Myanmar is expected to argue that the genocide has not occurred, that the top UN court lacks jurisdiction, and that the case does not meet the condition of conflict between Myanmar and Gambia
State Counsellor of Myanmar, Aung San Suu Kyi will lead her delegation to the International Court of Justice to "defend Myanmar's national interests," with the support of her political party, the National League for Democracy, and the Parliament of Myanmar. The military has said that it "will cooperate fully with the government" and will follow its orders.
Aung San Suu Kyi will open the argument on behalf of Myanmar government and will lodge the submissions at the ICJ in The Hague.
Myanmar's legal team is expected to argue that the genocide has not occurred, that the top UN court lacks jurisdiction, and that the case does not meet the condition of conflict between Myanmar and Gambia, reports Reuters.
Buddhist majority Myanmar rejects accusations of genocide against the Muslim population, but the government declined to provide details about its defence case ahead of the hearings.
Thaung Tun, a senior member of Suu Kyi's cabinet, said in a tweet on December 1, "Allegations are easy. But in law, genocidal intent has to be established beyond reasonable doubt. It shouldn't be confused with personal motive prompting actions of a perpetrator. There must be sufficient evidence to prove, beyond a reasonable doubt, policy to destroy the group."
Now, Article 94 of the UN Charter provides that judgments of the ICJ are binding on the parties to the dispute and that, if they are not implemented, then it is to be handed to the Security Council, which may make recommendations or decide upon measures to be taken to give effect to the judgment.
Which means if Myanmar fails to implement the provisional measures which orders them to stop the genocide, the case will be handed over to the Security Council.
However, this does not mean that the Security Council will take any automatic actions. The Security Council will act according to its own rules of procedure, namely, that it will take action if international peace or security is threatened or if a State brings a dispute to the attention of the Security Council.
If a resolution is tabled before the Security Council making recommendations or setting out measures to be taken to give effect to an ICJ ruling, it must be passed in the usual way, including without incurring a veto from one of the permanent five members of the Security Council (United States, United Kingdom, China, France, Russia).
Only if the Security Council refers it, the case will be formally handled by the International Criminal Court.
According to the Human Rights Watch, in November of this year, the ICC's judges gave Prosecutor Fatou Bensouda authorisation to open an investigation into crimes against humanity, notably the forced deportation in 2017 of more than 740,000 Rohingya into Bangladesh, an ICC member. This was based on a UN Fact-Finding Mission which was established to determine the facts and circumstances of alleged human rights violations.
But here's the catch, the ICC has jurisdiction in accordance with the Rome Statute with respect to the following crimes: (a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of aggression.
As Myanmar is not a party to the Rome Statute, the convention on which the ICC is established on, the Court does not have jurisdiction over crimes committed solely within Myanmar's territory- unless the UN Security Council authorises it, which is very unlikely.
However, other forms of crimes against humanity are deportation (coercing victims by force to cross into Bangladesh) other inhumane acts (inflicting great suffering or serious injury by violating the right to return home from Bangladesh in safety); and persecution on ethnic and/or religious grounds associated with those crimes. Other crimes might be added, and the Court would examine varied violations, including sexual violence, when considering the above crimes.
In reality, the court will not directly charge individuals for crimes committed only within Rakhine State, let alone elsewhere in Myanmar, including in Kachin, Shan, and Kayin states, reports the Interpreter.