Genocide Warning: India Islamophobia is no longer a fringe sentiment in India. It has become a state-manufactured ideology. Prime Minister Narendra Modi’s Hindu nationalist Bharatiya Janata Party (BJP) has made Islamophobia central to its program for harassing India's 192 million Muslims and depriving them of their rights as Indian citizens. Modi rose to power by inciting Hindus with his time-tested politics of communal polarization. Beginning in 2014, Modi spent his first term as Prime Minister dehumanizing Muslims by passing laws preventing cow slaughter, restricting Muslim immigration, and purportedly countering Islamist terrorism. Modi's second term, beginning in 2019, has seen more brazen attempts by the BJP to turn India into a “Hindu Rashtra.” Modi revoked the "Special Autonomous Status of India Administered Jammu and Kashmir" under Articles 370 and 35A of the Constitution of India. In the predominantly Muslim state of Kashmir, India has positioned over 600,000 troops, who are arresting, torturing, raping, and killing Kashmiri citizens. Police encounters and forced disappearances are routine. Movement of people and freedom of the press are restricted. The government cuts off internet communications in Kashmir to stop news of atrocities from spreading. The Citizenship Amendment Bill seeks to grant preference in acquiring citizenship based on religion. This act is coupled with a nationwide verification process to identify “illegal migrants” who have come to India since 1971. It is aimed at expulsion of millions of Muslim immigrants who fled to India during the Bangladesh civil war. It also threatens rights of millions of other Indian Muslims who have no papers to prove citizenship. This discriminatory law was met with protests to which the government responded with brute force—arresting, beating, and killing protestors. Police officers and vigilante Hindu mobs led by RSS thugs attacked Muslims in North East Delhi, killing more than 30 Muslims. Rather than punish the perpetrators, the police have filed cases against the victims, naming Muslim students and activists as inciters of the violence. The nationwide Covid lockdown became a golden opportunity for the Indian state to intensify its hunt for anti-BJP activists, students, lawyers, and journalists. A majority of those arrested have been Muslims or activists. The police are arresting anybody who speaks up against Modi’s hate politics, charging them with sedition. Beatings and murders of Muslims with impunity occur almost daily. The latest legislative action against Muslims are the so-called anti-conversion laws. The laws are aimed at the mythical “Love Jihad,” an Islamophobic conspiracy theory claiming that Muslim men lure Hindu women into love relationships and then convince them to convert to Islam. Interfaith couples live in fear of censure from their families and Hindu nationalist groups. Now they can be arrested and tried in India's courts. In December 2021 in Hardiwar, Hindutva leaders openly incited genocide against Muslims. Genocide Watch recognizes the Modi BJP government's state-sponsored attack on the Muslim community as Stage 6: Polarization, Stage 7: Preparation, and Stage 8: Persecution. Modi’s statements at Aligarh Muslim University perversely claiming that his new laws are intended to "uplift the Muslim community" demonstrate Stage 10: Denial. Genocide Watch recommends: The United Nations Special Rapporteur on Minority Issues should investigate India's discrimination against Muslims and report to the U.N. Human Rights Council. The Indian Supreme Court should appoint an Independent Commission to investigate the anti-Muslim pogroms of 2020 and incitements to genocide by Hindutva leaders in 2021. Indian Army troops and police who committed crimes in Kashmir should be prosecuted. Prime Minister Modi should order BJP leaders to stop stoking communal violence. Hindutva leaders who incite genocide against Muslims should be arrested and prosecuted.

By Nat Hill, Co-Director of Research at Genocide Watch The Dega are a group of peoples that live in the Central Highlands region of Vietnam, Cambodia, and Laos. The Dega were known as Montagnards by French colonial authorities, a term meaning “mountain dwellers.” The Dega are divided into sub-groups, including the Jarai, Rhade, Bahnar, and Koho. They are culturally and linguistically distinct from the majority Kinh (Vietnamese) population. The Dega have a long history of conflict with and discrimination at the hands of the Vietnamese majority. While officially known in Vietnamese as người Thượng (Mountain Dwellers), the Dega are often derogatorily referred to in Vietnam as mọi or “Savages”. During the Vietnam War, the Dega formed the BAJARAKA and later the FURLO (United Front for the Liberation of Oppressed Races) movements to advocate for their rights and autonomy from North and South Vietnam. The United States recruited thousands of Dega into irregular military units to fight against the North Vietnamese Army and Viet Cong. Vietnamese communist forces targeted Dega communities for their association with the American military. In December 1967, for example, Viet Cong soldiers massacred over 200 Dega civilians in the village of Đắk Sơn. After the US withdrew from Vietnam, the United States government admitted only 3,000 Dega asylees, settling them mostly in Greensboro, North Carolina. FURLO continued a 17-year insurgency against the Vietnamese Communists until the early 1990s. The Dega who fought for Americans were forced into “reeducation camps” and viewed as “traitors” in the People’s Republic of Vietnam. The Vietnamese government has launched a large-scale plan to “colonize” the Central Highlands with ethnic Kinh Vietnamese settlers to change the region’s demographics. Due to efforts by American evangelical missionaries, many Dega people identify as Protestant Christians, an identity that sets them apart from the majority Buddhist and Catholic Vietnamese population. The Vietnamese government has labelled the Dega’s Christian beliefs as an “evil way” religion outside what the government calls “pure belief.” Vietnamese security forces routinely harass, imprison, and torture Dega Christians. Many Dega have fled to neighboring Cambodia. Both the Vietnamese and Cambodian governments try to prevent Dega from fleeing persecution. Vietnamese government oppression of Dega people places Vietnam at Stage 3: Discrimination, Stage 4: Organization, Stage 7: Polarization, and Stage 8: Persecution. Genocide Watch Recommends: 1. The United States should pressure the Vietnamese government to end its persecution against the Dega people in return for US development assistance in Dega areas. 2. The United States should honor the assistance that Dega soldiers gave Americans during the Vietnam War with pensions, medals, and asylum in the US. Báo cáo đặc biệt: Cuộc đàn áp người Thượng Dega ở Việt Nam Tháng 2 năm 2022 Người Dega tiếng Anh là tên gọi của nhóm dân tộc thiểu số sống ở khu vực Tây Nguyên của Việt Nam, Campuchia và Lào. Người Dega được chính quyền thuộc địa Pháp gọi là người Thượng, một danh từ có nghĩa là “cư dân miền núi”. Họ được chia thành các dân tộc phụ bao gồm Jarai, Rhade, Bahnar và Koho, khác biệt về văn hóa và ngôn ngữ so với đại đa số dân tộc Kinh của Việt Nam. Người Thượng có một lịch sử lâu dài về xung đột và bị đối xử phân biệt từ người Kinh. Mặc dù được biết đến chính thức trong tiếng Việt là người Thượng, họ vẫn thường bị gọi theo cách khinh miệt là Mọi (savage) Trong Chiến tranh Việt Nam, Dega thành lập phong trào BAJARAKA sau đổi sang thành FULRO (Mặt trận thống nhất giải phóng các dân tộc bị áp bức) để vận động cho các quyền tự chủ của họ từ miền Bắc và Nam Việt Nam. Hoa Kỳ lúc đó đã tuyển mộ hàng ngàn người Dega vào các đơn vị quân đội không chính thức của họ để chiến đấu chống lại Quân đội Bắc Việt và Việt Cộng. Do đó, họ trở thành mục tiêu cho lực lượng cộng sản Việt Nam nhắm vào vì sự liên kết của họ với quân đội Mỹ. Điển hình là vào tháng 12 năm 1967, lính Việt Cộng đã tàn sát hơn 200 thường dân Dega ở làng Đắc Sơn. Sau khi Hoa Kỳ rút khỏi Việt Nam, chính phủ Hoa Kỳ chỉ nhận 3,000 người Dega tỵ nạn, chủ yếu là định cư ở Greensboro, Bắc Carolina. FULRO tiếp tục cuộc nổi dậy kéo dài 17 năm chống lại Cộng sản Việt Nam cho đến tận những năm đầu thập niên 90. Dega, những người chiến đấu cho người Mỹ bị buộc vào “trại cải tạo” và bị coi là “kẻ phản bội”. Chính phủ Việt Nam đã thực hiện một kế hoạch quy mô nhằm“thực dân hóa” Tây Nguyên với người Kinh, mục đích để phân hoá những người này. Ngoài ra, do những nỗ lực của các nhà truyền giáo Hoa Kỳ đã dẫn đến việc nhiều người Dega theo đạo Cơ đốc Tin lành, một đặc điểm dễ nhận dạng khiến họ khác biệt với phần lớn dân số Việt Nam theo đạo Phật và Công giáo. Chính phủ Việt Nam đã buộc tội Cơ đốc giáo Dega là một tôn giáo “tà đạo” trái với cái mà chính phủ gọi là “niềm tin thuần túy”. Lực lượng an ninh Việt Nam thường xuyên xách nhiễu, bỏ tù và tra tấn những người theo đạo Chúa Dega. Để tránh bị đàn áp nhiều Dega đã trốn chạy sang nước láng giềng Campuchia nhưng chính phủ Việt Nam lẫn Campuchia đều ngăn chặn những Dega trốn chạy này. Sự đàn áp của chính quyền Việt Nam đối với người Dega đặt Việt Nam vào thời kỳ 3: Kỳ thị, thời kỳ 4: Tổ chức, thời kỳ 7: Phân biệt và thời kỳ 8: Đàn áp. Kiến nghị theo dõi nạn diệt chủng: 1. Hoa Kỳ nên gây áp lực buộc chính phủ Việt Nam phải chấm dứt đàn áp đối với người dân Dega và đổi lấy sự hỗ trợ phát triển từ Hoa Kỳ tại các khu vực Dega. 2. Hoa Kỳ nên bù đắp cho những người lính Dega đã phục vụ cho họ trong Chiến tranh Việt Nam bằng lương hưu, huân chương và quyền tỵ nạn tại Hoa Kỳ.

By Amanda Coakley Russian President Vladimir Putin has told Belarusian President Aleksandr Lukashenko that any strike on Belarusian territory would be considered an attack on Russia, an ominous sign that Moscow intends to drag Minsk into a war in Ukraine that most of its people likely do not support. “I promise you that any attack against or just one step across the border into the Belarusian territory would mean that they attack Russia,” Lukashenko cited Putin as saying. Although Lukashenko claims Belarusian troops have not joined the escalating conflict, Russian troops in Belarus have been allowed passage into Ukraine by Belarusian border guards, and Belarus’s air defense and traffic control systems, along with the country’s fueling stations, have also been made available to Moscow. Furthermore, the Belarusian strongman has said his troops will partake in military action “if it is necessary for Belarus and Russia.” On Thursday, Russian troops also entered the Chernobyl Exclusion Zone north of Ukraine’s capital, Kyiv, via Belarus and seized the Chernobyl nuclear power plant—a concerning development due to the plant’s proximity to Kyiv, the fact that the road connecting the two is in relatively good condition, and the potential for nuclear dust to spread across the region should radioactive remains be mistreated. According to Belarusian state media, Lukashenko spoke to Putin at 5 a.m. local time on Thursday, just after Russia’s invasion of Ukraine began. The two have also discussed strengthening Belarus’s western flank with military equipment, such as Iskander and S-400 missile systems, a move that will set off alarm bells across Europe. Concerns over Russia’s plans to use Belarus as a staging ground peaked on Sunday when Belarusian Defense Minister Viktor Khrenin announced that Minsk’s joint military exercises with Moscow would be extended and the approximately 30,000 Russian troops in Belarus would remain in place. In recent days, satellite imagery showed a further buildup of military equipment. Despite this, some analysts believe Lukashenko’s soft refusal to follow Moscow’s lead and recognize the so-called Donetsk and Luhansk People’s Republics on Tuesday might have been a signal that Minsk wasn’t going to placate all of Russia’s demands. “I don’t think it was the political will of the Belarusian leadership to keep Russian troops in Belarus,” said Olga Dryndova, a Belarusian analyst. “The Belarusian people want to have a neutral status in this conflict. They just cannot go out on the street and show their opposition because of the crackdown on dissent.” Belarus’s exiled opposition was also taken aback by Minsk’s involvement in Russia’s military plans. “I woke up today understanding that my country has become an aggressor for the first time in its history,” Franak Viacorka, a senior advisor to Belarusian opposition leader Sviatlana Tsikhanouskaya, told Foreign Policy. “I don’t know if Belarus will survive this war. What we are witnessing is the beginning of something very dangerous. We need tough sanctions and a refusal [from Western leaders] to recognize Lukashenko and his supporters.” “This war could lead to a bigger war, or even a world war,” Viacorka added. “But if we work quickly, I think we can have an opportunity [to stop the fighting].” Earlier on Thursday, Tsikhanouskaya accused the pro-Russian government in Minsk of “high treason” and announced the formation of a government-in-exile. “I’m taking on the responsibility to represent the Republic of Belarus [and its] people,” she announced at the Lithuanian Embassy in Paris. Belarusians are also going to the polls on Feb. 27 to vote in a constitutional referendum that will change the country’s concept of nuclear neutrality and open up the opportunity for Russian nuclear weapons to be housed on Belarusian soil. The proposed changes to the constitution—which would be the third raft of constitutional changes since Lukashenko came to office in 1994—would omit the wording, “The Republic of Belarus aims to make its territory a nuclear-free zone, and to make the state neutral,” from Article 18 and replace it with, “The Republic of Belarus excludes military aggression against other states from its territory.” Such a move flies in the face of the 1994 Budapest Memorandum, which guaranteed Belarus’s sovereignty and territorial integrity in exchange for its nuclear disarmament following the Soviet Union’s collapse. (Under the agreement, Ukraine was also supposed to have the same security and sovereignty guarantees.) Further changes include reducing the power of the country’s parliament; giving sweeping powers to the All-Belarus People’s Assembly, a parallel political structure of pro-government, handpicked elites; and giving Lukashenko the option to stay in power until 2035. Minsk now faces a new package of sanctions from the European Union and the United States over its involvement in Thursday’s invasion of Ukraine. The country had already been reeling from sanctions following the illegitimate presidential elections of August 2020 and the subsequent crackdown on opposition protesters. Speaking in Brussels on Monday, Josep Borrell, the EU’s foreign-policy chief, warned that Minsk would face “massive” sanctions if it aided Russia’s plans to attack Ukraine. He also added that the country is “in a process of satellization with respect to Russia.” (c) Foreign Policy, 2022

Mushfig Bayram, Forum 18 Fazilkhoja Arifkhojayev, © Private [CC BY-NC-ND 4.0] A Tashkent court jailed Muslim prisoner of conscience Fazilkhoja Arifkhojayev for seven and half years in a labour camp for criticising state-appointed imams. He was repeatedly tortured, including after his defence lawyer Sergey Mayorov lodged formal complaints about the torture. The judge ignored his torture. "The torturers continue with impunity," Mayorov observed. The Supreme Court upheld in absentia Odilbek Khojabekov's five year labour camp sentence for returning from the haj pilgrimage with Islamic literature, and he is now in hiding. The National Guard has arrested Alimardon Sultonov for criticising the President and state-appointed imams. On 26 January, a Tashkent court jailed Muslim prisoner of conscience Fazilkhoja Arifkhojayev for seven and half years in a labour camp. Human rights defender Yelena Urlayeva, who chairs the Human Rights Alliance, told Forum 18 that on 25 January she and other human rights defenders were not allowed into the courtroom. She thinks that the Judge did not want human rights defenders to witness a hearing based on falsified charges. On 26 June 2021 Arifkhojayev, a Muslim known for his criticisms on social media of the regime's religious policies, attended a Tashkent Mosque to hear visiting preacher Abror Abduazimov preach and lead a discussion on Islamic topics. Arifkhojayev asked Abduazimov why he insulted Arifkhojayev and other Muslims on social media, and called Abduazimov a "hypocrite". He was subsequently arrested, given a 15-day jail term, and then held in pre-trial detention until his January 2022 sentence (see below). Prisoner of conscience Arifkhojayev has been repeatedly tortured, including after his defence lawyer Sergey Mayorov lodged formal complaints about the torture to the Human Rights Ombudsperson and later to Tashkent Prosecutor's Office. Against Uzbekistan's legally-binding international human rights obligations under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, no official suspected of involvement in this torture has been arrested and put on criminal trial for torture. The judge in prisoner of conscience Arifkhojayev's ignored his torture (see below). "As of today, unfortunately, there have been no answers or indication from any of the authorities that the torturers have been put on trial or punished. The torturers continue with impunity," defence lawyer Mayorov told Forum 18 (see below). Judge Nuriddinov claimed to Forum 18 that "Arifkhojayev's statements and social media posts were extremist," when asked why he had jailed prisoner of conscience Arifkhojayev for seven and a half years in a labour camp for criticising state-appointed imams. Defence lawyer Mayorov explained to Forum 18 that "the main issue is that between 2019 and 2021 Arifkhojayev was in conflict with Abror Abduazimov." The state-appointed imam "in mosques across Uzbekistan and on social media actively defends and justifies state policies, including religious policies, using the Koran" (see below). In July 2021, a Tashkent court handed 47-year-old Odilbek Khojabekov a five year labour camp sentence in absentia to punish him for returning from the haj pilgrimage with Islamic literature. The State Security Service (SSS) secret police then pressured ordinary police, prosecutors, and others into giving what the family insists is false testimony at a second hearing which ordered him jailed. He is in hiding fearing for his safety. On 28 January 2022 the Supreme Court in Khojabekov's absence upheld the five-year prison term (see below). Doctor Alimardon Sultonov, a devout Muslim known for discussing freedom of religion and belief issues, was arrested on 18 January by the National Guard and charged under Criminal Code Article 244-1, Part 3 (d) ("Production, storage, distribution or display of materials containing a threat to public security and public order" "using the mass media or telecommunication networks, as well as the world wide web"). The arrest was "for criticising President Mirziyoyev, state-appointed imams and other officials." Since April 2021 Dr Sultanov has been under continuous and unconcealed surveillance by the regime (see below). It is very unusual for the National Guard, part of the military, to be involved in freedom of religion or belief cases, the first known such time being a November 2018 raid on Tashkent Baptists meeting for worship. A Presidential Administration official (who refused to give his name) claimed to Forum 18 that the National Guard did not arrest Sultanov "but was there to ensure public order" (see below). Interior Ministry Special Investigator Colonel Gairat (who refused to give his surname) is leading the case, and has refused to allow Dr Sultonov's parents to visit him (see below). Human rights defender Urlayeva of the Human Rights Alliance commented on the cases of prisoners of conscience Arifkhojayev and Sultonov that "these human rights defenders only want the authorities to allow Muslims freedom. They want our society be democratic. They express their opinions of how they understand Islam." She added that "imprisoning them is a clear signal from the state to society that any criticism will be severely punished" (see below). In November 2021, police detained Muslim former prisoner of conscience Khayrullo Tursunov and other Muslims, warning them not to meet to sharing a meal and praying together. Some were tortured and one later given a long jail term (see forthcoming F18 article). Continued targeting of Muslims exercising their freedom of religion and belief The regime has also continued to target