Just 12 days before State Counsellor Aung San Suu Kyi was detained by the military last February, she signed off on a 250-page document submitted to the UN’s top court arguing that a case accusing Myanmar of genocide against the Rohingya should be thrown out.
The exhaustive list of preliminary objections confirmed that Suu Kyi’s National League for Democracy (NLD) administration was committed to defending the military’s campaign of mass murder, rape, torture and arson in Rakhine State in 2017.
Now, after the military junta has spent the past year committing similar atrocities throughout Myanmar in its bid to stamp out the uprising against its rule, NLD officials working for Myanmar’s underground administration have reversed their official position.
“We have withdrawn the preliminary objections that were submitted before the coup. They are no longer relevant,” Zin Mar Aung, the National Unity Government’s (NUG) foreign affairs minister and an ousted NLD MP, told a press conference at The Hague via videolink on Monday.
It remains to be seen whether the NLD’s newfound sense of solidarity with the Rohingya will endure if the party returns to power.
The military’s nationwide campaign of terror appears to have inspired newfound sympathy for the group within the party, whose members and officials have suffered some of the junta’s most brutal treatment. But the primary reason for this change of heart is that the NUG is determined to deny the junta any form of international legitimacy.
Monday’s press briefing came just before the International Court of Justice (ICJ) held its first hearings in the Rohingya genocide case since the coup. The NUG wanted its own official to represent the state of Myanmar in the case, something that would have bolstered its efforts to be taken seriously around the world as the country’s only legitimate government.
“The judges of the International Court must determine who has the duty to speak for Myanmar in this case,” Zin Mar Aung said at the briefing. “They face a choice – between the people’s government and the same military who inflicted so much suffering on our Rohingya sisters and brothers.”
The court chose the latter, allowing junta-approved lawyers and officials to defend the case. Judge Joan Donoghue defended that decision during the hearing, arguing that “the parties to a contentious case before the court are states, not particular governments.”
But other legal experts are unconvinced, and support the NUG’s argument that letting the junta represent Myanmar undermines the fight for justice and democracy in the country.
“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, one of three international experts who make up the Special Advisory Council for Myanmar (SAC-M) advocacy group.
Sidoti, an expert in international human rights law, worked for a UN fact finding mission whose report on the 2017 atrocities argued that the military acted with “genocidal intent”. The report has played a prominent role in several international attempts to hold the perpetrators of the violence to account, including the case brought at the ICJ.
“The junta leaders orchestrated the genocidal atrocities against the Rohingya – the subject of this case – and are the cause of the current violence and suffering in the country,” Sidoti added. “They are trying to entrench themselves as leaders of Myanmar, including by claiming international recognition. If they succeed, the chances of the Rohingya and all peoples of Myanmar achieving justice where it matters – on the ground in Myanmar – will be severely diminished.”
Yanghee Lee, a former UN human rights envoy to Myanmar and also a member of SAC-M, said the NUG was the only entity with the authority to represent Myanmar. “These hearings, with the junta claiming to represent Myanmar, are a disgrace,” she said.
Allowing the junta to send its officials on behalf of Myanmar was causing an unnecessary delay in the case, she added.
“The NUG… has withdrawn the preliminary objections. Those objections are the focus of these hearings and will require several months of deliberation by the judges. The Court should instead recognise the NUG’s authority, formally dismiss the objections and move swiftly to dealing with the actual substance of the case, the atrocities against the Rohingya people,” she said.
