How Myanmar Is Testing The Limits Of Atrocity Accountability – OpEd

By Dr. Azeem Ibrahim

The most recent hearings in the Rohingya genocide case at the International Court of Justice did not revolve around disputed facts, contested evidence or competing narratives of violence. Instead, they exposed something far more consequential — a deliberate attempt by Myanmar’s military junta to neutralize genocide accountability through procedural warfare.

This marks a significant evolution in how alleged perpetrators of mass atrocities engage international law. Myanmar’s legal strategy is no longer about rebutting the crime. It is about ensuring the crime is never substantively judged at all.

At the hearings, Myanmar’s counsel focused overwhelmingly on jurisdiction, standing and representation. Arguments centered on whether The Gambia has the legal right to bring the case, whether the current applicants properly represent Myanmar as a state, and whether procedural thresholds have been met. What was striking was not merely what was said, but what was avoided. There was no serious engagement with the underlying allegations of genocide, no sustained discussion of intent, and no attempt to challenge the extensive factual record already acknowledged by UN bodies.

This is not accidental. It reflects a calculated recognition by the junta that it cannot plausibly contest the evidentiary foundations of the case.

The facts are well established. In 2018, the UN Independent International Fact-Finding Mission on Myanmar concluded there was sufficient evidence to warrant investigation and prosecution of senior military officials for genocide, crimes against humanity, and war crimes. The Mission documented mass killings, widespread sexual violence, village burnings and forced displacement, concluding that these acts demonstrated “genocidal intent” against the Rohingya. These findings have never been credibly refuted.

Instead of addressing them, Myanmar’s legal team has chosen a different route — to bury accountability beneath layers of legal technicality.

This strategy follows a clear logic. Genocide cases at the ICJ are slow, complex, and heavily dependent on procedural compliance. By flooding the court with preliminary objections and representation disputes, the junta is attempting to exhaust the process itself. The aim is not legal vindication, but legal paralysis.

In one submission, Myanmar’s representatives argued that Gambia lacks standing because it is not directly injured by the alleged genocide. This position directly contradicts the court’s own jurisprudence. In its 2020 provisional measures order, the ICJ affirmed that obligations under the Genocide Convention are erga omnes partes — owed to all states party to the Convention. As the court put it: “Any State party to the Genocide Convention may invoke the responsibility of another State party.” Myanmar’s renewed reliance on this argument is therefore less a legal claim than an attempt to relitigate a question the court has already answered.

Equally revealing is the emphasis placed on representation. By contesting who has authority to speak for Myanmar, the junta is attempting to shift the case from one about genocide to one about diplomatic formalism. This tactic exploits a structural vulnerability in international law: courts are designed to adjudicate disputes between states, not to resolve crises of legitimacy following coups.

Yet this too is a strategy of avoidance. The Genocide Convention binds states, not governments. Responsibility for genocide does not disappear because a regime lacks democratic legitimacy, nor does it arise only when representation is uncontested. As former ICJ Judge Antonio Cancado Trindade once warned: “Formalism detached from human reality risks emptying international law of its raison d’etre.”

Why is Myanmar pursuing this approach now? Because time is on its side.

Every procedural delay postpones not only a final judgment, but also the political and legal consequences that would follow. It allows the junta to entrench itself domestically, normalize relations abroad, and wait out shifting international attention. In effect, delay becomes a form of impunity.

This tactic is not unique to Myanmar, but the Rohingya case may be the clearest illustration yet of how atrocity accountability is being stress-tested by authoritarian regimes. Rather than openly defying international courts, they are learning to comply just enough to obstruct them from within.

The danger is not confined to this case alone. If the ICJ allows genocide proceedings to be indefinitely stalled through procedural maneuvering, it risks creating a template that other perpetrators will study closely. Future regimes accused of mass atrocities may conclude that they do not need to deny crimes, intimidate witnesses, or fabricate alternative narratives. They need only master the language of procedure.

This would hollow out the deterrent function of international justice. The Genocide Convention was drafted not merely to punish crimes after the fact, but to prevent them by signaling that perpetrators will face accountability. A system in which genocide can be endlessly litigated without ever being judged on the merits sends the opposite message.

The court is not powerless in the face of this challenge. It has the authority to manage proceedings, to dismiss recycled objections and to prioritize substance over obstruction. Doing so would not undermine due process; it would defend it against abuse.

The Rohingya case now stands as a test not only of Myanmar’s responsibility, but of the resilience of genocide law itself. The question before the ICJ is no longer simply whether genocide occurred, but whether international law can still confront atrocity when perpetrators adapt faster than the institutions designed to stop them.

If procedure is allowed to eclipse protection, the consequences will extend far beyond Myanmar. The credibility of atrocity accountability, painstakingly built since Nuremberg, may quietly erode - not through rejection, but through delay.

That would be a tragedy not just for the Rohingya, but for international justice as a whole.

• Dr. Azeem Ibrahim is the director of special initiatives at the Newlines Institute for Strategy and Policy in Washington. X: @AzeemIbrahim