The Myanmar military and the civilian government of Aung San Suu Kyi are literally between a rock and a hard place. Two cases of violation of the Genocide Convention filed against Myanmar have shaken its leaders.
The first lawsuit was filed by The Gambia on November 11, 2019 on behalf of the OIC at the International Court of Justice (ICJ), the principal judicial organ of the United Nations. The Gambia alleged that Myanmar had violated the Convention on the Prevention and Punishment of the Crime of Genocide through “acts adopted, taken and condoned by the Government of Myanmar against the members of the Rohingya group.” This will bring the first judicial scrutiny to Myanmar’s campaign of murder, rape, arson and other atrocities against Rohingya Muslims. The first public hearing will be held at The Hague, in Netherlands, from December 10-12, 2019. Actually, with this case, the 57 members of the OIC are accusing Myanmar of gross crimes against the Rohingyas.
During the three-day hearing, The Gambia may ask the 15-member panel of judges of ICJ to impose “provisional measures” to protect the Rohingyas before the case can be heard in full. The request for a provisional injunction is the legal equivalent of seeking a restraining order against a country.
The second lawsuit was filed by Rohingya and Latin American human rights groups in Argentina on November 13, 2019 under the principle of “universal jurisdiction”, a legal concept enshrined in many countries’ laws. Suu Kyi has been named in that case, which demands that top military and civilian leaders of Myanmar be sanctioned over the “existential threat” faced by the Rohingya community. Following the case, the International Criminal Court (ICC) on November 14 approved a full investigation into Myanmar’s alleged crimes against the Rohingyas. Though Myanmar does not recognise ICC, as it is not a signatory to the Rome Statute, the Court’s ruling will have serious implications for the country. In the case of ICJ, both The Gambia and Myanmar are signatories to the ICJ and the Genocide Convention. As only a state can file a case against another state at the ICJ, any ruling of ICJ will be binding on Myanmar. This is what made the leaders of Myanmar jittery.
Interestingly, State Counsellor (or Prime Minister) Aung San Suu Kyi, who is also the foreign minister, has taken it upon herself to lead the Myanmar delegation for the first public hearing on December 10 to “defend the national interest”. It is indeed rare that a sitting head of state is appearing before the ICJ to defend its government’s misdeeds. Why did Suu Kyi decide to go to The Hague? There may be two reasons.
First, Myanmar goes for parliamentary elections in late 2020. Suu Kyi is popular among her supporters and by leading the Myanmar team at The Hague, she will further strengthen the chances of the National League for Democracy (NLD) party, which she heads, at the election. Rallies in Myanmar supporting Suu Kyi’s decision substantiate this point.
Second, Suu Kyi wants to amend the 2008 constitution, which was drawn up by the generals, and reduce the powers of the military. Her role in handling the case will probably help in pushing the military generals a little bit away from the centre of state power. The military has welcomed her decision and has offered to help her in every possible way. The generals know that the case is actually against them and they have no expertise to defend themselves.
But some experts think that Suu Kyi’s going to The Hague is a bad idea. Why should she stake her position to defend the crimes committed by the military? Her international reputation has been tarnished substantially for not doing anything about the atrocities committed by the military against the Rohingyas. By leading the Myanmar team to The Hague, Suu Kyi is now openly admitting that she is a party to the decisions and the military’s genocidal actions against the Rohingyas. Strangely, after suffering incarceration for 15 years at the hands of the military and even after having strained relations with Army Chief Min Aung Hlaing, she has proved that she is a virulent defender of the military. She is also as racist as the Myanmar generals are, as far as the Rohingya community is concerned.
The moot question is, can Suu Kyi really prevail at the ICJ and prove that no crime was committed by her military? Canada, Nigeria, Turkey, France and Bangladesh have asserted that Myanmar committed a genocide against the Rohingyas. Nonetheless, Suu Kyi has not budged from her position, and continues to justify the persecution of Rohingyas while branding them as terrorists.
Suu Kyi has appointed a number of “prominent international lawyers” to challenge The Gambia’s complaint. It is not clear what her strategy to “defend the national interest” actually will be. Suu Kyi and her battery of lawyers will have to contend with the extensively documented campaign of mass murder, gang rape and mutilation targeted at Rohingya civilians. These evidences have been recorded in the 444-page report issued in September 2018 by the United Nations Fact-Finding Mission. The report concluded that there was evidence of atrocities by Myanmar security forces against the Rohingya community, warranting criminal prosecution for crimes against the humanity, war crimes, and genocide.
The report named top military officials as targets for investigation and prosecution as well as civilian authorities who “have spread false narratives, denied any wrongdoing of the security forces, blocked independent investigations… and overseen the destruction of evidence”. Apart from this report and many others compiled by other organisations, there are vivid satellite images of Rohingya villages being burnt systematically and people running to safety, which will make it hard for the Myanmar team to deny any wrongdoing. It will be hard for Suu Kyi to wash off the accusations at The Hague.
Bangladesh is closely watching the ongoing legal developments. Bangladesh’s foreign secretary is leading a delegation composed of members of civil society and stakeholders. It would be interesting to see the arguments placed by Suu Kyi at the Peace Palace at The Hague.
Mahmood Hasan is a former ambassador and secretary of Bangladesh government.