other Muslims who exercise their freedom of religion and belief outside state control, including harassing an 18-year-old Muslim from Tashkent who wears the hijab. The family complained to the President and others without success and have themselves been targeted by the regime for complaining. Police told neighbours that the authorities do not like her and warned them not to associate with her. "Muslims are indignant that the state is attacking their beards and hijab, which is a very private matter for each individual," one Muslim who wished to remain anonymous for fear of state reprisals told Forum 18. Police raided the home of Tashkent Muslim Laziz Asadov, seizing two Korans and other property after he continued to criticise the regime's religious policies. This included criticising for criticising the regime's actions against hijab wearers, including as it affected his secondary school age daughter. The search warrant claimed he is implicated in a criminal case against a man he does not know, and Asadov has fled abroad. Journalists and editors from Azon.uz and Kun.uz were fined in June 2021 for publishing articles on religious themes without Religious Affairs Committee permission. One of the articles the Committee objected to was about the New Zealand Police adopting the hijab as part of police uniform, which Kun.uz sourced from a BBC report. The regime has told journalists that every article which the Religious Affairs Committee might be interested in must be sent to them for pre-publication "expert analysis". The regime is also targeting ordinary members of religious communities who express their views. Officials warned Shia Muslims in Bukhara and Samarkand in late June "not to publish religious materials on their social media." One human rights defender stated that "after the warning many deleted their accounts, or deleted religious materials." A human rights defender noted that "some even stopped talking to or associating with people who had been warned". A human rights defender who wished to remain anonymous for fear of state reprisals told Forum 18 that "the regime wants to shut people up and does not want citizens to freely exchange their thoughts or ask questions about Islam."They commented that "this will not lead anything good but will lead to extremism," noting that "we need real reforms and freedoms, including freedom of religion and belief, if we do not want extremism." Seven and a half years in labour camp for criticising state-appointed imams On 26 January 2022, after a two-day trial, Judge Zakhiddin Nuriddinov of Tashkent's Olmazor District Criminal Court jailed Muslim prisoner of conscience Fazilkhoja Arifkhojayev for seven and half years in a labour camp. Arifkhojayev was jailed under Criminal Code Article 244-1, Part 3 (d) ("Production, storage, distribution or display of materials containing a threat to public security and public order" "using the mass media or telecommunication networks, as well as the world wide web"). Judge Nuriddinov ordered that Arifkhojayev's prison term be counted from 13 July 2021, when he was put under pre-trial arrest. Human rights defender Yelena Urlayeva, who chairs the Human Rights Alliance, told Forum 18 that on 25 January she and other human rights defenders were not allowed into the courtroom. "The Court at first did not want to allow anyone inside, making an excuse of the coronavirus rules." After complaints from the family, three or four relatives were allowed in, but no human rights defenders. "I have seen Olmazor Court's hall for hearings," human rights defender Urlayeva explained. "Ten people could easily sit there, provided we observe the social distancing." She thinks that the Judge did not want human rights defenders to witness a hearing based on falsified charges. On 13 December 2021 prosecutors sent the case to the Court for criminal trial. Arifkhojayev's brother Jamol told Forum 18 at that time that his brother "will probably be given a prison term for crimes he did not commit". Such charges were in March 2021 used to jail a group of Muslim men for up to six years in a labour camp after meeting together to learn how to pray and to discuss Islamic topics. Targetting men who meet to learn about Islam and pray with police agent provocateurs and jailing them has been increasing since 2019. Arrested for criticising state-appointed imams On 26 June 2021, Arifkhojayev, a Muslim known for his criticisms on social media of the regime's religious policies, attended Tukhtaboy Mosque in Tashkent's Olmazor District to hear visiting preacher Abror Abduazimov preach and lead a discussion on Islamic topics. Arifkhojayev asked Abduazimov why he insulted Arifkhojayev and other Muslims on social media, and called Abduazimov a "hypocrite". On 28 June, after complaints from informers working with Olmazor Police, police arrested Arifkhojayev, opened a case against him under Administrative Code Article 183 ("Petty hooliganism"), and searched his phone. A Religious Affairs Committee "expert analysis" found what it claimed to be "religious fundamentalism" on the phone. Also on 28 June, Judge Begzod Umirov of Tashkent's Olmazor District Criminal Court sentenced Arifkhojayev to a 15-day jail term for alleged "petty hooliganism". Other local Muslims were in 2021 been given 15-day short-term jail sentences for asking whether state-appointed imams properly observe and teach Islam. On 14 July 2021 a court ordered prisoner of conscience Arifkhojayev to be held in three-month pre-trial detentionand investigated under this charge. The judge refused to explain to Forum 18 why he did this. Repeatedly tortured As prisoner of conscience Arifkhojayev began his sentence his beard was shaved off, and he was tortured by being given poor food, being kept in solitary confinement, and being denied a shower and fresh clothing. Officers Abdurakhmon, Botyr and Saidislom (who refused to give their last names) from Tashkent Police "Struggle with Extremism and Terrorism Department" came to Arifkhojayev's cell "regularly to insult and threaten him with physical torture when he asked to see his lawyer," his defence lawyer Sergey Mayorov stated. The duty officer in Panelni Police Detention Centre (who refused to give his name) denied that Arifkhojayev was tortured. "Nothing like that happened," he claimed to Forum 18. Police also denied prisoner of conscience Arifkhojayev access to his own lawyer, and questioned him with a state-appointed lawyer he did not want as a new criminal charge was opened against him. His lawyer Mayorov thinks that the officers from Tashkent Police "Struggle with Extremism and Terrorism Department" visited and threatened Arifkhojayev with torture during the 15-day sentence "to psychologically break Arifkhojayev to 'prepare' him for the criminal investigation". "The torturers continue with impunity" Defence lawyer Mayorov on 23 August 2021 complained to the Human Rights Ombudsperson of the Oliy Majlis (the Parliament which does not face free and fair elections), about the torture of prisoner of conscience Arifkhojayev. On 26 August the Ombudsperson referred the complaint to the Prosecutor General's Office for investigation. Against Uzbekistan's legally-binding international human rights obligations under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, no official suspected of involvement in this torture has been arrested and put on criminal trial for torture. The regime routinely ignores this obligation. The Prosecutor General's Office did not answer multiple calls from Forum 18 on 4 February 2022. Even after defence lawyer Mayorov's formal complaint, prisoner of conscience Arifkhojayev was also tortured again in September 2021 by being threatened by Otabek Jamolov, head of Tashkent's police "Struggle with Extremism and Terrorism Department", that he will "never see daylight or his family again". Lawyer Mayorov thinks this was done to scare prisoner of conscience Arifkhojayev into signing statements prepared by the police. On 26 October, defence lawyer Mayorov in writing asked Tashkent City Prosecutor's Office to investigate the torture of prisoner of conscience Arifkhojayev and punish the responsible police officers. Tashkent City Prosecutor Ulugbek Kosimov and his assistant Jalol Nodirov on 4 February 2022 refused to comment to Forum 18 on the failure to arrest suspect torturers and put them on criminal trial. In November 2021 Tashkent Police officers once again tortured prisoner of conscience Arifkhojayev, family members told Forum 18. They threatened him with extremely insulting statements, and threatened that police would carry out an extreme physical assault on his wife in his presence. Tashkent Police officers (who refused to give their names) on 9 December refused to discuss the torture, or whether the suspect torturers are being brought to justice in line with Uzbekistan's international human rights obligations. "As of today, unfortunately, there have been no answers or indication from any of the authorities that the torturers have been put on trial or punished," defence lawyer Mayorov told Forum 18 on 3 February 2022. "The torturers continue with impunity." Judge ignores torture, claims criticism of state-appointed imams "extremist" Judge Nuriddinov claimed to Forum 18 on 4 February that "Arifkhojayev's statements and social media posts were extremist," when asked by Forum 18 why he had jailed prisoner of conscience Arifkhojayev for seven and a half years in a labour camp for criticising state-appointed imams. "I gave my decision, I will not comment further," Judge Nuriddinov added. "Ask the Supreme Court for comments." He refused to explain why he ignored the fact that Arifkhojayev was tortured during the pre-trial investigation. Judge Nuriddinov in his verdict (seen by Forum 18) claimed that prisoner of conscience Arifkhojayev "partially admitted his guilt" by telling the Court that he had between 2019 and 2021 criticised state officials and state appointed Imams about various political, social, and religious issues. The verdict claims that Arifkhojayev commented on "the deficiencies of state reforms" and stated that Imams had made false statements in mosques and on social media, including insulting Arifkhojayev and other human rights defenders. "The main issue.." Prisoner of conscience Arifkhojayev's lawyer Sergey Mayorov told Forum 18 on 2 February 2022 that "the case is a fabrication. His social media posts and other comments are a secondary issue." Mayorov explained that "the main issue is that between 2019 and 2021 Arifkhojayev was in conflict with Abror Abduazimov." The state-appointed imam "in mosques across Uzbekistan and on social media actively defends and justifies state policies, including religious policies, using the Koran." "I told the Court that Abduazimov and Arifkhojayev argued with each other on the meanings of Koranic passages," Mayorov told Forum 18. "The culmination of this was when Arifkhojayev confronted Abduazimov in person in Tukhtaboy Mosque and in the hearing of others called him a liar." Defence lawyer Mayorov also told the Court that the authorities have not investigated Abduazimov's insulting statements on social media against Arifkhojayev, family members and other human rights defenders. Prisoner of conscience Arifkhojayev is still being held in Tashkent's Investigation Prison No. 1, the address of which is: Ichki Ishlar Vazirligi 1-sonli Tergov Xibisxonasi Bogzor kochasi Zangiota tumani Tashkent viloyati Uzbekistan Supreme Court upholds five-year sentence imposed in defendant's absence In July 2021, a Tashkent court handed 47-year-old Odilbek Khojabekov a five-year labour camp sentence in absentia to punish him for returning from the haj pilgrimage to Mecca with Islamic literature. On 28 January 2022 the Supreme Court in Khojabekov's absence upheld the five-year prison term. The Supreme Court did not answer multiple calls from Forum 18 on both 3 and 4 February. A Religious Affairs Committee "expert analysis" of Islamic texts and his mobile phone claimed that the books he had brought back from the haj "can lead to confusion and misunderstanding among the population, and therefore their import to Uzbekistan is banned". No reason is given for these claims, and officials refused to answer questions. A first trial in 2019 gave Khojabekov a suspended sentence which was later removed for good probation behaviour. A criminal case was in 2020 opened against Khojabekov for the same "crime", as he was claimed to have erased a short Muslim text from his mobile phone before he went on the haj. The State Security Service (SSS) secret police then pressured ordinary police, prosecutors, and others into giving what the family insists is false testimony at a second hearing which ordered him jailed. He is in hiding fearing for his safety. Trauma surgeon arrested by National Guard Doctor Alimardon Sultonov, a devout Muslim known for discussing freedom of religion and belief issues, works as a trauma surgeon at Ellikkala Central State Hospital in the north-western Karakalpakstan Region. On 18 January the National Guard arrested him, and charges have been brought him under Criminal Code Article 244-1, Part 3 (d) ("Production, storage, distribution or display of materials containing a threat to public security and public order" "using the mass media or telecommunication networks, as well as the world wide web"), his parents told Forum 18. Police told Sultonov's parents that the arrest was "for criticising President Mirziyoyev, state-appointed imams and other officials". Police also stated that they had warned Dr Sultonov that he should stop doing this, but he carried on. Previous prosecution and sentence In March 2020 Dr Sultonov questioned why local authorities had publicly stated that there were no coronavirus cases in Ellikala, as he suspected that the authorities had concealed the real figures. "I had access to the statistics centre database," he noted, "and have read that the number of deaths was 20." After Dr Sultonov called, five ordinary police, Interior Ministry, and State Security Service (SSS) secret police officers came from the regional capital Nukus to question him, confiscate a computer with religious texts, and then open a criminal case against him. Interior Ministry officials told Dr Sultonov that https://www.forum18.org/archive.php?article_id=2586 "those who wear a beard are terrorists". After considering a range of charges against Dr Sultonov, prosecutors finally brought charges under a new Criminal Code Article 244-5 ("Dissemination of knowingly false information about an infectious disease"), as well as under Criminal Code Article 244-3 ("Illegal production, storage, import or distribution of religious literature"). Dr Sultonov denied the charges, but on 24 November was given a 14-month restricted freedom sentence. The restrictions meant that Dr Sultonov had to report regularly to Ellikala District Police and having to be at home from 10 pm to 6 am every day. He could not leave the District without police permission, and was banned from using "means of communication" including the internet. He also could not participate in public events or festivities. He kept his job at the hospital, but was not able to do night shifts for the duration of his sentence. On 3 March 2021 Dr Sultanov was freed from his sentence, but on 12 April 2021 his restricted freedom sentence was reinstated. On 18 June police raided Sultonov's flat. "They talked with me loudly and insulted me in front of my parents," Sultonov told Forum 18 on 30 June. They warned me that if I do not stop using internet and do not stop my criticism of the regime, they can turn my restricted freedom to imprisonment." "I am constantly being followed" Since April 2021 Dr Sultanov has been under continuous and unconcealed surveillance by the regime. Unknown individuals on foot and in cars have openly loitered and parked outside his home and watched him. In one example, on 14 January he commented that "I am constantly being followed. When I went yesterday to Urgench outside Karakalpakstan Region a car with several men followed our car all the way to Urgench and back." "Alimardon always struggled for the rights of the Muslims," his parents commented to Forum 18. "He is no extremist, yet is harassed with continuous police pressure." National Guard arrest On 17 January 2022, six National Guard officers came from Nukus to Ellikkala Central State Hospital, claiming they only wanted to search Dr Sultonov's office and confiscate his computer. The National Guard, founded in 1992 by the then President Islam Karimov, is part of the military and is regarded as equal to the Navy, Army, and Air Force. Among its roles is guarding high-ranking regime officials such as the President. It is very unusual for it to be involved in freedom of religion or belief cases, the first known such time being a November 2018 raid on Tashkent Baptists meeting for worship. Asked why the military were involved, officials said "it is a special operation". An official (who refused to give his name) who answered the phone of Muzaffar Khusanov of the General Section of the Presidential Administration, claimed to Forum 18 on 4 February that Khusanov is not available, and that "the National Guard did not arrest him but was there to ensure public order. Arresting individuals is not within its competence." An official (who refused to give his name) who answered the phone Mukhtorjon Yusupov, Chief of the Karakalpakstan Directorate of the National Guard, on 4 February refused to discuss Dr Sultonov's arrest. Sultonov suspected the National Guard came to arrest him and refused to let them into his office. The next day, 18 January, the National Guard came to his home claiming they only wanted to talk to him at the nearest police station. "I myself drove him there in our car," his mother stated. "But when we arrived at Buston Police Station they immediately handcuffed him." Parents not allowed visits, senior Interior Ministry Special Investigator leading case Sultonov's parents have not been allowed to visit him, and Interior Ministry Special Investigator Colonel Gairat (who refused to give his surname) told them on 1 February that only his lawyer can see him. The Investigator refused to give any reasons and said that Dr Sultonov had refused to see a state-appointed lawyer. Interior Ministry Special Investigator Colonel Gairat on 1 February refused to explain why Sultonov was arrested. "I cannot discuss the case with you," he claimed to Forum 18. An official of the Ministry's Press Service on 3 February confirmed that Colonel Gairat is leading the case. "A clear signal .. that any criticism will be severely punished" Human rights defender Urlayeva of the Human Rights Alliance commented on the cases of prisoners of conscience Arifkhojayev and Sultonov that "these human rights defenders only want the authorities to allow Muslims freedom. They want our society to be democratic. They express their opinions of how they understand Islam." She added that "imprisoning them is a clear signal from the state to society that any criticism will be severely punished". Human rights defender Urlayeva also said that she thinks that "the state wants to imprison those who actively defend other Muslims' rights, who are active human rights defenders, and who influence public opinion. This is true for example of Sultonov who cooperated with us. It is sad." Detention, torture, and imprisonment of Muslims in Kashkadarya Muslim former prisoner of conscience Khayrullo Tursunov was freed from prison on 16 June 2021. He had been in June 2013 sentenced to 16 years in jail for meeting privately with other Muslims without state permission to study the Koran and pray. While in prison Tursunov was repeatedly tortured, including by being not allowed to read the Koran or pray the namaz. Police in the southern Kashkadarya Region detained former prisoner of conscience Tursunov and other Muslims in November 2021, warning them not to meet to sharing a meal and praying together. Some were tortured and one later given a long jail term (see forthcoming F18 article). © 2022 Forum 18 News Service www.forum18.org

To view the Legal Roundtable on The Gambia v Myanmar in the ICJ, click here or on the poster

