Peer reviewed analysis from world leading experts

Myanmar’s genocide overshadowed by Ukraine

Reading Time: 5 mins
Rohingya refugees hold placards as they gather at the Kutupalong Refugee Camp to mark the fifth anniversary of their fleeing from neighbouring Myanmar to escape a military crackdown in 2017, in Cox's Bazar, Bangladesh, 25 August 2022 (Photo: Reuters/Rafiqur Rahman).

In Brief

Two genocide cases are before the International Court of Justice (ICJ) as of October 2022. The first was brought by the Gambia against Myanmar in 2019 for breach of the Genocide Convention during ‘clearance operations’ against the Rohingya ethnic minority in Rakhine State in 2017.

Share

  • A
  • A
  • A

Share

  • A
  • A
  • A

The second case, brought by Ukraine against Russia in early 2022, asked the ICJ to find against Russian President Vladimir Putin’s assertion that the Ukrainian government and military were committing genocide against Russian speakers in the Luhansk and Donetsk oblasts of eastern Ukraine. There have been significant developments in the Russia case — 17 Western governments so far have intervened in support of the case, including Australia, New Zealand, the United States and the United Kingdom.

Despite several Western governments stating their intention to intervene in the Myanmar case, none have filed a formal declaration of intervention with the ICJ. Given the case has been running for several years and the significant evidence that genocide has occurred in Myanmar, this absence of engagement gives weight to accusations of Eurocentric bias.

Concerned citizens in Southeast Asia and the rest of the Global South could reasonably ask why no rich Western countries, with all the legal and diplomatic resources at their disposal, have formally intervened in the Myanmar genocide case and what that tells them about Western diplomatic priorities.

Articles 62 and 63 of the ICJ’s Statute provide two separate devices for states wishing to intervene in a case. Both statutes require the third-party state to establish a form of legal interest in the case — under Article 62 this is an ‘interest of a legal nature which may be affected by the decision in the case’. If a state intervenes under Article 62, the judgment may take its interests into account but will not bind the intervening state.

No state has elected to use Article 62 intervention in the Russia case. Instead, all applications to intervene have been brought under Article 63.

This grants states the right to intervene in a contentious case when they are party to a multilateral treaty that will be interpreted in the Court’s judgment. But this right is subject to the Court’s power to declare the intervention inadmissible. Article 63 intervention results in a judgment that binds parties and intervenors alike.

The ICJ has held in previous cases that intervention to support a party’s particular interpretation of the relevant treaty is permissible. But the Court may declare these interventions inadmissible as it is not yet clear whether it has jurisdiction to proceed with the case.

In the Russia case, despite Russia’s non-appearance at the provisional measures hearings, the Russian ambassador informed the Court that its future participation in the proceedings is ‘still under consideration’. Russia had until 1 October 2022 to file preliminary objections to the Court’s jurisdiction, but even if it does nothing the Court may still treat its non-appearance as an objection to the Court’s jurisdiction..

While this case is at a much more preliminary stage than the Myanmar case, 17 states have elected to intervene in the proceedings under Article 63 of the ICJ Statute. All of these states have elected to be bound by the ICJ’s interpretation of the Genocide Convention.

The ICJ rejected all of Myanmar’s objections to continuing the Myanmar case in July 2022. Myanmar argued, inter alia, that because the Gambia had suffered no injury as a result of Myanmar’s treatment of the Rohingya, it lacked standing to bring the case since the Genocide Convention does not provide for the concept of an actio popularis — that actions can be brought in the public interest. It also argued that there was no dispute between the Gambia and Myanmar.

The ICJ dismissed Myanmar’s arguments, finding that the Gambia was bringing the case in good faith and that all of the state parties to the Genocide Convention have a common interest in ensuring the prevention, suppression and punishment of genocide.

As the ICJ pointed out, to hold otherwise would undermine the protection offered by the convention because ‘victims of genocide are often nationals of the state allegedly in breach of its obligations’. The case will now proceed to a final determination on its merits.

This decision established the possibility of other states joining the case and supporting the Gambia’s legal action using the same Article 63 mechanism that is being utilised in the Ukraine case. Yet no state has filed a formal declaration of intervention at the ICJ.

On the fifth anniversary of the Rohingya genocide on 25 August 2022, the United Kingdom publicly announced that it intended to intervene in the ICJ case and implement new sanctions against military-linked companies in Myanmar.

At the same time, former UK ambassador to Myanmar Vicky Bowman and her husband, a prominent citizen of Myanmar, were arrested in Yangon under bogus accusations of immigration breaches. Myanmar’s dubious courts sentenced both of them to a year of imprisonment.

Other states, such as Canada, the Netherlands and the Maldives had made statements regarding their intention to intervene as early as 2020. But for now, the Gambia stands alone.

The reinvigoration of Australia’s international diplomacy under the new Albanese government has seen Australia intervene on behalf of Ukraine at the ICJ. But Canberra should demonstrate that it treats breaches of international human rights law in its own backyard as seriously as it does in Europe by intervening in the case against Myanmar too.

Juliette McIntyre is a Lecturer in Law at the University of South Australia and a PhD candidate at the University of Melbourne.

Adam Simpson is Senior Lecturer in International Studies at the University of South Australia.

One response to “Myanmar’s genocide overshadowed by Ukraine”

  1. The Rohingya issue is now an international issue. Due to this problem world humanity is facing questions today. Let their rights be restored through their rehabilitation. And their rights should be returned to them by the state.

Support Quality Analysis

Donate
The East Asia Forum office is based in Australia and EAF acknowledges the First Peoples of this land — in Canberra the Ngunnawal and Ngambri people — and recognises their continuous connection to culture, community and Country.

Article printed from East Asia Forum (https://www.eastasiaforum.org)

Copyright ©2024 East Asia Forum. All rights reserved.