[Faseeha Hashmi]
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On December 11, 2019 Aung San Suu Kyi stood before the International Court of Justice (ICJ) at The Hague – her gentle voice coupled with the angelic rose flowers in her hair a sight of bewildering contradiction and irony.
The once-persecuted Nobel peace laureate stood impassively before 17 judges defending the same military regime which had once deprived her of her freedoms. Affectionately known as "The Lady” and Myanmar’s beacon of hope, Suu Kyi’s eerie words openly contrasted with the saint-like image which has long rested on her golden reputation, as she barely mentioned the alleged mistreatment; mass exodus and persecution of the Rohingya people on Burmese soil.
This development followed the decision by the African country of Gambia to pursue a case against Myanmar, on behalf of the support of the Organisation of Islamic Cooperation (OIC). This case raised awareness of the violations of international law perpetrated in 2016 by Myanmar’s military and internal security forces against the Rohingya Muslims. Accordingly, the decision marks a defining moment within the nation’s turbulent period as a nascent member of the international community.
Gambia’s Accusations
While the Republic of The Gambia is not in any way directly affected by the atrocities committed by Myanmar’s security forces on the Rohingya, the neutral state has requested a public hearing to determine compliance with several “provisional measures” to investigate alleged egregious human rights violations in Rakhine State. The case in point stipulates that Myanmar “shall grant access to, and cooperate with, all United Nations fact-finding bodies that are engaged in investigating alleged genocidal acts against the Rohingya, including the conditions to which the Rohingya are subjected.” However, this particular case distinguishes itself particularly on the grounds that Myanmar authorities are being held accountable for the protection of the Rohingya people, and these same authorities have been emboldened to persecute Rohingya with apparent impunity since October 2016.
Established in 1945, at the Peace Palace in The Hague the ICJ serves as the principal judicial organ of the United Nations. The Court has a twofold role: to settle legal disputes submitted to it by States in accordance with international law and to issue advisory opinions on legal questions referred to it by the duly authorised UN organs and agencies. Its judgments have binding force upon the concerned parties, and are without appeal.
Considering the circumstances, there exist facts which confer some merit to Gambia’s case. For instance the incriminating observations of independent bodies, including the September 2019 report of the Independent International Fact-Finding Mission on Myanmar set up by the UN Human Rights Council, which found that Myanmar failed to fulfil its obligations to prevent, investigate, and punish genocide. According to this document, “There is sufficient information to warrant the investigation and prosecution of senior officials in the Tatmadaw (Myanmar’s military) chain of command...” Accordingly, the weight of this evidence creates a compelling argument in Gambia’s favour.
What Qualifies as Genocide?
Genocide is not a term that is used lightly. In the memory of the atrocities of the 1994 Rwandan genocide, the term has political implications for the international community according to the doctrine of Responsibility to Protect (R2P). Indeed, the use of the word “genocide” triggers legal and moral obligations under international law. Nevertheless, the determination of what constitutes a “genocide” can be difficult to prove. Historically, tribunals have struggled to establish a legal standard for genocidal intent. This is because, without cumulative evidence of provable intent to eliminate an entire group of people, the accused may instead be found guilty of “crimes against humanity” or of “ethnic cleansing.”
According to Article II of the 1948 Prevention and Punishment of the Crime of Genocide, genocide is defined as “the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group.” Nevertheless, genocide is regarded as a progressive phenomenon, one which can occur many years prior to extermination. Regrettably for the Rohingya, their troubles can be traced to a 1982 Citizenship Law that failed to list them among the nation’s indigenous people.
Indeed, it is not frivolous to use the term “genocide” where evidence exists demonstrating the denial of a person’s existence, history and legitimacy to live. In many cases, a large “grey area” exists between ethnic cleansing and genocide which befuddles scholars and policymakers alike. As ethnic cleansing has not been recognised as an independent crime under international law, there is no precise definition of the exact acts that qualify as ethnic cleansing. Genocide, on the other hand, is even more difficult to define, let alone for the court to come to a dispute resolution.
Myanmar's Military Junta
While Myanmar has been ruled as a one-party, military-led state isolated from the outside world for over half a century, over the last few years the reformed military government has elicited international praise for its progress and efforts in transitioning towards democracy and civilian-led governance. However, the nation’s military leadership have indicated their determination to preserve their grip on power and remain in control.
Known as the Tatmadaw, Myanmar’s military has played a dominant role in the country for most of its post-independence history. The Tatmadaw is not ready to relinquish their constitutional prerogatives that ensure guaranteed legislative representation, having retained a majority share of seats in Parliament. Further, where the constitution provides that 25% of seats in Parliament are given to the military, this guarantees their ongoing relevance to the nation’s politics and identity.