The members of SEMA, the Global Network of Victims and Survivors to End Wartime Sexual Violence, stand in solidarity with our sisters from SEMA Ukraine and we condemn Russia’s breach of international law. We are worried about the SEMA members in Ukraine who have lost so much already and are now facing an unsettling situation once again. Read the statement from the SEMA members in Ukraine: “We are Ukrainian women who have suffered from Russian aggression in Donbas. Each one of us has felt the cruelty of the occupiers. We endured tortures, sexual violence and years of illegal detention in Russian-occupied territories. Many of us were held in the sadly famous concentration camp Izolyatsia in Donetsk. Each one of us lost everything in this military conflict - our homes, property, our health, many of us lost loved ones and suffered harms we are still recovering from. But we did not give up, we did not break. We testified about Russia's crimes at the International Criminal Court in The Hague and to Ukrainian law enforcement agencies. With the support of the Mukwege Foundation, SEMA Ukraine has been fighting for more than three years to ensure that rapists and executioners are brought to justice and punished for the crimes they committed against us and many other women. Now the situation facing us is once again very unsettling. Russia has again drawn its troops to our borders, leaving us vulnerable to war. An invasion is possible every day. We fear the reports indicating that Russia has compiled a list of Ukrainian activists against whom it will take action in case of an invasion. We are once again experiencing physical danger to ourselves and our loved ones. We turn for help to our friends, allies and the entire international community. We urge you: do not allow escalation, save peace in Ukraine and save our lives!” Please feel free to share with your networks. The statement can also be found at and attached in English and Ukrainian: Twitter Facebook

Drop Fabricated Charges Against Activists, Peaceful Protesters A municipal worker stands where communal clashes took place in New Delhi, India, February 27, 2020. © 2020 AP Photo/Altaf Qadri (New York) – Indian authorities are wrongfully prosecuting activists and protest organizers under India’s anti-terrorism law two years after 53 people were killed in communal violence following peaceful protests against discriminatory citizenship policies, Human Rights Watch said today. The authorities should immediately drop politically motivated charges and release the 18 activists and others detained. People responsible for abuses should be appropriately prosecuted, including supporters of the ruling Bharatiya Janata Party (BJP)-led government who instigated the communal violence and police officers who did not impartially enforce the law. “Indian authorities have been targeting activists for harassment and arrest instead of impartially investigating allegations that BJP leaders incited violence and police officials were complicit in attacks,” said Meenakshi Ganguly, South Asia director at Human Rights Watch. “The authorities should prosecute those responsible for the violence and stop using these investigations to silence critics of the government.” The government’s adoption of the discriminatory Citizenship Amendment Act (CAA) in December 2019 led to weeks of peaceful protests across India. The citizenship law fast-tracks asylum claims of non-Muslim irregular immigrants from the neighboring Muslim-majority countries of Afghanistan, Bangladesh, and Pakistan. Coupled with the government’s push for a nationwide citizenship verification process through a National Population Register and a proposed National Register of Citizens, aimed at identifying “illegal migrants,” it has heightened fears that millions of Indian Muslims could be ripped of their citizenship rights and disenfranchised. Several top BJP leaders dangerously derided the protesters, and some openly called for violence against them. On February 23, 2020, after a local BJP leader, Kapil Mishra, called for forcibly dispersing protesters, many of them Muslim, BJP supporters gathered in the area, leading to clashes between the groups. Hindu mobs, armed with swords, sticks, and bottles filled with gasoline, targeted Muslims in several neighborhoods in northeast Delhi, burning their homes, shops, mosques, and property. Forty of the 53 people killed in the violence were Muslim; a policeman and a government official were among the Hindus who died. Police investigations into the riots have been marked by bias, delays, inaccuracy, lack of proper evidence, and failure to follow proper procedures, Human Rights Watch said. The Delhi police filed 758 First Information Reports – police registrations needed to begin criminal investigations – into the riots. But two years later, according to a report filed by the police in the Delhi High Court, investigations are pending in over half the cases. Only 92 cases have reached trial. In a number of cases, judges have called out the Delhi police for delay in investigations, for failing to heed court orders, or for failing to appear in court. In several cases, judges have said that the police investigations into the riots were “shoddy,” “callous,” or “farcical.” In September 2021, a Delhi court discharged three Muslim men accused of looting and vandalizing a shop owned by a Hindu man, citing failure of the investigating authorities to conduct a proper investigation. Judge Vinod Yadav called the investigation callous and indolent, saying that this was true of many other Delhi riot cases being brought before the court. “A lot of time of this Court is being consumed by the cases like the present one, where there is hardly any investigation carried out by the police,” he said. A month later, Judge Yadav, who had made a number of critical observations into the police conduct in the Delhi riot investigations, was transferred for unreported reasons. The independent Delhi Minorities Commission conducted an investigation that found that the violence was “planned and targeted” and that some policemen actively participated in the attacks on Muslims. In a video that became emblematic of police anti-Muslim bias during the riots, several policemen are seen forcing five grievously injured Muslim men lying on the street to sing the Indian national anthem to “prove their patriotism.” The police then detained them. One of the men, Faizan, 23, died from his injuries two days later. Two years later, an investigation is still pending, and the policemen responsible for custodial violence have not been prosecuted or punished. The authorities have yet to investigate other allegations of police complicity in the violence. In contrast, the Delhi police have filed politically motivated charges against 18 activists, students, opposition politicians, and residents – 16 of them Muslim. The police cases rely extensively on disclosure statements that are suspiciously similar and WhatsApp chats and social media messages about organizing and announcing peaceful protests. The police have presented this as evidence of complicity in a larger conspiracy to defame the Indian government started by organizers of the protests against the Citizenship (Amendment) Act. The authorities have filed charges under the draconian Unlawful Activities (Prevention) Act, related to unlawful activity, terrorist funding, and planning and committing acts of terrorism. They have also accused protest organizers and activists of sedition, murder, attempted murder, promotion of religious enmity, and damage to public property, among other alleged offenses. All those charged have been critical of the BJP government and the citizenship law. They include members of Pinjra Tod, an autonomous collective of women students; United Against Hate, a group that works to protect religious minorities; and the Jamia Coordination Committee, which led the student protest at Jamia Millia Islamia University. In June 2021, the Delhi High Court, in granting bail to activists Natasha Narwal, Devangana Kalita, and Asif Iqbal Tanha, said the police had failed to produce any evidence to show that the accused had committed a terrorism-related offense. The court added, “that in its anxiety to suppress dissent and in the morbid fear that matters may get out of hand, the State has blurred the line between the constitutionally guaranteed ‘right to protest’ and ‘terrorist activity.’ If such blurring gains traction, democracy would be in peril.” The United Nations High Commissioner for Human Rights, Michelle Bachelet, has raised concerns over the Indian government’s use of the Unlawful Activities (Prevention) Act against human rights activists. Several UN human rights experts have called for the immediate release of activists arrested for protesting against the Citizenship Amendment Act. “Delhi police investigations into the 2020 violence point to the reasons for the lack of trust in the police in India and the urgent need for police reforms to combat communal bias and other problems,” Ganguly said. “The failure to hold people responsible for communal violence to account will only fuel further abuses against religious minorities.” © Human Rights Watch 2022

The ICJ and the Issue of Lawful Representation in The Gambia v Myanmar By John Packer, Gregory Stanton, Nathalie Chaar, Loujain El-Sahli, and Bailey Pelletier 17 February 2022 The International Court of Justice hears opening arguments in The Gambia v Myanmar December 10, 2019 John Packer is Neuberger-Jesin Professor of International Conflict Resolution in the Faculty of Law and Director of the Human Rights Research and Education Centre at the University of Ottawa. He was an official of intergovernmental organizations for 20 years including at the UN and as Legal Adviser and first Director in the Office of the High Commissioner on National Minorities at the Organization for Security and Cooperation in Europe. Dr. Gregory Stanton is the Founding President of Genocide Watch. He was Research Professor in Genocide Studies at George Mason University, and the James Farmer Professor of Human Rights at the University of Mary Washington. In the State Department, he drafted the UN Resolutions that created the ICTR. Nathalie Chaar, Loujain El-Sahli, and Bailey Pelletier are students in the JD/MA joint programme between the University of Ottawa’s Faculty of Law and Carleton University’s Norman Paterson School of International Affairs. The authors wish to acknowledge the substantial contribution of Erin Farrell Rosenberg, Visiting Scholar with the Urban Morgan Institute for Human Rights at the University of Cincinnati College of Law, in advising upon the argument set out in the paper. I. The Issue This paper discusses the issue of the lawful representation of the Republic of the Union of Myanmar (Myanmar) in the proceedings at the International Court of Justice (ICJ) in the case of The Gambia v Myanmar. While there is no doubt that, as a State, Myanmar holds obligations owed to other States and to the international community as a whole, notably pursuant to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention), and while there is no doubt that the case before the ICJ involves two States parties to the Genocide Convention for which the Statute of the Court and, more specifically, the Convention explicitly provide for the Court’s competence in the event of a dispute, the issue is who exactly possesses lawful authority to represent—and to determine Myanmar’s representation—in the proceedings before the Court. In short, who may speak for Myanmar, most immediately with respect to the hearings notified by the Court to take place in The Hague on 21-28 February 2022? In this regard, the question of the lawful representative for Myanmar has been made problematic by the uncertainty surrounding the legitimate governing authority of the State, competing claims and procedural capacities, and the varied and indeterminant State practice concerning recognition of any particular claim to represent Myanmar. As such, proceeding with the Court’s hearings is problematic and entails consequences and risks both for the case per se and for other actually or potentially interested parties. II. Executive Summary This paper concludes that pursuant to applicable international law under the Charter of the United Nations (UN Charter), and in the absence of any law that unequivocally confers upon the ICJ the competence to decide matters of government recognition, the ICJ is not competent to determine the lawful representative of the Republic of the Union of Myanmar in the notified proceedings in The Gambia v Myanmar case. In the event that the Court nonetheless proceeds at this time, and in this context, with the scheduled hearings, there would be risks of injustice and prejudices for which it would not be reasonable to conclude that the Court would be acting in accordance with international law as it is mandated to do. Moreover, alternatives exist which would avoid prejudices caused by proceeding amidst evident uncertainties. Following the military coup d’état of 1 February 2021, the democratically elected Government of Myanmar was deposed and, in its place, a military junta has asserted authority. Contrary to the Constitution of Myanmar, the then President, State Counsellor, and Foreign Minister of Myanmar (as well as Agent before the ICJ), among others, were arrested by the military and subjected to extraordinary and unlawful trials. The people of Myanmar reacted en masse through nationwide civil disobedience which the junta met with extreme force which is ongoing. In response, deposed government officials and parliamentarians formed the National Unity Government (NUG) asserting authority as a government in exile as the legitimate Government of Myanmar. The situation remains fluid. Internationally, there has been uncertainty about the legitimate representative of the State within multilateral relations (notably at the UN and the Association of Southeast Asian Nations–ASEAN) and bilateral relations. In particular, the UN General Assembly (UNGA)’s Credentials Committee has received requests to represent Myanmar from both the junta and the NUG. The Committee opted to defer its determination of this question and has allowed the Permanent Representative appointed under the previous democratically elected Government of Myanmar, Ambassador Kyaw Moe Tun, to remain in his seat and to continue to enjoy privileges and immunities, pursuant to Article 105(2) of the UN Charter, in respect of Myanmar as a UN Member State. Pursuant to the UN Charter, the UNGA has the authority to “adopt its own procedures,” which includes the procedure regarding the recognition of an agent to represent a State within the UN system. In situations when the representation of a State is disputed, the Credentials Committee is tasked with assessing competing claims to legitimate representation and making a recommendation to the UNGA whereupon UN Member States render a decision. When examining the claim of a potential representative, the Credentials Committee will consider the effective control of the entity in question, their compliance with international law, and the purposes and principles of the UN Charter, including respect for human rights and the will of the people. Since the coup of 1 February 2022, it is uncertain that any claimant meets these requirements—a fact that has undoubtedly contributed to the absence of a determination. Furthermore, the recognition of credentials is ultimately a political decision, and the Credentials Committee has recommended as recently as December 2021 that recognition of any party to represent Myanmar be deferred. Therefore, significant uncertainty persists around who is the legitimate representative of Myanmar and, accordingly, who may speak for Myanmar in matters of relations between and among States including disputes. The ICJ does not have an unequivocal procedure regarding representation of a party to a dispute and the ICJ does not enjoy, in accordance with international law, the competence to determine its own competence in such a fundamental matter. Rather, in accordance with the UN Charter under which the ICJ is established, the Court should defer to the determinations of the UNGA. In the absence of such a determination, the ICJ should refrain from making its own unilateral determination. In the event that the Court nonetheless proceeds, such a unilateral step would have prejudicial effects to proceedings and to the interests and certain rights of other States parties to the Genocide Convention, UN Member States, intergovernmental organizations, other UN organs and bodies, and, significantly, to the Rohingya people. As such, the process may contribute to injustice rather than justice. The evident implications of the case now proceeding entail certain effects and the risk of serious harm—both in terms of and beyond the case—in the absence of any compelling need to proceed at this time. This paper concludes by providing potential alternatives to a unilateral ICJ determination, namely for the Court to suspend the proceedings pending a UNGA determination on who may lawfully represent Myanmar and for concerned parties—States and intergovernmental organizations alike—to register their concerns before the ICJ. III. The Facts (i) Procedural and Contextual Overview On 19 November 2019, The Gambia, as a party to the Convention on the Prevention and Punishment of Genocide[1](Genocide Convention or Convention), applied to institute proceedings against the Republic of the Union of Myanmar at the International Court of Justice (ICJ).[2] Myanmar achieved independence from British colonial rule on 4 January 1948, became a member of the United Nations on 19 April 1948[3], and ratified the Genocide Convention on 14 March 1956[4]. The Application by The Gambia, which acceded to the Convention on 29 December 1978[5], concerns actions said to be taken and condoned by the Government of Myanmar against members of the Rohingya group (protected under the Convention) who primarily reside in Rakhine State in northwestern Myanmar.[6] In its application, The Gambia argues that the State of Myanmar has committed and continues to commit genocide against the Rohingya in violation of the terms of the Convention.[7] Subsequent to three days of public sittings in the Peace Palace in The Hague on 10-12 December 2019, in an Order published 23 January 2020 the ICJ found unanimously that, as a party to the Genocide Convention, The Gambia has prima facie standing to bring a case against Myanmar before the Court.[8] Certain obligations enshrined in the Genocide Convention, including the duties to prevent and punish genocide, are obligations owed erga omnes to all State parties to the treaty.[9] The ICJ concluded that the “common interest [to prevent and punish genocide] implies that the obligations in question are owed by any State party to all the other State parties to the Convention.”[10] Following this determination on The Gambia’s standing, proceedings at the ICJ were affected by the COVID-19 pandemic. In addition to The Gambia’s role in proceedings as a matter of public interest, other State parties and organizations comprised of State parties have interests in the matter. Indeed, in announcing before the UNGA its intention to proceed with the case, The Gambia called upon other UN Member States to join it.[11] At the 43rd Session of the United Nations Human Rights Council (UNHRC) on 26 February 2020, the Minister of Foreign Affairs of the Maldives announced[12] that State’s intention to intervene in the matter before the ICJ in line with the decision made unanimously by the Organization of Islamic Cooperation (OIC) in March 2019 to take action against Myanmar.[13] The Gambia ultimately applied to institute proceedings with the support of the OIC of which 42 members are parties to the Convention, including special support from Bangladesh.[14] On 2 September 2020, Canada and The Netherlands issued a joint statement announcing their intention to intervene in the matter as State parties to the Convention.[15] The statement reads in part that, “Canada and the Netherlands consider it our obligation to support these efforts which are of concern to all of humanity.”[16] On 20 October 2020, Ambassador Kyaw Moe Tun was appointed Permanent Representative of Myanmar to the United Nations in New York, whereupon his credentials were accepted by the UNGA in November 2020.[17] On 1 February 2021, a military coup d’état took place in Myanmar. The democratically elected parliament and the governing National League for Democracy (NLD) party were ousted by Myanmar’s military, the Tatmadaw, which declared a one-year state of emergency.[18] Government officials, including President Win Myint and State Counsellor and Foreign Minister Aung San Suu Kyi, were detained by the military and remain in detention today.