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How International Legal Interventions Can Help Pressure Myanmar’s Military
Foreign governments need to make good on their pledges to intervene in the Rohingya genocide case at the International Court of Justice.
August 2022 marked the fifth anniversary of the Rohingya genocide, during which Myanmar’s military and affiliated groups killed over 20,000 Rohingya civilians and forced over 740,000 more to flee Rakhine State over the border into Bangladesh.
With that anniversary came pledges from the United Kingdom and Germany to formally intervene in The Gambia v. Myanmar Rohingya genocide case at the International Court of Justice (ICJ) as a show of support.
Civil society welcomed those announcements, but if recent history is any indicator, we shouldn’t hold our breath for either London or Berlin to make good on their promises. After all, Canada and the Netherlands pledged back in September 2020 to formally intervene in the case, but they still haven’t either.
By contrast, to date, a whopping 33 countries have filed formal declarations to intervene in Ukraine v. Russian Federation at the ICJ, a degree of mass participation that is unprecedented.
The Ukrainian government filed the case a few days after Russia launched an unprovoked invasion of the country on February 24, 2022. Under the Genocide Convention, Kyiv argued in the case that Moscow’s nominal justification for invading – to prevent genocide in Ukraine’s east – was baseless.
The discrepancy in the formal interventions in these two cases underscores a broader discrepancy in the international community’s responses to the two crises. As more countries formally intervene in Ukraine v. Russian Federation, so too should they formally intervene in The Gambia v. Myanmar – especially as the post-coup crisis continues to deteriorate in the Southeast Asian country. Interventions are just one way in which states can uphold their Responsibility to Protect populations – in Myanmar, Ukraine, and elsewhere – from mass atrocity crimes.
Article 62 of the ICJ Statute says that a state can request to intervene in a case if it “has an interest of a legal nature which may be affected by the decision in the case.” Article 63 says that states have a “right to intervene” in cases that principally deal with a multilateral convention that they are also party to.
Since both The Gambia v. Myanmar and Ukraine v. Russian Federation deal with the 1948 Genocide Convention, requests to intervene would almost certainly occur under Article 63. So far, all requests in the Ukraine case have taken place under Article 63.
Still, the ICJ has historically been averse to interventions. In fact, the ICJ has admitted just three (around 20 percent) of Article 62 applications and just two (about 29 percent) of Article 63 applications. The successful applications were not in atrocity cases.
Still, interventions can support atrocity prevention. Intervention functions as a show of support for the case itself. It’s well understood that accountability processes are a fundamental element of atrocity prevention, and since intervention supports the case and places additional pressure on perpetrators, it in turn supports atrocity prevention.
The intervention also can legitimize trials and their outcomes. Legitimacy is especially important in cases like that of Ukraine and the Rohingya genocide, since Russia and Myanmar have sought to discredit the ICJ processes. If a trial and its ruling are perceived as more legitimate due to additional interventions, then the ruling may carry more weight and can better prevent a resurgence of violence on the ground.
Intervention deserves a place in the atrocity prevention toolbox. In some ways, the symbolic significance of intervention is more important than the practical value. Still, the rhetoric surrounding intervention rarely considers it in terms of atrocity prevention or the Responsibility to Protect, or R2P. Reframing the importance of interventions in terms of atrocity prevention and R2P may encourage more states to intervene in such cases.
In May 2022, 41 states and the European Union issued a joint statement saying they would consider intervening in the Ukraine case, and since then 33 countries have filed formal declarations to do so. This kind of mass mobilization through interventions at the ICJ is remarkable.
Following this joint statement, Ukraine’s President Volodymyr Zelensky applauded the development with a statement on Twitter that said, “Grateful to partners who chose the right side of history. The side of truth, international law, and justice. Together, we’ll hold Russia accountable.”
He crucially depicted intervention as something that turns a trial into a collective cause – a group effort to hold Russia accountable for atrocities committed in Ukraine, as well as to prevent atrocities in the future.
While it is of course a good thing that so many states have intervened in the Ukraine case, it also underscores the international community’s lack of active support for the Rohingya genocide case. Perhaps the greatest indicator of this discrepancy is that Canada, the Netherlands, the United Kingdom, and Germany – all of whom said they would intervene in the Rohingya genocide case – have actually gone ahead with applying to intervene in the Ukraine case.
This discrepancy represents much bigger differences in the international community’s response to the war in Ukraine and both the Rohingya genocide and the crisis that has ensnared Myanmar since the military launched a coup in February 2021.
For instance, in a March 2022 appropriations bill, the United States allocated $136 million in aid for Myanmar, compared to $13.6 billion for Ukraine. Similarly, a coalition of governments has imposed crippling sanctions on Russia, but only the European Union has imposed sanctions on Myanmar’s oil and gas sector, which is a significant source of revenue for Myanmar’s military.
Some legitimate factors help explain these differences. Russia invaded a sovereign state; Myanmar’s military did not. Moreover, although the Russian military and Myanmar military have both perpetrated mass atrocity crimes, Russia’s use of force has been more extreme. There were also concerns that the war in Ukraine could prompt a wider war in Europe.
But another more troublesome reason is that Myanmar is of marginal political and economic interest to the international community, especially compared to Ukraine and Russia. The discrepancy between the two cases reaffirms that the international community can respond to crises – but only when it really wants to, only when the victims are white Europeans, and only when its strategic interests are directly threatened.
None of this is to say that the international community should not be responding to the war in Ukraine in the way that it is. The world has responded in full force, using myriad tools in the atrocity prevention toolbox in its response. That is a great thing. But the same rigor and urgency should be present in global responses to all atrocity situations – not just ones deemed more geopolitically significant.
Intervention is an admittedly small tool. Still, the fact that states have made such historic use of the relatively niche and little-known Article 63 in Ukraine v. Russian Federation further underscores the disparate responses to human rights crises in Ukraine and Myanmar. The international community appears to be using every tool at its disposal to respond to the crisis in Ukraine. The same cannot be said for the response to the Rohingya genocide or Myanmar’s post-coup atrocity situation.
Intervention is not a substitute for arms embargoes or sanctions on oil and gas or other more substantial steps to address atrocity risks facing the Rohingya and other populations in Myanmar. Neither is it a panacea. But an intervention would be a show of support for the Rohingya and the genocide trial, and it would place additional pressure on Myanmar’s military.
With the second anniversary of the military coup approaching on February 1, the Netherlands, the United Kingdom, Canada, and Germany must honor their commitments to formally intervene in the case. Other countries should intervene as well.
(c) 2023, The Diplomat
https://thediplomat.com/2023/01/how-international-legal-interventions-can-help-pressure-myanmars-military/
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