On Dec. 10, the Rohingya ethnic group, long the target of oppressive policies by the Myanmar government, will finally see their tragic plight being taken up in an international court of law.
Defending Myanmar is none other than leader Aung San Suu Kyi, who agreed to personally travel to The Hague after Gambia filed a lawsuit at the International Court of Justice last month against the Southeast Asian country accusing it of acts of genocide.
Suu Kyi, a Nobel peace laureate for her long struggle against military rule in Myanmar, has come under increasing criticism in recent years for her unwillingness to speak up for the Muslim minority, who have been forced out of their homes in western Myanmar due to military actions by the army. Hundreds of thousands now live in refugee camps across the border in Bangladesh.
Many looked on in disbelief as the woman who had herself suffered so much under the reign of Myanmar’s military junta failed to take a public stand in solidarity with the Rohingya. Now, she will be the face of the country’s justifications for its treatment of the persecuted group.
After years of inaction from both Muslim and non-Muslim countries alike over the plight of the Rohingya, it was tiny Gambia that finally moved to put Myanmar on trial. The west African nation’s justice minister and attorney general, Abubacarr M. Tambadou, who previously prosecuted cases at the UN tribunal set up for the 1994 Rwanda genocide, told the Washington Post that he felt compelled to take action after reading a UN report detailing atrocities committed by Myanmar against the Rohingya. A majority of the 2 million people in Gambia are also Muslim, and the country is itself undergoing a process of transitional justice as a domestic tribunal investigates human rights violations committed by long-time dictator Yahya Jammeh, who fled the country in 2017.
The lawsuit, brought in November, also has the support of the 57-member Organization for Islamic Cooperation, which earlier this year said it would back a lawsuit against Myanmar.
As Human Rights Watch explains, the case involves litigation between two member states of the UN and is not a criminal case against individual perpetrators of the alleged crimes. Instead, Gambia’s suit accuses Myanmar (pdf) of violating the UN’s 1948 convention to prevent genocide. It relies heavily on last year’s UN report that found that the Myanmar government had “genocidal intent” against the Rohingya, and accused the military, known as the Tatmadaw, of murder, rape, torture, false imprisonment, and sexual slavery. The 2018 report provided names of specific military leaders who should be prosecuted for genocide. It also said that Suu Kyi, who is Myanmar’s top civilian leader in her position as state counsellor, used neither her moral authority nor her de facto position as head of government to stave off the atrocities in Rakhine state.
It’s the first time that a signatory to the UN’s Genocide Convention that does not have a direct connection to the case is using its membership to bring proceedings. The ICJ is separate to the International Criminal Court, also based in The Hague, which in November authorized an investigation into Myanmar’s actions against the Rohingya, which could target individuals rather than the state. Suu Kyi herself was also directly named in a lawsuit filed in Argentina last month under the principle of “universal jurisdiction.”
Myanmar has denied the allegations, and says it is fighting terrorism by groups such as the Arakan Rohingya Salvation Army, a rebel outfit that has been fighting for Rohingya rights. The renewed 2017 military campaign against the Rohingya followed rebel attacks earlier that year on security posts.
A democracy icon who won the Nobel Peace Prize in 1991, Suu Kyi led her party to win a landmark election in 2015 following decades of military rule. Barred from occupying the role of president, she stepped into the elevated role of “state counsellor,” specially created for her, and is also the country’s foreign minister. As Myanmar’s leader, she has repeatedly rejected terminology such as “ethnic cleansing” to describe the assault by Myanmar’s military on the Rohingya minority, and has even refused to use the term “Rohingya” to refer to the group, calling it “emotive.”
Her stance has befuddled and angered many of her supporters—mostly those overseas—who had long put their hope in Suu Kyi as the person who could help advance Myanmar’s transition into a democracy. Some maintain that she is severely constrained by a political system where civilian power remains circumscribed by the still-powerful military—the generals, and not the civilian government, control internal security, defense and borders. Siding with the country’s Buddhist majority, many of whom view the Rohingya as illegal immigrants, allows her to maintain the popularity crucial to her government.
Many are far more critical: American diplomat Bill Richardson recently described her as someone who “got infatuated with her power” to the extent that “she could abuse human rights to retain that power.”
In June, Suu Kyi, now a persona non grata in many western European democracies, toured central and eastern Europe and met with Hungary’s far-right prime minister where they discussed Muslim migration.
Her decision to go to the Dutch city to defend the Myanmar government herself was surprising. Some believed that her appearance would only further worsen her image in the eyes of foreign governments, and that she should not put her entire reputation—or what’s left of it—on the line to defend against such serious charges in a public international court. Others noted that it was a necessary move in order to further shore up support at home, particularly from the military, as she prepares for elections in 2020.
“As the saying goes, two lions share a cave,” wrote the Irrawaddy, an English-language publication based in Myanmar, adding that the military is relying on Suu Kyi to do the task of defending the “indefensible” at The Hague. Matthew Smith, the head of nonprofit group Fortify Rights, which researches human rights violations in Myanmar, called Suu Kyi’s decision a “nauseating push for domestic support.”
So far, it seems that Suu Kyi is winning the domestic support she is looking for. Many in Myanmar support the government’s actions against the Muslim minority, and decry what they see as biased and untrue media coverage in the West of the Rohingya issue. Some in Myanmar have signed up for tours costing as much as $2,000 to The Hague in order to show their support for Suu Kyi during the trial.
There will be three days of live-streamed hearings, until Thursday, regarding Gambia’s request for provisional measures to bar Myanmar from taking further actions against the Rohingya as the case proceeds, or from destroying evidence.
Gambia is ultimately asking the court for a finding that Myanmar committed genocide, and to order the country to prosecute the perpetrators of such crimes, including before an international tribunal, and to make reparations to the Rohingya. Any decision from the 15 judges hearing the case will likely take years.