar].
The ICJ has violated the norm of a fair and public trial. At the same time, the prosecution, Gambia, did not point that out. It unquestioningly accepted the junta as representing Myanmar at the Court. This has prompted us to examine its intention in accepting it. Gambia knows that the military seized power in a coup, and Myanmar’s legal defense team has changed. But, it did not complain, and did not even bother to mention it.
The NUG has asked the ICJ to allow it to represent Myanmar at the court. But it did not explain why the jurisdiction of the court should be accepted. Perhaps Gambia is worried that the way the NUG is approaching the case might not move in its desired direction.
To what extent will the regime’s post-coup atrocities impact the case at the ICJ?
The nature of the court is to seek justice. In so doing, a court has to take into consideration the events that happened before, during and after said crime. The ICJ will however not consider the events that happened after the coup in Myanmar, which is sad for Myanmar. It does not view [post-coup atrocities] as evidence [of the Myanmar military’s previous crimes]. Moreover, it unquestioningly accepted junta representatives without following standard court procedures. This clearly shows that post-coup events will not influence the court in its decision.
To what extent can Rohingya refugees expect justice in this case?
This concerns the entire Myanmar people. Firstly, the whole [population] need to change their mindset and stance. There are two views: One is to uphold the principle of national interests, and another is justice based on humanity. Before the military coup, many viewed the case from the perspective of national interests. It was about defending Myanmar and its national interests—Myanmar must win and Gambia must lose. Frankly speaking, that stance is not correct.
Today, we need to reconsider that stance. We need to change our stance in favor of justice based on humanity for the Rohingya people. If we do so, there will be real hope for Rohingya people to get justice.
Considering the delays and inconsistencies that are typical of international courts, are Myanmar people wrong to hope that international mechanisms can achieve justice in regards to oppression in the country?
It is a good question. In short, it is not a false hope. It can in no way be a false hope. Mostly it depends on how you approach the international judicial mechanism.
Since the end of the pro-democracy uprising in 1988, [opposition forces in Myanmar] have approached every issue from the perspective of national reconciliation, instead of punishing the military, which has committed serious crimes. Political leaders have never tried to take action against Myanmar’s military. The perpetrators were never punished. Even if the perpetrators of serious crimes could not be punished for the sake of national reconciliation, something should have been done. Reforms should have been undertaken of the judicial and security organizations to prevent military leaders from committing similar crimes in the future. I mean institutional reforms should have been carried out within the military, military intelligence, police and so on. But, it has not been possible to do those things for reasons of national reconciliation.
Secondly, restorative justice has not been done for victims of serious crimes. As a result, successive military leaders have become more daring in committing national crimes, believing they can do anything with impunity.
I mean we have failed to effectively stop the military from enjoying impunity, and we support it indirectly by covering up its crimes. So, military leaders have continued to commit crimes flagrantly. This ultimately resulted in the exodus of more than 700,000, or perhaps 1 million, Rohingya people. [Political leaders] continued to defend the Myanmar military even after it committed such serious crimes.
Before the coup on Feb. 1, 2021, Myanmar people, major political parties and political leaders did not rely on or effectively cooperate with international judicial mechanisms.
At the same time, the military elites led by Min Aung Hlaing—who is as evil as can be—do not deserve the loving-kindness of Daw Aung San Suu Kyi. She wants to see peaceful change in the country. She paved the way for military leaders and defended them. But the traitors are ungrateful. They don’t want to see peaceful change in the country. What they care about is maintaining their grip on power. Even a dog does not bite the hand that feeds it, but they don’t just bite, they actually harm the person [who protects them] as well as the entire country.
The junta’s lawyers claimed during the ICJ court hearings that Gambia is too reliant on the United Nations Fact-Finding Mission (UNFFM) report, and that they failed to assess the correctness of the report. In fact, the UNFFM report contains sufficient evidence to build a case. But the regime’s lawyers argued that the report alone is not enough to charge Myanmar. Such cases are quite unpredictable. [The case] may be dropped if the prosecution side can’t provide sufficient evidence to convince the court that the defendant had genocidal intent in committing those crimes.
So, we have to look for the reverse of what we had expected before. If Myanmar wins the case [at the ICJ], it amounts to putting a lethal weapon in the hands of a fool. So, we need to help Gambia win the case. Who will support that?
The military regime will never follow provisional measures adopted by the ICJ. So, the NUG, which has sought to represent Myanmar at the ICJ, can follow the provisional measures. At the federal level, there is the NUG. In Rakhine State, there is the United League of Arakan/Arakan Army (ULA/AA). There is the [parallel] government formed by the ULA/AA in Rakhine. It is very good. So if the federal-level NUG and state-level ULA/AA governments work together and follow provisional measures, the truth will emerge, which is good for the international judicial mechanism and the Rohingya, as well as Myanmar.
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