LIVE: Burma Genocide Case at the ICJ

LIVE: Burma Genocide Case at the ICJ

Welcome to DVB’s reporting of the latest session of The Gambia v Myanmar at the International Court of Justice.

We will regularly update his page with developments from The Hague between Feb. 21 – 28.

Key dates: 

The court will be in session between these times (in CET):

Monday 21 February 2022: 1.30 p.m.-4.30 p.m. 

Wednesday 23 February 2022: 1.30 p.m.-4.30 p.m.

Friday 25 February 2022: 3 p.m.-4.30 p.m.

Monday 28 February 2022: 3 p.m.-4.30 p.m.

The Gambia v Myanmar: What You Need to Know

  • Today’s hearing will be the first time that the International Court of Justice (ICJ/The Hague) has sat for the case since 2020, and comes as the Burmese military is carrying out daily atrocities in almost every region of the country.
  • The ICJ, the “world court” and an organ of the UN, does not have the jurisdiction to rule on criminal actions. It does, however, have the power to make a legally binding judgment on whether Burma has breached its obligations under international law. 
  • In this case, The Gambia has accused Burma of failing to adhere to the UN’s Genocide Convention by performing actions tantamount to genocide during its operations against Burma’s Rohingya minority from October 2016 (with, as The Gambia’s evidence argues, a notable intensification from August 2017). 
  • The prosecution’s case rests on facts gained by UN fact finding missions – its Independent Investigative Mechanism for Myanmar — and offices such as that of the UN Special Rapporteur.
  • The case is still in its procedural stage: the court has previously considered The Gambia’s complaint and unanimously accepted that provisional measures to protect the Rohingya needed to be put in place due to the risk that the military still posed to the minority group.
  • Starting today, the court will examine preliminary objections raised by ousted leader Aung San Suu Kyi who led Burma’s defense from 2019 until the coup. She has since been handed six years in prison by a kangaroo court, and faces fresh charges with a combined maximum sentence of over 150 additional years.
  • The junta has maintained the objections brought by the NLD administration — which, as mentioned, are only procedural (relating to The Gambia’s ability to bring the case, and not relating to the facts of the case itself). On June 24, it announced it was to send a new defense team, headed by its foreign minister, Wunna Maung Lwin.
  • However, the National Unity Government on Feb. 2 historically announced that it will drop the objections as a gesture of goodwill towards the Rohingya and Burma’s other ethnic groups, saying that the previous administration’s complaints are unrelated to the substance of the case. The NLD administration’s 2019 announcement that it was to defend the country (and, therefore, the military) drew criticism from a number of quarters within Burma, and caused outrage within the international community.
  • The hearing between Feb. 21-28 will assess these claims, then, depending on whether the NUG or a military defense team are allowed to represent Burma, either examine or drop the preliminary objections. Reuters has suggested that the junta will be offered the chance to defend Burma, and will send a team led by the junta’s envoy for international coordination, Ko Ko Hlaing, and its Union Attorney-General, Thida Oo. 
  • If the court does allow the junta’s agents to lead the defense, all eyes will be on judges to justify their decision: most argue that the military in no way represents Burma, and, as an organ of the UN, the ICJ should rather be influenced by the credential committee’s refusal to grant the military legitimacy at the General Assembly.
  • Indeed, Burma’s representative at the UN, Kyaw Moe Tun, has told the court that he will lead a team representing the NUG at the ICJ. The NUG’s team will be at The Hague, ready to hear the judge’s ruling on the matter at the opening of proceedings. 
  • However, it may well prove to be the case that a country’s credentials at the ICJ are decided by its ambassador to the Netherlands. In this case, Soe Lynn Hann, who is loyal to the military, resides at the Burmese embassy in The Hague — and will therefore choose a military representative to lead the team.
  • When a state is accused of breaching the Genocide Convention, cases may take many years to reach a verdict. It took 14 years for a court to rule on the genocide case against Serbia for its actions (or inactions) in Bosnia Herzegovina. In the case, Serbia was found not guilty (although not unanimously) of committing the genocide of Bosniak Muslims in Srebrenica, yet certain individuals were found culpable of allowing the genocide to occur.
  • The UN has called for the Burmese military to face charges of genocide, crimes against humanity, and war crimes — for its actions in Kachin, Rakhine, and Shan — since 2011. The military’s actions since the coup, and the hundreds of thousands of pieces of evidence obtained so far, mean that there is a strong possibility that the military will face further trials in the future.

LIVE COVERAGE

Check here for regular updates…

DVB spoke to Aung Myo Min at The Hague this morning and asked him about the NUG’s different stance on the Rohingya genocide case and the prospects for justice for Burma’s ethnic minorities.

…The NUG’s Minister of Human Rights, Aung Myo Min, was on hand to meet with members of the press.

23/02/2022 — A crowd of around 80 protestors gathered outside of The Hague today to show support for the Rohingya and victims of Burmese military violence…

23/02/22 19:45 MMT — The ICJ is once again in session for the Rohingya genocide case.

The Gambia’s legal team is currently outlining its counter arguments to objections raised by the junta on Monday. DVB’s live stream is available here: https://facebook.com/DVBTVNews/videos/1091644928289708…

23/02/22 15:00 MMT

DVB is back in The Hague, ready for the hearing to restart later this evening…

DVB spoke to Chair of the European Rohingya Council, Ambia Perveen at The Hague today.
DVB spoke to Ambassador Laetitia Van Den Assum, former member of the Advisory Commission on Rakhine State, at The Hague today. She shared her view that the ICJ is sure to reject the objections raised by the junta’s lawyers today.