[19] The military junta thereupon created its own body, the State Administration Council (SAC), composed of military and civilian members appointed by Senior General Min Aung Hlaing[20], who, in August 2021, went on to appoint himself Prime Minister in contravention to Myanmar’s Constitution.[21] Following the coup, Ambassador Kyaw Moe Tun remained in his position as Permanent Representative, pending a determination by the UNGA Credentials Committee established pursuant to Article 9 of the UN Charter. On 12 February 2021, a representative of the junta was permitted to speak for Myanmar at the United Nations Human Rights Council (UNHRC), in response to criticisms expressed by Tom Andrews, the UN Special Rapporteur on the situation of human rights in Myanmar.[22] This junta representation was again permitted to speak during a UNHRC session on 11 March 2021. Both of these appearances drew sharp criticisms from States as well as international commentators.[23] On 16 April 2021, in response to the coup, exiled elected parliamentarians formed the National Unity Government (NUG), retained President Win Myint and State Counsellor Aung San Suu Kyi, and asserted legitimate governing authority over Myanmar.[24] The NUG has reportedly established offices in six States: the United States of America, the United Kingdom, France, Czech Republic, Australia and South Korea.[25] The NUG is labelled as a “terrorist” organization by the junta.[26] The NUG has objected to the junta attempting to represent Myanmar and, recently, the NUG communicated to the ICJ that it represents the State of Myanmar in the The Gambia v Myanmar proceedings.[27] On 18 June 2021, the UNGA adopted Resolution 75/287, which criticizes the Tatmadaw rule and calls for a return to democratic governance. The resolution passed with a strong majority of 119 votes in favour, 1 vote against, 36 abstentions, and 37 non-voting members.[28] Of the 119 votes in favour, 104 are State parties to the Genocide Convention.[29] Accordingly, UNGA Resolution 75/287 clearly illustrates—both for the majority of UN Member States and for the great majority of State parties to the Genocide Convention—the lack of international legitimacy of the junta and the contested nature of governing power in Myanmar. In particular, UNGA Resolution 75/287 “[c]alls upon the Myanmar armed forces to respect the will of the people as freely expressed by the results of the general election of 8 November 2020, to end the state of emergency, to respect all human rights of all the people of Myanmar, and to allow the sustained democratic transition of Myanmar, including by opening the democratically-elected parliament and working towards bringing all national institutions, including the armed forces, under a fully inclusive civilian government that is representative of the will of the people.”[30] Additionally, using the official titles of recognized plenipotentiaries of the State of Myanmar, UNGA Resolution 75/287 calls upon the military “to immediately and unconditionally release President Win Myint, State Counsellor Aung San Suu Kyi and other government officials and politicians and all those who have been arbitrarily detained, charged or arrested, including to ensure their rightful access to justice, and to engage and support the Association of Southeast Asian Nations constructively with a view to realizing an inclusive and peaceful dialogue among all stakeholders through a political process led and owned by the people of Myanmar to restore democratic governance.”[31] The positions of the international community towards recognition of the junta, including representation at the UN, have also been expressed bilaterally and multilaterally in the strongest, negative terms. For example, on adoption of UNGA Resolution 75/287, in its statement of that day delivered on behalf of its Members and associated, candidate and some potential candidate States, the EU stated unequivocally that the junta “have no support” – that “the international community does not accept the coup, and it does not recognize any legitimacy to the regime that emerged from it. […] We will not let this coup stand.”[32] On 1 December 2021, the UNGA Credentials Committee released a report opting to defer its decision on granting credentials to representatives of the junta in Myanmar (as well as representatives for the Taliban in Afghanistan).[33] On 6 December 2021, the Credentials Committee report was approved by consensus in UNGA Resolution 76/15.[34] As such, Ambassador Kyaw Moe Tun, the representative of the democratically elected civilian government, retained his status and remains the Permanent Representative of Myanmar to the United Nations (notably at the UNGA), pending a future determination. Between 21 and 27 September 2021, the UNGA held its annual high-level meetings, attended by Heads of State and Governments, as well as ministerial-level representatives. Following an agreement made by the United States of America, Russia and China—three current members of the UNGA Credentials Committee—it was reported that Ambassador Kyaw Moe Tun was permitted to remain in Myanmar’s seat during these meetings, as long as he agreed not to address the Assembly.[35] However, the Ambassador continues to address other plenary and committee meetings attended by permanent representatives.[36] His remarks are consistently critical of the junta and he has aligned himself with the NUG.[37] This ambiguity around Kyaw Moe Tun’s powers at the UNGA further illustrates the uncertainty surrounding the legitimate authority and effective Government of Myanmar. On 19 January 2022, the ICJ published a press release giving notice of public hearings on The Gambia v Myanmar from 21 February through 28 February 2022.[38] On 28 January 2022, UN High Commissioner for Human Rights, Michelle Bachelet, urged governments to “intensify pressure” on the Tatmadaw to uphold human rights protection and restore civilian rule.[39] The repeated condemnation and lack of recognition of the junta’s rule within the UN system raises serious questions about their ability to represent Myanmar in the coming proceedings at the ICJ. Overall, State practice and the practice of UN bodies, agencies, and fora (as addressed further below) concerning representation—and related implications for recognition of the Government of Myanmar—have been at times inconsistent, but with the dominant position being to defer the matter with due deference to the Credentials Committee consistent with the UN Charter. In sum, the issue remains unresolved. (ii) The Matter of Agency In the verbatim record of the Court’s hearing of 10 December 2019, the Government of the Republic of the Union of Myanmar is identified as represented by “H.E. Ms Aung San Suu Kyi, Union Minister for Foreign Affairs of the Republic of the Union of Myanmar, as Agent; [and] H.E. Mr. Kyaw Tint Swe, Union Minister for the Office of the State Counsellor of the Republic of the Union of Myanmar, as Alternate Agent”;[40] the verbatim records of the subsequent hearings of 11 and 12 December 2019 repeat the same identifications of Myanmar’s Agent and Alternate Agent. In none of the further published notices or documents from the Court since the initiation of proceedings has there been any indication of a change in the representation of Myanmar, nor has there been any such notice published or known from any representative of the State of Myanmar recognized by the United Nations. As noted above, as a matter of fact reported widely in the media and beyond doubt, the then State Counsellor, Minister of Foreign Affairs and Agent of Myanmar before the Court was, with others (including the Alternate Agent), unlawfully arrested on 1 February and has since then been detained in Myanmar by the Tatmadaw which has controlled communications and undoubtedly obstructed her capacity to exercise recognized authority as identified before the Court. It is unclear whether or, if so, to what extent the Court has expended any effort to communicate with the identified Agent or Alternate Agent of Myanmar before the Court, or whether or, if so, to what extent the Agent or Alternate Agent have sought to communicate with the Court. Specifically, it is unclear whether Myanmar’s Agent and Alternate Agent before the Court have been withdrawn or replaced and, if so, by what exact means in accordance with international law as the Court is required to apply. In its notice of 19 January 2022 announcing public hearings to be held in The Gambia v Myanmar case to take place from 21 February to 28 February 2022, there is no indication or explanation with regard to the representation of the State of Myanmar.[41] Two separate and competing positions have been expressed by the SAC and by the NUG. On 24 June 2021, the junta formed a new legal team, led by its “Foreign Minister” Wunna Maung Lwin, to respond to the case brought by The Gambia at the ICJ.[42] In its Announcement (2/2022) of 1 February 2022, the NUG expressly refers to the junta’s unlawful detention of Myanmar’s Agent and Deputy Agent and states that “Myanmar’s Permanent Representative to the United Nations (UN), Ambassador Kyaw Moe Tun, has communicated to the Court that he is the acting alternate agent under the direction of the NUG and is the only person now authorized to engage with the Court on behalf of Myanmar.”[43] With regard to the lawful authority to appoint an Agent or alternates representing the State of Myanmar before the Court, Senior General Min Aung Hlaing, who has named himself Prime Minister, asserts that actions by the Tatmadaw on 1 February 2021 are both lawful and legitimate by reference to Article 417 of the Myanmar Constitution of 2008[44], which states: "If there arises or if there is sufficient reason for a state of emergency to arise that may disintegrate the Union or disintegrate national solidarity or that may cause the loss of sovereignty, due to acts or attempts to take over the sovereignty of the Union by insurgency, violence and wrongful forcible means, the President may, after coordinating with the National Defence and Security Council, promulgate an ordinance and declare a state of emergency." The junta has asserted that purportedly widespread voter fraud in the November 2020 general election risked leading to the disintegration of the Union, necessitating military takeover.[45] The election watchdog, the Asian Network for Free Elections (ANFREL), issued a 176-page report reviewing the observations from the 2020 Myanmar General Elections and concluded that “the results of the elections were, by and large, representative of the will of the people of Myanmar.”[46] Irrespective of the existence of an ostensible impetus for action under Article 417 of the Constitution, as a matter of stipulated procedure the President, Win Myint, was at the time the person prescribed by the Constitution as holding the authority to act should he so decide. There is no evidence that President Win Myint duly issued a declaration nor in any other way initiated or approved the state of emergency. To the contrary, the President was forcibly arrested absent any lawful authority in an open act of overthrowing the Government. In order for the Commander-In-Chief of the Defence Services (in fact, Senior General Min Aung Hlaing) to obtain legislative, executive and judicial powers, the President would have had to relinquish that power.[47] The President did not do so. It is clear that neither the relinquishment of power from the Head of State (i.e. President Myint) nor State Counsellor Aung San Suu Kyi occurred lawfully and that, instead, they were both detained, placed in ongoing custody, subsequently charged with crimes and subjected to processes (including convictions) which the NGO Human Rights Watch has called “bogus charges… all about steadily piling up more convictions against Aung San Suu Kyi so that she will remain in prison indefinitely.”[48] The prevailing factual situation is of contested claims following the coup d’état of 1 February 2021 resulting in considerable uncertainty as to the status of the originally notified Agent, Alternate Agent and possible replacements in the case before the ICJ, together with uncertainty regarding the lawful authority of the State of Myanmar to change the Agent before the Court. It is, however, clear that the Permanent Representative of Myanmar to the United Nations, as considered by the UNGA’s Credentials Committee, is against the junta representing Myanmar before the Court. IV. Applicable International Law As a matter of international legal personality, the UN is one legal person as is any UN Member State or State party subject of international law also one legal person. It would render international relations impracticable and unreliable should such primary subjects be conceived as possessing multiple and possibly contradictory personalities. Of course, it is a matter of necessity that natural persons must represent the State. As a matter of treaty law, the UN Charter (of which the ICJ Statute is appended and forms an integral part) provides in Article 9 for representatives of Member States comprising the General Assembly which has been said to hold “an eminent position among the organs of the UN”[49] and is the only principal organ of the UN in which all UN Member States are represented. As a principal organ of the UN, and explicitly as “the principal judicial organ” of the UN, the ICJ derives its authority from States and, specifically, its establishment pursuant to Article 92 of the UN Charter. Such authority, as delineated in the Statute of the ICJ, requires the Court to make decisions “in accordance with international law” not least including the UN Charter.[50] It has been observed that “the principal organs of the UN, taken as a whole, exercise all the functions which the UN members have assigned to the Organization” (i.e. as one legal person) and that, notwithstanding the distinct roles of the principal organs and their “mutual independence”, the ICJ is co-ordinated with the other organs and that, moreover, “the competence of one organ may be conditional on the action of another”.[51] Indeed, this follows from the necessity of coherence presumed of one legal person. The ICJ Statute does not stipulate the competence of the Court to determine representation of Member States or of State parties in disputes before it. That is, in principle, a prerogative of the State. Rather, the ICJ Statute provides in Article 30 for the Court to adopt Rules of Procedure “for carrying out its functions”.[52] Accordingly, Article 40 of the Rules of Court sets out a process for notification of Agents (i.e., a natural person representing the State) and communications therewith.[53] To that end, “Agents shall have an address for service at the seat of the Court to which all communications concerning the case are to be sent. Communications addressed to the agents of the parties shall be considered as having been addressed to the parties themselves.”[54] Of course, the process of conducting communications should not serve, in effect, to determine the Agent or, more so, the lawfulness of representation of a State in a dispute before the Court; communications are purely of procedural character and not substantive character. The UN Charter provides that the UNGA “shall adopt its own procedures”, and the UNGA has developed procedures with regard to the credentialing of an agent who seeks to represent a State.[55] In essence, although the Statute of the ICJ lacks procedural clarity on the matter of representation of a party to a dispute, the UNGA has such a procedure. This process involves a Credentials Committee composed of Member States which scrutinize submissions, deliberate, and make decisions pertaining to representation on behalf of a given UN Member State and, subsequently, present a recommendation to the UNGA as to whether or not to recognize such credentials and thereby confer representative capacity.[56] Historically, the international community avoids making determinations with regard to the legitimacy of governments.[57] However, when scenarios arise where representation of a Member State is disputed, the Credentials Committee exists to make a recommendation to the UNGA in accordance with an early resolution, i.e. UNGA Resolution 396(V) of 14 December 1950.[58] The UNGA will, when possible, consider the impact on the international community in their assessment, particularly when a party seeking representation fails to embody the principles and purposes of the UN Charter as required by treaty law and the general principle of good faith. Specifically in the context of contested claims to representation, UNGA Resolution 396(V), titled “Recognition by the United Nations of the representation of a Member State”, provides in full as follows (with emphasis added): "The General Assembly, Considering that difficulties may arise regarding representation of a Member State in the United Nations and that there is a risk that conflicting decisions may be reached by its various organs, Considering that it is in the interest of the proper functioning of the Organization that there should be uniformity in the procedure applicable whenever more than one authority claims to be the government entitled to represent a Member State in the United Nations, and this question becomes the subject of controversy in the United Nations, Considering that, in virtue of its composition, the General Assembly is the organ of the United Nations in which consideration can best be given to the views of all Member States in matters affecting the functioning of the Organization as a whole, 1. Recommends that, whenever more than one authority claims to be the government entitled to represent a Member State in the United Nations and this question becomes subject of controversy in the United Nations, the question should be considered in the light of the Purposes and Principles of the Charter and the circumstances of each case; 2. Recommends that, when any such question arises, it should be considered by the General Assembly, or by the Interim Committee if the General Assembly is not in session; 3. Recommends that the attitude adopted by the General Assembly or its Interim Committee concerning any such question should be taken into account in other organs of the United Nations and in the specialized agencies; 4. Declares that the attitude adopted by the General Assembly or its Interim Committee concerning any such question shall not of itself affect the direct relations of individual Member States with the State concerned; 5. Requests the Secretary-General to transmit the present resolution to the other organs of the United Nations and to the specialized agencies for such action as may be appropriate." Accordingly, it is to be presumed that the ICJ was duly informed and is fully cognizant of the treatment of the matter, its rationale, the subsequent practice, and the ongoing need for coherence in the interests of the Organization, of Member States and of international law and its core elements of legality and foreseeability. Whether in a specific case an authority receives recognition as the entitled representative is subject to varying practices and considerations by the Credentials Committee. Prior to 1990, a crucial element for consideration was the effective control over the State maintained by a claimant seeking representation of that State at the UN.[59] Practice since 1990 has tended to lean in favour of the legitimacy of such purported authority, notably that it derives from the will of the people and is exercised consistently with the purposes and principles of the UN including respect for human rights and other cornerstones of the UN Charter.[60] Further, even in scenarios where effective control is established, the Committee retains the discretion to deny the credentials of a government imposed by force both internally or externally, or if the UNGA perceives a regime to be incompatible with the UN Charter, such as one failing manifestly to respect human rights. Notably, for example, pursuant to obligations arising from Articles 1 and 55 of the UN Charter, and based on the recommendation of the Credentials Committee, the UNGA declined to recognize the credentials of the South African delegation under the apartheid regime for 24 years between 1970 and 1994.[61] While a change in tendency in assessing claims is observable, the practice has been inconsistent.[62] In the case of Haiti, although a military junta following a coup wielded effective control of that State from 1991 to mid-1994, the UNGA accepted, without objection, for three consecutive years (1991-1993) the credentials submitted by the ousted democratically elected government, which then returned to power in Haiti in October 1994.