Myanmar and terror-supporting countries must both be held accountable at the International Court of Justice
That it was left to the tiny African country, The Gambia, with or without the backing of the Organization of Islamic Cooperation (OIC), to drag Myanmar to the International Court of Justice (ICJ) in The Hague for its alleged severe human rights abuses tantamount to genocide against its Muslim Rohingya minority, is a stark reminder of the increasingly self-absorbed, illiberal, and apathetic times that we live in today. The abdicating of duty and conscience by the affluent, educated, human rights-loving developed world, whose responsibility, more than The Gambia’s, it must be to promote, protect, and ensure adherence to the international code of human rights, is as discouraging as it is frightening. The developed world would argue, not without justification, that it was through its efforts that the Rohingya issue was brought into international focus and subsequently kept alive, but the sporadic and largely toothless sanctions and censures, the reports documenting the atrocities against the Rohingyas, and other similar actions, did give the impression that even major powers like the United States (US), China, and most countries of the European Union (EU) were content merely with demonstrating interest that then petered out into the twilight. Why else would the unlikely sight of The Gambia taking the bull by the horns and escalating the matter to the highest court on Earth be playing out now?
The sentiment encapsulated above found reflection in the opening address of The Gambia’s Justice Minister and Attorney General Abubacarr Marie Tambadou at the commencement of the hearings at the ICJ on 10 December, when The Gambia presented its case. Tambadou quoted Edmund Burke’s famous words, “The only thing necessary for the triumph of evil is for good men to do nothing”, while asserting that “Another genocide is unfolding right before our eyes yet we do nothing to stop it. This is a stain on our collective conscience. It’s not only the state of Myanmar that is on trial here, it’s our collective humanity that is being put on trial. I stand before you to awaken the conscience of the world and arouse the voice of the international community”. He accused Myanmar of “carrying out genocide against the Rohingya” and urged the ICJ to compel Myanmar, as a State party to the 1948 Genocide Convention, to fulfill its obligations “not to commit genocide, not to incite genocide, and to prevent and punish genocide”. He said that the Myanmar military and security forces have committed “genocidal acts” that were “intended to destroy the Rohingya as a group…by the use of mass murder, rape and other forms of sexual violence, as well as systematic destruction by fire of their villages, often with inhabitants locked inside burning houses”. Tambadou requested the ICJ to pronounce “provisional measures” that Myanmar must take to prevent “extrajudicial killings or physical abuse; rape or other forms of sexual violence; burning of homes or villages; destruction of lands and livestock, deprivation of food and other necessities of life, or any other deliberate infliction of conditions of life calculated to bring about the physical destruction of the Rohingya group in whole or in part”.
Gambia’s lawyer Andrew Loewenstein drew on witness accounts recorded in a report by United Nations (UN) investigators on events in the village of Min Gyi in the Rakhine state of Myanmar in August 2017, in which about 750 Rohingyas, including over 100 children under the age of six, were killed by Myanmar’s security forces. Quoting from one survivor’s testimony to the UN fact-finding mission, Loewenstein read, “As we entered the house, the soldiers locked the door. One soldier raped me. He stabbed me in the back of my neck and in my abdomen. I was trying to save my baby, who was only 28 days old, but they threw him on the ground and he died”. Another lawyer who made submissions for The Gambia, Prof. Philippe Sands QC, reminded the ICJ that it was “the ultimate guardian of the  genocide convention; it’s on you the eyes of the world are turned”.
Myanmar responded to The Gambia’s allegations on 11 December, when the country’s best-known figure internationally, Nobel laureate Aung San Suu Kyi, presently Myanmar’s State Counsellor and Foreign Minister, delivered the country’s opening statement. Once an internationally revered figure for her fight for democracy and human rights, in a remarkable reversal of roles she stood before the learned judges of the ICJ to defend her erstwhile tormentors, the Myanmar military, at whose hands she had suffered for 15 years but with whom she now shares power. The legal team representing The Gambia was keenly conscious of Suu Kyi’s steep fall from grace, and they did not hesitate to let that be known to the court by accusing her of being complicit in perpetrating the genocide against the Rohingyas. Prof. Philippe Sands quoted from the UN fact-finding mission that had concluded that Aung San Suu Kyi had not used her “de facto power or moral authority to stem or prevent the unfolding events or to protect the civilian population”. Similarly, Paul Reichler, a US lawyer speaking on behalf of The Gambia, showed the court a photograph of billboards that had appeared across Myanmar in which Suu Kyi featured in front of three leading Army generals above the caption “We stand with you”. Reichler argued that “This shows – it can only have been intended to show – that they are all in it together and that Myanmar has absolutely no intention of holding its emboldened military leadership to account”.