21/02/22 — 20:10 MMT. The second of the junta’s defense lawyers is raising the second procedural objection: that there is “no dispute” between The Gambia and Myanmar “on the interpretation, application, or fulfilment of the Genocide Convention”, as required by Article 9 of the convention.

The objections currently being made are similar to those raised by the defense team in 2019 whilst arguing against the need for “provisional measures” (terms on the Myanmar government to protect the Rohingya). These arguments were roundly rejected by the ICJ judges.

21/02/22 — 19:27 MTT

Christopher Staker, a British barrister, is raising objections on behalf of the junta, notably: The Gambia is bringing case on behalf of the Organisation of Islamic Cooperation, making the OIC the main applicant. Can a state bring a case on behalf of a third party which would not be able to in its own name? 

21/02/22 — 19:14 MTT

The military’s Ko Ko Hlaing is currently addressing the ICJ on behalf of Burma, after the UN court allowed the junta to select an agent to lead the defense in the case of The Gambia v Myanmar.

21/02/22 — 19:00 MTT

The Spring Revolution KP activist group has called for Burma’s social media users to bombard Twitter with a hashtag campaign in solidarity with the Rohingya from 7 p.m. onwards.

21/02/22 — 18:15 MMT

The opening session, in which the ICJ will consider preliminary objections raised by Myanmar, is live from 7 p.m. MMT on UN TV.

21/02/22 — 16:55 MMT

Ambassador Laetitia van den Assum: “I am expecting this afternoon that the court will give a reasoned decision [on its choice of representative] but that might not be the case. We expect that that they will go with the military regime, but I hope they give their regions. However, the optics are not good: the regime, every day since it took over, has been murdering, plundering, and killing people. The two people designated by the junta are both on international sanctions lists – so the optics aren’t good and I am hoping that the court will give a proper explanation.”

21/02/22 — 16:40 MMT


The NUG’s Minister for Human Rights, Aung Myo Min: The 1982 Citizenship Law is very discriminatory as it is based on race, not on the path of the people. So the NUG will stop all types of discriminatory practice to make different classes of people. It will be repealed — we will remove race from identity cards. 

21/02/22 — 16:28 MMT

Chair of the European Rohingya Council, Ambia Perveen (on the NUG): “The people were blindfolded but today they are here standing together to bring change. We want a federal democracy… we are peace building people… we grew up with pictures of Aung San Suu Kyi.”

Ambassador Laetitia van den Assum: The military agreed to ICJ provisional measures purely as a “tick-box” exercise. The conditions of the Rohingya have not improved — in fact the current framework imposed by the military perpetuates “slow genocide”. There is an apartheid state which imposes limitations on Rohingya education and health that create significant developmental problems: “This suits those who wish to see the Rohingya disappear.”

Applaud’s the AA’s government building efforts and efforts to build bridges with Rakhine’s communities. Urges the AA/ULA to address the underlying causes of the state’s problems — undo the spirit of “divide and rule” imposed by the military.

21/02/22 — 16:14 MMT

Chair of the European Rohingya Council, Ambia Perveen: 120,000 Rohingya people remaining within Myanmar are still living in “open-air prisons” in Sittwe. The military has failed to adhere to commitments made to the ICJ in 2019, according to her information.

21/02/22 — 15:43 MMT

Researcher on Myanmar, Martin Smith: Clearance campaigns — which implicitly endorse human rights abuses — have been used by the military since the 1960s. What is exceptional about this case is the scale and the targeting of a specific group. Over one million people displaced in a matter of days. No place for this in the digital age… must not provide legitimacy to the abusers.

21/02/22 — 15:25 MMT

The NUG’s Union Minister for Foreign Affairs, Zin Mar Aung, will tell those present that her government has a “responsibility to represent Myanmar in this proceeding”, and that “at stake… is justice for the Rohingya victims of the military violence.”

21/02/22 — 15:16 MMT

A press conference by the Netherlands-Myanmar Solidarity Platform is 15 minutes away…

21/02/22 — 11.59 MMT

Phil Robertson, Deputy Director of Human Rights Watch’s Asia Division

“The upcoming ICJ hearings this week will finally clear away Myanmar’s procedural objections that are designed to deflect and delay the court from finally getting to the substance of the genocide claims. The ICJ already considered and rejected many of Myanmar’s arguments as part of its unanimous approval of provisional measures to prevent genocide, but the court will conduct a full hearing this coming week so that all the issues are seen to have received full consideration. A very important decision will be made on Myanmar’s claim that the Gambia cannot bring this case because it does not have a direct enough connection to the alleged genocide against the Rohingya. By putting that dubious legal claim to rest, the judges will strengthen the important international legal argument that some human rights violations are so egregious that all persons and governments have both an interest and a right to try and stop them. Obviously, the wider significance of this case will come when these procedural matters are dispensed with and the substance of the genocide case is heard, but that will be at the next session, after this one.”

“One thing that is notable from this coup is it finally puts representatives of the Tatmadaw as the real defendants in the dock in this case of alleged genocide. Frankly, the argument between the NUG and the junta about who should be the Myanmar representative is a bit of a sideshow that is interesting, but it should not be allowed to delay the court from disposing of these procedural objections so that the substance of the genocide case can start.”