[63] Between 1996 and 2000 the Committee continued to recommend that the UNGA defer recognizing the credentials of any party—which during the time were the ousted democratically elected government and the Taliban—until the Taliban were no longer the de facto Government of Afghanistan.[64] In none of the cases or scenarios described or referenced above were the State parties whose membership credentials were a matter of dispute involved in ongoing proceedings at the ICJ. However, two cases before the ICJ have touched upon the issue of this paper. First, in the case of Bosnia and Herzegovina v Serbia and Montenegro, agency was confused (including Co-Agents) on the part of a State (Bosnia and Herzegovina) having the extraordinary Constitutional structure of a triumvirate Presidency resulting in the State not behaving uniformly; one agent wanted to discontinue proceedings, while another did not. The Court declined to recognize one agent over another and simply noted that they could not establish unequivocally that Bosnia wanted to discontinue proceedings—and therefore the case continued.[65] Second, in the more salient case of Honduras v Brazil (concerning a bilateral matter not affecting a public interest, much less a peremptory norm), in addressing the UNGA at its 65th Session (as foreseen in the UN Charter), the then President of the ICJ, Judge Owada, reported that “the Court was faced with conflicting contacts coming from competing governmental authorities both purporting to be acting on behalf of Honduras in a situation of political uncertainty” (within the country); there became competing notices of different Agents and Co-Agents such that, “[u]nder these unclear circumstances, the Court decided that no further action would be taken in the case until the situation in Honduras was clarified.”[66] Eventually, within the year, the situation in Honduras was clarified and the case was discontinued pursuant to reliable notice from the undisputed representative of Honduras.[67] As such, in the two possibly relevant cases so far before the ICJ, the Court conducted itself in sensible and not precipitous ways. It bears recalling that the issue of the representation of the State of Myanmar in the case of The Gambia v Myanmar concerns a matter of public interest arising from a multilateral treaty on a peremptory norm with implications far beyond a bilateral dispute and with actual or potential affects of the interests and rights of other States, international organizations and, not least, the victims. As such, it is incumbent upon the Court to take all good care to ensure it acts in accordance with international law, avoids injustices or prejudices, respects the Purposes and Principles of the United Nations, and seeks so far as possible to behave coherently with the UN as a whole. V. Analysis (i) Lawfulness of the Junta-Led Regime Generally, three characteristics inform the assessment of whether or not an entity should be recognized as the government of a State: compliance with international law, effective control, and legitimacy. (a) Compliance with international law Since the takeover in February 2021, there has been documented evidence of the junta responding to the country-wide protests and civil disobedience with indiscriminate attacks and mass shootings, killing around 1,500 civilians and arresting, charging, or jailing nearly 9,000 more.[68] The military crackdown on the civil disobedience movement has also included accounts of torture and execution.[69] Additionally, the regime has beaten and shot healthcare workers providing care to injured protesters and forced clinics operated by NGOs to close, pushing medics and volunteers to work in poorly resourced makeshift clinics.[70] The junta’s grave human rights violations following the coup has drawn global outrage and condemnation, including from the UN.[71] (b) Effective control A recognition of the junta is not backed by any sign of its growing power or decisive control of Myanmar’s territory. In fact, empirical evidence points to the opposite conclusion: that the junta is hanging onto a weakening and tenuous thread. The coup regime lacks effective control over systems of taxation, revenue collection, territorial stability and population movements across Myanmar.[72] In Rakhine State, the regional focus of the ICJ case, sixty percent of the administration is under the control of the anti-regime Arakan Army, which collects household revenues from the inhabitants.[73] Moreover, flows of funds to the junta are being progressively disrupted. Foreign companies, such as top energy companies Chevron and TotalEnergies, are closing their operations, citing concerns over indirectly funding the military’s human rights abuses, and expressing support for targeted sanctions on Myanmar’s natural gas revenues, the junta’s largest source of foreign currency revenue.[74] Politically, the military regime is not only struggling to consolidate power but its power is languishing.[75] While neither the military nor the NUG appear likely to prevail, a growing and mobilizing opposition presents a tumultuous and contested political climate for the junta.[76] The junta regime is embroiled in continuous protests and organized civil disobedience, both online (where the junta’s social media accounts have been banned) and offline, further contributing to the fragility of the junta’s control.[77] It also continues to face growing threats and attacks from insurgent and ethnic armed groups like the Arakan Army, who are increasingly winning the support of resistance groups opposing military control.[78] This not only discredits the claim that the junta has effective control over Myanmar’s territory, but raises serious doubts about its durability and survival, and in turn about the ICJ’s credentialing of the junta despite its uncertain and precarious state. (c) Legitimacy A government’s legitimacy can be evidenced if its role of authority represents the genuine “will of the people,” as enshrined in Article 21(3) of the Universal Declaration of Human Rights.[79] The measure of popular legitimacy is typically determined by looking at the results of free and universal elections. This principle is equally reflected within the Burmese national legal framework. Article 391 of the 2008 Constitution of Myanmar enshrines the right to vote by secret ballot for all eligible citizens that are 18 year of age or older.[80] The most recent elections were held on 8 November 2020, the results of which illustrated the overwhelming popularity of the NLD as the governing party of Myanmar. The NLD won 396 seats in the Upper and Lower Houses of Parliament, which is 66 more seats than would have been required to form a majority government.[81] In contrast, the Tatmadaw does not enjoy popular legitimacy in Myanmar. In fact, there is evidence of a general sense of contempt towards their claims to authority.[82] In particular, the Tatmadaw cannot argue that it has popular legitimacy and that it promotes the wellbeing of Myanmar’s population. Article 55 of the UN Charter sets out the State’s duty to promote the wellbeing of populations, namely through ensuring higher standards of living, full employment, and conditions of economic and social progress and development.[83] Yet since the junta’s takeover, public services like education and healthcare, already in a dire state since the start of the COVID-19 pandemic, are collapsing as doctors, medical staff, and teachers have gone on strike in support of the civil disobedience movement against the coup.[84] According to a recent UN Humanitarian Needs Overview, the socioeconomic and humanitarian crises have escalated since the military takeover, with 14 out of 15 states and regions being afflicted with acute malnutrition.[85] Since the coup, the junta has also actively worsened the situation by imposing new travel restrictions on humanitarian workers, attacking aid workers, and blocking needed humanitarian aid from reaching millions of displaced people and others at risk.[86] The UN estimates that the number of people requiring assistance grew from 1 million before the coup to 14.4 million by 2022.[87] The ICJ would therefore have no basis to lend legitimacy to the junta on the grounds that the military enjoys popular legitimacy among the Burmese population. (ii) Prejudicial Effects In addition to the absence of any legal and factual basis grounding a unilateral step by the ICJ to recognize the junta as the lawful representative of Myanmar at proceedings before the Court, there are serious implications in doing so. Such a decision would carry significant, material, and prejudicial effects to the Court's proceedings, to State parties to the Genocide Convention, to UN Member States, other UN organs and bodies, UN specialized agencies, to the international community as a whole, and, more importantly, to the Rohingya. Due to these prejudices, the ICJ would not be promoting the values that the UN Charter embodies and promotes. (a) Prejudice to the proceedings The Court’s decision to allow the junta over any other entity to represent Myanmar is not merely incidental[88] to the case but will undeniably result in a known specific posture adopted by the respondent in the proceedings with substantive representations directly affecting the parties and the considerations of the Court. There are undeniable legal consequences which, moreover, concern the international community as a whole given the character of the case.[89] Contrary to the alternative positions taken by other actors, such as those expressed by the NUG or potentially by the Permanent Representative of Myanmar to the United Nations (acting in his capacity confirmed by the UNGA), the junta continues to deny that the Rohingya are a protected group under Article II of the Genocide Convention. The junta has also not admitted the existence of large-scale persecution of the Rohingya. And the junta has not claimed responsibility for its actions against the Rohingya. This means that the decision to invite the military junta to represent Myanmar before the ICJ would necessarily result in a materially distinct character for the proceedings at the heart of the case and of the interests asserted by The Gambia. There are also credible doubts over the compliance of Myanmar (if the ICJ legitimates the junta’s claim to represent the State) with the Provisional Measures. It is to be recalled that the Court ordered Myanmar to: take all measures within its power to prevent the commission of all acts within the scope of Article II of the Genocide Convention in relation to the members of the Rohingya group in its territory; ensure that its military, and any irregular armed units, organizations and persons subject to its control, direction or influence, do not commit acts within the scope of Articles II and III of the Genocide Convention; take “effective measures” to protect evidence relating to The Gambia’s allegation; and submit periodic reports on all measures taken in compliance with the Order.[90] Compliance with the Provisional Measures remains far from a possibility for the junta, particularly as it denies the existence of the very group to be protected (the Rohingya) and the central issue in the ICJ case—acts of genocide or a serious risk of continued genocide perpetrated against the Rohingya. Moreover, there has been increasing evidence since the coup that the junta has been brazenly inflicting lethal violence on Myanmar’s population and imposing ever more restrictive measures on the Rohingya and other ethnic groups.[91] Beyond influencing how the proceedings will unfold, there are also wide implications regarding the outcome of the case and the prospects of reparations. Owing to the junta’s disposition towards responsibility for the atrocities against the Rohingya, it is doubtful that it would admit or accept State responsibility or perform the corresponding obligation of a State to remedy its internationally recognized wrongful act. This would render the case before the ICJ futile, because resolution of the dispute through payment of reparations by Myanmar is an essential part of the Court’s function. Due to the dramatically opposed attitudes of the actors that are asserting claims for lawful authority in Myanmar, the Court’s decision over Myanmar’s representative will determine the legitimacy of the case itself and will determine whether the case would bring any real, positive or substantial outcome that would provide reparations to the Rohingya. (b) Prejudice to State parties to the Genocide Convention The Gambia’s institution of proceedings against Myanmar at the ICJ marked the first time that a non-injured State—a State that did not assert a specific injury or special interest beyond being a party to the Genocide Convention—has brought a dispute to the ICJ.[92] This is in line with an established principle recognized by the ICJ, which entitles State parties to the Genocide Convention to invoke the responsibility of another State party for the breach of its obligations, particularly due to their egra omnes partes character.[93] As the Court stated: “[i]n such a convention the contracting States do not have any interests of their own; they merely have, one and all, a common interest, namely, the accomplishment of those high purposes which are the raison d’être of the convention,” namely to prevent acts of genocide and, if they occur, to ensure the authors do not enjoy impunity.[94] As such, and by virtue of that common interest, the obligations under the Convention are owed by any State party to all the other State parties.[95] In this case, the ICJ granted The Gambia prima facie legal standing on the basis of being one of the 152 State parties to the Genocide Convention.[96] Non-disclosure of decisions consequential to the case therefore prejudices the interest of State parties to bring to an end the failure of Myanmar to meet its obligations under the Convention. In addition to each and all State parties’ interest in the case, the lack of transparency around who will represent Myanmar in the notified 21-28 February 2022 proceedings prejudices their rights under the ICJ Statute. Under Article 62 of the ICJ Statute and Article 81 of the Rules of the Court, a State may request permission to intervene in a case where it considers that “it has an interest of a legal nature which may be affected by the decision in the case.”[97] Furthermore, Article 63 of the Statute gives states a right to intervene whenever “the construction of a convention to which states other than those concerned in the case are parties is in question.”[98] Article 62 and 63 of the Statute are both potentially and actually in play in the current case: 150 State parties to the Convention, other than those in the present dispute, could invoke recourse to interests or rights arising from Articles 62 or 63, three States (the Maldives, Canada and The Netherlands) have expressly stated their intentions to do so, and it is to be recalled that The Gambia has represented itself expressly as acting with the support and “on behalf of” the 57 Member States of the OIC and that The Gambia, in its 26 September 2019 address before the UNGA, called upon all other States to join it. By neither disclosing the identity of Myanmar’s representative in the proceedings nor releasing the periodic compliance reports issued by Myanmar, the Court effectively undercuts the ability for State parties (and others) to assess how the changing circumstances on the ground—namely the coup d’état and the ensuing events—affect the case, their interests and rights. As such, it frustrates their ability to evaluate the appropriateness of interventions as stipulated in the ICJ Statute, not least to assess what may be entailed at this time pursuant to the Convention’s distinct and fundamental obligation to prevent genocide and the measures necessary to ensure each State’s compliance therewith.[99] Thus, the opportunity for States to exercise their rights under the UN Charter system and their explicit duty (and possible right, e.g. separately to initiate proceedings under Article IX) under the Genocide Convention is severely undermined by the opaque nature of the judicial decisions surrounding the proceeding and would be prejudiced by the Court now proceeding in such a way accepting the junta as representing Myanmar. (c) Prejudice to UN Member States Article 53 of the Rules of the Court states that “copies of the pleadings and documents annexed” may be made public on or after the oral proceedings if the Court, after ascertaining the views of the disputing States, so decides.[100] The Court’s practice has been to keep confidential all documents filed by the disputing parties, including their memorials and counter-memorials as well as Myanmar’s compliance reports that are issued every six months pursuant to the fourth provisional order. The Gambia v Myanmar case differs markedly from previous cases before the Court in significant ways.[101] The Gambia did not institute proceedings against the Government of Myanmar on the grounds that the former is “specially affected,” exclusive of other States, by the actions of Myanmar. Instead, it brought the case to the ICJ from the standpoint that the impugned actions of Myanmar constitute a violation of erga omnes obligations, which are owed towards each and all States on a bilateral basis.[102] The corollary to the Court’s endorsement of a collective interest character for this case is that the international community has a prima facie interest in being apprised of whether the obligations set out in the Provisional Measures are being met and of any significant change in the case. The latter necessarily includes a change in the agent of either disputant, particularly when the matter of a State’s representation is far from settled and, moreover, is in fact specifically contested. Transparency in the judiciary demands the public disclosure of both the documents filed by the parties and the identity of the agents who will be representing the parties in the proceeding, especially in a dispute that involves erga omnes obligations. Indeed, the principle of transparency substantially distinguishes a judicial process and is intimately linked with the administration of justice. Not only would transparency promote confidence in the ICJ and in the fair administration of justice, but, as the ICJ President stated in his address to the 76th session of the UNGA, i.e. the last annual report of the ICJ: “[t]he quantity and diversity of issues presented before the Court, from countries the world over, is indicative of the trust that Member States place in it. It reaffirms its role as an impartial and objective institution in the peaceful settlement of international disputes.”[103] Only through maintaining conformity with international law and coherence with the UN can the Court preserve its judicial role and the international community’s trust in it. In order for UN Member States to retain full confidence in the ICJ in the instant case and in such other public interest cases, especially in light of the express provisions of UNGA RES 396(V), and having in mind the expressed interests of other UN Member States, The Gambia’s call for any and all other UN Member States to join it, and the interests of the international community as a whole as represented by the UN Member States, the Court should take scrupulous care to avoid prejudicing the interests and rights of UN Member States individually or together. (d) Prejudice to intergovernmental organizations The ICJ Statute recognizes that intergovernmental organizations can have an interest in a proceeding. While, pursuant to Article 34(1), only States may be parties in cases before the Court, Article 34(2) and (3) stipulate the interests and procedural rights of “public international organizations”. These organizations, which include intergovernmental organizations like the OIC and ASEAN, have the right to be notified by the Court and to submit information to the Court.[104] Articles 43 and 69 of the Rules of the Court further expound on the right of a public international organization to furnish information “on its own initiative.”