Important legal questions raised by ICJ judges at Rohingya genocide hearings

Mizzima

On 27 January, the Legal Aid Network (LAN) released a statement calling attention to the important legal questions raised by judges to the Myanmar military and junta at the Rohingya genocide hearings before the International Court of Justice (ICJ).

Judge Leonardo Nemer Caldeira Brant raised the following questions together with Judge Hilary Charlesworth and Judge Sarah Hull Cleveland. Judge Brant is a Brazilian jurist and international law scholar, Judge Charlesworth is an Australian international lawyer, and Judge Cleveland is an American judge, lawyer, law professor of Human and Constitutional Rights at Columbia Law School, New York, USA, and former State Department official

The text of the statement regarding the questions and LAN’s analysis is as follows.

(1) “How does each Party characterize the nature of the Arakan Rohingya Salvation Army (ARSA), particularly with regard to its representativeness within the Rohingya population, its strength, its estimated size (including the number of individuals it considers to be members and/or effective participants), its organizational and hierarchical structure, and its military and weapons capabilities? In this regard, can Myanmar indicate the number and nature of the casualties and the extent of the material damage that it attributes to ARSA during the relevant periods, as an element informing its assessment of ARSA’s operational and military capacity?” 

(2) “Can Myanmar explain, with specificity, how it defined a ‘supporter’ of ARSA for purposes of its military operations?” 

(3) “What specific criteria were used by soldiers on the ground during the military operations to identify persons considered to be lawful military targets, and how [were they] distinguished from civilians?” 

(4) “How many of the casualties in the various villages, according to Myanmar’s own records, were (using Myanmar’s characterizations), members of ‘ARSA or its supporters’, how many were ‘collateral casualties of the fighting’ and how many of them were ‘innocent civilians’?” 

In summary, as a member of the Court, Judge Brant’s work appears to be a part of the ICJ’s broader contribution to interpreting and applying Law of War/IHL, or international humanitarian law, particularly in the context of armed conflict, occupation, the principle of distinction and civilian protections. 

The Law of War/IHL primarily centers on the principle of distinction, requiring parties to always differentiate between civilians/civilian objects (protected) and combatants/military objectives (targets), and to direct attacks only at the latter, prohibiting attacks on people or things not involved in hostilities. This core rule aims to spare the civilian population, complemented by other principles like proportionality (limiting incidental harm) and precaution (taking care to avoid civilian casualties). 

There lacks strong evidence indicating that the Tatmadaw (Myanmar military) has systematically provided adequate training on the Law of War/International Humanitarian Law (IHL) to its combatants, particularly during its long history of internal conflicts and military rule since the 1962 coup. 

Evidence confirms that the Tatmadaw (Myanmar military) operates through a strict, top-down chain of command that prioritizes internal hierarchy and the suppression of opposition over the protection of civilians. Since the February 2021 coup, the military has engaged in a systematic campaign—often described as a “four cuts” doctrine—that disregards international humanitarian law (IHL), resulting in widespread, frequent, and brazen violations against civilian populations, including mass killings, sexual violence, and the deliberate obstruction of aid. 

Based on findings from the UN Independent International Fact-Finding Mission on Myanmar (UN-IIFFMM), Amnesty International, and other human rights reports, the Myanmar military (Tatmadaw) operates with a pervasive culture of impunity, characterized by a lack of adherence to International Humanitarian Law (IHL) and a complete absence of political will to uphold democratic practices and to protect civilians. As such, for the military junta primarily led by Min Aung Hlaing, it is virtually impossible to respond to the above questions, raised by the ICJ Judges, appropriately, reasonably and truthfully in line with the Law of War/ IHL.