The junta’s abject failure to comply with the ICJ’s provisional measures and the lack of transparency around
reporting on its compliance with the order call into question the effectiveness of the measures. Until the ICJ
case reaches its conclusion, the State of Myanmar is obliged to report to the Court every six months, with the
latest report due by 23 May 2022. The Court must act decisively and without further delay to strengthen the
provisional measures order by compelling reporting to be made public. Public scrutiny of the junta’s
compliance with the order can in turn exert pressure on the UN Security Council to adopt a resolution on
Myanmar rather than issuing yet another statement of ‘deep concern’.
Introduction
Since BROUK’s last briefing on the military junta’s noncompliance with the provisional measures ordered
by the International Court of Justice in November 2021, a ‘human rights catastrophe’ has continued to unfold
in Myanmar.i
The UN-established Independent Investigative Mechanism (IIMM) for Myanmar stated that its preliminary
analysis of information collected since the February 2021 attempted coup ‘indicates that crimes against
humanity... including murder, persecution, imprisonment, sexual violence, enforced disappearance and
torture, have likely been committed.’ii The latest report from the UN Special Rapporteur on the human rights
situation in Myanmar echoed this and added that ‘when the junta’s attacks occur in the context of armed
conflict, they constitute probable war crimes, including the crimes of wilful killing, torture and inhumane
treatment, destruction of property, compelling service in hostile forces, unlawful transfer, pillaging, rape,
sexual violence and displacing civilians.’ iii The Special Rapporteur’s report describes several mass killings
of civilians by the junta, including two separate incidents in December where children were among the dead,
as well the widespread use of torture in military bases, police stations, prisons and other places of detention.
On the first anniversary of the attempted coup in February, the UN Security Council issued yet another press
statement expressing “deep concern” regarding violence in the country. It has failed to exercise its Chapter
VII powers under the UN Charter to consider - let alone implement - concrete actions to address the crisis in
Myanmar.iv
Against this backdrop of ongoing atrocity crimes and a ‘crisis born of impunity’v, efforts to secure
accountability for the alleged crime of genocide against the Rohingya people continue. In November, the
Second Chamber of the Federal Criminal Court in Buenos Aires confirmed that it would launch a case against
senior Myanmar officials under the principle of universal jurisdiction, which holds that some crimes – such
as genocide - are so horrific that they can be tried anywhere. BROUK first petitioned the Argentinian
judiciary to open such a case in November 2019. In December for the very first time Rohingya victims gave
testimony in court. BROUK’s President Tun Khin said, “Today was a landmark day for Rohingya people
everywhere and our long struggle to end the genocide. It is important to remember that this is not just about
the Rohingya people’s quest for justice, but for all people of Myanmar who have suffered at the hands of the
military, not least since the coup.”vi
At the same time, the International Criminal Court (ICC) has continued its investigation into the crimes
against humanity of persecution, other inhumane acts, and deportation or forcible transfer of population, with
reference to the mass exodus of Rohingya from Rakhine State to Bangladesh, based on its territorial
jurisdiction derived from Bangladesh as a State Party to the Rome Statute of the ICC.
Documents leaked earlier this year show that top officials in the Myanmar military fear international scrutiny
of their crimes. Several orders and memos instruct all military personnel not to answer letters related to arrest
warrants or summons from the ICC or the Argentinian judiciary. Tun Tun Oo, a former general appointed
by the regime to serve as Myanmar’s chief justice, also instructed all members of the judiciary to ignore any
warrant or summons sent by the courts.vii
In February, the National Unity Government (NUG, Myanmar’s government-in-exile) announced that it
withdrew all preliminary objections to the Gambia’s genocide case against Myanmar at the International
Court of Justice (ICJ), filed under Aung San Suu Kyi’s government. In doing so, the NUG sought to ‘make
clear to all the people of Myanmar and the international community that it is the proper representative of
Myanmar at the ICJ in the case.’viii Instead, the Court allowed regime officials to represent Myanmar at public
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