The Palace of Peace in The Hague, the official residency of the International Court of Justice and the Permanent Court of Arbitration. Photo: AFP

The International Court of Justice (ICJ) recently announced that it will hold a fresh round of hearings from February 21-28 into the Rohingya genocide case.

After the military-led “clearance operation” that forced 750,000 Rohingya to flee to neighboring Bangladesh, the West African nation The Gambia in November 2019 brought a case to the ICJ accusing Myanmar of violating the 1948 Genocide Convention.

Later, in response to the court’s unanimously upheld and legally binding provisional measures to protect the Rohingya from further atrocities, in January 2021, Myanmar’s government, which was then led by the National League for Democracy (NLD), filed a preliminary objection to the jurisdiction of the ICJ and the admissibility of the application.

The court’s decision to hold new hearings, in which the leaders of Myanmar’s current military regime will potentially be defendants, has sparked speculation that the ICJ is implicitly taking a position legitimizing the regime.

It is worth noting that the junta-formed State Administrative Council (SAC) and the opposition National Unity Government (NUG) have been struggling for recognition from the international community since the coup d’état in February 2021. 

When United Nations 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, the UN’s top judicial body.

Meanwhile, the military administration has organized a new legal team led by its foreign minister, Wunna Maung Lwin, to argue the genocide case.

Accepting representation from the illegitimate military regime under the UN system would contradict the General Assembly stance taken in December 2021 that firmly rejected the junta’s credentials, leaving Kyaw Moe Tun, who is aligned with the NUG, as Myanmar’s incumbent permanent representative to the United Nations.

The ICJ’s move would imply that it 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 recognized 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.

Whoever represents Myanmar must represent its people. However, after the junta’s killings and atrocities against ethnic minorities of Rakhine, Chin, Kachin, Shan and Kayin states since the 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 a civilian government 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 the NUG, the ICJ risks setting a “dangerous precedent” that would be detrimental to Myanmar and its people, including the Rohingya. 

It is likely 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 acceptance of a murderous military regime 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.

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 has 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 NUG, on the other hand, has proposed two realistic measures for 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 court case by admitting past atrocities committed against Rohingya.

However, it is unlikely that the NUG’s or the junta’s representation in the ICJ has any direct practical ramifications in the court proceedings, because defining the legal authority of Myanmar is not the subject of the Gambia vs Myanmar case. So whoever represents Myanmar, the ICJ should proceed on substantive grounds that war crimes, crimes against humanity, and/or genocide have indeed occurred in Rakhine.

Parvej Siddique Bhuiyan

Parvej Siddique Bhuiyan is a freelance researcher who focuses on security and strategic issues in Asia, particularly South Asia. He holds a master’s degree from Jahangirnagar University in Dhaka.