Myanmar’s Shadow Government Prepares Evidence for Lawsuit Against Junta in International Court

Critics point out that NUG is not internationally recognized, and Myanmar is not party to ICC
Myanmar’s Shadow Government Prepares Evidence for Lawsuit Against Junta in International Court Dr. Sasa, who was set to be part of Aung San Suu Kyi cabinet before the military coup, is seen in this still image taken from a video of an online interview with Reuters from his undisclosed location, February 28, 2021. Picture taken February 28, 2021.

Myanmar’s shadow government has compiled more than 400,000 pieces of evidence of atrocities committed by the military regime against civilians since it overthrew the government in February and is preparing to file an international lawsuit against the junta for crimes against humanity, its spokesman said.

National Unity Government (NUG) spokesman Dr. Sasa told a news conference Friday that the evidence is sufficient to prosecute the military government and its leader Sr. Gen. Min Aung Hlaing at the International Criminal Court (ICC) for crimes against humanity.

The military overthrew the country’s democratically elected government on Feb. 1 and has been violently suppressing resistance to military rule since then.

The NUG claims to be the legitimate government of the country and is made up by lawmakers ousted by the coup, as well as ethnic leaders.

“It is important to bring these generals to the court. Justice must be served. A total 915 people have been killed so far. This is not acceptable,” Sasa said at the news conference.

“We are determined to put those who committed these atrocities behind bars. Min Aung Hlaing is supposed to be behind the bars. He is now out killing the people of Myanmar,” he said, referring to the junta leader.

Sasa also said that the NUG is working with international legal experts and with several rights organizations to collect evidence but could not reveal which organizations for their security.

The shadow government has evidence of crimes like assault and battery, unfair trial, torture, sexual violence, forced mass displacements, use of lethal weapons, airstrikes and ethnic cleansing among others, Sasa says.

The evidence is in the form of testimony from witnesses that the NUG and the other groups plan to narrow down to 200 testimonies that meet international standards and are deemed the most accurate, for submission to the ICC.

“After the review with legal firms we hired, we will present these cases to ICC. For example, we are going to present the incident from Kin Ma village as crime against humanity,” he said, referring to the June 16 burning of the village in the central Magway region that destroyed about 250 houses and displaced thousands.

“In the case of Kin Ma village, they have made claims like the villagers burned their own homes. We are working with a technical firm in Canada who can offer us face recognition technology to verify our evidence,” Sasa said.

Min Lwin Oo, a human rights attorney based in Norway, told RFA’s Myanmar Service that the NUG’s attempt to bring the military leaders to ICC could be challenging because Myanmar is not a party to the Rome Statue, the treaty that established the court.

“The NUG would first have to get recognition as the government of Myanmar and become party to the Rome Statute… otherwise it could be difficult because the military leaders would argue that the ICC has no jurisdiction,” Min Lwin Oo said.

“I think it would be an uphill struggle for the NUG to get official recognition as the government of Myanmar. In the past four months since the coup, I don’t see any governments openly recognizing the NUG, so bringing the case to the ICC is somewhat far-fetched,” he said.

The ICC and the International Court of Justice (ICJ) have been arenas where Myanmar’s previous government and some generals stand accused of “forced deportation” of more than 700,000 Rohingya Muslims in 2017 to neighboring Bangladesh as the military targeted the minority community in Rakhine state.

Thousands of Rohingya perished as a result of the 2017 violence, which included indiscriminate killings, mass rape, torture, and village burnings. The hundreds of thousands who fled to Bangladesh now live-in massive displacement camps.

Aung San Suu Kyi’s government dismissed the ICC, arguing that the court has no jurisdiction over Myanmar, while she appeared at the ICJ in late 2019 and defended the country in a suit brought by Gambia accusing Myanmar of violating the 1948 Genocide Convention during the 2017 violence.

The ICJ ordered Myanmar to take measures to protect the Rohingya and document evidence of the Rakhine atrocities, but this ruling was shrugged off by the Myanmar government.

Early this month, however, the NUG’s minister of Human Rights, Aung Myo Min, said his government would work to grant citizenship to the Rohingya and “seek justice and accountability for all crimes committed by the military against the Rohingyas and all other people of Myanmar throughout our history.”

These measures would include involving the ICC if necessary, Aung Myo Min told a news conference on June 4.

Rights experts told RFA that getting the ICC to hear a suit from the NUG was not likely.

“The reason that Bangladesh’s complaint went forward was because they allege that the people have been persecuted and forced to flee to Bangladesh, which is a member of ICC. But Myanmar is not a member and the only way for a case to be brought against them is to be referred by UN Security Council. With both China and Russia there, it is not likely that will happen,” Phil Robertson, deputy director of the Asia Division of New York-based Human Rights Watch, told RFA.

Robertson said it was important that the NUG was raising these issues and recommended that it reach out to the Independent Investigative Mechanism for Myanmar (IIMM), established by the UN Human Rights Council in 2018 to keep track of what that body describes as “the most serious international crimes and violations of international law committed in Myanmar since 2011.”

“There are a number of ways to go forward. There are a lot to be done for the NUG to raise these issues. It would be a worthwhile effort to compile these abuse allegations and document them in great detail so that there is culpability at the international level for … the leaders and people who are following their orders,” he said.

Nickey Diamond of the Fortify Rights NGO told RFA that his organization welcomed the NUG’s condemnation of the military’s crimes.

“Previously, the NLD government has failed to take actions against these crimes. But the NUG government is trying to bring them to the court, and it is promising. But since Myanmar is not a member of Rome Statute, they need to ratify the statue first,” he said.  

"In addition, it is important to look into how they process and verify the evidence from hundreds of thousands of cases. It is crucial to verify the evidence in a technically correct way so that they will be admissible in court. I think the NUG would need to cooperate the organization like IIMM,” said Diamond.

Beyond filing suit in the ICC, the NUG is also considering appealing to the UN Security Council and other international measures, Sasa said during the news conference.

He also said that the NUG would build a museum to document the atrocities by Min Aung Hlaing and other military leaders. He said it would first be an online museum, with a physical repository coming at a later date.

Reported and translated by Ye Kaung Myint Maung for RFA’s Myanmar Service. Written in English by Eugene Whong.


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Prapa W.
Dec 03, 2021 12:50 AM

The Rome Statute established four core international crimes: genocide, crimes against humanity, war crimes, and the crime of aggression. Those crimes "shall not be subject to any statute of limitations". Importantly, it's Depositary is the UN Secretary-General. This means if Myanmar is a member state to the UN. The case of war crimes in Myanmar can be referred to the ICC as it's stated clearly that those crimes "shall not be subject to any statute of limitations" which means being member or not member of Rome Statue will not be the priority. I hope the NUG will and can rightfully bring forward the war crime cases in Myanmar to the ICC as soon as possible.