In her response, Aung San Suu Kyi sought to dismiss all the assertions made by The Gambia and shift the onus for the violence in Rakhine state to aggression by Rohingya terrorists belonging to the Arakan Rohingya Salvation Army (ARSA). She told the court that the first assaults were initiated by members of the ARSA in October 2016, when they attacked police stations near Myanmar’s border with Bangladesh. She elaborated that “This led to the deaths of nine police officers and more than 100 civilians as well as the theft of 68 weapons and thousands of rounds of ammunition”. Suu Kyi added that a second wave of ARSA attacks was launched in August 2017 with the aim of seizing the township of Maungdaw, to which the Myanmar army had been forced to respond with “counter-insurgency operations”. She averred that “We are dealing with an internal armed conflict, started by coordinated and comprehensive attacks by the Arakan Rohingya Salvation Army. Tragically, this armed conflict led to the exodus of several hundred thousand Muslims from the three northernmost townships of Rakhine into Bangladesh – just as the armed conflict in Croatia led to the massive exodus of first ethnic Croats and later ethnic Serbs”. Suu Kyi did admit that Myanmar had committed some mistakes in dealing with the Rohingya issue. She ventured, “Myanmar could have done more to emphasize our shared heritage and deeper layers of unity between the different peoples of our country. 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, or that they did not distinguish clearly enough between ARSA fighters and civilians. There may also have been failures to prevent civilians from looting or destroying property after fighting or in abandoned villages”.
Suu Kyi and the other members of Myanmar’s legal team strongly denied the accusations of genocide against the Rohingyas. Suu Kyi termed this charge an “incomplete and misleading factual picture of the situation”. Prof. William Schabas of Middlesex University, representing Myanmar, contended in the court that The Gambia had not addressed the issue of intent to conduct genocide or stated the number of victims. He described the figure of 10,000 that was claimed by some commentators as being an “exaggeration”, but which, even if true, could not constitute an attempt to “completely destroy this [one million strong Rohingya] group”. Phoebe Okawa, professor of international rights at Queen Mary University in London, also representing Myanmar, told the court that the fact that representatives of an arm of the UN, the UN High Commission for Refugees (UNHCR), was engaging with the government of Myanmar to prepare for the return of Rohingyas refugees from their camps in Bangladesh demonstrated that they could not be facing a risk of genocide.
Suu Kyi also made the point that the principle of international law is that it should complement domestic justice, adding that if war crimes or human rights violations had been committed in Myanmar, they would be addressed by Myanmar’s justice system. She asserted that any international legal action would undermine legal proceedings within Myanmar. She claimed that “There will be no tolerance of human rights violations in Rakhine or elsewhere in Myanmar. No stone has been left unturned to make domestic accountability work … We are dealing with an internal conflict started by ARSA to which Myanmar responds”.
Importantly, Suu Kyi also touched upon the role that Pakistan had played in stoking militancy among the Rohingyas. She underlined in the ICJ that “The situation in Rakhine state is complex and not easy to fathom. The troubles in Rakhine state … go back into past centuries and have been particularly severe. ARSA has received weapons and explosives-training from Afghan and Pakistani militants”. This critical and significant aspect had been highlighted in the section Pakistan’s Dubious Designs – Fishing in Troubled Waters of the EFSAS Study Paper titled ‘The Rohingya Issue – Its Wider Ramifications for South Asia’.