[105] A number of potential intergovernmental organizations, including the ASEAN and the OIC (which is expressly and publicly supporting The Gambia in the case), have an interest in voicing their concerns and ensuring that the case before the ICJ proceeds in accordance with international law including without any undue prejudice and in the interests of justice—above all for the Rohingya. By the Court proceeding at this stage and in the prevailing context, the interests and rights of public international organizations, both in general and specifically of the OIC and ASEAN, will be affected. (e) Prejudice to other UN organs and bodies and to specialized agencies It is to be recalled that UNGA RES 396(V) explicitly calls upon “other organs of the United Nations and in the specialized agencies”[106] to take into account the effects of their decisions on questions of representation of a UN Member State with a view to avoiding “a risk that conflicting decisions may be reached by various organs” and “the interest of the proper functioning of the Organization that there should be uniformity in the procedure applicable whenever more than one authority claims to be the government entitled to represent a Member State” notably when the “question becomes the subject of controversy in the United Nations.” The compelling logic of “one legal person”, “one UN”, and “one Member State”, along with the express purpose of the UNGA resolution, certainly applies to the ICJ as one of the UN’s principal organs and would apply despite facile statements to the contrary. The relationship with the specialized agencies follows expressly from Article 57 of the UN Charter. Given the effect this case will likely have on Myanmar's security situation, the role of the UN Security Council (UNSC) is also affected by a decision regarding who will represent Myanmar before the ICJ. Since the UN Charter authorizes the UNSC to give effect to one of the UN’s chief purposes of maintaining international peace and security, the Court should apprise the UNSC, in addition to the UNGA, of any decision that will likely shape Myanmar’s security landscape and the status of human rights in the country. Indeed, this follows explicitly from Article 41(2) of the Court’s Statute notably in regard to the indication of any provisional measures since the UNSC holds responsibility for enforcement action regarding such binding decisions. This would include the choice of Myanmar’s representative in the ICJ proceedings. Failing to take this into account and act accordingly could hamstring the UNSC’s ability to deliberate on matters related to international peace and security, especially since the question of Myanmar’s representation is at the core of a dispute that has serious international peace and security implications. The ICJ is one of several bodies and specialized agencies of the UN, including the World Health Organization (WHO), the Human Rights Council, and the International Labour Organization (ILO), that have faced the question of Myanmar’s representation.[107] None of the aforementioned have conclusively recognized the junta, and to date there has only been mixed action by UN bodies and specialized agencies concerning representation of Myanmar in their deliberations and activities. Instead, they have elected to postpone any accreditation of representatives, namely from the junta and the NUG, and to await the UNGA’s decision with a view to achieving system-wide coherence and avoiding confusion arising from possibly multiple “personalities” of the one, single UN Member State of Myanmar. In April 2021, the WHO members excluded Myanmar altogether from participating in the 74th World Health Assembly. Notably, the Credentials Committee for the WHO, which is tasked with verifying country delegation credentials, proposed deferring a decision on who should represent Myanmar at the meeting, “pending guidance from the United Nations General Assembly” on how the UN system as a whole should view the matter.[108] In a similar move, the ILO rejected the credentials of the military junta to the International Labour Conference (ILC) before adopting a resolution that called for the restoration of democratic order and civilian rule together with respect for human rights in the country.[109] This followed the decision by the ILC’s Credentials Committee not to proceed with accrediting any delegate from Myanmar, absent a determination from the UNGA’s Credentials Committee on this matter. Citing the decisions of the World Health Assembly and the International Labour Conference, and “noting the practice of the United Nations General Assembly”, the Credentials Committee for the Food and Agriculture Organization also decided to “defer a decision on the credentials of Myanmar, pending guidance from the Credentials Committee of the United Nations [General] Assembly.”[110] Given that the ICJ is not institutionally superior to other bodies in the UN system, nor is it competent to decide for other organs, bodies, or specialized agencies, the ICJ should avoid prejudicing them in the exercise of their mandates. As the ILC’s Credentials Committee recalled: “according to resolution 396(V), adopted on 14 December 1950 by the UN General Assembly, whenever more than one authority claims to be the government entitled to represent a State, the attitude adopted by the General Assembly concerning any such question should be taken into account in other organs of the UN and in the specialized agencies.”[111] Therefore, in the prevailing context, the ICJ must not wade into the matter of legal representation of a UN Member State and must instead exercise its own authority with a view to maintaining coherence with the UN as a whole. (f) Prejudice to the Rohingya people Article 41 of the ICJ Statute gives the Court the power to indicate Provisional Measures where “irreparable prejudice could be caused to rights which are the subject of judicial proceedings or when the alleged disregard of such rights may entail irreparable consequences.”[112] On that basis, the Court determined that there was a real and imminent risk of irreparable prejudice to the rights of both The Gambia and the Rohingya group of people protected under the Convention.[113] It is to be emphasized that the case of The Gambia v Myanmar concerns allegations of genocide amongst the gravest of breaches of international law and an international crime. In the face of extreme policies and practices attributed to the State of Myanmar, the very existence of the Rohingya is at issue with judgment from the Court potentially carrying substantial reparations. The prospect of such reparations is of vital material interest for the Rohingya not only that they may be awarded, but in what kinds and measures. In this regard, it is to be underlined that, as victims, the Rohingya hold, individually and collectively, the human right to an effective remedy pursuant to Article 8 of the Universal Declaration of Human Rights[114] for which the Court should be fully attentive and seek to vindicate in acting in accordance with international law and the interests of justice. Despite being the principal and ultimate subjects of the case and the group that the Provisional Measures aim to protect, the Rohingya are not a party to the case and have no procedural standing. If the ICJ accepts the junta as the representative of Myanmar, the interests and rights of the Rohingya, notably to reparations and to Myanmar’s compliance with its obligations under the Genocide Convention, risk serious prejudice. Credentialing the junta, an entity that has not recognized the Rohingya as a persecuted group and denies their very existence, risks creating irreparable harm to the Rohingya by consigning them to a yet more vulnerable position in the Court’s proceedings or, worse, discontinuance of the case should the objections asserted by the junta succeed. Furthermore, with States’ rights to intervene being imperiled by the ICJ’s lack of disclosure on Myanmar’s representation in the proceedings or Myanmar’s compliance with the Provisional Measures, the Rohingya risk losing such State support as they may enjoy should States intervene in the case to bolster The Gambia’s positions or to make other claims in their own right under Article 62 of the Statute. With the decision to permit the junta to act as Myanmar’s representative, the Court risks undermining its own judicial concern for “further, irreparable harm” to the Rohingya under the Genocide Convention. In the words of 807 Rohingya survivors of the alleged genocide, pursuant to a letter addressed to the ICJ: “[w]e are outraged and fearful that the ICJ could recognize the Burmese junta as the government of Myanmar ... [t]he Tatmadaw continue to commit genocide against us—they have failed to follow the provisional measures ordered by the ICJ.”[115] In the absence of transparency from the Court, it is unclear to what extent Myanmar is or is not complying with the Court’s Order of 23 January 2020 for Provisional Measures. Numerous reports and independent analyses indicate that Rohingya are far from out of harm’s way. Indeed, the junta has made clear by its unmistakable actions and its own words that it has no intention to repatriate Rohingya who fled Myanmar’s “clearance operations”. The junta has also rejected any allegations of wrongdoing while its ongoing conduct plainly contradicts the spirit of the Court’s concerns and the Court’s Order. Notably, in an interview, Senior General Min Aung Hlaing reiterated that Myanmar has no legal duty to take back “Bengalis” and, “[w]hen asked whether that meant the vocal international appeals on behalf of the Rohingya were to no avail, he nodded [concurring].”[116] Therefore, to proceed with the case with Myanmar represented by the junta would disconnect the ICJ even further from the interests and rights of the victims and would consequently place the Court at odds with the norms expressed in the UN Charter, the multilateral treaty from which the ICJ derives its jurisdiction and raison d’être, and the associated corpus of international human rights standards intended to protect victims and ensure responsible State conduct. (iii) Risks to Confidence in the Court There is no compelling reason or necessity for the Court to proceed absent an available and legitimate agent of Myanmar. Suspension of the proceedings pending settlement of the lawful representation of Myanmar would not cause irreparable harm or not cause harm comparable with harms or risks manifest or foreseeable. Indeed, it would be difficult to undo decisions which may follow from arguments presented by an unlawfully representative entity—an entity that may not even survive very long. Proceeding without any cogent rationale for representation and in a prejudicial manner risks damaging confidence in the Court and its judicial process—against the expressed requests from alternative representatives and appeals from the victims. For the Court to take a decision in such a case and situation, without due regard to a range of interests and the likelihood and certainty of prejudicing rights explicitly arising from its Statute and from the Genocide Convention, is unwarranted. Given that the ICJ is not mandated by law to decide who is or should be the lawful representative of Myanmar, deciding such a matter without regard to its negative implications for justice and its prejudicial consequences would undermine confidence in the Court. Indeed, concern for the reputation of the Court in this regard has been publicly voiced by international jurists and other well-informed commentators.[117] VI. Conclusion Given the absence of a determinative procedural rule permitting the ICJ to recognize the junta as the Government of Myanmar, and the absence of widespread State recognition of the junta as Myanmar’s lawful representative (indeed, most States reject the junta), and in light of the broad range of existing, likely, or possible prejudices that would cause irreparable harm, it would be inconsistent with international law to credential the junta as Myanmar’s representative in the ICJ proceedings. The rapidly shifting and unpredictable situation on the ground in Myanmar, marked by contesting political adversaries, massive civil disobedience, and no clear or decisive authority in sight, presents a serious danger that recognizing the junta as Myanmar’s representative would promote the status of the junta despite its brutality and lack of legitimacy. At a time where long-standing international legal norms hang in the balance, the Court should serve the international community as a body that contributes sobriety, acts judiciously and instills confidence in international law. At the very least, the Court should ensure that the erga omnes obligations to prevent and punish genocide are not trampled on by procedural opacity. If the Court operates with a lack of transparency and pursues unilateral and consequential decisions that are not clearly rooted in international law, the ICJ would be prejudicing the victims of the case and the international community concerned with violations of the Genocide Convention. Indeed, it would undermine foundational issues of State authority and representation. A judicial decision which in effect acknowledges the junta as the Government of Myanmar, and confers upon it procedural capacity would, despite any expressions from the Court to the contrary, seriously subvert the Court’s own purpose of acting in accordance with international law. Allowing the junta to represent Myanmar would undermine the ICJ’s credibility and its authority as the principal judicial body of the United Nations. VII. Options for Action Having regard to the arguments laid out in this paper, the following options are available: (a) The Court should suspend the proceedings pending a determination of the lawful representation of the State of Myanmar—notably, the conclusion of the UN Credentials Committee’s deliberation and recommendation to the UNGA for its decision. In this regard, the Court should refer the matter of representation in the case before the Court to the UNGA for advice. (b) The Court should invite and ascertain views on the issue of representation from the State parties to the Genocide Convention along with their possibly affected interests and rights. (c) The Court should demonstrate its efforts to engage with the formally notified Agent in the case, Daw Aung San Suu Kyi, and her deputy and follow scrupulously procedural requirements to acknowledge their representation (notification, withdrawal or other change) in reaching any decision on the matter. (d) Should the Court nonetheless proceed with the scheduled hearings, the option is available for the Court to do so without a representative on behalf of Myanmar. However, such a process would raise questions of fairness and call into question the justice of any decision the Court may take. (e) State parties to the Genocide Convention should register their own individual and collective concerns and request the Court to suspend the proceedings in order to preserve their interests and rights as well as the interests of the victims. (f) The Gambia should request the Court to suspend proceedings pending a determination of the lawful representative of the State of Myanmar. At a minimum, The Gambia should raise the issue of the lawfulness of Myanmar’s representation during the proceedings and place it on the record. This would ensure that The Gambia is indeed acting in the public interest of the international community as a whole and of the State parties to the Genocide Convention. (g) Other concerned parties, such as the OIC and the UN High Commissioner for Human Rights, should register their concerns and express their views over the representation of Myanmar in the proceedings before the Court and, in so doing, emphasize the primary interests of justice, notably the interests of Rohingya, which are at risk and should guide the Court. (h) Irrespective of the course of proceedings and representation of Myanmar, the OIC and other appropriate international organizations as well as State parties to the Genocide Convention should convey to the Court the importance of representation of the interests of the victims with a view to the Court enjoying the fullest information, notably from authentic voices of the victims, and with a view to the Court giving the fullest consideration to the interests and wishes of the victims. Footnotes [1] Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951); see also, including status of parties: . [2]Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar), “Application Instituting Proceedings and Request for Provisional Measures” (11 November 2019), ICJ Pleadings 2. [3] Burmese Independence Act 1947 UK; UN General Assembly, “Admission of the Union of Burma to membership in the United Nations” (1948), online: United Nations Digital Library . [4] See supra note 1. [5] Ibid. [6] See, e.g., Ronan Lee, Myanmar’s Rohingya Genocide: Identity, History and Hate Speech (London: Bloomsbury Publishing, 2021); and Azeem Ibrahim, The Rohingyas: Inside Myanmar’s Genocide (London: Hurst Publishers, 2018). [7] See supra note 2. [8] The Gambia v Myanmar, Order of 23 January 2020, [2020] ICJ Rep 69 at para. 42 [The Gambia v Myanmar]. [9] Ibid. at para. 41. [10] Ibid. [11] Address of Vice-President of The Gambia to the 74th Session of the UN General Assembly, 26 September 2019, available at < https://www.youtube.com/watch?v=yhiAVtX9Pb0 >. [12] See “Maldives to intervene in support of Rohingya Muslims; Amal Clooney to represent country”, Avas, 26 February 2020, available at < https://avas.mv/en/78727 > ; the announcement by the Maldives was welcomed by some leading Rohingya representatives, such as BROUK (see “Statement of Gratitude to the Maldives”, 28 February 2020, available at < https://www.rohingyatoday.com/en/brouk-statement-gratitude-maldives >). [13] Organisation of Islamic Cooperation, “Resolutions on Muslim Communities and Muslim Minorities in the Non-OIC Member States: Adopted by the 46th Session of the Council of Foreign Ministers” (1-2 March 2019), online (pdf): Organisation of Islamic Cooperation . [14] Reuters, “Factbox: Genocide case against Myanmar to be heard at highest U.N. court” (6 December 2019), online: Reuters ; Genocide Convention, supra note 1; Justice For All Canada, “Statement Thanking Bangladesh Government for Donation to The Gambia v. Myanmar Ongoing International Court of Justice Legal Case” (2 December 2020), online: Justice For All Canada . [15] Ministerie van Buitenlandse Zaken, “Joint statement of Canada and the Kingdom of the Netherlands regarding intention to intervene in The Gambia v. Myanmar case at the International Court of Justice” (2 September 2020), online: Government of the Netherlands [Joint Statement]. [16] Ibid. [17] See UNGA, Report of the Credentials Committee, 23 November 2020, A/75/606 (as approved by resolution of the UNGA). [18] AFP, “Myanmar military declares one-year state of emergency, Suu Kyi detained” (1 February 2021), online: The New Indian Express . [19] BBC News, “Myanmar coup: Aung San Suu Kyi detained as military seizes control” (1 February 2021), online: BBC News . [20] See “Republic of the Union of Myanmar State Administration Council Chairman Senior General Min Aung Hlaing makes speech to public”, The Global New Light of Myanmar (Myanmar News Agency), 9 February 2021, available at < https://www.gnlm.com.mm/republic-of-the-union-of-myanmar-state-administration-council-chairman-senior-general-min-aung-hlaing-makes-speech-to-public/ > [21] See “Myanmar military leader takes new title of prime minister in caretaker government—state media”, 1 August 2021, Reuters, available at < https://www.reuters.com/world/india/myanmar-military-leader-takes-new-title-prime-minister-caretaker-government-2021-08-01/ > It is notable that the 2008 Constitution does not provide for a Prime Minister. [22] United Nations Human Rights Council, “Deputy High Commissioner for Human Rights to the Special Session of the Human Rights Council on Myanmar: Seizure of Power by the Military Constitutes a Profound Setback for Myanmar” (12 February 2021), online: OHCHR . [23] See, e.g., Larry D Johnson, “What’s wrong with this picture? The UN Human Rights Council hears the military Junta as the legitimate government of Myanmar”, 31 March 2021, online: EJIL:Talk! . [24] See the website of the National Unity Government available at < https://nugmyanmar.org/ >. It is important to note that this paper does not assess, much less reach a conclusion regarding, the competing claims of the junta, the NUG or others to be the lawful representative of the State of Myanmar. Rather, this paper illustrates how the military’s claim is far from uncontested, hardly determinative, or settled, and, importantly, argues that the ICJ or any international court is not the primary or appropriate forum to decide unsettled political matters like the recognition of governments, particularly in the