Myanmar coup: How will the military takeover affect Rohingya genocide trial?

Seizure of power could significantly change how nation response to proceedings at UN’s highest court, reports Samuel Osborne

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Last week’s military coup in Myanmar has raised questions over how the change in the country’s leadership will affect the way it responds to being on trial for the crime of genocide against the predominantly Muslim Rohingya minority.

The Tatmadaw, Myanmar’s armed forces, seized power on 1 February, ousting the country’s government over allegations of fraud in recent elections and later arresting its leader and Nobel Peace Prize laureate, Aung San Suu Kyi.

While experts believe the coup d’état will have little effect on the outcome of the trial itself, it could significantly change how Myanmar responds to proceedings at the UN’s highest court, the International Court of Justice (ICJ) in the Netherlands.

“From the court’s perspective, nothing changes,” Grant Shubin, legal director at the Global Justice Center, toldThe Independent. But he said the coup could change how the military government defends itself against the charge of genocide and affect how it is represented in The Hague.

Myanmar is accused of committing widespread and systematic atrocities against the Rohingya during a “clearance” campaign launched in August 2017, which thousands were killed and raped and more than 730,000 forced to flee to the world’s largest refugee camp across the border in Bangladesh.

So far, lawyers for Gambia, which brought the case against Myanmar on behalf of the Organisation of Islamic Cooperation (OIC), have produced maps satellite images and graphic photos to portray what they describe as a systematic campaign of murder, rape and destruction designed to push the Rohingya out of Rakhine state, their home for generations.

In a first victory for those accusing Myanmar, in January 2020 the ICJ ruled emergency measures must be implemented, with judge Abdulqawi Ahmed Yusuf saying the court found the Rohingya remain “at serious risk of genocide”.

Will Myanmar’s military government continue to engage with the ICJ?

Despite the change in leadership, Myanmar’s military government is likely to continue to engage with the court, at least during the current phase of the trial, Mr Shubin said he believes. “The cost to them in terms of their reputation and their international stature is too high to abandon the court before it rules on their jurisdictional argument.”

Myanmar has so far objected to the case, arguing firstly that it is not admissible in the court and secondly that the court does not have jurisdiction. “They’re basically trying to get the case kicked out on technical grounds,” Mr Shubin explained. “So that way the court never gets to the question of whether they actually committed genocide.”

If the court rejects Myanmar’s objections, whether the military government continues to engage becomes “a more difficult and knotted question,” Mr Shubin said. “The military government may continue to seek to defend the case because they think they can win on the merits, because genocide is a notoriously difficult crime to prove.”

But the military may also decide to cease engaging with the court, Mr Shubin said: “If they lose on jurisdiction, and then they stop engaging with the court, the cost is less than if they stopped engaging now.”

Such a view is echoed by Dr Azeem Ibrahim, director of the Center for Global Policy and author ofThe Rohingyas: Inside Myanmar’s Genocide, who said he thinks it is “doubtful” the military government will appear before the ICJ to testify in the case. “Much less than Suu Kyi, they do not believe in and will not allow themselves to be bound by any supranational institutions,” he wrote in an article for Arab News. 

What would happen if the junta did not turn up to the trial?

If the junta refused to turn up to the trial, “the case moves forwards anyway, just without Myanmar there,” Mr Shubin said. 

He said: “They would say it is not credible, that they don’t recognise it, and they would have all of the rhetoric that goes along with having a court case go on without you present. But the case would, in fact, go on.”

Dr Ibrahim agrees, writing: “Another aspect of the coup is that the new ‘official’ government of the country is much more intimately tied to the actions that prompted the genocide allegations. This should not ultimately affect the verdict of the court, but it will certainly colour public opinion, as well as international interest in the court proceedings and the conclusions it reaches.

“So we will likely have a situation where the very people who will be explicitly named as the individual perpetrators of the crime of genocide during the trial are the same people who are in the highest government positions in Myanmar, and also the people who will stop any further engagement with the judicial process.”

Will Myanmar’s legal counsel be willing to represent the military government?

Another question is whether Myanmar’s legal counsel will be willing to continue to represent the country now it is headed by a military government rather than Ms Suu Kyi. Professor William Schabas, who is considered a leading expert on the law of genocide and international law, stood alongside Ms Suu Kyi and defended Myanmar against accusations of genocide in 2019, but he may be less inclined to do so now the military has seized power.

Mr Shubin said: “William Schabas is an extremely respected scholar on the crime of genocide, he literally wrote the book on the crime of genocide. The Association of Science Scholars had called on him not to represent Myanmar and he is doing it anyway, saying everyone is entitled to vigorous legal counsel. And he is saying that is why he is representing Myanmar, but he had the benefit then of resenting a Nobel Peace Prize laureate. He does not have that anymore. It becomes a question of whether certain clientele are odious to him.”

Prof Schabas has so far made no remarks about the coup in Myanmar. If he did refuse to defend the military government in court, Mr Shubin said Myanmar would need to find a new legal counsel, which could potentially change the material construction of their case.

How will the coup affect the Rohingya and other ethnic minorities?

Aside from any impact on the trial itself, the coup in Myanmar could have dangerous consequences for the Rohingya and other minority ethnic groups.

“The Rohingya and all ethnic minorities in Burma [Myanmar] are made more vulnerable under this new government,” Mr Shubin warned. “It’s no secret that the civilian government was not doing everything it could to have a safe and dignified return of the Rohingya” from Bangladesh, where they live in squalid camps.

The various ways the military’s seizure could affect the genocide case at the ICJ remains to be seen, but it is likely that the Rohingya and other minorities could face further human rights abuses under military rule.