She used to be a democracy icon. This week, she’ll defend her country in court against genocide accusations
She was a global human rights and democracy icon, a Nobel Peace Prize winner and a political prisoner who spent 15 years under house arrest. But this week, Myanmar’s Aung San Suu Kyi will personally defend her country from accusations of genocide against the Rohingya community at the United Nation’s top court.
The momentous legal case, which kicks off with three days of hearings Tuesday, will see Myanmar’s civilian leader Suu Kyi lead a delegation to the International Court of Justice (ICJ) at the Peace Palace in the Netherlands to justify her government’s persecution of the Muslim minority.
It’s a shocking turn of events for a leader once internationally renowned for her long struggle against military rule.
Over the next three days, Suu Kyi will defend the Myanmar military’s campaign of violence that forced more than 740,000 Rohingya to flee into neighboring Bangladesh in 2016 and 2017. The atrocities have been described as genocide by a UN fact-finding commission but Myanmar denies the charges and has long claimed to have been targeting terrorists.
The tiny West African nation of Gambia filed a lawsuit with the world court in November alleging that Myanmar, also known as Burma, committed “genocidal acts” that “were intended to destroy the Rohingya as a group” through mass murder, rape, and destruction of communities.
On Tuesday, Gambia will ask the 15-judge court to compel the Myanmar government and military to end all acts that amount to or contribute to genocide, and to stop Myanmar from destroying evidence relating to the case.
Based in The Hague, the 15 judges of the ICJ are tasked in part with settling legal disputes between states.
While its rulings are final and binding, the court doesn’t have the power to enforce its decisions. Its orders, however, are sent to the UN Security Council, which could decide to enact a resolution or take other concrete measures.
“This is highly significant,” said Matt Smith, co-founder and CEO of Fortify Rights. “Myanmar has to defend its behavior, its attempts to destroy the Rohingya, at the world court. Rohingya have been waiting for this day for a very long time.”
An unprecedented case
This is the first international legal attempt to hold Myanmar accountable for the Rohingya crisis.
Gambia’s attorney general and justice minister Abubacarr Marie Tambadou is leading the case, which is brought with the backing of the 57-member Organization for Islamic Cooperation (OIC).
It may seem odd that a small Muslim-majority African nation is bringing a genocide case against Myanmar — it’s the first the ICJ has heard where a state is suing another over an issue it is not directly involved with.
But Tambadou spent years prosecuting cases at the UN tribunal set up for the 1994 Rwanda genocide.
This week, the ICJ won’t be deciding the central genocide allegations, which could take years to reach a final ruling.
Instead, the court will be asked to impose “provisional measures” on Myanmar, which would act as a kind of injunction while the main genocide case gets underway. Gambia wants the ICJ to rule on stopping Myanmar from committing any ongoing atrocities and to preserve evidence relating to the case. It could take just weeks for a decision.
Myanmar has given few details as to what its defense will be, though it maintains the “clearance operations” by the military in Rakhine were legitimate counter terrorism measures and has denied allegations of brutality.
Ahead of the hearings, Suu Kyi’s State Counselor wrote on Facebook that Myanmar has “retained prominent international lawyers to contest the case” and that Suu Kyi is traveling to the Hague to “defend the national interest of Myanmar at the ICJ.”
In its filing, Gambia argued that Myanmar’s actions against the Rohingya violate the 1948 Genocide Convention, which both states are parties to.
Gambia’s argument is based on the UN Fact-Finding Mission’s 2018 and 2019 reports that extensively detail atrocities carried out by the Myanmar military against Rohingya Muslims, and calls for the country’s generals to face an international tribunal on charges of genocide.
The mission concluded that coordinated attacks and sexual violence against the Rohingya in Myanmar’s western Rakhine state were pre-planned by senior military leaders “to weaken the social cohesion of the Rohingya community and contribute to the destruction of the Rohingya as a group and the breakdown of the Rohingya way of life.”
It details horrific accounts from survivors who spoke of gang-rape, mutilation, torture, mass killings, families being burnt alive in houses, and large-scale destruction of property.
International aid and children’s agencies have urged the ICJ to move forward with the case.
“This week’s hearings at the International Court of Justice is a landmark moment in the quest for justice for some of the most shocking atrocities of our times,” Michael McGrath, Save the Children’s Director for Myanmar, Sri Lanka and Thailand, said in a statement.
“It’s high time Rohingya refugee children and their families get their day in court. They saw their parents being killed, babies thrown into fires, their homes set alight and young girls gang-raped. We have heard multiple stories of horrific violence no child should witness. It’s crucial the court takes these alleged crimes against children into account, their voices must be heard.”
Shortly after the Gambia case was filed, Argentina filed a lawsuit seeking criminal sanctions for Suu Kyi and several top Myanmar officials for crimes against the Rohingya. Leading that case is Tomas Ojea Quintana, a former UN Special Rapporteur on human rights in Myanmar
Fortify Rights’ Smith said that the ICJ case “could help change the decision making of Myanmar’s military and political elite with regard to the Rohingya, in useful ways.”
“We hope this will help prevent the next round of mass killings and other attacks and, over time, lead to other changes,” he said.
From icon to pariah
Suu Kyi has faced mounting criticism from the international community for her response to the Rohingya crisis.
When her party, the National League for Democracy, won elections in 2015 many hoped it would lead Myanmar toward greater democracy after 60 years of military rule.
But critics say Myanmar’s state counselor’s image as a democracy icon was sullied by her failure to speak out about the alleged mass killings and displacement of the Rohingya.
Suu Kyi has been stripped of numerous awards, including Amnesty International’s highest honor. The rights group said she had “chosen to overlook and excuse the brutal oppression and crimes against humanity committed by the military” and “actively shielded the military from international scrutiny and accountability.”
For Myanmar, the ICJ case represents “a further weakening of ties with both the Islamic world and the West, a likely entrenchment of ethno-nationalist feelings within the country and a growing dependence on a multi-tentacled relationship with China,” said Thant Myint U, Burmese historian and author of “The Hidden History of Burma.”
Myanmar considers the Rohingya illegal immigrants from neighboring Bangladesh, despite the fact that many Rohingya families have lived in Rakhine state for generations. Bangladesh considers them Burmese.
The Myanmar government does not use the term “Rohingya” and does not recognize the people as an official ethnicity, which means the Rohingya are denied citizenship and effectively rendered stateless.
In 2017, Suu Kyi claimed during a phone conversation with Turkish President Recep Tayyip Erdogan that a “huge iceberg of misinformation” about the Rohingya crisis was being distributed to benefit “terrorists.”
According to a readout of the call, she said her government was fighting to ensure “terrorism” didn’t spread over the whole of Rakhine state.
UN investigators into the Rohingya crisis found that Myanmar’s civilian government had “contributed to the commission of atrocity crimes” through their “acts and omissions.”
“The State Counselor, Daw Aung San Suu Kyi, has not used her de facto position as head of government, nor her moral authority, to stem or prevent the unfolding events in Rakhine state,” stated the report.
While her image is in tatters abroad, Suu Kyi is still popular at home. In the week leading up to the hearings, hundreds of people rallied in Myanmar’s biggest city Yangon in support of her.
Suu Kyi’s appearance at the ICJ could also help bolster political support ahead of elections in 2020.
“It’s more than likely that her trip to the Hague will prove immensely popular and will help at the ballot box,” said Thant Myint U.
“But I don’t think that’s the reason she’s going. I think she genuinely believes the allegations of genocide are without merit and she wants to give her side of the story,” he continued.