Is the ICJ at Risk of Providing Cover for the Alleged Genocide in Myanmar?

The first anniversary of the coup mounted by the Myanmar military was marked by a surprising step. On 1 February 2022, the National Unity Government of the Union of Myanmar (NUG) made a declaration to the International Court of Justice. The government, which mainly consists of those elected representatives not yet captured by the military regime, was created to hold in trust the democratic mandate overwhelmingly granted to the Daw Aung San Suu Kyi and her National League for Democracy in the elections of 2020.

In the declaration issued on the anniversary of the military take-over, the NUG ‘withdraws all preliminary objections in the case of The Gambia v. Myanmar concerning the military operations against the Rohingya population in Myanmar in 2016 and 2017.’ The case alleges genocide by the military authorities in Myanmar against the Rohingya population.

This step might be ordinarily expected to be warmly welcomed by the Court. After all, it would remove a procedural obstacle in the case and allow judicial consideration of such a serious matter. However, the action taken by the NUG also invites the ICJ to address another issue—the question of who is actually entitled to represent Myanmar.

Thus far, the Court seems to have ignored the issue, or perhaps rather, ignored the existence of the NUG and its claim to legitimacy, including the right to represent Myanmar internationally. If it continues to do so, it risks the accusation of acting inconsistently with the trend towards legitimacy as an operative principle of international law. It also would appear out of step with other organs of the UN system, which have condemned the coup and demanded a transfer of authority back to the elected, legitimate government. The Court, after all, is the principal judicial organ of the UN.

Allowing the military to plead before the Court would also raise considerable issues about the credibility of international law, including the presumption and principle of good faith on which it is based.

The military has overturned the constitutional order of the state—a constitutional order it had itself created. It has unlawfully detained the very person of the Agent of Myanmar before the Court in this case, State Counsellor and Foreign Minister Daw Aung San Suu Kyi, along with her deputy. And the Myanmar military has committed very persistent, wide-spread and serious human rights abuses in the process of defending their grab for power. 

The junta now bases its claim to be entitled to represent Myanmar on a claim to effectiveness obtained through these means of unlawful violence and repression. It is a shield that is meant to allow it to press its objection to the jurisdiction of the Court. The aim is to kill the case and thus prevent judicial review of its earlier alleged genocidal conduct against the Rohingya in Myanmar.

The case was brought by The Gambia on 11 November 2019 under the compromissory clause of the Genocide Convention. It alleges that the mainly Muslim Rohingya population of Rakhine state had suffered a sustained campaign of destruction and displacement carried by the intent to permanently displace and destroy it in Myanmar. The presence of more than 700,000 Rohingya refugees in neighbouring Bangladesh and the testimony they have offered appear to confirm, along with other evidence, that this issue deserves to be investigated and addressed through serious judicial inquiry.

As could be expected, the Myanmar government opposed the action brought by The Gambia with the support of mainly Islamic states. The Myanmar State Counsellor, Daw Aung San Suu Kyi, herself appeared as an agent before the Court in the interim measures phase, defending the state and essentially its military apparatus in charge of the alleged operations from the charge.

It appears that she attempted to demonstrate to the military that she was willing to stand as one with them in the light of international denunciation of their actions. Her apparent hope of being able to build sufficient confidence with the all-powerful Commander-in-Chief of the military, or Tatmandaw, to allow for broader constitutional reform in the country, later on, turned out to be misplaced.

In its Order of 23 January 2020, the ICJ directed Myanmar to take all measures to ensure that no acts of genocide would be commissioned by the military or other forces under its direction and control and required the government to report every six months on steps taken towards that end.

On 20 January 2021, Myanmar filed preliminary objections. The ICJ has scheduled hearings on these objections for the 21^st to the 28^th of this month. The decision by the representatives of the legitimately elected authorities in Myanmar to waive the preliminary objection would render these hearings superfluous and unblock the substantive proceedings relating to the allegation of genocide.

In its Announcement, the NUG states:

The NUG wishes to make clear to all the people of Myanmar and the international community that it is the proper representative of Myanmar at the ICJ in this case. Given that the illegal military junta itself has unlawfully detained Myanmar’s agent and deputy agent to the Court, Myanmar’s Permanent Representative to the United Nations (UN) Ambassador Kyaw Moe Tun has communicated to the Court that he is the acting alternative agent under the direction of the NUG and is the only person now authorized to engage with the Court on behalf of Myanmar.

The announcement notes that the Court ‘though bureaucratic idiosyncrasy,’ has been communicating with the Myanmar mission in Brussels, instead of the acting alternative agent appointed by the NUG. That embassy was taken over by the military—the very entity that is holding the principal Agent appointed to represent Myanmar, Daw Aung Sun Kyi, in illegal detention. Accordingly, it seems that the Court, perhaps without taking a formal decision to that end, has accepted the claim of the military to be entitled to represent Myanmar internationally, or is at risk of doing so without adequate discussion and reflection.

