The UN’s Highest Court Might Convict Myanmar. It Won’t Be Enough.

By Eric Han


The Peace Palace in The Hague, Netherlands


The International Court of Justice (ICJ) met last month to hear Myanmar’s objections over the ongoing Rohingya genocide case brought against it by The Gambia in 2019. The court accepted Myanmar’s legal team despite its selection by the current military regime that seized power from the elected government of Aung San Suu Kyi in early 2021.


Legal experts fear that the ICJ’s decision will arrive too late for action. The court has a long history of genocide neglect despite its high status as the foremost judicial organ of the United Nations. In 2007, to the shock of legal scholars, it failed to condemn the 1995 massacre of Bosnian Muslims. In 2015, it dismissed genocide claims alleged between Croatia and Serbia on the basis that though physical violence had occurred, there was no proof of “mental” intent to commit genocide. Now, the ICJ faces enormous pressure regarding its adjudication of the Rohingya case.


Even if the ICJ finds Myanmar guilty, no practical mechanism exists for enforcement of the court’s rulings. The court not only suffers from severe political restraints but also intrinsic legal paradoxes that endanger its legitimacy. When the court ruled against US sanctions on Iran in 2018, the Trump administration outright refused to follow its prescription. Headstrong nations lack incentive to comply with the ICJ.


An affirmation of the Rohingya genocide would be a victory in spirit but, when Rohingya lives are at stake, activists should be more concerned with matters of practical change. A conviction would have no consequence for Myanmar’s junta or the previous administration. Refugees can neither feed their children with unactionable laws nor build new houses out of ICJ rulings. A courtroom victory bears no real value for Rohingya justice if it fails to improve material conditions.


While the ICJ contemplates Rohingya freedom from its headquarters in The Hague, political dissidence brews in Myanmar. After the military coup of 2021, Burmese commentators voiced sympathy for the Rohingya on social media. They recognized that in failing to hold the military accountable for its treatment of ethnic minorities, they also enabled military leaders to seize total power in such a way that threatens national security. Rohingya activists hope to capitalize on this newfound sympathy to build inter-ethnic opposition to the junta.


Even the Bamar people, the majority ethnic group of Myanmar that comprises the government, feel threatened by the new military leadership. Over the last year, the Campaign for Civil Disobedience, inspired by the methods of Mahatma Gandhi, has emerged as a popular movement backed by unions, activists, and ethnic minorities including the Rohingya. Violent resistance groups have also emerged, now louder than peaceful protests. Opposition to the military leadership transcends ethnic tensions.


The interests of the Bamar working class have always aligned with those of Myanmar’s marginalized ethnic groups. Previous oppressors, colonial and post-colonial alike, have often stirred movements of agrarian solidarity in the country. The Bamar peasantry, as frequent victims of despotism by nature of their class, have much to gain from political collaboration with marginalized ethnic groups like the Rohingya. The military coup did not change the nature of these shared incentives – it simply renewed the consensus.


A class-based coalition of Myanmar workers and peasants could carve a new path for the Rohingya. Students and workers already began demonstrations last year, threatening Myanmar’s military leadership with enormous retribution, both political and economic in nature. This class mobilization could accelerate the election timeline, end the junta, and even promote an alternative candidate to Aung San Suu Kyi, whose initial collaboration with the military and apathy towards the Rohingya prove her unsuitable for return to power.


Though the ICJ will do little to bolster this movement, many other options remain for the international community. In July of last year, the US sanctioned a wide net of individuals associated with Min Aung Hlaing’s military uprising in Myanmar. This deprivation threatens the financial resilience of the regime and disincentivizes potential allies from associating with Myanmar’s elites. So long as these sanctions remain personal, Myanmar is unlikely to suffer the same economic obliteration as Venezuela and other victims of US sanctions. Instead, the synthesis of worker mobilization and punitive disruptions from abroad could accelerate the democratic process.


A swift democratic return is a prerequisite to practical implementation of the ICJ’s ruling, should it favor the Rohingya. The National Unity Government (NUG), composed of ousted officials from Aung San Suu Kyi’s original administration, declared last month that they would withdraw all of Myanmar’s objections to the ICJ case if returned to power. Even if the court could protect the Rohingya, that option can only become viable after the prioritization of domestic political change.


A transformative ICJ ruling remains a pipe dream. The Rohingya will bury thousands more of their innocents before the court’s ruling travels to Myanmar and the camps of Bangladesh. Sympathizers must keep focus on the avenues of change that carry genuine hope and consequence in the Rakhine State – those paved by the demonstrators, in solidarity with the Rohingya, that threaten to depose the Myanmar elite.


 

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