Myanmar at the ICJ: Defending sovereignty, history,and national dignity
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Phyo Lin Aung (NP News) - Jan 19
On January 12, the International Court of Justice (ICJ), the UN’s highest court, began holding public hearings in The Hague in a case in which Gambia accuses Myanmar of committing genocide against the Bengali population (referred to by them as “Rohingya”). The hearings, scheduled to last more than two weeks, feature oral legal submissions by representatives from Gambia and Myanmar, as well as questioning of witnesses and experts from both sides. Judges at the UN International Court of Justice (ICJ) in The Hague, Netherlands, will decide whether Myanmar committed genocide against the Bengalis during the hearing.
Gambia, which initiated the case with the support of the Organization of Islamic Cooperation (OIC), will present its case to the ICJ from January 12 to 15, while the Myanmar will defend its position that it did not commit genocide against the Bengali from January 16 to 20. Gambia filed the case with the ICJ, alleging that the military crackdown in Myanmar in 2017 violated the 1948 Genocide Convention.
Myanmar’s delegation is attending the hearing, and Union Minister for Ministry (2) of the President's Office U Ko Ko Hlaing and Union Minister for Legal Affairs and Attorney-General Dr. Thida Oo will present their arguments. Myanmar’s response was that it did not commit genocide against Muslims and dismissed Gambia’s allegations. Myanmar has been conducting military operations in Rakhine State to suppress Muslim terrorists and has presented the ICJ judges with a territorial clean-up operation. Union Minister U Ko Ko Hlaing, who is attending the ICJ hearing, said yesterday, “Our team will do everything in our power to protect the country and the people.”
The ICJ judges will consider whether Myanmar has violated its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide. If Myanmar loses the Gambian lawsuit, some analyzed that it can have impacts for Myanmar. This ICJ case is not a simple case for Myanmar, but a national issue that concerns the dignity, sovereignty, and national interests of the country. Myanmar is facing international misperceptions and unjust accusations for a crime it did not commit through legal means.
The term Rohingya or the ethnic group Rohingya never existed in Myanmar’s history. If we look back at history, these problems started before the partition of India into Muslim India and Hindu India. After the partition of India, the country was divided into three parts: India, East Pakistan and West Pakistan. At that time, the Indian Muslim leader Muhammad Ali Jinnah wanted the northern part of Rakhine State as a Muslim territory. The northern part of Buthidaung, Maungdaw and Rathedaung areas were in Myanmar and have remained Myanmar territory to this day.
Another important aspect to point out is the population growth of Buthidaung and Maungdaw regions in the past sixty years. At that time, the local Burmese, Rakhine and other ethnic groups were able to dominate the Bengali migrant population, with the population ratio being 97 percent and Bengalis only 3 percent. Now the opposite has happened, with the percentage of local ethnic groups being 3 percent and the percentage of Bengalis being 97 percent. These are facts that some mainstream international media never mention. Moreover, international organizations including scholars, researchers and INGOs rarely acknowledge this.
If you study the records of R.B. Smart's Akyab (Sittwe) district, you will see that the ethnic groups in Sittwe district are listed as Bamar, Mahamedin, Thet, Dainet, Chaungtha, etc., and since then, Buthidaung and Maungdaw were also included in Akyab district. The word Bengali is not officially found anywhere. The British were very detailed and thoughtful in their records of every place they visited, and even in their maps, which often showed graves, this word was not found. This is a clear statement that the Bengali people are not included in Myanmar's history or ethnic list.
Furthermore, Myanmar can firmly deny that Gambia's allegations are unfounded. The origins of the events of 2016 and 2017 show that Myanmar did not act with the intention of committing genocide. In fact, at that time, the ARSA terrorist group attacked several police outposts in Rakhine State at the same time. Therefore, the government was forced to respond to the sovereignty and territorial security of the country as a counter-terrorism operation.
No country in the world would stand idly by when its security forces and local residents are attacked by terrorists. Moreover, the current government’s crackdown on the ethnic armed AA terrorist group for the safety of the people in the region highlights the complex security situation in the region. There is also solid evidence of the brutal actions of the ARSA terrorist group.
Furthermore, if you listen to the BBC interview of Gambia’s lead lawyer, Mr. Arsalan Suleman, the most striking thing is that he prioritizes compensation and remedies over justice and rights. Mr. Suleman stated that if the court decides that Myanmar committed genocide at the final stage of the case, it aims to issue orders on how to provide relief to the victims and how much compensation should be paid.
Looking at this, although they are talking about human rights and genocide, in reality, their intention is more to obtain compensation from Myanmar than to ensure that the so-called Rohingyas are recognized in Myanmar. The fact that they are focusing on compensation before the legal case is even started and the court has not yet issued a final judgment raises questions about their true intentions behind this case. Clearly, Gambia is creating this space for the sake of ‘profit’ and for some financial gain.
In the judicial process, both parties are responsible for respecting the rules of the court. Throughout the current proceedings, the Myanmar representatives have been strictly within the framework of the law and have not used the media to spread propaganda. Myanmar, as a country that respects the ICJ Statute, has been conducting the proceedings quietly and respectfully.
However, the Gambian lawyers and their supporters have been making excessive use of the international media. This BBC interview, which came just days before the start of the hearing, is a premeditated media campaign to indirectly influence the court’s decision through the media and shape international opinion. They are simply trying to cover up their legal weaknesses with the power of the media.
The reason why the case has been dragged out so far is not because Gambia’s claims are valid, but because the ICJ has decided that it has jurisdiction. Myanmar has also raised important legal points in its initial submissions. In particular, Myanmar has argued that the real applicant in this case is not Gambia but the OIC (Organization of IslamicCooperation) and that under the ICJ Statute, only States have the right to bring proceedings, not organizations.
In addition, Myanmar has also argued that it has a reservation to Article VIII of the Genocide Convention, which means that it cannot refer the case directly to the Court. However, the Court has decided that it has jurisdiction and that it is still facing the case. These points clearly do not mean that Gambia’s allegations against Myanmar are true.
Mr. Suleman cites reports from organizations such as the UN Fact-Finding Mission (FFM) to support their claims. But these reports are largely biased and do not reflect the reality on the ground. Reports like the FFM are often based on conflicting information and unverified rumors, which Myanmar has refuted with solid evidence. So, the Gambian side is citing politically biased and funded organizations. It is highly doubtful whether their data would be credible enough to be admissible in an international court.
Actually, the International Court of Justice (ICJ) faces significant non-enforcement challenges because it lacks its own police force, relying on the UN Security Council (where P5 vetoes can block action) for enforcement, leading to cases like the Nicaragua v. US case (where US ignored ruling).
In conclusion, Myanmar is facing this case with dignity, demonstrating its respect for the ICJ Statute and international law. The country has strictly complied with the ICJ’s interim measures in practice and has been submitting regular reports to the Court every six months. Myanmar has also made continuous efforts for the return of Bengali refugees who have relocated to other countries. However, the lack of progress in their return is not due to Myanmar’s failure, but rather the instigation and obstruction of third-party organizations, the refugees’ unwillingness to return, and their association with actors seeking political advantage.