On 12 December, the final day of the hearings intended to enable the ICJ to determine whether it should initiate preliminary security measures to protect the Rohingyas, Suu Kyi in her closing remarks reiterated that Myanmar’s own justice system should be given the chance to work first. She urged the ICJ to dismiss the accusation of genocide against her country, remove the case brought by The Gambia from its list, or “In the alternative reject the request for provisional measures submitted by The Gambia”. The Gambia responded to Myanmar’s statements by stressing that Myanmar could not be trusted to hold its own soldiers accountable for atrocities against the Rohingyas. Its lawyer Paul Reichler said, “How can anyone possibly expect the Tatmadaw (Myanmar Army) to hold itself accountable for genocidal acts against the Rohingya, when six of its top generals including the commander-in-chief, Senior General Min Aung Hlaing, have all been accused of genocide by the UN fact-finding mission and recommended for criminal prosecution”. The UN investigators had in their August 2018 report concluded that the Myanmar military had carried out killings and mass rape with “genocidal intent” in 2017.
Rohingya rights groups, international human rights organizations and the international media have taken a dim view of the disingenuous protestations of innocence by Myanmar at the ICJ. Mohammed Mohibullah, chairman of the Arakan Rohingya Society for Peace and Human Rights, expressed disbelief at the arguments put forth by Suu Kyi in defense of Myanmar. He said, “The world will judge their claim of no genocide with evidence. A thief never admits he is a thief, but justice can be delivered through evidence”. Nicholas Bequelin of Amnesty International accused Suu Kyi of trying to downplay the severity of the crimes committed against the Rohingyas. He said that she “wouldn’t even refer to them by name or acknowledge the scale of the abuses. Such denials are deliberate, deceitful and dangerous. The exodus of more than three quarters of a million people from their homes and country was nothing but the result of an orchestrated campaign of murder, rape and terror”. George Graham of Save the Children averred that Suu Kyi's statements “fly in the face of all the evidence gathered by the UN, and the testimony our own teams have heard from countless survivors. Rohingya families have faced patterns of unimaginable horrors in a campaign of violence. Children and their parents have been systematically killed, maimed and raped”. He contended that “the government of Myanmar has failed at every turn to punish those responsible”.
The ICJ is expected to deliver its verdict on the provisional measures sought by The Gambia in the coming weeks. The trial to determine whether Myanmar's government is guilty of genocide will, in all likelihood, take several years to conclude. The ICJ also does not have the power to enforce its verdicts. Hence, it is unlikely that The Gambia’s case will lead to a sudden amelioration of the miserable conditions being endured by the over 730,000 Rohingyas who fled Myanmar to Bangladesh after the Myanmar military launched its crackdown in 2017. The rulings of the ICJ carry significant legal weight though, and an adverse verdict could place serious pressure on the Myanmar government to relent and change track.
The Gambia needs to be commended for punching way above its weight in dragging Myanmar to the ICJ. Other countries, especially the more influential ones, should take a cue from The Gambia and redouble their efforts to ensure justice and a life of dignity for the Rohingyas. It was heartening that Canada and The Netherlands jointly extended support to The Gambia’s initiative just before the ICJ hearings began. More countries need to get on board, and the ones already involved must expand and sharpen their tools to pressurize Myanmar into action.
The Rohingya have suffered enough and deserve nothing less than a dignified return to their homesteads, equality under the law, and a life of respect. At the same time, as brought out by Suu Kyi in her statement at the ICJ, the culpability of external actors like Pakistan, which by supporting the miniscule proportion among the Rohingyas that were violence-prone and turning them into terrorists, have contributed in no small measure to the plight that the Rohingyas find themselves in today. This is an important aspect that must not be lost sight of even while ceaselessly pursuing justice for the Rohingyas. Unless countries like Pakistan are compelled to stop exporting terror, the likelihood of a grievance in a foreign land being exploited and twisted through encouragement to the disaffected to embrace violent means would always be there. Such violence would only provide an excuse and the justification to the government concerned, Myanmar in the case of the Rohingyas, to respond disproportionately. The terror-supporting country, Pakistan in this case, must also be held responsible and brought to book for the terrible retribution that the vast majority of the Rohingyas, who are peace-loving, non violent, family people, have had to endure because of Pakistan’s ill-considered and ill-intentioned encouragement to the minority among the Rohingyas with an affinity for the gun.
After all, the option of taking Myanmar to the ICJ, a palpably legitimate course of action, rather than illegally arming and training Rohingya militants, was equally available to Pakistan as it was to The Gambia if it had the best interests of the Rohingyas at heart.