absence of a determinative international recognition of the entities. [25] Nikkei Asia, “Myanmar shadow government sets up office in South Korea” (18 September 2021), online: Nikkei Asia . [26] DW, “Myanmar junta designates shadow government as ‘terrorist’ group” (8 May 2021), online: DW . [27] Radio Free Asia, “Myanmar shadow government says junta should not take stand in genocide trial” (3 February 2022), online: Radio Free Asia ; for the official position of the NUG, see Announcement (2/2022), February 1, 2022, entitled “Myanmar withdraws all preliminary objections to the International Court of Justice hearing on the genocide case” issued by Acting President Duwa Lashi La, available at < https://gov.nugmyanmar.org/2022/02/01/announcement-2-2022-myanmar-withdraws-all-preliminary-objections-to-the-international-court-of-justice-hearing-on-the-genocide-case/ > [28] United Nations, “The Situation in Myanmar: Resolution / Adopted by the General Assembly”, A/Res/75/287, 18 June 2021, online: United Nations Digital Library . [29] Genocide Convention, supra note 1. [30] Supra, note 28, 18 June 2021, at OP1. [31] Ibid. [32] “EU Statement – United Nations General Assembly: Meeting on Myanmar”, New York, 18 June 2021, available at < https://eeas.europa.eu/delegations/un-new-york/100320/eu-statement-%E2%80%93-united-nations-general-assembly-meeting-myanmar_en >. [33] United Nations General Assembly, Report of the Credentials Committee, A/76/550, 1 December 2021. [34] United Nations General Assembly, Credentials of representatives to the seventy-sixth session of the General Assembly, A/Res/76/15, 6 December 2021. [35] Michelle Nichols, “Myanmar will not address world leaders at U.N., Afghanistan will” (24 September 2021), online: Reuters . [36] See, for example: United Nations, “(Continued) General Assembly: Formal plenary meeting to consider the Report of the Secretary-General on the work of the Organization and to hear a briefing by the Secretary-General on his priorities for 2022- 57th Plenary Meeting, 76th Session” (24 January 2022) at 29m 40s-34m 57s, online: UN Audiovisual Library . [37] The Diplomat, “Show Us Your Credentials: The Battle for Myanmar at the UN” (13 September 2021), online: The Diplomat . [38] International Court of Justice, “The Court to hold public hearings on the preliminary objections raised by Myanmar from Monday 21 to Monday 28 February 2022” (19 January 2022), online (pdf): International Court of Justice . [39] United Nations Office of the High Commissioner for Human Rights, “Myanmar: One year into the coup, Bachelet urges governments and businesses to heed voices of the people, intensify pressure on the military” (28 January 2022), online: OHCHR . [40] “Public sitting held on Tuesday 10 December 2019, at 10 a.m., at the Peace Palace, President Yusuf presiding, in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), Verbatim Record”, International Court of Justice, The Hague, doc. CR 2019/18, p. 6, available at < https://www.icj-cij.org/public/files/case-related/178/178-20191210-ORA-01-00-BI.pdf > [41] Press Release, No. 2022/1 of 19 January 2022, International Court of Justice, available at < https://www.icj-cij.org/public/files/case-related/178/178-20220119-PRE-01-00-EN.pdf > [42] See “Myanmar Junta Reorganizes Legal Team for ICJ Rohingya Genocide Case”, 24 June 2021, The Irrawaddy, available at < https://www.irrawaddy.com/news/burma/myanmar-junta-reorganizes-legal-team-for-icj-rohingya-genocide-case.html > [43] See supra note 27. [44] The Constitution of the Republic of the Union of Myanmar, 9 April 2008, ratified 29 May 2008 [Myanmar Constitution], available at < https://www.constituteproject.org/constitution/Myanmar_2008.pdf?lang=en >. [45] Reuters, “Statement from Myanmar military on state of emergency” (1 February 2021), online: Reuters . [46] Asian Network for Free Elections, “The 2020 Myanmar General Elections: Democracy Under Attack” (2021), online (pdf): Asian Network for Free Elections [Democracy Under Attack]. [47] Myanmar Constitution Article 418(a). [48] Phil Robertson, “‘The #Myanmar junta’s courtroom circus of secret proceedings on bogus charges is all about steadily piling up more convictions against Aung San Suu Kyi so that she will remain in prison indefinitely’ says @hrw about her sentencing. #WhatsHappeningInMyanmar” (10 January 2022 at 3:57), online: Twitter . [49] Bruno Simma (ed.), The Charter of the United Nations; A Commentary, Second Edition, Volume I (Oxford: Oxford University Press, 2002), p. 248. [50] United Nations, Statute of the International Court of Justice, 18 April 1946, Article 38 [ICJ Statute]. [51] See supra note 49 at p. 1144. [52] See supra note 50, Article 30. [53] Rules of Court (as amended), International Court of Justice, Article 40 [ICJ Rules]. [54] Ibid., Article 40(1). [55] Ibid, Article 21; United Nations General Assembly, “Rules of Procedure: IV Credentials,” online: [Rules of Procedure]. [56] Ibid. [57] Ibid. [58] United Nations General Assembly, Recognition by the United Nations of the representation of a Member State, A/RES/396(V), 14 December 1950, available at < https://digitallibrary.un.org/record/209556?ln=en >. [59] For a summary of practice, see Myanmar Accountability Project, United Nations Credentials Committee: Representation of the State of Myanmar to the United Nations, 8 September 2021, online (pdf): https://the-world-is-watching.org/wp-content/uploads/2021/09/Myanmar-Legal-Opinion-Final-2.pdf [MAP]. [60] Ibid. [61] Ibid. at p. 8. [62] See, e.g., the brief summary provided by Marc Weller in his EJIL:talk of 11 February 2022, “Is the ICJ at Risk of Providing Cover for the Alleged Genocide in Myanmar?”, available at < https://www.ejiltalk.org/is-the-icj-at-risk-of-providing-cover-for-the-alleged-genocide-in-myanmar/ >. [63] See supra at note 59 at p. 17. [64] Ibid. at p. 18. [65] Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment of 26 February 2007, [2007] ICJ Rep 43 at para. 18 [Bosnia]. [66] See “Speech of H.E. Judge Hisashi Owada, President of the International Court of Justice, to the Sixty-Fifth Session of the General Assembly of the United Nations”, 28 October 2010, p. 7, available at . [67] Press Release, No. 2010/15 of 19 May 2010, International Court of Justice, available at < https://www.icj-cij.org/public/files/case-related/147/15937.pdf >. [68] Richard Horsey, “One Year On from the Myanmar Coup” (25 January 2022), online: International Crisis Group [Horsey]; Human Rights Watch, “Myanmar: Year of Brutality in Coup’s Wake” (28 January 2022), online: Human Rights Watch [Human Rights Watch, “Year of Brutality”]. [69] Human Rights Watch, “Year of Brutality”, supra. [70] Ibid. [71] United Nations, “‘Urgent’ international response needed in Myanmar: UN chief” (30 September 2021), online: UN News . [72] Maung Zarni, “ICJ must not allow Myanmar’s coupe regime to leverage genocide hearings as a source of legitimacy” (20 January 2022), online: . [73] Bertil Lintner, “Rebel yell: Arakan Army leader speaks to Asia Times” (18 January 2022), online: Asia Times . [74] Human Rights Watch, “Myanmar: TotalEnergies Endorses Targeted Sanctions” (20 January 2022), online: Human Rights Watch ; Radio Free Asia, “Energy firms’ departure will damage Myanmar financially and politically: Experts” (28 January 2022), online: ; Reuters, “U.S. warns of heightened risks associated with business in Myanmar” (26 January 2022), online: Reuters . [75] Ibid. [76] International Crisis Group, “Myanmar’s Coup Shakes Up Its Ethnic Conflicts” (12 January 2022), online: International Crisis Group . [77] International Crisis Group, “Myanmar’s Military Struggles to Control the Virtual Battlefield” (18 May 2021), online: International Crisis Group . [78] The Irrawaddy, “Myanmar Junta Security Minister Admits Defeat Across Region” (25 January 2022), online: The Irrawaddy . [79] UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), Article 21(3), available at < https://www.un.org/en/about-us/universal-declaration-of-human-rights >. [80] Myanmar Constitution, supra note 44. Article 392 of the 2008 Constitution outlines characteristics that can bar a citizen from the right to vote. These include being a member of a religious order, serving a prison term at the time of election, people who are insolvent, people who are of unsound mind and people who are excluded by electoral law. [81] Democracy Under Attack, supra note 46 at 113. [82] AlJazeera, “Myanmar coup: A year of protest, reprisals and diplomatic inertia” (1 February 2022), online: AlJazeera ; Rebecca Ratcliffe & Min Ye Kyaw, “Myanmar’s junta struggles to prevent protests planned for coup anniversary” (31 January 2022), online: The Guardian . [83] UN Charter, signed 26 June 1945, available at < https://www.un.org/en/about-us/un-charter/full-text >. [84] Horsey, supra note 68. [85] United Nations Office for the Coordination of Humanitarian Affairs, “Humanitarian Needs Overview: Myanmar” (31 December 2021), online (pdf): ReliefWeb . [86] Human Rights Watch, “Myanmar: Junta Blocks Lifesaving Aid” (13 December 2021), online: Human Rights Watch [Human Rights Watch, “Junta Blocks Lifesaving Aid”]. [87] United Nations Office for the Coordination of Humanitarian Affairs, “Global Humanitarian Overview 2021” (2021), online: OCHA ; United Nations Office for the Coordination of Humanitarian Affairs, “Global Humanitarian Overview 2022” (2021), online: OCHA . [88] In its 1971 Namibia Advisory Opinion, the ICJ acknowledged that certain UNGA resolutions “make determinations or have operative design” including those which are “in the formulation of a legal situation”. Among such resolutions constituting decisions—legally binding or materially significant—are those regarding the budget, assessments of financial contributions, admission to membership of the Organization, and operational matters; see, e.g., Marko Divac Öberg, “The Legal Effects of Resolutions of the UN Security Council and General Assembly in the Jurisprudence of the ICJ”, The European Journal of International Law, Vol. 16, no. 5 (2006), pp. 879-906. Questions of, and decisions regarding, representation of Member States share this character. [89] On the issue of recognition of governments (and implicitly their representatives) and some legal consequences, see Rebecca Barber, “How Should Governments Decide Whether or not to Recognise other Governments, and can the General Assembly Help?”, 6 December 2021, EJIL:talk, available at . [90] The Gambia v Myanmar, supra note 8 at paras. 76-81. [91] See, i.a.: Human Rights Watch, “Junta Blocks Lifesaving Aid”, supra note 86; reports of Amnesty International such as “Myanmar: World must act now to prevent another year of intolerable ‘death and misery’”, 27 January 2022, available at < https://www.amnesty.org/en/latest/news/2022/01/myanmar-coup-one-year-anniversary/ > and “After coup, Myanmar military puts chokehold on people’s basic needs”, 17 December 2021, available at < https://www.amnesty.org/en/latest/news/2021/12/after-coup-myanmar-military-puts-chokehold-on-peoples-basic-needs/ >; and Fortify Rights, “Access Denied; The Myanmar Military Junta’s Deprivation of Lifesaving Aid in Karenni (Kayah) State”, 10 November 2021, available at . [92] Michael A Becker, “The Plight of the Rohingya: Genocide Allegations and Provisional Measures in The Gambia v Myanmar at the International Court of Justice”, (2020) 21:2 Melbourne J Intl L 428 at p. 431. [93] The Gambia v Myanmar, supra note 8 at paras. 41-42. [94] Ibid. [95] Ibid. [96] Ibid. [97] ICJ Statute, supra note 50, Article 62; Rules of the Court, supra note 53. [98] ICJ Statute, supra note 50, Article 63. [99] Erin Farrell Rosenberg, John Packer & Fernand de Varennes, “Provisional Measures in The Gambia v. Myanmar Case Before the ICJ: The Case for Making Myanmar’s Report Public” (22 May 2021) at 9, online (pdf): Newlines Institute [Rosenberg, Packer & de Varennes]. [100] Rules of the Court, supra note 53. [101] Rosenberg, Packer & de Varennes, supra note 99. [102] Roberto Ago, “Obligations Erga Omnes and the International Community” in J Weiler, A Cassese & M Spinedi, eds., International Crimes of States. A Critical Analysis of the ILC’s Draft Article 19 on State Responsibility (Berlin: De Gruyter, 1989) at p. 237. [103] United Nations, “Annual Report of the International Court of Justice: Remarks by H.E. Mr. Abdulla Shahid, President of the 76th session of the United Nations General Assembly” (28 October 2021), online: United Nations . [104] ICJ Statute, supra note 50, Article 34(1)(2)(3). [105] Rules of the Court, supra note 53. [106] UNGA RES 396 (V), supra note 58, para. 3. [107]In addition to the six principal organs and various subsidiary bodies of the United Nations, there are some fifteen independent “specialized agencies” linked with the UN through co-operative agreements; see “UN Family and Organizations”, available at < https://www.un.org/en/model-united-nations/un-family-organizations >. [108] Committee on Credentials, “Committee on Credentials Report” (26 May 2021), online (pdf): World Health Organization Seventy-Fourth World Health Assembly ; Rebecca Barber, “The General Assembly should provide guidance to the UN system on the question of who gets to represent Myanmar” (7 June 2021), online: EJIL:Talk! . [109] Credentials Committee, “Reports on credentials: Second report of the Credentials Committee” (7 June 2021), online (pdf): International Labour Organization [ILC Credentials Committee]. [110] Credentials Committee, “Forty-second Session: Second Report of the Credentials Committee” (June 2021), online (pdf): Food and Agriculture Organization of the United Nations . [111] ILC Credentials Committee, supra note 109 at para. 16. [112] ICJ Statute, supra note 50, Article 41; The Gambia v Myanmar, supra note 8 at para. 64. [113] The Gambia v Myanmar, supra note 8 at para. 75. [114]Universal Declaration of Human Rights, supra note 79. [115] Legal Action Worldwide, “Rohingya Letter to ICJ” (2 February 2022) at para. 7, available at . [116]“Myanmar junta leader casts doubt on return of Rohingya”, Reuters, 24 May 2021, available at < https://www.reuters.com/world/asia-pacific/myanmar-junta-leader-casts-doubt-return-rohingya-2021-05-24/ >, [117] See, e.g.: Marc Weller, “Is the ICJ at Risk of Providing Cover for the Alleged Genocide in Myanmar?”, 11 February 2022, EJIL:talk (blog of the European Journal of International Law), available at ; Rebecca Barber, “The General Assembly should provide guidance to the UN system on the question of who gets to represent Myanmar”, 7 June 2021, EJIL:talk, available at < https://www.ejiltalk.org/the-general-assembly-should-provide-guidance-to-the-un-system-on-the-question-of-who-gets-to-represent-myanmar/ >; two FORSEA webinars of 27 January 2022 and 10 February 2022, available at ; Special Advisory Council for Myanmar, “Briefing Paper: Myanmar’s case at the International Court of Justice”, 7 February 2022, available at < https://specialadvisorycouncil.org/2022/02/briefing-paper-myanmars-case-at-the-international-court-of-justice/ > ; Maung Zarni, “ICJ must not allow Myanmar’s coup regime to leverage genocide hearings as a source of legitimacy”, 20 January 2022, Andola News Agency available at < https://www.aa.com.tr/en/analysis/opinion-icj-must-not-allow-myanmar-s-coup-regime-to-leverage-genocide-hearings-as-a-source-of-legitimacy/2481068 >; Azeem Ibrahim, “Tatmadaw must not be allowed to represent Myanmar at ICJ”, Arab News, 27 January 2022, available at < https://www.arabnews.com/node/2013441 >; and Fortify Rights et al., “Joint Letter: Representation of Myanmar in International Court of Justice Proceedings”, 3 February 2022, available at < https://www.fortifyrights.org/mya-inv-let-2021-02-03/ >. - FORSEA https://forsea.co/ - Genocide Watch https://www.genocidewatch.com/ - Human Rights Research and Education Centre, University of Ottawa https://cdp-hrc.uottawa.ca/en

Joint NGO Open Letter of Concern on Mass Atrocities Committed Against the Hema in the Democratic Republic of Congo February 10, 2022 Photo: Displaced persons camp in Ituri, DRC. (Finbarr O'Reilly) The Mahoro Peace Association (MPA), representing the Congolese Banyamulenge diaspora community in the United States, the Crane Center for Mass Atrocity Prevention, Genocide Watch, Jewish World Watch, and Hero Women Rising condemn the brutal murders of over 60 mainly Hema internally displaced persons (IDPs) in Djugu Territory, Ituri Province in the Democratic Republic of Congo (DRC). On the night of February 1, 2022, members of an ethnic Lendu militia, Cooperative for the Development of Congo (CODECO), attacked the Plaine Savo camp for displaced Hema people in Djugu Territory. The militia hacked people to death with machetes in a replay of the genocidal massacres of the 1994 genocide in Rwanda. The Congolese national army (FARDC) and the UN peacekeeping mission (MONUSCO) did not arrive until after the attack was over, despite troops being based only a mile away from the IDP camp. It is explicitly in MONUSCO’s UN mandate to protect civilians, including IDPs. The UN peacekeepers failed to fulfill their mandate. Since 2017, CODECO Lendu militias have been attacking Hema communities, repeating a long pattern that dates back to the time of the Rwandan genocide. The Lendu militias also attack the Alur, in what the UN Joint Human Rights Office (UNJHRO) says may constitute genocide. In 2019, President Tshisekedi also described these attacks as “attempted genocide.” The Crane Center for Mass Atrocity Prevention, Genocide Watch, Mahoro Peace Association, Jewish World Watch, and Hero Women Rising declare unequivocally that these attacks on the Hema constitute an ongoing genocide. Like the Banyamulenge of South Kivu Province and other pastoralist minorities across the DRC, the Hema are targeted with hate speech and massacres because they are dehumanized as “invaders.” While the press has reported the recent attack on the Plaine Savo camp as part of “ethnic conflict,” the genocidal dynamics of the attacks have been overlooked. Press reports have referred to the ‘Lendu-Hema conflict,’ as though it is a two-sided war, rather than a one-sided genocide against pastoralists in the Rift Valley of Central Africa. While the government of the DRC has declared CODECO to be a terrorist group and has imposed a state of siege on Ituri since May 2021, the attacks have worsened this past year. FARDC tactics against CODECO, which are also used against the terrorist Allied Democratic Forces (ADF), have been heavy-handed, poorly coordinated with MONUSCO, and ineffective. The attack on the Plaine Savo camp demonstrates the need to put civilians at the heart of security measures. Special attention must be paid to infiltrating and gathering intelligence about threatened attacks against villages and displaced persons camps of targeted minorities. MONUSCO and FARDC troops should be reinforced to protect IDP camps. The aforementioned coalition of human rights organizations recommends the following: 1. The United Nations Stabilization Mission in the Democratic Republic of Congo (MONUSCO), the Congolese government, and the national army (FARDC) must address the failure of the “state of siege” in Ituri and North Kivu, as well as address the inadequate protection of IDP camps in the eastern DRC. 2. The Congolese government and FARDC must provide substantially strengthened security for vulnerable IDP camps and civilian populations, as well as facilitate the provision of increased humanitarian aid in Djugu Territory by relief organizations. 3. The European Union, UN member states, the United States, and the African Union should expand their existing sanctions against individuals and businesses involved in current atrocities in the DRC, including those specifically targeting the Hema and the Banyamulenge. The Mahoro Peace Association, the Crane Center for Mass Atrocity Prevention, Genocide Watch, Jewish World Watch, and Hero Women Rising stand in solidarity with the Hema, Banyamulenge, and other marginalized communities within the DRC. We jointly call for an end to the hate-filled rhetoric and impunity that ignites genocide. All peoples living in the Democratic Republic of Congo, regardless of ethnicity, have the right to peaceful coexistence. Sincerely, Adele Kibasumba, President, Mahoro Peace Association Amber Maze, Executive Director, Crane Center for Mass Atrocity Prevention Dr. Gregory Stanton, President, Genocide Watch Courtney Hamilton, Director of Advocacy and Strategic Growth, Jewish World Watch Neema Namadamu, Executive Director, Hero Women Rising You can view the original joint letter at Crane Center's website.

