A decision by Myanmar’s shadow government to withdraw preliminary objections to charges of genocide against ethnic Rohingyas at the International Court of Justice (ICJ) was made to ensure the case is not fought by a party that does not represent the will of the people, its foreign minister said Thursday.
The National Unity Government (NUG) said in a Feb. 1 statement that it would withdraw all preliminary objections in the ICJ case over Myanmar’s military operations against the Rohingya in 2016 and 2017, a scorched-earth campaign that forced 730,000 Rohingya to flee Rakhine state, mostly to neighboring Bangladesh.
The NUG asked that it and not the ruling military junta that took over Myanmar in the Feb. 1, 2021, coup represent the country before the court.
On Thursday, NUG Foreign Affairs Minister Zin Mar Aung told RFA’s Myanmar Service that the junta should not represent the people of Myanmar at the court because it came to power through illegitimate means.
“No country in the world, and not even the U.N., acknowledges the military coup [as a proper way to transfer power],” he said. “That’s why [the junta] should not be given the chance to represent Myanmar. We sent the letter to ICJ based on these reasons.”
In 2019, then-leader Aung San Suu Kyi staunchly defended the Myanmar military against genocide and crimes against humanity charges in 2019 brought by the West African nation of Gambia to the ICJ in The Hague.
Aung San Suu Kyi and her spokesman said at the time that a Myanmar government investigation found war crimes and serious human rights violations had occurred during counter-terrorism operations in Rakhine, but there was no “genocidal intent.”
The Gambia case charges that Myanmar violated the 1948 Genocide Convention during the alleged expulsion of Rohingya. The hearing on the objections was scheduled to begin Feb. 21.
In 2019, Zin Mar Aung claimed that the military leaders responsible for atrocities in Rakhine had been prosecuted under Myanmar’s law. But on Thursday he said that domestic rule of law has eroded under the junta and it was no longer possible to expect justice would be served.
NUG acting President Duwa Lashi La has also said that giving the junta the right to represent Myanmar at the ICJ would “encourage the kinds of crimes it has committed” and is not in line with a resolution adopted by the U.N. General Assembly in December 2021 that rejected the credentials of the junta.
Seeking recognition
When asked Thursday about the NUG’s withdrawal of its earlier arguments, junta Deputy Information Minister Maj. Gen. Zaw Min Tun said he had no comment.
“This is their opinion. We have no criticism or comment on it,” he said.
“We are going to attend and give the arguments at the ICJ trial as a responsible government. We will be represented by a minister and attorney general. We cannot reveal what our strategy is or how we will argue the case, but we have hired attorneys who are experts on the issue.”
Zaw Min Tun said the junta plans to send a team led by Foreign Affairs Minister Wunna Maung Lwin to the trial. He refused to say which law firm it had hired.
Nickey Diamond, a Myanmar human rights activist based in Germany, told RFA that the junta is likely using the ICJ trial as part of a bid to gain international recognition.
“The military is grasping at straws. … No one will recognize them,” he said. “Neither the international community nor the people of Myanmar believe their arguments.”
Diamond suggested that the junta might give testimony that incriminates itself during the trial and said he will be watching the proceedings carefully.
Worsening conditions
Meanwhile, the situation for Rohingyas in Myanmar has only become worse, despite a temporary order issued by the ICJ in January 2020 to halt violence against the ethnic group, Rohingya activist Ro Nay San Lwin told RFA Thursday.
“There is no government in Myanmar. It is ruled by the military, and they are more brutal, so the people are living in fear,” he said.
“All in all, the genocide against the Rohingya people is not over yet. I conclude that it is still ongoing because the situation has not changed for them. It has become crueler. They are even arresting the Rohingya who had fled for their lives from Rakhine state and are putting them in prison.”
On Wednesday, Rohingya activist groups in Bangladesh welcomed the NUG withdrawal, saying it would help to bring a favorable verdict and potentially end decades of persecution of the Rohingya in Myanmar.
But others have made clear that they want to see the military punished for the brutalities it inflicted on their community.
“The military intentionally committed these atrocities in 2017 in all Muslim villages — they burned the villages and killed the children and elderly who could not flee,” said one Rohingya from Rakhine’s Buthidaung township, who spoke to RFA on condition of anonymity.
“They gave the excuse that they were conducting a clearance operation, but they were not. It was just a tactic to eliminate us. I want to see the military leaders getting proper punishment under international law for the crimes they committed.”
Letter to court president
The NUG’s call on the ICJ to dismiss the junta as Myanmar’s representative was echoed Thursday in a joint letter to the court’s president by Legal Action Worldwide, Fortify Rights and the Myanmar Accountability Project.
The three groups argued that to allow the regime to represent the country “would risk legitimizing the junta’s unlawful seizure of power.” They warned that recognition of the junta by the court would be “inconsistent with the approach taken by other U.N. institutions.”
The ICJ should instead recognize the agent appointed by the NUG, citing concerns by Rohingyas in Bangladesh that if the court grants legitimacy to the junta, they would “never be able to return to Myanmar.”
If it regains power from the military, the NUG in June 2021 pledged to grant citizenship to the Myanmar’s ethnic Rohingya. But it said “more discussion” would be needed to determine whether the Rohingya community will be recognized as a national ethnic group.
Reported by RFA’s Myanmar Service. Translated by Ye Kaung Myint Maung. Written in English by Joshua Lipes.