The way Russia and Myanmar have responded to the cases reveals much about the strengths and limits of international justice mechanisms in addressing global atrocities.
By Juliette McIntyre and Adam Simpson / University of South Australia
The International Court of Justice (ICJ) is dealing with two very different cases under the Genocide Convention — one against Myanmar and one against Russia. The way that the defendant states have responded to the cases reveals much about the strengths and limits of international justice mechanisms in addressing global atrocities.
In the first case, filed in November 2019, The Gambia alleges that Myanmar is responsible for committing genocide against the Rohingya ethnic minority during ‘clearance operations’ in Rakhine State in 2017. During these operations, which resulted in the exodus of 740,000 mostly Rohingya refugees to Bangladesh, Myanmar’s military forces committed serious human rights violations including mass killings, torture and rape, and the destruction of homes and mosques.
In December 2019, the ICJ heard arguments on whether to grant an interim order for provisional measures under Article 41 of the Court’s Statute — a hearing notorious for the appearance of former state counsellor Aung San Suu Kyi as the Agent for Myanmar. The Court’s unanimous order, issued in January 2020, required Myanmar to ‘to take all measures within its power to prevent the commission of all acts’ of genocide against members of the Rohingya group in its territory.
Myanmar was also required to report back to the ICJ ‘on all measures taken to give effect’ to this order within four months and then every six months until a final decision on the case was reached. In compliance with the order, Myanmar submitted its first report on 22 May 2020 and a second on 23 November 2020.
In February 2021, the Myanmar military staged a coup, which led to Aung San Suu Kyi’s jailing and a bloody crackdown on the military’s political opponents and civilians. But the military government has continued its engagement with the ICJ proceedings. Ko Ko Hlaing, Union Minister for International Cooperation under the junta, appeared as the agent for Myanmar at a second round of hearings in February 2022, along with Attorney General Thida Oo.
Does Russia even care?
The second case derives from Russian President Vladimir Putin’s assertion that Ukraine’s government and military committed genocide against Russian speakers in the Luhansk and Donetsk oblasts of eastern Ukraine. He has made this allegation several times since 2015, but most poignantly on 23 February 2022 as one of the justifications for Russia’s invasion of Ukraine the following day.
Ukraine applied to the ICJ for an order that Russia’s aggressive war could not be justified based on false claims of genocide. This is a ‘negative genocide’ case where Ukraine will have to establish that it has not committed genocide in the Donbas to deny Russia’s legal explanation for the invasion any legitimacy.
During the arguments on whether to grant an interim order for provisional measures, Russia did not appear before the ICJ or submit any proper pleadings. Instead, the Russian government announced on Twitter that ‘in light of the apparent absurdity of the lawsuit, we decided not to attend it’.
In cases of non-appearance, the ICJ is obliged to ensure that any claims made are well-founded and will sometimes bend over backwards to ensure fairness to the absent party. Even so, in mid-March, the ICJ found in favour of Ukraine and issued a provisional measures order. It accepted as plausible Ukraine’s argument that it had a right under the Genocide Convention not to be subjected to a false claim of genocide, which is then used as a basis for using force against it.
The judgment was not unanimous — the Russian and Chinese judges voted against key provisions. But the ICJ held that Russia was required to immediately suspend its military operations in Ukraine. Russia has not complied with this order, marking a key difference from the Myanmar case.
The Gambia, Myanmar, Ukraine and Russia are all parties to the Genocide Convention, which provides that disputes relating to the ‘interpretation, application or fulfilment’ of the treaty shall be submitted to the ICJ. Provisional measures orders issued by the ICJ are binding on the parties to the proceedings.
For Myanmar, there was no significant cost of non-compliance. The Rohingya pogrom and exodus occurred in 2017, long before the ICJ case and resultant ruling. But for Russia, compliance would mean effectively cancelling the invasion of Ukraine — clearly not in Putin’s interest.
Myanmar is a small state while Russia is nuclear-armed, a permanent member of the United Nations Security Council and provides the European Union with most of its energy needs. For Myanmar’s military junta, continued participation in the ICJ proceedings provided some benefits. It contributed to the military’s diplomatic efforts to convince both international and domestic audiences that it is the legitimate government. Russia needs no license from the ICJ to establish itself as a key actor on the international stage.
An extended ICJ proceeding may also result in evidence being presented of ongoing Russian war crimes, crimes against humanity and potentially genocide. For Putin it is better to let the case conclude quickly and ignore the decision.
The tale of these two genocide cases demonstrates the gaps between international law, international justice, and the actions of powerful states.
As these two ICJ cases show, major international actors, particularly those who pay lip service to the ‘rules-based order’, must ensure that they fully respect international law so that future belligerents have fewer grounds to justify their aggression.
Juliette McIntyre is a Lecturer in Law at the University of South Australia and a PhD candidate at the University of Melbourne.
Adam Simpson is Senior Lecturer in International Studies at the University of South Australia.
This piece has been sourced from the East Asia Forum of the Australian National University