UN human rights experts have warned of increased political violence and polarization between communities across the world’s youngest country, South Sudan, following a fact-finding visit there this week. © UNMISS/Amanda Voisard. Children look out of a window in South Sudan. The UN Commission on Human Rights in South Sudan said on Friday that lack of progress in implementing key provisions of a 2018 peace deal contributes to the persistent insecurity and impunity which allows violations to occur. “There is consensus amongst key stakeholders that while some progress has been made in implementing the Revitalised Agreement, critical elements involving security sector reform, constitutional and electoral reform, and transitional justice have yet to be addressed. All of these outstanding issues impact on the human rights situation in the country,” said Yasmin Sooka, Chair of the Commission. Following independence in 2011, brutal civil conflict erupted two years later between Government forces commanded by President Salva Kiir, and militia loyal to his political rival, Riek Machar. Fighting abated after the two men signed the 2018 agreement, but according to the UN Special Representative in the country briefing the Security Council in December, momentum is in danger of stalling. UNMISS/Nektarios Markogiannis. President Salva Kiir (right) of South Sudan shakes hands with leader Riek Machar after concluding a peace deal to end the conflict in the country (September 2018). Peace and justice Ms. Sooka and fellow Commissioners Barney Afako and Andrew Clapham, will conclude their visit to South Sudan on Saturday, having travelled to the capital, Juba, and to Yei in the southwest. They are mandated to investigate the human rights situation, assist in addressing impunity, and to collect and preserve evidence that will be made available to transitional justice mechanisms, including a hybrid court to be established in line with the peace accord. The Commissioners held discussions with a range of persons, including senior Government ministers and officials, civil society, survivors of rights violations and abuses, religious leaders, members of the diplomatic community, UN agencies and the UN Mission in the country, UNMISS. “Most South Sudanese the Commission spoke to expressed their desire for political leadership to secure peace and justice, for which the Agreement provides a roadmap,” said Ms. Sooka. Meanwhile, civil society representatives reported that they are scared to discuss the human rights situation for fear of retaliation by the security services. Supporting accountability During a meeting with the Ministry of Justice, the Commission reaffirmed its readiness to support the Government to fully implement Chapter V of the Agreement – which addresses transitional justice, accountability, reconciliation and healing – building on a joint workshop held in December in Nairobi, Kenya. The Commission pointed to lack of progress in implementing key provisions of the deal that contribute to insecurity and impunity, including on the unification and deployment of the armed forces, as well as agreement on command structures. They said violence remains pervasive at the subnational level, and is characterised by displacement, and gross human rights violations, including sexual violence. “Yei is a case in point, where soldiers waiting to be part of a unified national force are poorly resourced and then prey on the population,” their statement said. At a ‘tipping point’ South Sudan is set to hold elections next year, but the country is at a “tipping point”, Mr. Afako warned. “The pursuit of elections run the serious risk of fuelling violence and polarisation if the requisite institutions, constitutional and electoral laws as well as logistic arrangements are not first in place,” he said. “It is also important to look beyond the electoral moment and ask what political system people would be voting for, particularly given the delays to develop a constitution on which elections would be based.” Chapter VI of the peace agreement provides for the development of a permanent constitution, upon which the future political system will be based. The Commissioners said that if done well, the constitution-making process could help address root causes of persistent conflict and insecurity. On the other hand, if handled poorly, it may deepen existing grievances that could lead to future conflict. © United Nations 2022

Reject Discrimination; Bolster Protections for LGBT People Legislators attend a session of Congress in Guatemala City, Monday, Sept. 11, 2017. ©AP Photo/Moises Castillo (New York) – A group of lawmakers in Guatemala has advanced a bill that would stigmatize transgender people and curtail children’s and adolescents’ rights to education, information, and health, Human Rights Watch said today. Congress should reject the bill and instead address the violence and discrimination that lesbian, gay, bisexual, and transgender (LGBT) people face in the country. Bill 5940 uses the rhetoric of protecting children and adolescents from “gender identity disorders” to justify a patently discriminatory measure that would ban the dissemination of any information about transgender identity in school sex education curricula. The bill would also require media outlets to label programs with transgender content, which the bill likens to pornography, as “not recommended” for children under 18. “Bill 5940 is unscientific and stigmatizes transgender people as a corrupting influence, harmful to children,” said Cristian González Cabrera, LGBT rights researcher at Human Rights Watch. “Lawmakers should aim to promote tolerance, not demean a vulnerable minority, especially given the high levels of anti-trans violence in Guatemala.” The twenty-one lawmakers in the Congress’ Commission on Education, Science, and Technology unanimously approved the bill in December 2021. The bill is now poised to go before the full Congress, where it would need to be the subject of three congressional debates and a final vote before becoming law. The bill flies in the face of international human rights standards and science, Human Rights Watch said. The World Professional Association for Transgender Health, an international multidisciplinary professional association aimed at promoting evidence-based care, education, and research in transgender health, has stated that diversity in gender identity “is a common and culturally diverse human phenomenon [that] should not be judged as inherently pathological or negative.” The World Health Organization’s new International Classification of Diseases (ICD-11), which came into effect in January 2022, removes “transsexualism” and “gender identity disorder” as “mental disorders.” Under international law, children and adolescents have a right to comprehensive sexual education. The UN special rapporteur on the right to education has noted that sexuality education “must be free of prejudices and stereotypes that could be used to justify discrimination and violence against any group,” and “must pay special attention to diversity, since everyone has the right to deal with his or her own sexuality without being discriminated against on grounds of sexual orientation or gender identity.” Violence against LGBT people is commonplace in Guatemala, and the bill risks adding to the existing prejudice and stereotypes that often fuel such violence, Human Rights Watch said. Guatemala’s Human Rights Ombudsperson’s Office reported that between December 30 and January 2, two trans women and one gay man were murdered in separate attacks. This follows an already bloody 2021 for LGBT people in Guatemala, in which transgender people were particularly vulnerable. In March 2021, Human Rights Watch published a report on violence and discrimination against LGBT people in Guatemala. Human Rights Watch interviewed 53 survivors of anti-LGBT abuses – including 24 gender non-conforming people – and found that the attackers included public security agents, gangs, and members of the public. It also found that the government had failed to adequately protect LGBT people against such illegal acts. Bill 5940 would also continue to erode comprehensive sexuality education in Guatemala, which is already regressive. A 2017 report from the Guttmacher Institute found that many teachers providing sexuality education lack adequate time, resources, and training, especially on contraceptive methods, HIV/sexually transmitted infections, and violence. The Institute also found that teachers convey mixed messages about sexuality, including the harmful and stigmatizing message that sexual relations are dangerous and should be avoided before marriage. Withholding age-appropriate and science-based information about gender and sexuality from students, including information relevant to students’ sexual and reproductive health, and prohibiting teachers from offering guidance and learning materials on these issues, amounts to a violation of students’ right of access to information, Human Rights Watch said. The UN Committee on the Rights of the Child has identified lack of “access to sexual and reproductive health services and information” as a particular issue for “[a]dolescents who are lesbian, gay, bisexual, transgender and intersex.” It said governments should “refrain from censoring, withholding, or intentionally misrepresenting health-related information, including sexual education and information, and … ensure children have the ability to acquire the knowledge and skills to protect themselves and others as they begin to express their sexuality.” Bill 5940’s requirement that media outlets label all material related to gender identity unsuitable for minors not only denigrates transgender people but may result in violations of the right to freedom of expression. The Inter-American Commission on Human Rights has said that the media should promote “an environment of peace, free from all forms of violence in relation to the social environment in which it is situated, generating safe and inclusive spaces for LGBTI people.” The bill is not the only legislative attempt aimed at stigmatizing LGBT people in Guatemala. The pending Life and Family Protection Bill describes “sexual diversity” as “incompatible with the biological and genetic aspects of human beings.” It also establishes that “freedom of conscience and expression” protects people from being “obliged to accept non-heterosexual conduct or practices as normal,” a provision that could be used to justify discriminatory denial of services. The Organization of American States General Assembly has called on member states to adopt public policies against discrimination based on sexual orientation and gender identity or expression, yet Guatemala currently provides LGBT people with virtually no protections. “Instead of stoking a moral panic by demonizing LGBT people, lawmakers should pass anti-discrimination and hate crime legislation to address pervasive violence,” González said. “They should also uphold children and adolescents’ right to comprehensive sexuality education, which can protect health, promote tolerance, and help prevent gender-based violence, including against gender and sexual minorities.” © 2022 Human Rights Watch

Why is little being done to stop them? By Rhea Mogul and Swati Gupta, CNN Delhi, India (CNN) At a conference in India last month, a Hindu extremist dressed head-to-toe in the religion's holy color, saffron, called on her supporters to kill Muslims and "protect" the country. "If 100 of us become soldiers and are prepared to kill 2 million (Muslims), then we will win ... protect India, and make it a Hindu nation," said Pooja Shakun Pandey, a senior member of the right-wing Hindu Mahasabha political party, according to a video of the event. Her words and calls for violence from other religious leaders were met with a roar of applause from the large audience, a video from the three-day conference in the northern Indian city of Haridwar shows. But across India, people were outraged. Nearly a month on, many are still furious at the lack of government response or arrests over the comments, which they say highlights a worsening climate for the country's Muslims. After mounting pressure, India's top court intervened on Wednesday, asking for a response from state and federal authorities within 10 days. Pandey and several others are being investigated by local police for insulting religious beliefs, a charge that carries a possible sentence of up to four years in prison, Haridwar police officials told CNN. Neither Pandey, nor the others, have publicly commented about the outcry or investigations. Late Thursday, police in Uttarakhand state, where Haridwar is located, arrested a man who spoke at the event, senior Haridwar Police official Shekhar Suyal told CNN. It is unclear what the man said at the event. Police have not formally charged anyone with any crime. CNN has contacted India's Ministry of Minority Affairs, the Hindu Mahasabha and Pandey, but has not received a response. Analysts say the Hindu Mahasabha is at the tip of a broader trend in India which has seen an alarming rise in support for extremist Hindu nationalist groups since Prime Minister Narendra Modi came to power nearly eight years ago. Although these groups aren't directly associated with Modi's Bharatiya Janata Party (BJP), his own Hindu nationalist agenda, and the lack of repercussions for these groups' previous vitriolic comments, has given them tacit support, making them even more brazen, analysts say. Analysts fear this rise poses a serious danger to minorities, especially Muslims -- and worry it may only get worse as several Indian states head to the polls in the coming months. "What makes the Hindu Mahasabha dangerous," said Gilles Verniers, an assistant professor of political science at Ashoka University near India's capital, New Delhi, "is that they have been waiting for a moment like this in decades." Rise of the right-wing Hindu group Founded in 1907 during British rule at a time of growing conflict between Muslims and Hindus in the country, the Hindu Mahasabha is one of India's oldest political organizations. The group didn't support British rule, but it didn't back India's freedom movement either, led by Mohandas Karamchand Gandhi, who was particularly tolerant of Muslims. Even now, some members of the group worship his assassin, Nathuram Godse. The Hindu Mahasabha's vision, according to the group's official website, is to declare India the "National Home of the Hindus." The website says if it takes power, it will not hesitate to "force" the migration of India's Muslims to neighboring Pakistan and vows to reform the country's education system to align it with their version of Hinduism. With its controversial campaigns and ideology, Hindu Mahasabha has always been a marginal political force. The last time the group had a presence in Parliament was in 1991. But according to Verniers, their "strength is not to be measured in electoral terms." And in the past eight years since Modi came to power, they appear to have expanded in numbers and influence based on the size and frequency of their meetings, he said. While the group does not publicly disclose how many members it has, Verniers said they are "comfortably in the tens of thousands." Hindu Mahasabha targets rural communities in northern states, where there is a large BJP presence, encouraging them to vote for parties that align with their Hindu-nationalist ideology, including Modi's BJP, Verniers said. Modi, in turn, has publicly honored the Hindu Mahasabha's late leader, Veer Savarkar, for "his bravery" and "emphasis on social reform." And as Hindu Mahasabha has grown in recent years, it has become more outspoken. In 2015, Sadhvi Deva Thakur, then a senior member of the group, caused widespread controversy when she told reporters Muslims and Christians should undergo forced sterilization to control their population growth. CNN has reached out to her for comment. Pandey, who spoke at the December conference in Haridwar, was arrested in February 2019 after a video showed her shooting an effigy of Gandhi, according to CNN affiliate CNN News-18. Photos uploaded to her official Facebook page last May show her worshiping a statue of Gandhi's assassin. CNN has not been able to confirm whether she was formally charged over the February 2019 incident. Hindu Mahasabha isn't the only right-wing Hindu nationalist group to espouse violent sentiment toward liberals and minorities -- including India's 200 million Muslims, who make up 15% of the country's 1.3 billion population. At last month's conference, several speakers called on India's Hindus to "defend" the religion with weapons. Another called for the "cleansing" of India's minorities, according to video from the event. But according to Verniers, Hindu Mahasbha one of the largest right-wing political groups aiming to make India the land of the Hindus. And while the group's campaigns and ideas are decades old, they're more bold about them now. "The escalation of their hate speech is reflective of the state of affairs in India," said Verniers. "But they are able to get away with it more." Acting with impunity The reason extremist groups appear to be on the rise is clear, according to experts: they have impunity and support. India prohibits hate speech under several sections of its penal code, including a section which criminalizes "deliberate and malicious acts" intended to insult religious beliefs. According to lawyer Vrinda Grover, any group inciting violence is barred under Indian law. "Police, states and the government are responsible to ensure (inciting violence) doesn't happen," she said. "But the state, through its inaction, is actually permitting these groups to function, while endangering Muslims who are the targets." Pandey's rant and some of the other calls for violence were the "worst form of hate speech," according to Verniers. "This is the first time I find myself using the term 'genocide' in Indian politics," he said, referring to the comments made at last month's conference. "They have tacit support in the form of government silence." That's because Modi also has a Hindu nationalist agenda, experts say. Modi swept to power in India in 2014, promising economic reform and development for the country. But starting from his first term as Prime Minister, minority groups and analysts say they began to see a significant shift in India's ideology from a secular to a Hindu nationalist state. The BJP has its roots in Rashtriya Swayamsevak Sangh (RSS), a right wing-Hindu group that counts Modi among its members. Many RSS members are adherents of the Hindutva ideology that the Hindu Mahasabha preach -- to make India the land of the Hindus. In 2018, India's current Home Minister Amit Shah said Muslim immigrants and asylum seekers from Bangladesh were "termites" and promised to rid the nation of them. The BJP's Yogi Adityanath, the chief minister of the north Indian state Uttar Pradesh, known for his anti-Muslim views, once compared Muslim Bollywood superstar Shah Rukh Khan to Hafiz Saeed, the alleged planner of the 2008 Mumbai terror attacks, according to the Press Trust of India. Between 2015 and 2018, vigilante groups killed dozens of people -- many of whom were Muslims -- for allegedly consuming or killing cows, an animal considered sacred by Hindus, according to a report from Human Rights Watch. Modi publicly condemned some of the killings, but the violence continued, and in 2017, his government attempted to ban the sale and slaughter of cows --currently illegal in several Indian states -- nationwide. Human Rights Watch said many of the alleged murders went unpunished in part due to delayed police investigations and "rhetoric" from ruling party politicians, which may have incited mob violence. In 2019, India's Parliament passed a bill that would give immigrants from three neighboring countries a pathway to citizenship -- except for Muslims. It led to extended protests and international condemnation. In December 2020, Uttar Pradesh enacted a controversial anti-conversion law, making it more difficult for interfaith couples to marry or for people to convert to Islam or Christianity. Other states, including Madhya Pradesh, Karnataka, and Assam, introduced similar laws, leading to widespread harassment and, in some cases, arrests for interfaith couples, Christian priests and pastors. All of this has only served to encourage extremist groups like the Hindu Mahasabha, say experts. Zakia Soman, a women's rights activist and co-founder of the Muslim group Bharatiya Muslim Mahila Andolan, said "a failure of governance" had given rise to more right-wing extremists. "Our community is realizing that we have become second-class citizens in our own country," Soman said. "Minority bashing and hate is becoming regular and normalized. As the intensity increases, the venom and violence in their language also increases." A 21-year-old Muslim student in Delhi, who chose to remain anonymous for fear of backlash from right-wing groups, said Muslims are filled with "a sense of fear" every time right-wing Hindu groups make hateful comments. "It gives us a sense that we don't belong here," he said. The future of the Hindu-right Despite police investigations and public outrage, legal action against those who spoke and were present at December's event have been slow. In a letter submitted to Modi on Friday and seen by CNN, students and faculty of the prestigious Indian Institute of Management in Bangalore and Ahmedabad said his silence "emboldens" hate, adding there is "sense of fear" among minority groups in India. Some experts agree the government's silence has only emboldened these groups further. "Hate speech precedes hate crimes," Grover, the lawyer, said. "And we are witnessing a crescendo of hate crimes. These groups are rapidly spreading poison through society." A 2019 US intelligence report warned that parliamentary elections in India increase the possibility of communal violence if Modi's BJP "stresses Hindu nationalist themes." It added that state leaders "might view a Hindu-nationalist campaign as a signal to incite low-level violence to animate their supporters." The BJP -- which rarely gives statements on the issue -- says it does not discriminate against minorities, adding in a statement last March that it "treats all its citizens with equality" and "laws are applied without discrimination." But analysts fear the BJP's divisive politics will could lead to increased violence against minority groups in the lead up to pivotal state elections this year. And reported episodes of violence against Muslims have already increased ahead of this year's state elections. In December, crowds of India's Hindu-right confronted Muslims praying on the streets in the city of Gurugram, just outside of Delhi. They prevented Muslims from praying, while shouting slogans and carrying banners in protest. "It is an electoral strategy," said Verniers, the political scientist. "Create religious tension, activate religious polarization and consolidate on the Hindu vote." Grover, the lawyer, said criminal laws are "weaponized" in India, adding anyone who challenges those in power "face the wrath of the law." "Muslim lives in India are demonized," she said. "The Indian state is in serious crisis." On January 1, Pandey held a live broadcast for her more than 1,500 Facebook followers. The subject was "Religious Parliament," her post said. For the 21-year-old student, it is difficult to "expect any sense of justice" for Indian Muslims. He says even having a Muslim name is enough to make him feel unsafe. © 2022 Cable News Network