“Myanmar at the ICJ: Intent and Implications” by Moe Thuzar

2019/98, 22 November 2019

On 20 November 2019, Myanmar’s social media sphere was set a-twitter with the announcement on Facebook by the Office of the State Counsellor that Aung San Suu Kyi – in her capacity as Foreign Minister – would head a team to the International Court of Justice (ICJ) at The Hague. The mission: to defend the case filed against Myanmar for violation of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (or the Genocide Convention). Myanmar, as Burma, had ratified the Genocide Convention in 1956.
The news has since been picked up by regional and international media. Several commentators and political observers have weighed in with their views. Aung San Suu Kyi’s support-base has lauded the decision to defend the Myanmar position.
The case, filed by The Gambia on 11 November 2019, quickly became a focus of discussion in Myanmar. Among people there, a sense of injustice largely prevails regarding international criticism over how the National League for Democracy (NLD) government has handled the fallout arising from military operations in Myanmar’s Northern Rakhine State in 2017. While aimed at putting down a nascent insurgency, those operations resulted in over 700,000 persons from Rohingya communities living in the area to flee for safety to Bangladesh.

Similar exoduses occurred in 1978 and 1991-92, the latter attracting more international attention. However, this is the first time that genocide has been mentioned by international bodies and investigative missions. It is also the first time that a case has been brought to the ICJ on the situation in Myanmar. The Gambia’s application to the ICJ  is the latest in a string of legal proceedings against Myanmar. The International Criminal Court (ICC), which also sits in The Hague, earlier authorised a full probe into the atrocities committed against the Rohingya, and rights groups have filed a lawsuit against Aung San Suu Kyi in Argentina.

Myanmar has rejected the ICC probe, and ignored the lawsuit filed in Argentina. However, the ICJ is the “principal judicial organ” of the United Nations (UN) and Myanmar, is a UN member and thus party to the ICJ’s statute. The ICJ adjudicates disputes between countries, rather than pursuing individuals.

The State Counsellor – in her capacity as Foreign Minister – will now appear before the ICJ to “defend national interest”. The initial public hearings are scheduled for 10 to 12 December 2019. The high profile nature of the case and the identity of the lead advocate for the defendant will doubtless ensure that the proceedings are followed with keen interest domestically and internationally.

For the moment, Myanmar’s intent to appear before the ICJ brings to mind three observations:

1. Different interpretations of accountability

Aung San Suu Kyi’s decision to represent Myanmar herself sends the message that she is taking responsibility as the leader of the country to defend the case brought against Myanmar. At the same time, appearing before the ICJ also connotes some recognition of accountability as a member of the United Nations. This in-principle accountability may not necessarily extend to what has occurred in Rakhine State, however. Domestic dynamics matter here. At the time of writing, the spokesperson for Myanmar’s military Maj-General Zaw Min Tun commented to Voice of America (Burmese) on 21 November that the military has a duty to coordinate and cooperate with the government on the matter. While it seems that the military and civilian interests are aligned with regard to the case for the moment, some admission of (the military’s) culpability may yet emerge. It is too early to determine the extent or form in which that admission might come. Similarly, speculations on the accountability (including reparations) that a final ICJ ruling may require, and Myanmar’s potential reaction to that, remain just speculations at this moment.  

2. (Electoral) Ascendancy
The State Counsellor’s latest move has caused an outpouring of support in Myanmar for the civilian government. Many view Aung San Suu Kyi as taking the fall for the military’s actions. Regardless of the outcome of the ICJ ruling, domestic sentiment now runs high in the name of “national interest” and may translate into more votes for the NLD in the 2020 elections.
3. ASEAN’s role

Also regardless of the outcome, the Association of Southeast Asian Nations (ASEAN) faces the difficult task of working with Myanmar to (re)build trust among communities in Rakhine State. Some ASEAN members have initiated bilateral projects on the ground in Rakhine. Myanmar has also indicated interest to work with ASEAN on repatriation. ASEAN’s quiet diplomacy and confidence-building approach towards Myanmar has been met with impatience by various interest and rights groups. Still, ASEAN believes in its approach, which has produced results in the past. An Indonesian official commented to the  Jakarta Post on 18 November  that “pointing fingers is not going to work”. Indeed, Myanmar has been more responsive to ASEAN, indicating interest to work with several member states on mediation and reconciliation.

The above observations underscore yet another important inflection point in Myanmar’s political moment.

Moe Thuzar is ISEAS Fellow, with research expertise on Myanmar and ASEAN. She is currently affiliated with the MacMillan Centre at Yale University as a Fox International Fellow(2019-20).

The facts and views expressed are solely that of the author/authors and do not necessarily reflect that of ISEAS – Yusof Ishak Institute.  No part of this publication may be reproduced in any form without permission.