Myanmar is the accused in the ICJ case, not any individual

Michael Becker is a lawyer and has practiced in the US and the UK. He is an adjunct assistant professor at the School of Law at Trinity College Dublin in Ireland where he teaches public international law. From 2010 to 2014, he served as an associate legal officer at the International Court of Justice in The Hague and had the opportunity to work closely with the ICJ judges. The International Court of Justice (ICJ) begins its hearing against Myanmar on 10 December. Michael Becker speaks about various aspects of the ICJ case in a recent telephone interview with Prothom Alo. The interview is appearing in three parts, the first part appearing today.

Prothom Alo: Could you please elaborate the procedures relating to the initiation of the case against Myanmar next month at the International Court of Justice?
Michael Becker: The Gambia filed a case against Myanmar in November. The case will be long and complicated, but for now, as a first step, the Gambia has asked for provisional measures. These are a kind of emergency measures, interim relief that a state can ask for to preserve the situation while the case is pending. The hearing on 10-12 December in The Hague will be about whether the court can grant the provisional measures that The Gambia has requested. For example, The Gambia has asked for an order instructing Myanmar to not take any action that would constitute a breach of the Genocide Convention while the case is pending, and, importantly, for Myanmar not to destroy evidence relating to the case, such as by bulldozing abandoned villages.
After this initial hearing, the Court will issue an order, probably within six to eight weeks, that either grants relief or not. But this is only the first step in the case, and it will not deal with the full extent of the evidence or the legal arguments. It is about whether The Gambia is entitled to request this provisional relief now and whether it is urgently needed and appropriate. The entire case will take several years before there is a final judgment.

Prothom Alo: What do you mean by several years? What does the law say about the time frame for completing the case?
Michael Becker: The law does not say anything how quickly a case needs to be completed. Based on past practice, it is unusual for a case to make it to a judgment on the merits any faster than four years. That would be the best scenario, in this case, I would say. It can depend on objections that Myanmar might raise and different procedural manoeuvres because these all take time. In the past, there have been other cases, including cases about the Genocide Convention, that have taken much longer, but I wouldn't necessarily look at those cases as reasons to say this is going to take 10 years or something like that. I think 4 to 6 years is realistic.

Prothom Alo: Aung San Suu Kyi is going to lead the delegation to the ICJ, but she is an accused. Are there any rules about someone who has been accused of being allowed to defend herself?
Michael Becker: There are a few points to make about this. One, it is positive that Myanmar is going to appear in the case because I think many people feared that Myanmar would decide not to participate, which would be unfortunate. When states have agreed to allow the ICJ to decide their disputes, they should not then refuse to show up because there are unhappy to be in the position of the accused. It's remarkable and interesting, I suppose, that Aung San Suu Kyi is going to be the part of the actual delegation. It's not unprecedented for a head of state or state leader to be part of the delegation to the ICJ. But as you say, here it is somewhat unusual because she is a direct player in the controversy, and, in a different forum she may find herself to be an individual criminal defendant. But I want to make clear that the ICJ is different from the International Criminal Court (ICC). In the ICJ, there are no individuals on trial, there are no individual defendants.
The ICJ case involves an allegation that the state of Myanmar itself is in breach of its obligations under the Genocide Convention. Of course, the state is made up of people and whether the state is in breach of the treaty concerns the decisions and actions taken by people in positions of leadership, whether by Aung San Suu Kyi or generals in the military. So they are accused in a sense, but in an indirect sense. They are not individual defendants in this case. The situation is a little bit unusual because Aung San Suu Kyi will be accused of having made decisions or failing to intervene to prevent what has led The Gambia and many others states to see as this as genocide. But she will not be in The Hague as a criminal defendant. She will be part of the delegation from Myanmar, made up of government officials and also outside international lawyers that they will hire to defend their position. But the ICJ is different from a criminal court where Aung San Suu Kyi could potentially be an individual defendant.