The Announcement of the NUG claims that this attitude reflects neither past practice, nor does it accord with the present reality or the decisions of the UN General Assembly. According to news reports, the ICJ has failed to explain or defend its apparent mechanical approach in this matter.

A failure of the Court to at least consider the issue of representation in this instance in a more formal way does indeed stand in stark contrast to both contemporary international practice and the views of the UN General Assembly. In addition, it potentially bars accountability of the Tatmandaw for its actions vis-à-vis the Rohingya in Myanmar.

As suggested by the Tinocco case, traditional international law would simply accept whichever authority exercises effective power as the government (24 ILR 34, 37). However, that case is now a century old. Since the termination of the Cold War, there has been a profound, sustained and consistent change in regard to the relative weighting of effectiveness vs legitimacy where the representation of the state is concerned.

Of course, it is well established that a government that comes into being through serious violations of peremptory norms cannot enjoy the benefits that ordinarily flow from the effectiveness so obtained. Hence, Iraq could not lawfully claim to represent Kuwait after it purportedly had annexed it. It was expressly confirmed that the government of the Sheikh of Kuwait remained the sole and legitimate representative of Kuwait, even after the government had been entirely displaced on the ground and had no effectiveness whatever (SCR 662 (1990)). The white minority government of Southern Rhodesia after the Unilateral Declaration of Independence was unlawful and could not fully represent, much like the government of South Africa in relation to South-West Africa/Namibia, despite the fact that both purported authorities were fully effective. The authorities of Srpska or of Northern Cyprus could not or cannot action their claim to represent a state, despite the fact that they exercise effective control over a territory and a population, etc.

This practice of elevating legitimacy over effectiveness is now also being applied for a considerable period in relation to coups and counter-constitutional changes in government. This change was inaugurated by the response of the UN Security Council in relation to the military coup in Haiti in 1994. In Resolution 940 (1994), the Council determined that the forcibly ousted President Jean-Bertrand Aristide remained the ‘legitimately elected President’ who was invited to attend the Security Council to represent Haiti and the Council even authorized force to restore him to the exercise of effective power

Since then, there have been in excess of 30 instances of confirmations by the Security Council, the UN General Assembly, the African Union, sub-regional organizations (ECOWAS) and the Organization of American States, of this principle. These bodies have routinely rejected the outcomes of coups, determining that those who mounted the operation, however effective they may be, cannot legitimately hold power, and demanding the restoration of constitutional governance in accordance with the will of the people.

Where a serving President or government has been forcibly deposed or arrested, the consistent response is to demand his or her release and return to office, as was the case this very week in relation to the attempted coup in Guinea-Bissau, and the successful coup in Burkina Faso of last week.

Importantly, the continued status of the ousted, but legitimate government as the representative of the state has been consistently maintained (e.g., Guinea-Bissau, SC Res. 2048 (2012)).

Conversely, inconsistent practice reaching back into the 1990s, the Security Council, the OAU and later AU and other bodies have repeatedly insisted that authorities emanating from a coup must not receive international recognition or any form of support whatsoever. For instance, in relation to the coup in Honduras in 2009, the UN General Assembly demanded the immediate and unconditional restoration of the government which continued to be the ‘legitimate’ and ‘legally constituted authority’, while it ‘called firmly and unequivocally upon states to recognize no government other than that of the constitutional President, Mr Jose Manuel Zelaya Rosales’ (GA A/RES/63/301).

The same applies to those forcibly preventing the implementation of election results. This was, of course, the case in relation to President Aristide of Haiti, but also applies in other instances, for example after the election of Alassane Dramane Ouattara as President of Cote d’Ivoire (SC Res 1975 (2011)).

Interestingly enough, in Resolution 2337 (2017) concerning The Gambia, the UN Security Council was constrained to declare its support for recently elected President Adama Barrow and to demand that he be allowed to assume office. It declared that the outgoing President, Mr Yahya Jammeh, who was forcibly preventing the transition in accordance with the will of the people, ‘will cease to be recognized as legitimate President of the Republic of Gambia’.

Of course, recognition of governments has gone out of fashion, at least according to the textbooks of international law. In more recent practice, though, recognition has remained an important tool to confirm and deny legitimacy and the power to represent to an effective authority that came to power through a coup or other unlawful means.

The debate about early recognition of the opposition government during the conflict in Libya, or of the opposition in Syria as the genuine representative of the people, illustrates this point. Most recently, abstention from recognition has been used in a very deliberate way to shape the attitude and actions of the Taliban authorities in Afghanistan, which assumed control in the wake of internal conflict last August.

