How Myanmar coup will affect Rohingya genocide trial
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One thing that has somewhat flown under the radar in the coverage of this week’s military coup d’etat in Myanmar is that the country is currently on trial at the International Court of Justice (ICJ) for the crime of genocide against the Rohingya people. Will the change of government have any bearing on the legal proceedings or the conclusions of the trial?
The short answer is no. Or at least not in any way that would make a guilty verdict any less likely. Some aspects of the trial proceedings will change, insofar as they depend on the presence and representation of Myanmar during the trial itself. But none of those should have any effect on the continuation of the trial or its final verdict.
To begin with, when a country is indicted for genocide, it is not the executive branch of that country that is indicted. Rather, it is the state as a whole. So a change in government has no bearing on the proceedings.
What will change as far as the proceedings are concerned will mostly be the defense mounted by the state of Myanmar. Aung San Suu Kyi, the leader of the civilian government of Myanmar prior to the coup, in 2019 appeared before the court to testify for the defense. She will obviously not appear again in the same capacity, unless the coup is reversed.
The actions that are at the forefront of the accusation of genocide — the “clearing operations” that forced more than three-quarters of the Rohingya living in Myanmar to flee over the border to Bangladesh — were orchestrated, planned and carried out by the Tatmadaw, the military of Myanmar, which has now taken over the government. One aspect of this is that it is doubtful that the new military government will ever appear before the ICJ to testify one way or another. Much less than Suu Kyi, they do not believe in and will not allow themselves to be bound by any supranational institutions.
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 color 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.
It is doubtful that the new military government will ever appear before the ICJ to testify one way or another.
Dr. Azeem Ibrahim
This is quite likely to lead to the further isolation of the country and may make it less likely, in the short term, that the specific individuals named in the indictment will face consequences if a guilty verdict is reached. But if the political situation in Myanmar changes, whether that comes in the form of a restoration of the civilian government or as some kind of factional dispute among the Tatmadaw, the consequences for the perpetrators may well end up being quite a bit more serious because of their refusal to continue to engage with the court process.
Finally, as things stand at the moment, it may well be that Suu Kyi once again emerges as a pivotal player in what happens next. She is currently being detained by the military. But if the coup is reversed, or even if the coup is not reversed but she somehow manages to escape and flee the country, she may well decide to appear before the court to testify and provide further evidence — except this time for the prosecution, even if only for reasons of personal and political calculation. Nevertheless, her input, should she wish to offer it, should be allowed and welcome. She may have been a willing accessory to what happened to the Rohingya over the past five years, but we should not lose clarity about who the people who bear the most responsibility are and, consequently, who should be duly punished when the verdicts are reached: They are the leaders of the Tatmadaw, those who now sit at the top of the government in Naypyidaw.
- Dr. Azeem Ibrahim is a director at the Center for Global Policy and author of “The Rohingyas: Inside Myanmar’s Genocide” (Hurst, 2017). Twitter: @AzeemIbrahim
