Defending the Indefensible: Myanmar and the International Court of Justice

On 10 December 2019, State Counsellor, Aung San Suu Kyi, appeared before the International Court of Justice (ICJ) at The Hague, as the civilian leader of her country to defend the Myanmar government which was being tried for genocidal crimes against the Rohingyas. In August 2017, the Myanmar military carried out a systematic attack against the Rohingyas in the Rakhine region leading to a mass exodus of approximately 700,000 Rohingyas to the neighbouring state of Bangladesh. These attacks continued through 2018, furthering the humanitarian crisis in which approximately 15,000 or more Rohingyas were expelled from within Myanmar.

Verification through the accounts of refugees who fled Myanmar indicated the levels of atrocities faced by the groups under the hands of the Myanmar military. Summary executions of people, families separated from one another where men were instantly killed and women were raped and killed, and the burning of several villages were accounted for. Moreover, the groups that fled in 2018 were compelled to accept the National Verification Card (NVC) which denied them access to citizenship within Myanmar.

Almost from 1962 onwards the contestation about the rights of the Rohingyas has been festering. After the Ne Win Coup d’etat of 1962, the country recognized only 135 groups as legitimate citizens of Myanmar. While there is much debate over these 135 groups, which actually created diverse splits within the community, it has remained somewhat unchallenged over the years. These groups were given recognition on the grounds that they had lived within the territories that constitute Myanmar prior to 1823, when the region was still not brought under British colonial power. In the case of the Rohingyas, the Myanmarese government does not accept them as a national group claiming that they were not present prior to 1823. A counter argument by the Rohingyas is that their ancestors were present in the region even as early as the 8 th century. Given the porous nature of the region and the movement of people from these parts the contestation relating to their right to citizenship remains mired in historical inaccuracies and contradictions.

In the aftermath of the 2017 and 2018 violence, efforts by the United Nations fact finding mission as well as the UN Special Rapporteur for Myanmar were not allowed by the Myanmar government. Only in July 2018, an independent inquiry commission was established, even though it was ineffective in terms of ensuring any form of accountability for the crimes committed by the military, leaving no option but to pursue the matter at the ICJ.

The case brought to the ICJ by Gambia, as head of the Organization for Islamic Cooperation (OIC), was critical of the excesses committed by the Myanmar military. The Gambian team led by the Minister for Justice Abubacarr Tambadou clearly highlighted the concerns represented by Gambia, while asking the ICJ to ensure that the Rohingyas were given protection from persecution during the course of the trial. He further stated that the concerns raised by Gambia were for the welfare of humanity, stating that a country did not need military or economic strength to ensure that it stood for justice. Earlier cases of genocidal complaints were made, by countries like Bosnia and Serbia, which had been at war with one another. However, the ICJ precludes that it is not merely war related crimes but cases of genocide anywhere that can be brought to the table under the Genocidal Convention treaty.

In defense of her country’s position at the ICJ, Aung San Suu Kyi focused on three basic premises to undermine the complaint. First, she claimed that Gambia lacked the legitimacy to bring the complaint to the ICJ as it was not an affected party to the matter, stating that an organization such as the OIC had no locus standi on this matter especially since several of its members were not signatories to the Genocide Convention treaty. Second, while she acknowledged that violence may have been used in the battle between the two sides, it did not amount to genocide by the Myanmar military. Third, Suu Kyi clearly argued that as a country that had embarked on democratic processes, it was for the internal mechanisms to address and punish any excesses that may have occurred through the due process of law, basically stating that the military judicial system functions in accordance with Myanmar’s Constitution.

Even as the case has been heard by the ICJ, it will remain virtually impossible to get a conviction against anyone within Myanmar. In terms of its mandate the ICJ is purely responsible for settlement of disputes between countries. In its ruling in cases relating to genocide the court can merely decide that a particular country is responsible for the persecution. However, the question of punishment to those guilty of genocidal crimes is decided by the International Criminal Court (ICC). Myanmar is not a signatory to the provisions of the International Criminal Court and therefore the question of punishment to those guilty of genocidal crimes will remain ineffective in the case of Myanmar.

The impact of the current hearing and its effects on Myanmar itself are crucial. There is fear that a censure from the ICJ would lead to a more aggressive backlash against not just the Rohingyas, but against Muslims in general. The increasing cases of Buddhist violence in Myanmar has been targeted against Muslims, like a double edged sword with Buddhism and Burmese hyper nationalism both drawing groups to carry out persecution of the Muslims in the country. As the country heads towards elections in 2020, Suu Kyi has clearly decided to prove her loyalties to the domestic audience she needs to address rather than stand for the convictions she once articulated. In her arguments to the ICJ, she has defended the indefensible.

Professor Shankari Sundararaman is Professor of Southeast Asian Studies, School of International Studies, Jawaharlal Nehru University, New Delhi.

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