Myanmar’s opposition National Unity Government (NUG) says that it has accepted the jurisdiction of the International Court of Justice (ICJ) to hear claims that the country committed genocide against the Rohingya minority group, after formally withdrawing “all preliminary objections” in the case.
On February 21, the The Hague-based tribunal is scheduled to hold a fresh round of hearings into the case, which was brought by the government of The Gambia after the Myanmar military’s fierce assaults on Rohingya communities in western Myanmar in 2017.
In a statement Tuesday, the NUG, which consists of parliamentarians from the ousted National League for Democracy (NLD) government and their allies, announced that it “accepts the jurisdiction of the Court and withdraws all preliminary objections in the case of The Gambia v. Myanmar concerning the military operations against the Rohingya in 2016 and 2017.”
The NUG further said that since it was withdrawing its preliminary objections, the court should cancel the upcoming hearings, during which the junta is expected to challenge the ICJ’s jurisdiction, and the ICJ could “proceed quickly with the timetable for the hearing of the substantive case under the Genocide Convention.”
The announcement marks a reversal for the NLD, which, as Myanmar’s ruling party prior to the February 2021 coup, found itself on the same side of the issue as the Myanmar military and filed preliminary objections to the ICJ over the case. Most notoriously, Aung San Suu Kyi even appeared in person at the ICJ in late 2019 to challenge the genocide charge, during which she said that The Gambia had presented an “incomplete and misleading factual picture of the situation in Rakhine State.”
But this is not the first time that the NUG has pledged to cooperate with the ICJ case. In June, the NUG Foreign Minister Moo Zaw Oo said that the government would no longer offer a defense in the case, according to The Irrawaddy, which reported that it “also vowed to work with the ICJ and said it would accept the court’s decision in the case.”
Indeed, the primary motivation of this week’s announcement by the NUG is to defend its claim to be the legitimate government of Myanmar, and to receive international recognition of the same. The NUG’s international spokesperson Dr. Sasa admitted as much in an interview with Frontier Myanmar in September, during which he said that the legitimacy question was the driving force of the NUG’s push to try and take the ICJ case.
In this vein, the NUG’s statement protests the fact that “through a bureaucratic idiosyncrasy, the ICJ has been communicating with former Myanmar diplomats in Brussels who are now under junta control.” Instead, it said the ICJ should deal with Kyaw Moe Tun, Myanmar’s permanent representative to the United Nations, who has declared his support for the NUG.
“It would set a dangerous precedent and be inconsistent with the position of the U.N. General Assembly for the ICJ to accept the military junta as the representative of Myanmar,” the statement read. “Should the ICJ recognize the military, it would embolden the junta to continue and escalate its daily atrocity crimes. We also fear this may derail efforts towards international criminal accountability for the junta leaders and other perpetrators of atrocity crimes.”
It is unlikely that the NUG’s announcement will have much effect. The question pivots on whether it fulfills enough of the basic requirements of statehood – such as effective control over territory – to persuade states to accord it formal recognition as Myanmar’s government, something that few governments seem willing to do, at least for now.
This raises the interesting question of how, should the NUG’s representative be accepted to represent Myanmar at the ICJ, it would choose to defend the case. The ousted NLD government was arguably complicit in the military’s crimes against the Rohingya, with senior officials going to considerable lengths to discredit reports of atrocities like rape, paint Rohingya communities as “illegal immigrants,” and to defend the military’s actions. One would assume that the NUG would seek to pin the bulk of the crimes on the Tatmadaw and to exculpate its own officials, as part of its wider attempt to undermine the military regime.
Whatever its approach might be, for the NUG and its allies, currently seeking to survive the junta’s onslaught and extricate the military from Myanmar’s political life on a permanent basis, this is a problem for tomorrow.