Prothom Alo: Does the ICJ case of Aung San Suu Kyi travelling to The Hague have ramifications for the ICC investigation?
Michael Becker: I don't want to speak as much about the ICC activity, but I can say that those proceedings are different because, first, Myanmar is not a party to the Rome Statute. The creative way that the prosecutor at the ICC is looking at the situation arises from the fact that Bangladesh is a party. So there are possible international crimes based on the fact that Rohingyas have been forced to flee from Myanmar into Bangladesh. But it remains unclear the extent to which that investigation is going to be able to encompass the full range of crimes alleged to have taken place in Myanmar, and this remains at an early stage. The prosecutor has recently gotten further approval to continue with her investigation, but no arrest warrants have been issued yet and there are no individual criminal defendants yet at the ICC. We can't predict what might happen, and it may be quite some time yet before anything further happens at the ICC.
Prothom Alo: Can you tell us something about your experience and relevant career experiences.
Michael Becker: I am currently an adjunct lecturer in law at Trinity College Dublin in Ireland where I teach public international law while finishing my doctoral research at the University of Cambridge in the UK. Before this, I was an Associate Legal Officer at the ICJ in The Hague for four years, from 2010 to 2014, and in that position, I had the opportunity to work closely with judges in all of the cases before the ICJ at that time. Before that, I practiced as a lawyer in the US and the UK. I am a New York-qualified lawyer.
Prothom Alo: Because The Gambia is taking the lead at the ICJ on behalf of the OIC, could ASEAN or any its allies act on behalf of Myanmar?
Michael Becker: This gets to the question of whether third states can get involved on behalf of either side of the case. In a sense, there is no need for anyone else to come in. The Gambia is there as the applicant, Myanmar is there as the respondent. But there are avenues for other states to potentially participate. ICJ procedure is governed by its Statute, which is attached to the UN Charter and there are provisions in the Statute for third states—states other than those involved in a case—to intervene. There are different forms of intervention. For example, any state that is also a party to the Genocide Convention could potentially intervene, although that intervention will be limited to what that state wants to say about how the Genocide Convention should be interpreted. In principle, you wouldn't be arguing about the facts in the case, you would just be intervening to take a position on how a particular provision of the Genocide Convention should be interpreted.
Every state that is a party to the Genocide Convention has the right to intervene in this way. There is another form of intervention that is discretionary and more complicated. This requires the state to have an interest of a legal nature that may be affected by the decision in the case. The Court has established a pretty high standard for what the means, and it's not entirely clear to me that many states in this situation would be able to use that provision to intervene. But the best candidate for the discretionary intervention of that kind could be Bangladesh because Bangladesh is the host to so many people who have been displaced from Myanmar. Now, these two types of intervention are potentially available to any state, whether they support Gambia's position or Myanmar's position. Or the intervening state could have a position that doesn't necessarily align with either of the two main states in the case.
Prothom Alo: Are there past examples that could be similar to the case against Myanmar, or is it all together with the first of its kind?
Michael Becker: There have been other states brought by what we can call non-injured states, where that state is not itself harmed but is seeking to enforce obligations that are owed to a wider community. There have also been two previous cases at the ICJ relating to the Genocide Convention, Bosnia versus Serbia and Croatia versus Serbia. Both related to the conflict in the Balkans after the break-up of Yugoslavia in the early 1990s, and these cases took a very long time. Much of Croatia vs Serbia case took place during my time at the ICJ, including the final hearing before the Court began to work on the judgment, and although I had left the Court by the time that judgment was drafted and finalized. Those two cases provide some guidance for what might happen in this new case against Myanmar, and the lawyers for The Gambia and Myanmar will be looking very closely at what the ICJ said in those cases in terms how to interpret the Genocide Convention, what evidence you need to show, and the standard of proof that you have to meet. I have written elsewhere about how the Court has interpreted the Genocide Convention quite restrictively in some ways. This is why I would urge caution, even where there is extensive evidence of horrible atrocities and discrimination.
The law relating to the Genocide Convention is complicated, and this gives states like Myanmar opportunities to try to argue that even if these atrocities to place, they were not motivated by a goal to commit genocide. Instead, they were the result of responding to a terrorist threat, for example. The hardest issue is usually proving genocidal intent—that the perpetrators sought to destroy in whole or in part an ethnic or religious group.

Prothom Alo: Can you explain the procedures in which the ICJ case will be going forward?
Michael Becker: The ICJ proceedings will be quite different from a domestic criminal trial. It is more comparable to civil action with two private parties in a dispute, except where the parties are states. There is no prosecutor involved in the ICJ case. In terms of procedure, we will have this first hearing in December about provisional measures. The Court will decide whether it has jurisdiction to grant those measures and it may then grant some emergency measures. After this, the Court will establish a briefing schedule, and this helps to explain why ICJ cases can take such a long time. The parties are given a great deal of time to lay out their positions.
The Gambia will have a certain number of months to file a much more detailed legal document setting forth all of its arguments and evidence. It's quite likely that they will be given a year to do that. That seems like a long time, but when the case is very complicated, the time goes fast. Myanmar will then be given time—another year, perhaps—to respond with a full set of legal arguments and all of their evidence, to try to refute The Gambia's claim. At that point, the Court may decide to have a second round of legal briefing, so that each state gets another chance to respond to the arguments the other party has made. This adds more time. When all of those arguments on paper have been made, the Court will hold a hearing.
The parties will assemble in The Hague at the Peace Palace where the ICJ sits and each side will have the opportunity to present its arguments orally, and potentially there will be witness testimony. This could include fact witnesses or expert witnesses relating to different aspects of the case. Witnesses are not always a feature of ICJ cases, which is one way in which the ICJ can be very different from a domestic courtroom. There will not necessarily be a lot of witnesses, but in past Genocide Convention cases, there has been witness testimony. I would expect that to be the case here, as well. Judges also have the chance to pose questions directly to the parties. The court then goes away and deliberates and has its own very structured internal process for how it produces its judgment. This usually takes around nine months, although, in a very complicated case, it potentially could take longer. When the judgment is final and the issues are decided by a majority vote among the judges, the judgment will be read out in a public hearing.
This is how it works, but there can be other wrinkles along the way. For example, after The Gambia files its first written pleading making all of its arguments, Myanmar might decide to challenge the jurisdiction of the Court. That requires a separate proceeding where each side makes its arguments about jurisdiction, and the Court then produces a judgment limited to the question of its jurisdiction. The case only continues if the Court upholds its jurisdiction and the admissibility of claims. But this can add more than a year to the process. And there are other types of procedural issues that might come up that could also add some amount of delay.

(To be continued)