Myanmar’s ICJ defence strategy shifts
The junta’s strategic gamble in The Hague
Are we seeing a massive shift in legal strategy by Myanmar at the ICJ’s Gambia v. Myanmar hearings? International law scholar Adil Haque argues the junta may have walked into a self-preservation trap.
Read Professor Adil Ahmad Haque’s article HERE.
Historically, when states try to avoid a genocide finding, they argue the intent was to deport/forcibly displace (“ethnic cleansing”) rather than destroy a group. At the ICJ, an “intent to displace” can operate as a reasonable alternative inference to genocidal intent and that can make genocide harder to prove.
But Myanmar now appears to have dropped that line. One plausible reason is ICC exposure: the Court is pursuing (or has sought) accountability for deportation as a crime against humanity. So admitting an “intent to deport” at the ICJ to protect the State could come back to haunt individual generals at the ICC.
Instead, Myanmar is leaning on a “counterterrorism” defence. Haque calls this “preposterous.” He says the scale and nature of the violence against civilians, including mass rape and the killing of children, is hard to square with a counter-insurgency explanation.
If Myanmar doesn’t put forward a credible alternative inference, Haque’s point is that the Court is unlikely to do Myanmar’s work for it. By ditching the “plausible” deportation defence to save their own necks at the ICC, have the generals left the ICJ judges with no other reasonable alternative inference but genocide?
In their final arguments before the recess, The Gambia’s legal team, led by Philippe Sands, told the Court that while a "counter-terror" motive might have existed for some actions, it does not explain the totality of the conduct.
They are essentially telling the judges - Myanmar has given you a story (counterterrorism) that doesn't fit the facts (civilian killings, mass rape etc). Since they refuse to offer the only other story that might fit (deportation), you are legally bound to accept ours (genocide). Bit of overreach there, but you get my point.
What to watch for tomorrow (Friday, Jan 16):
Tomorrow morning at 10:00 AM CET, the Myanmar Junta will have its first chance to speak. The "big question" for the morning is - will they blink? Will they try to sneak the "intent to deport" argument back in to save the state, or will they stay the course with the "counterterrorism" story to save the generals?
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