It’s Only Crimes Against Humanity: Myanmar’s Extraordinary Defence at the ICJ and its Implications for Business.

As a foreign investor, or potential foreign investor, the Gambia v Myanmar hearings at the International Court of Justice (ICJ) on genocide allegations can only be bad news. The best-case scenario for the Rohingya victims, that the court orders provisional measures to force Myanmar to allow investigations and is found responsible for Genocide on the merits is a disaster for investors who will be confirmed as propping up a genocidal regime. The middle road based on ICJ precedent, that the Myanmar in not found responsible for genocide but for falling to prevent it, demonstrates a profound lack of rule of law at home and a culture of impunity harmful to investors interest. The worst-case scenario for victims, that the ICJ does not order provisional measures or accept that genocide has been committed on the merits, emboldens the military further and will likely create instability across Myanmar the future.

Given the conclusions of the UN Fact Finding Mission and the UN Special Rapporteur that all investment must avoid working with the military, companies linked to the military, and crony businessmen, as well as how difficult this is to do in practice, investing in Myanmar is already reputationally risky. Myanmar’s staunch defence at the ICJ – that these heinous acts committed by the military are only crimes against humanity, war crimes and human rights abuses –  will not reassure. International business is aware that they may be found complicit in or to have contributed to the military’s human rights abuses in the country – and even Myanmar has not denied they occur.

Myanmar is basically arguing that the atrocities committed against the Rohingya people are not genocide; they are just clearance operations like all others conducted in the country and are only crimes against humanity, war crimes and other widespread and systematic human rights abuses. Myanmar does not deny the allegations graphically alleged by Gambia’s legal team at the ICJ. Instead, it argues that the court only has jurisdiction for the specific crime of genocide if it wishes to impose provisional measures, and that to have that jurisdiction there must be proven genocidal intent.

This defence is extraordinary. Myanmar has argued that, yes, all those terrible acts (actus reus) occurred but that there is no proof of an intent (Mens Rea) to destroy the Rohingya as a group. They argue it is not enough to show that they intended to remove them from their homes or drive them across the border into Bangladesh; it must be proven that the intent was to destroy them.

Myanmar argued that the military has always pursued these ‘clearance operations’, the hallmark of the military for decades – clearance operations essential mean anti-terrorist operations characterised by attacking civilians, often using sexual violence, and driving people out of their homes. Ask the Kachin, Shan and Karen people about how these operations work in practice. The difference is, it appears, that the Rohingya, unlike other groups, have no real army capable of defending them so it caused a mass exodus.

Myanmar emphasises genocide’s specific requirement to prove the mental element. They argue that without that specific intent proven, those widespread and systematic human rights abuses by the military only constitute crimes against humanity or war crimes, over which the ICJ has no jurisdiction to order provisional measures. Proving genocidal intent requires a criminal investigation, which has not been conducted yet. Of course, in reality, the investigation has been thwarted by Myanmar as argued by Gambia’s legal team. The Judges may take this into consideration. For the sake of the victims, let’s hope so. But the ICJ may agree and refuse to assert jurisdiction.

Again, Myanmar’s defence is only a legal one: it insists these operations are not tantamount to genocide. They insist that if they intended to destroy the Rohingya, they would have done so. They would not have allowed hundreds of thousands to flee and would not have ‘protected’ them in the camps nor encouraged them to return. There would be far more than ten thousand deaths. This is of little consolation to the Rohingya and other ethnic groups who are the real victims of these ‘clearance operations.’

Myanmar realises that the ICJ is likely the only venue in which they may face genocide charges in the foreseeable future. The ICJ has jurisdiction over violations of the Genocide Convention. But Myanmar is not party to the Rome Statute of the International Criminal Court (ICC) and it is unlikely that the UN Security Council will authorise a special investigation. The ICC’s investigation into the cross-border crime of deportation based on Bangladesh’s membership will take a long time and it is uncertain that Myanmar’s military leaders will ever be brought before the court, especially for genocide. So, if they can avoid the jurisdiction of the ICJ, they return home triumphant.

That there is no likely international accountability mechanism to hold the state or individuals accountable for crimes against humanity and war crimes should not reassure the foreign investor. The legal defence by Myanmar also indicates a complete absence of the rule of law at the national level. The national courts are unwilling or unable to hold the military and the police accountable for any crime, let alone international crimes. They have failed to prevent, investigate or hold anyone accountable for these crimes. Aung San Su Kyi’s argument that it can’t be genocide if the state is investigating the perpetrators rings hollow. The investigations so far have failed to meet any test of independence or impartiality.

This does not bode well for a contractual dispute with between a foreign investor and their military linked joint venture partner. The triumphant return of Aung San Su Kyi and the military is the worst-case scenario for accountability and the rule of law. This worst-case scenario could embolden the already powerful military and stoke ethnic nationalism further. To put if crudely in investment terms, this means instability – which is bad for business. Only companies from states without the discerning glare of civil society and a free media – all of Myanmar’s immediate neighbours, for example – will dare to invest in projects and put their reputations on the line. Scrupulous investors will be wary.

This uncertainty is made worse by a popular misunderstanding of international law: the narrative in the media is that a finding of genocide is the only justice for victims. Yet, crimes against humanity and war crimes are equally serious offences carrying individual responsibility in international criminal law. But now many victims may now feel that these constitute mere consolation prizes.

The vitriol directed against the ICJ and Myanmar’s legal team is also misguided. Fair trial standards require a robust defence by a competent and independent legal team that represents the client’s interests. The lawyer should never be associated with the alleged crimes of the accused. Fair trials in Myanmar are blighted by the denial of the accused the right to competent and impartial counsel. The government and the judiciary often associate lawyers with the alleged cries of their clients, which undermines the rule of law. It is vital that the international community provide an example to the thousands of people routinely denied this right watching live in Myanmar.

We don’t yet know what the court will decide on provisional measures (similar to injunctions at the domestic level) or on the merits of this case. The outcome is uncertain and the case likely to last a long time. This will be difficult for the victims who may not understand this legal process and seem set for disappointment. Regardless of the decision at the ICJ on intent, the facts are the same on the ground and business risks being found complicit in or contributing to serious human rights violations.

Let’s hope the court asserts jurisdiction and demands Myanmar cooperate with criminal investigations at the ICC or other UN mechanisms. It would set a new precedent that the accused cannot get away with a crime by preventing its investigation. It would also show the military – and the quasi civilian government – that the rule of law applies to all, at least at the international level. This is a wake up call for foreign investors – this is not business as usual. Yet international accountability might point the way towards justice, human rights and the rule of law as the basis of sustainable development in Myanmar in the future.

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