Tied to this has been the rationalisation of communal violence throughout Myanmar’s development. According to a legal analysis by the International Human Rights Clinic at Yale Law School, there exists “strong evidence of genocide against the Rohingya population” – with the military having purposely sparked communal violence between Buddhists and Muslims for the purposes of settling historic disputes and redirecting internal dissent towards a common enemy.
Further, a damning UN investigation on the Myanmar government has marked specific military personnel for further examination concerning possible charges before the ICJ. For example, Senior General Min Aung Hlaing, the commander in chief of Myanmar’s military, as well as five other generals, were recommended for investigation and prosecution under the charge of genocide.
Regardless, a growing movement for a change in leadership has been attributed to the need to reform and liberalise Myanmar’s political economy. A new generation of leaders across the military and government have pushed for this transition faster than anyone could have imagined – particularly where the military authority has realised the need to compete in the global economy. This movement has also been driven by concerns that Myanmar was falling further behind the rest of the region economically – particularly in the context of China’s development transforming the strategic balance across the Asia-Pacific region.
However, the traditional military-owned conglomerates are concerned by the loss of their lucrative monopolies over the country’s resources and industries, in addition to other economic privileges. Further, one unintended consequence of economic liberalisation has been calls for an increase in civil liberties from the international community – including greater unshackled media access and increased scrutiny from the international community.
The ICJ Case
According to a new report by Fortify Rights, the establishment of a National Verification Card (NVC) scheme by the government targeting Myanmar's Rohingya Muslims "citizenship scrutiny" processes has progressively limited their rights including freedom of movement, access to education and livelihoods and freedom of expression. These restrictions demonstrate a systematic campaign by Myanmar authorities to erase their identity.
Regrettably, Myanmar authorities have also taken steps to erase evidence of their crimes, notably bulldozing over numerous Rohingya villages to make way for military instalments. However, concluding that such acts collectively constitute “genocide” before an international court will be particularly difficult to establish. In the absence of direct conclusive evidence, the ICJ will infer genocidal intent from particular circumstances which have previously been brought forward to the court. This practice was observed in 2007, the ICJ ruled upon the occurrence of “genocide” in the Srebrenica enclave in Bosnia and Herzegovina, and held that Serbia had ignored its legal duty to prevent genocide. It is anticipated that this previous judgment will prove authoritative in advancing Gambia’s case against Myanmar.
Further, it is unclear whether the Myanmar government will accede to the ICJs ruling. Assuming the ICJ orders Myanmar to pay reparations, whether Myanmar’s rogue regime will be pressured into compliance with the order is even more uncertain. Regardless, a ruling by the ICJ would hold clear legal and moral authority under international law. To the very least, a judgement on provisional measures in the form of an injunction against Myanmar should deter it from further acts targeting the Rohingya still within Myanmar. Indeed, acknowledging the flood of foreign investment into the country over the past several years, transnational companies would be averse to conducting business with a state found to be committing genocide – particularly given the reputational risks of such dealings among their global consumers.
Finally, a judgment in favour of Gambia will uphold the international rule of law, contribute to international human rights jurisprudence, and send a firm message to the future perpetrators of genocide that there exists no complete impunity for such egregious violations of international human rights and humanitarian law.
Summary
With Rohingya victims having few options for seeking justice, it is incumbent upon the international community to collectively support and defend human rights in the country. Regrettably, the Rohingya insurgency in Rakhine state has proven to be a public relations dream for the army — particularly where terrorism is often used by authorities to absolve themselves of responsibility and justify their violent reprisals.
For all that Aung San Suu Kyi has achieved on behalf of Myanmar, she has not truly stood in support of universal democracy and human rights for all its ethnic peoples. While Suu Kyi may not be the President of Myanmar, as the de facto leader and international face of the nation, she retains the power to effect meaningful change.
Assuming there exist no jurisdictional obstacles, it will take several years before a final decision is rendered on the case. Where the Myanmar government has repeatedly avoided taking meaningful steps towards justice for crimes committed by its military, the path to truth and reconciliation remains uncertain. The international community must continue to ratchet up the pressure against Myanmar’s government for the sake of its disenfranchised ethnic peoples and its future prosperity.
While Myanmar’s direction under Syu Kyi’s stewardship remains undetermined, it is likely that the current government represents a transitionary stage – with true liberal democratic change yet to be realised. For Myanmar to redeem its soul and join international community in earnest, its leaders must be willing to step up with empathy and compassion to consider themselves not only as citizens of Myanmar but as human beings and global citizens.
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Faseeha Hashmi holds a Master of International Relations from the University of Melbourne, with an interest in community engagement and global politics.
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