Myanmar genocide case at the ICJ, the question of representation is a foundational question that needs to be confronted head-on, intellectually, empirically, and politically.Īnd yet, the court has failed to provide legal reasoning behind its acceptance of the illegitimate regime’s representatives as agents of a UN Member State.
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Prior to the coup of 2021 they had expressed it through the ballot box, in the free and fair elections of November 2020 which dealt the military and its proxy Union Solidarity and Development Party “a crushing electoral defeat” and delivered a second 5-year-mandate to Aung San Suu Kyi-led National League for Democracy.ĭespite these deeply troubling facts, the court conveniently proceeded to treat, whoever the military regime sent to The Hague as Myanmar Agents (or legal representatives of Myanmar) as if they were genuine representatives of the State – and, needless to say, the people of Myanmar.īeyond the scope – and the merit – of Gambia vs. People have expressed their popular will through the armed revolution since last spring. The great majority of Myanmar do not see the regime as their legitimate representatives. The military coup of February 2021 that ousted Aung San Suu Kyi has resulted in the slaughter of 2,000 unarmed and peaceful anti-coup activists, imprisonment and torture of 15,000 activists and their family members who are “guilty by association”, numerous crimes against humanity and war crimes being documented by the UN’s Independent International Mechanism for Myanmar (IIMM), including the military’s brutal scorched-earth campaigns against politically defiant ethnic minority communities. Ironically, and to his credit, Myanmar’s-handpicked judge ad hoc Kress of Germany was the only judge to raise questions about the change of Myanmar’s Agent and Alternate Agent, from the State Counsellor Aung San Suu Kyi and her deputy Kyaw Tint Swe, respectively, to ex-Colonel Ko Ko Hlaing and the military-appointed attorney general Thida Oo. People have expressed their popular will through the armed revolution since last spring There is also another crucial issue that has thus far been left un-addressed either by either Gambia or the court: that is the legitimacy and qualifications of Myanmar Agents. Any social science undergraduate knows this elemental fact. Organized human deeds are typically triggered by a multiplicity of motives and intents. This ultra-conservative insistence by the court for what Gregory Stanton, founder of Genocide Watch, calls “single intent theory” is intellectual lunacy, and an empirical falsehood. This has been interpreted as only intent to commit genocide and not intent to commit any other form of state crime including those that fall into crimes against humanity. Up until now the court’s interpretation of the Genocide Convention, has insisted that a genocide ruling can be made only if the intent to destroy a protected racial, ethnic, religious or national group, in whole or in part, can be proven, beyond reasonable doubt. As the case moves ahead, there is an uphill challenge that Gambia will have to overcome as the case proceeds and enters the “merit” phase.
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