World Court rules against Myanmar junta request for an extension in genocide trial

(BANGKOK, April 15, 2023)—The Myanmar military junta should end the ongoing Rohingya genocide and atrocities against other civilians and fulfill legally binding provisional measures issued in 2020 by the International Court of Justice (ICJ) in The Hague, said Fortify Rights. Today, the ICJ, also known as the World Court, published a ruling rejecting the military junta’s request for an extension in a historic genocide trial initiated against Myanmar in 2019.

“Today’s ruling is another in a series of defeats for the Myanmar junta at The Hague,” said Matthew Smith, Chief Executive Officer at Fortify Rights. “The same generals responsible for the Rohingya genocide wanted to significantly delay the genocide trial, and the court was right to reject their request.”

On October 23, 2020, The Gambia filed a 500+-page Memorial at the ICJ in a lawsuit against Myanmar for genocide against the Rohingya. The court set April 24, 2023, as the deadline for the junta to file a “Counter-Memorial”—an official response to The Gambia’s evidence of genocide against the Rohingya people. In a letter to the court dated March 14, 2023, the Myanmar junta requested that the ICJ grant a ten-month extension, until February 2024, for filing its Counter-Memorial. On April 6, 2023, the ICJ issued an order, published today, rejecting the junta’s request.

In its request to the court, the junta cited numerous reasons for demanding more time to file its response to the evidence of genocide presented to the court by The Gambia, including a “change in Government in February 2021,” which is a euphemism for the Myanmar military’s deadly coup d’état on February 1, 2021. The court announced today that The Gambia contended that the Myanmar junta “should not be allowed to further delay the proceedings because of its own military coup.”

According to the court, the Myanmar junta also claimed it needed more time due to the “voluminous nature” of The Gambia’s Memorial; the time needed for the translation of documents in Burmese and English; limited resources “to conduct the case;” and due to the requirement that the junta report to the court every six months on its implementation of provisional measures ordered by the court in January 2020. The junta also cited reasons related to COVID-19 “restrictions” and, lastly, so that it could “take statements from witnesses who were presently living in camps in Bangladesh or would soon be repatriated to Myanmar.”

In recent weeks,  Myanmar junta officials visited Bangladesh Rohingya refugee camps as part of a “pilot repatriation” effort to return refugees, despite the fact that the junta continues to commit human rights violations that amount to genocide against Rohingya in Myanmar.

In response to the junta’s requests for an extension, in a letter dated March 21, 2023, The Gambia argued that it produced its Memorial to the court in nine months and that Myanmar already had a total of 29 months to produce its Counter-Memorial. According to the court, The Gambia also argued that there was “no precedent of the Court extending a time-limit for the filing of a pleading because case-related documents needed to be translated or because of a party’s economic status.” The Gambia also argued that the junta’s preparation of its reports to the court every six months should assist rather than inhibit its Counter-Memorial. Finally, The Gambia argued that “there was little chance of Bangladesh allowing Myanmar to access witnesses currently living in camps in Bangladesh, nor was it likely, given prevailing conditions, that any Rohingya refugees would soon return to Myanmar.”

Considering both arguments, the court rejected the junta’s request for a ten-month extension; however, it extended the junta’s deadline by one month to May 24, 2023.

“The fact that the junta cited its own deadly and illegal coup d’état as a reason for a delay in the genocide trial is outrageous, and the court was right to reject it,” said Matthew Smith. “The military continues to attack civilians nationwide, including through ongoing violations of Rohingya human rights in direct contravention of the court’s provisional measures.”

In June 2022, Fortify Rights published a 63-page report Genocide by Attrition: The Role of Identity Documents in the Holocaust and the Genocides of Rwanda and Myanmar, providing information about the longstanding and ongoing persecution of the Rohingya in Myanmar. The report details how the Myanmar junta continues to use identity documents to facilitate the genocide of the Rohingya people, mirroring tactics used in the Holocaust and Rwandan genocides and violating existing ICJ orders for Myanmar authorities to cease ongoing acts of genocide.

In March 2022, Fortify Rights and the Schell Center for International Human Rights at Yale Law School published a 193-page report, “Nowhere is Safe”: The Myanmar Junta’s Crimes Against Humanity Following the Coup d’État, documenting evidence that the Myanmar junta is responsible for crimes against humanity since its coup, including widespread and systematic murder, torture, and imprisonment.

On January 23, 2020, the ICJ issued a unanimous ruling against Myanmar in the genocide trial, issuing “provisional measures of protection” for Rohingya, including the requirements that Myanmar preserves evidence of genocide and reports to the court every six months on its progress in implementing the order, among other measures. The provisional measures are binding orders from the court to Myanmar to prevent further human rights violations while the case is pending.

The Gambia initiated proceedings against Myanmar at the ICJ on November 11, 2019, alleging violations of the Genocide Convention. In contrast to other international legal mechanisms currently underway to hold individual perpetrators in Myanmar liable for atrocity crimes, including through the International Criminal Court (ICC), the ICJ resolves legal disputes between states and adjudicates state liability.

State Counsellor Aung San Suu Kyi previously represented Myanmar at the ICJ trial. However, the Myanmar military overthrew the newly elected administration and imprisoned Aung San Suu Kyi and other members when it initiated its coup d’état on February 1, 2021.

After the coup, Myanmar’s pro-democratic National Unity Government (NUG) acknowledged the atrocities faced by the Rohingya in Myanmar and committed to ensuring justice and accountability for Rohingya—a marked change from pre-coup official policies toward the Rohingya. The junta, not the NUG, represents Myanmar at the genocide trial in The Hague.

In January 2023, Fortify Rights and 16 individuals from Myanmar filed a criminal complaint with the Federal Public Prosecutor General of Germany under the principle of universal jurisdiction against senior Myanmar military generals and others for genocide, war crimes, and crimes against humanity.

The complaint is under consideration at the office of the Federal Prosecutor.

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