In relation to Myanmar itself, the UN General Assembly has refused the bid of the Tatmandaw to replace the envoy appointed by the legitimate government of Daw Aung San Suu Kyi as the Permanent Representative in New York. By unanimously deferring a decision, it deliberately left Ambassador Kyaw Moe Tun in place. Having retained his seat, his power to represent the state of Myanmar is in no way restricted or circumscribed.

Even when addressing contentious cases, it is necessary to recall again that the ICJ is the principal judicial organ of the United Nations. The Court has always attempted to act in harmony with and in support of the other organs of the organization. Of course, it exercises its judicial function independently, but in relation to matters of recognition and accreditation, the General Assembly has requested, in Resolution 396 (V):

… that the attitude adopted by the General Assembly or its Interim Committee concerning any such question should be taken into account in other organs of the United Nations and in the specialized agencies (Para 3).

In accordance with this requirement, the International Labour Organization refused to accredit the military regime at its last session. It noted:

As a consistent line of precedent has it (for example Dominican Republic (1965), Cambodia (19998), Libyan Arab Jamahiriya (2011), the question of recognition of governments and their representation in the Organization is considered a political matter in which the Organization should be guided by any position adopted by the UN General Assembly (ILC.109/Record No 38, para 16).

The World Health Organization has followed suit, refusing to seat the military regime. Similarly, the UN Human Rights Council changed tack after having initially given a hearing to the military and decided to await guidance from the General Assembly.

Seeking guidance on questions of recognition and accreditation is in fact standard procedure in international practice, rather than a deviation from it. It is not unlike the practice of domestic courts of following executive certification on issues of recognition.

At the very least, one would expect that the Court would address the issue of who represents Myanmar seriously, rather than through bureaucratic action or Presidential discretion. If it is true that the Court has addressed the issue simply by continuing to send official documents to the postal address it has on file, this appears inadequate. This would leave the question of representation to the accidental outcome of whichever side in this conflict has managed to establish control over the particular embassy in question. It would turn this supposedly accidental act into one that is in fact equivalent to giving recognition to the military authorities, despite the harsh deficiencies in their claim to represent the state.

The Court needs to be mindful of the fact that the Tatmandaw have forcibly displaced a government that just had its democratic mandate overwhelmingly confirmed. It is an authority that has launched attacks on its own population in order to maintain its hold on power. It is not, in fact, fully effective, given the large parts of Myanmar territory held by armed ethnic organizations that are loyally supporting the NUG.

Moreover, the military has unlawfully detained the Agent in this case and her deputy. Daw Aung San Suu Kyi has been criminally convicted by this regime in proceedings that have been termed a ‘sham trial, by the UN’s most high ranking and best-placed official, High Commissioner for Human rights Michelle Bachelet.

It would seem odd to let the Tatmandaw profit from these serious violations of the international rule that governance must be based on the will of the people, and of large-scale and systematic violations of fundamental human rights. Moreover, no purported government can, in good faith, invoke the facts it has created in grave violation of international law to its benefit.

The ‘letter box approach’ of simply continuing to communicate with whoever claims the postal address on file with the Registrary of the Court, may have superficial appeal to the Presidency of the ICJ. It avoids having to enter the controversy about representation. Yet, it also gives the impression that the Court is out of touch with present developments concerning the democratic principles of constitutional government and with principles of legitimacy.

As the ILO ruled when considering the case of Myanmar recently, ‘accreditation is no longer a procedural formality and becomes a substantive question with significant political implications’ (see above). And, according to the terms of General Assembly Resolution 396 (V), the judgement to be exercised in this matter is to take full account of UN values:

Whenever more than one authority claims to be the government entitled to represent a Member State in the United Nations and this question becomes the subject of controversy in the United Nations, the question should be considered in the light of the Purposes and Principles of the Charter and the circumstances of each case (Para 2).

The purposes and principles of the UN Charter emphasize the promotion of human rights and fundamental freedoms, along with self-determination in all its aspects. This includes the principle that the will of the people shall be the basis of the authority to government (Article 21, Universal Declaration on Human Rights).

Moreover, taking an entirely mechanical approach, disowning the duty to make a determination on this point, would allow an authority accused of the crime of crimes, of genocide, to shield behind the facts it has created through the use of domestic force and massive human rights violations.

The decision of the Court (or rather a failure to take a view by following the letterbox approach) would create inconsistency of approach within the UN system and it would also likely have implications for other institutions, including the International Criminal Court.

The ICC’s jurisdictional claim relating to the Rohingya issue is at present somewhat tenuous and in any event, limited in terms of the substantive activities that can be addressed. The NUG, on the other hand, has proposed to subject the situation in Myanmar fully to ICC review. Needless to say, if the Tatmandaw can speak for Myanmar on this issue, they are not exactly likely to endorse a more expansive international criminal review of their conduct.