11 Feb Myanmar Coup d’état – Implications for International Justice
The news from Myanmar since 1 February 2021 has been stark – the Myanmar military or the “Tatmadaw” has detained politicians and activists including Aung San Suu Kyi, declared a year-long state of emergency in which the senior general and head of the army, Min Aung Hlaing is essentially in charge of the country. There are reports coming in of force being used against protestors, with an increasing clamp down on protests that have burgeoned across the country. There are grave implications of these actions – the further repression of human rights and sliding back on any of the gains that may have been made in the ‘transition’ to democracy thus far.
The focus of this post however is to assess the implications in relation to the international justice processes that have been set in motion in the last two years, relating to the atrocities committed against the Rohingya.
There are two ongoing legal proceedings before international courts – the International Criminal Court (ICC) situation in Bangladesh/Myanmar, and the International Court of Justice (ICJ) in relation to the application of the Genocide Convention, brought by The Gambia v Myanmar. Evidence is also being collected for case files by the Independent Investigative Mechanism for Myanmar (IIMM). Each of these legal processes has its own challenges, and the repercussions of the events in Myanmar may be slightly different for each.
International Court of Justice: Genocide convention case
The case before the ICJ – which relates to state responsibility for genocide – may well turn out to be affected by the recent military takeover in Myanmar in certain aspects – the continuation of appearance and representation, compliance with provisional measures, third party intervention and evidentiary issues.
As it stands, The Gambia submitted its memorial to the court towards the end of last year, and which has naturally been shared with the opposing party, Myanmar. On 20 January of this year, Myanmar filed preliminary objections to the case – which are arguments that would seek to deny the jurisdiction of the court, and which will now be dealt with prior to any arguments on merits of the case. The court, by its order on 28 January 2021, has now given The Gambia till 20 May 2021 to file its response to these preliminary arguments.
The first aspect of the ICJ proceedings to address is whether the coup and change of government would have an impact on the case and on the proceedings. Recall that the arguments for this case were helmed by the State Counsellor Aung San Suu Kyi, who appeared before the court in The Hague during the hearings on provisional measures, in December 2019. While there is speculation as to whether the military junta would continue to remain engaged in the proceedings, that implies that the case was only engaged with as a result of civilians in government. This is speculative, and it is not clear that there would be any change in engagement by the current regime. However, if so, there are a few factors to take into account.
The proceedings before the ICJ are meant to resolve disputes between states and there is no reference to the form or type of government. It is clearly not in the remit of the court to enter into the discussion as to “legitimate” government and representation or to make this determination for the purpose of continuation of proceedings, as in this case. Article 34 of the Statute of the Court provides for “states” as parties to cases before the court. Article 38 of the Rules of Court refer to the “institution of proceedings” with clear reference to “state”, and not government. Thus, it is the state of Myanmar that is implicated in legal proceedings, and not the government.
The more interesting question relates to the failure to defend a case or to appear in court, and this is also regulated by Article 53 of the ICJ Statute. In such a situation, the other party can ask the court to proceed to decide the claim in its favour. However, the court must be satisfied that it has jurisdiction, and that the claim is “well founded in fact and law”. There have been cases at the ICJ when states have threatened or in fact discontinued appearance at the court, or have failed to appoint agents to present arguments. These are all in the realm of possibility as this case moves forward, and a few examples are highlighted below.
In the Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), the court rejected arguments by Iran to not proceed with the case, and issued its judgment on 24 May 1980 “regretting” Iran’s refusal to appear but going ahead per settled jurisprudence (para.33). In the Anglo-Iranian Oil Co. (U.K. v Iran) case, Iran failed to appoint an agent for its case for a period of seven months since the institution of the case, which was subsequently dismissed. In Military and Para-Military Activities In and Against Nicaragua (Nicaragua v. United States of America), the United States of America did not take part in the merits phase of the case, after the court issued its judgment finding it had jurisdiction to proceed with the case, in favour of Nicaragua. More recently, there were threats by Colombia in relation to two cases instituted by Nicaragua against it at the ICJ. After much confusion regarding whether Colombia was in fact declaring non-appearance after the court issued judgments on preliminary objections in favour of Nicaragua, Colombia then proceeded to submit arguments. Yet another category of cases, that should not be confused with non-appearance, are those that are settled in the course of proceedings, resulting in the withdrawal of the case in its entirety – a distinct situation however from the options contemplated above.
It is unclear what the approach of Myanmar will be moving forward – we will need to monitor official statements closely to assess whether non-appearance is being contemplated, and the impact this would have on the case. It would seem – based on past cases – the most likely time for that to happen is after a decision on preliminary objections, in particular, if the court finds in favour of The Gambia. The risk of course for Myanmar is that the case would proceed, but without the input of Myanmar.
