Has Bangladesh provided an excuse for Suu Kyi’s defence?

William Schabas and Myanmar’s leader Aung San Suu Kyi at the hearing in a case filed by the Gambia against Myanmar alleging genocide against the Rohingya, at the ICJ in The Hague, Netherlands, December 11, 2019. PHOTO: REUTERS

It was another reprehensible act of genocide denial. While defending the indefensible at the world court, the International Court of Justice, housed at the Peace Palace in the Dutch city The Hague, last week the once globally revered Peace Laureate, Aung Sun Suu Kyi, was remarkably unashamed. She and her legal team did not deny all those facts of wrongdoing mentioned in the petition filed by the Gambia including of atrocities, brutalities, forced mass-deportation, use of sexual violence, spreading hate and discrimination against an ethnic minority group, the Rohingyas. Their strategy was based on three Ds—denial, distraction and deflection.

First was denial of the intent to commit genocide. Comparisons made with other genocides were so pathetic, that inference could be drawn that the number of Rohingyas killed were not sufficient to call it a genocide. Admitting brutalities, Ms Suu Kyi said, "it cannot be ruled out that disproportionate force was used by members of the defence services in some cases in disregard of international humanitarian law." But her defence was: "surely, under the circumstances, genocidal intent cannot be the only hypothesis." She argued that the Genocide Convention came into being on the backdrop of the killing of six million Jews. In Rwanda, 70 percent Tutsis were slaughtered. Professor William Schabas of Middlesex University cited the court's verdict on the Croatia vs. Serbia case on the premise of attempting to destroy an ethnic group on whole or a part. He argued, "killing non-combatants in an armed conflict may violate right to life. But, 10,000 deaths out of a population of well-over one million might be something other than intent to physically destroy the group."

It was quite a surprise to hear professor Schabas, the author of the book "Genocide in International Law", who is better known for his analysis of the Rohingyas' plight in Myanmar dating back to 2013 in an Al Jazeera documentary, "The Hidden Genocide", defending the same genocide as an outcome of a conflict. Professor Schabas, however, justifying his service to Myanmar, later told Reuters that everyone has the right to a defence before a court. But at the hearing his defence was blaming Al Jazeera for using his words selectively. Professor Schabas was put into this embarrassing defensive position by another famous academic, professor Philip Sands of Oxford, who on behalf of the Gambia, submitted to the court that the petitioner would not object if the court in its order includes preventative measures prescribed by professor Schabas in "The Hidden Genocide".

The second element of the strategy of Myanmar was to try to distract by questioning the Gambia's locus standi, or right to move the court, by claiming it was a proxy of the Organisation of Islamic Conference, OIC and questioning about the financing of the case, suggesting something suspicious was going on.

The third and final tactic was to deflect the world's attention to Bangladesh, which so far has been giving emphasis on repatriation and not pro-actively seeking justice for genocide or preventing further genocidal acts. In the words of professor Phoebe Okowa of Queen Mary University: "Bangladesh, the country that has borne the brunt of the crisis, has also entered into a MoU with Myanmar to provide organised framework for repatriation of displaced persons." In her argument, she continued: "This is proof of the fact that Bangladesh, as Myanmar's closest neighbour, is not of the view that Muslims are at risk of imminent genocide should they return."

The Gambia vs. Myanmar hearing at the ICJ was an exceptional battle over defining the genocidal intent between leading legal experts to make 17 judges rule on whether any interim measures were necessary to protect 6 lakh Rohingyas trapped in camps built for IDPs (Internally displaced people) and secluded villages under harsh restrictions on movement, livelihood, practicing their religious faith and so on. It would be a frivolous exercise to try to narrate here the nine hours of deliberations, filled with legal jargon and references of past cases under international law. But that does not deter anyone from analysing the core issues put forward by both the parties and reflect on some crucial aspects of our policies.

As Bangladesh was not a party to the dispute under consideration by the ICJ, it did not have any opportunity to explain its position. Experts representing the Gambia kept their focus on establishing its right to institute the legal action as a signatory to the Genocide Convention and remained almost silent about Bangladesh's role. Myanmar in its concluding submission again tried to exploit the issue of inaction and the views of the directly-affected party. Christopher Staker even argued with citation (case reference) that according to the International Law Council (ILC), any state could not seek enforcement of erga omnes rights or obligations owed toward all in the same way as a directly injured state. Whether the court accepts or rejects this argument we will find it out in a few weeks. But the question of remaining silent on calling it a genocide by Bangladesh is not an ignorable one.

There's no doubt that repatriation of more than one million refugees should get priority in Bangladesh's policy towards the crisis. But it does not mean, a nation born through the most horrific genocide in our part of the world, should refrain from its moral obligation to denounce such genocidal acts and do its utmost to prevent such crimes. Myanmar's attempt to shield itself from the egregious charges using Bangladesh's affable position certainly demands some serious contemplation. Maintaining diplomatic links and negotiations do not require top level exchanges until and unless there is a breakthrough. Luckily, such a top-level exchange during the hearing was not mentioned before the court which otherwise could have caused some discomfort, especially when the Gambia referred to the US imposition of further sanctions against Myanmar's four top generals.

Another striking point to note from the trial was the outrageous claim made by Myanmar that if the ICJ were to order any interim measures sought by the Gambia, that it would adversely impact on repatriation, reconciliation and their domestic justice system. Paul Reichler, representing the Gambia, termed this so-called repatriation process a "fraud" and highlighted Myanmar's policy of hate towards the Rohingyas, citing Suu Kyi's refusal to use the ethnic identity of the victim community. The ICJ proceeding has also proven how valuable the UN Fact Finding Missions were and whose conclusions, of Myanmar's genocidal intent reflected through seven indicators, have given hope for justice to the world's most persecuted ethnic group, the Rohingyas.


Kamal Ahmed is a freelance journalist based in London.