THE HAGUE – Lawyers for Myanmar's military rulers on Monday sought the dismissal of a case that accuses the Southeast Asian nation of genocide against the Rohingya ethnic minority, saying the United Nations’ top court lacked jurisdiction.
Public hearings at the International Court of Justice went ahead amid questions about who should represent Myanmar in the aftermath of the military take-over of the country last year.
The decision to allow Myanmar's military-installed government to represent the country at the hearings drew sharp criticism.
“It is outrageous for the ICJ to proceed with these hearings on the basis of junta representation. The junta is not the government of Myanmar, it does not represent the state of Myanmar, and it is dangerous for the court to allow it to present itself as such,” said Chris Sidoti of advocacy group Special Advisory Council for Myanmar.
A shadow administration known as the National Unity Government made up of representatives including elected lawmakers who were prevented from taking their seats by the military takeover had argued that it should be representing Myanmar in court.
But, instead, it was the administration installed by the military. The legal team was led by Ko Ko Hlaing, the minister for international cooperation. He replaced pro-democracy icon Aung San Suu Kyi, who led the country's legal team at earlier hearings in the case in 2019. She now is in prison after being convicted on what her supporters call trumped-up charges.
As the hearing started, the court's president, U.S. Judge Joan Donoghue, noted “that the parties to a contentious case before the court are states, not particular governments.”
A Myanmar rights group questioned the court's decision to allow the military regime to represent Myanmar, which was formerly known as Burma.
“We are glad the case is going forward but find it deeply troubling that the military is allowed to appear before the court as representatives of Burma," Burma Human Rights Network's Executive Director Kyaw Win said in a statement. “The coup regime is in the middle of a horrific campaign of violence against civilians, and the last thing they should be given is any legitimacy in a U.N. body.”
Lawyers representing Myanmar argued that the case should be tossed out because the court only hears cases between states and the Rohingya complaint was brought by Gambia on behalf of the Organization of Islamic States.
They also argued that Gambia could not bring the case to court as it was not directly linked to the events in Myanmar and that a legal dispute did not exist between the two countries before the case was filed.
Lawyers for Gambia are scheduled to respond on Wednesday. Judges will likely take months to rule on the preliminary objections.
Ahead of Monday's hearing, members of Myanmar's National Unity Government, urged the court not to accept representatives of the military rulers.
"It would be a most profound injustice to the Rohingya if the military were to be both their abusers and have any voice in the court,” said the unity government’s foreign minister, Zin Mar Aung.
The organization said it has contacted the court seeking to withdraw Myanmar's preliminary objections to the case. The national unity government says it is the country's only legitimate government but no foreign government has recognized it.
The dispute at the world court in The Hague reflects a broader struggle in the international community over whom to accept as Myanmar’s legitimate rulers in the aftermath of the coup.
Southeast Asian foreign ministers held their annual retreat last week without their counterpart from Myanmar, who was blackballed from participating but allowed to attend online as an observer.
The military launched what it called a clearance campaign in Rakhine state in 2017 after an attack by a Rohingya insurgent group. More than 700,000 Rohingya fled into neighboring Bangladesh and security forces were accused of mass rapes, killings and torching thousands of homes.
In 2019, lawyers representing Gambia at the ICJ outlined their allegations of genocide by showing judges maps, satellite images and graphic photos of the military campaign. That led the court to order Myanmar to do all it can to prevent genocide against the Rohingya. The interim ruling was intended to protect the minority while the case is decided in The Hague, a process likely to take years.
Last year's military takeover in Myanmar sparked widespread peaceful protests and civil disobedience that security forces suppressed with lethal force. About 1,500 civilians have been killed, according to the Assistance Association for Political Prisoners.
The International Court of Justice rules on disputes between states, including responsibility for breaches of international law. It is not linked to the International Criminal Court, also based in The Hague, which holds individuals accountable for atrocities. Prosecutors at the ICC are investigating crimes committed against the Rohingya who were forced to flee to Bangladesh. They have not yet filed any indictments.