Another significant aspect of the ICJ case relates to the matter of provisional measures and compliance with the courts order of 23 January 2020. Based on this order, Myanmar is legally obligated to submit a report to the court every six months, after the initial report in May 2020. The submissions of Myanmar have taken place at a time of unabated conflict in Rakhine state, and have lead to calls for the reports to be made public. In December 2020, the court made changes to its rules of procedure – and established a committee to assess compliance with the court order. It is possible that this development may also be a reason for Myanmar to withdraw now, fearful of the scope and reach of this renewed scrutiny.
The question of intervention by other states in the case is one that bears watching. As of now, Maldives, Canada and the Netherlands have indicated their intention to act as intervenors in the case. There is pressure on other states, including the U.K., to join the case. It may well be that once the preliminary objections phase is over and depending on how events unfold in the coming weeks in Myanmar, other states might be more willing to join the ICJ case. Of course, the political calculus to take into account will depend on a range of factors, but this may well be an unintended consequence of the coup d’état.
International Criminal Court: Bangladesh/Myanmar focus
The ICC proceedings – at the investigation stage, as authorized by a pre-trial chamber on 14 November 2019 – to a certain extent is less dependent on Myanmar. The jurisdiction of the court relates to crimes with a cross-border component between Bangladesh and Myanmar, given Myanmar is not a signatory to the Rome Statute and Bangladesh is. The remit of the investigation will be more circumscribed as a result of this jurisdictional basis, and there will be a significant focus on the witnesses and victims already in Cox’s Bazaar in Bangladesh. While the pre-trial chamber decision opens the door to the prosecutor to widen the ambit of her case from deportation as a crime against humanity (paras. 126 – 130), it remains to be seen to what extent the investigation will widen. Recent events may well be the impetus to keep the investigation more narrowly focused, where the evidence is also easier to access. Myanmar of course has rejected the ICC investigation, disputing its jurisdiction. While access has been denied and there is clearly no support for the ICC by the Myanmar government, there is even less likelihood (if that were possible!) of access currently. However, as the situation evolves, while it is already most likely that senior functionaries – military and civilian – are under the radar of the ICC, Minh Aung Hlaing and his cohort may be the subject of additional scrutiny now. This case will proceed, as it has been, regardless of Myanmar’s cooperation – but may still be hampered by lack of access.
Independent Investigative Mechanism for Myanmar: Ongoing crimes in scope
The IIMM has been operational since 2019 and is responsible for collecting evidence of international crimes in the territory of Myanmar since 2011. It is important to note that the mandate – based on Human Rights Council Resolution 39/2 of 2018 and the ensuing terms of reference – is “…to collect, consolidate, preserve and analyse evidence of the most serious international crimes and violations of international law committed in Myanmar since 2011,…”
Noteworthy that this is ongoing – implying it can and should look into instances during these protests if they meet the threshold of the most serious international crimes, and its mandate is not limited to crimes against the Rohingya only. The head of the institution has recently released a brief statement relating to the military takeover, indicating the IIMM “..is closely following recent events…” and “…should serious international crimes and violations of international law be committed, rest assured, the Mechanism will collect the evidence and, in accordance with our mandate, we will build case files to facilitate criminal trials to hold those responsible to account.”
The IIMM will be looking into evidence both within Myanmar as well as outside the country. It has a broader remit and so work that is dependent on either access to the territory – clearly, not forthcoming – or on evidence needed to be sourced from within the country – may well be hampered even more with the coup. It would be good for the military junta to be aware of this mandate – which, while may not result in any immediate prosecutions or case files moving forward – has the potential to call them to account in the future.
The situation in Myanmar is critical now. As it stands, the military is in control, and in relation to international justice processes, there is no reason to believe there will be a change in policies by the government in its complete opposition to accountability, at any cost. There have been indications in the past – including at the ICJ hearings – that there will be domestic accountability, including by means of military courts. These assertions rang hollow then, and there is clearly even less likelihood of any meaningful justice initiatives in the country now, in regard to the atrocities against the Rohingya, as well as other ethnic minorities. Rather, impunity and lack of accountability at the domestic level will be even more entrenched.
These international justice efforts are important given the close interlinkage between the current orchestrators of the coup to the atrocities committed against the Rohingya. The extent of engagement will depend on the appreciation by the Myanmar junta vis-à-vis legal proceedings and the legal advice they are getting – in terms of next steps, in particular in relation to the adversarial proceedings at the ICJ. This is a legal milieu that bears monitoring closely, as developments unfold on the ground in Myanmar.