By Dr. Nyi Latt

The hearings regarding Myanmar, set to resume at the International Court of Justice (ICJ) in The Hague in the early period of 2026, have once again become a subject of special attention within the global diplomatic and legal communities. Myanmar’s legal responses to the "Genocide" allegations filed by The Gambia have emerged based on solid logic and international legal provisions rather than emotion.

The crux of this case lies in the factor of "Genocidal Intent." International legal scholars point out that in determining whether genocide occurred, "intent" is the deciding factor rather than the consequences. In this regard, William Schabas, a globally recognized legal expert on genocide, warned against the excessive political use of the word "genocide" and argued that the operations in 2017 were not a planned execution to destroy an ethnic group, but rather "counter-insurgency" operations responding to systematic attacks by the ARSA terrorist group.

Similarly, international lawyer Christopher Gosnell, acting on behalf of Myanmar, provided a factual defense on legal grounds during the ICJ hearing (Verbatim Record CR 2019/20). His primary argument was that when inferring genocidal intent, such a conclusion must be "the only reasonable inference." He pointed out that if there are other plausible reasons for the alleged acts (such as legitimate military objectives or counter-terrorism), it cannot be classified as genocide.

Furthermore, Gosnell clarified the term "Clearance Operations." He stated that this term is merely standard military terminology used in Myanmar since the 1950s, referring to military efforts to clear armed enemies from a territory, and that interpreting it as a genocidal plan is incorrect. He submitted that the burning of homes could be a "Military Necessity" or the work of terrorist groups, and therefore cannot be directly inferred as a systematic intent to commit genocide.

Continuing on, under the International Court’s "Principle of Complementarity," Myanmar can request recognition of its domestic judicial mechanisms. Myanmar’s formation of the Independent Commission of Enquiry (ICOE) to seek the truth, and the punishment of certain perpetrators through military courts, serve as solid evidence of the State’s respect for and adherence to the rule of law. These practical domestic actions testify that the events were not a systematic commission planned at the state level like "genocide."

From a legal perspective, previous ICJ case law holds advantages for Myanmar. For instance, in the Croatia v. Serbia case, the Court ruled that even "forced displacement of an ethnic group" or the "commission of war crimes" is insufficient to directly infer "Genocidal Intent." Similarly, in Myanmar’s case, the displacement of locals due to clashes in Rakhine State is merely a consequence of conflict, and it can be logically defended under international legal standards that designating this as a plot to destroy a race is impossible.

Regarding the strength of evidence, Gosnell criticized the fact that most data presented by The Gambia relied heavily on "Hearsay" obtained from refugee camps. He strongly rebutted that these allegations lacked solid "forensic corroboration" and failed to prove a link between individual crimes and a state-sponsored genocide policy. Charging a nation without such solid evidence amounts to lowering legal standards.

Furthermore, it is necessary to note the political objectives behind The Gambia’s lawsuit. International relations observers view this case as potentially being "Lawfare"—using the law as a political weapon to pressure a country. Diplomatic analysis suggests that if major courts like the ICJ make decisions based on political pressure without solid evidence, it could set a "Dangerous Precedent" where powerful nations and organizations threaten the sovereignty of smaller nations in the future.

In conclusion, while the ICJ hearings present a challenge for Myanmar, they also offer an opportunity to present the truth on the international stage. As experts have pointed out, refuting the genocide accusations with precise evidence—demonstrating they are legally unsound and that the events were merely responses for internal security—will serve to protect the State’s sovereignty and dignity.

In reality, the hearings resuming at the ICJ in January 2026 are not for the final verdict of the case, but merely a stage to examine the basic facts and merits. Therefore, without needing to worry excessively about this hearing, Myanmar should view it as an opportunity to officially present its solid defenses before the world. The International Court’s procedures usually take many years, and the legal gaps highlighted previously by experts like Schabas and Gosnell remain unchanged.

As experts have pointed out, we will protect the State’s sovereignty and dignity by refuting with precise evidence that the genocide accusation lacks legal solidity and that the events were merely responses for internal security.

To sum up, this analysis concludes that by defending factually and logically on legal grounds without succumbing to emotion, we will be able to make the international community accept Myanmar’s truth.

References:

    Opinion of William Schabas - ICJ Verbatim Record (2019/12/12 – Morning)

    Opinion of Christopher Gosnell - ICJ Verbatim Record (2019/12/12 - Afternoon/4:30 pm)