Suu Kyi faces spotlight in Rohingya genocide trial

Today, international attention is firmly focused on Aung San Suu Kyi as she faces the judges in the International Court of Justice (ICJ) in The Hague and presents Myanmar’s side of the story.

Her decision to personally defend the government against accusations of genocide has spurned a mass movement to support her. Throughout Myanmar, there have been demonstrations in support of her and vigils are being held throughout the country during the duration of the hearings. Others have travelled to The Hague to show their support.

But while it has triggered enormous domestic backing for her personal crusade, there is growing international support for the case against Myanmar, with Canada and the Netherlands announcing their moral support for the ICJ proceedings on Monday. After referring to evidence in recent UN reports, according to an official joint statement, “Canada and the Kingdom of the Netherlands strongly believe this is a matter that is rightfully brought to the ICJ, so that it can provide judgement on whether acts of genocide have been committed”.

At the very least the pro-democracy icon and Nobel peace laureate will be effectively on trial — though this case does not directly involve her personal conduct or complicity, as it is two states to a dispute appearing before the court.

Gambia, on behalf of the 57-member Organisation of Islamic Cooperation (OIC), brought the case to the ICJ as a last resort in an effort to find justice and accountability for the Muslim community in Myanmar’s Rakhine region who call themselves Rohingya.

The Myanmar Muslims in Rakhine allege that they have suffered harassment, torture, evictions, rape and summary executions at the hands of the country’s army, the Tatmadaw.

Nearly a million Rohingya fled to Bangladesh to escape the violence over the past three years. Successive UN reports have accused the military of conducting a campaign of ethnic cleansing with “genocidal intent”. The Myanmar government and the military have persistently denied these accusations.

But as many international legal experts have pointed out, unlike the International Criminal Court (ICC) also in The Hague — and where there is another case pending against several leaders of the Tatmadaw — this current case is about jurisdiction, not justice. Myanmar’s highpowered international legal team are expected to focus on the definition of genocide and seek a limited legal definition of genocide, which the Myanmar government will argue that the operations in Rakhine do not constitute genocide because there was no intent to eliminate the Rohingya, even partially, though nearly a million fled to neighbouring Bangladesh to escape.

These hearings are entering their second day with attention now turning to Myanmar, and the public case it presents to explain what happened in Rakhine. Several government officials have previewed their position since the date for the court hearings was set. They have told the Bangkok Post on a number of occasions that the military operations in Rakhine over the last three years were normal military manoeuvres involving counter-terrorism. They argue that these operations were part of their counterinsurgency strategy in response to attacks — in October 2016 and again in August 2017 — by the Arakan Rohingya Salvation Army (Arsa) which left scores of policemen and border guards dead.

But while this may not be technically genocide, it created a mass humanitarian crisis.

The Myanmar government’s public interpretation of these events will be critical — not least because any submissions or evidence provided can be used at the ICC and in the separate Argentinian court case brought under the principle of “universal jurisdiction” — a legal concept enshrined in the laws of many countries.

What happened, who’s responsible and what efforts are being taken to bring the culprits to book need to be addressed head-on. Many diplomats, human rights groups and local NGOs have been dismayed by the Myanmar leader’s stony silence. This will be the first real opportunity to hear Myanmar’s side of the story, and from Ms Suu Kyi herself.

Sources close to the Lady believe she is upbeat and keen to have the opportunity to speak to the court on Myanmar’s behalf. She has defied warnings from diplomats and even those in her government that this is a high-risk strategy that could backfire.

But strategically this may be a masterstroke as far as the forthcoming elections are concerned. It certainly seems to have mobilised support for her and her party, the National League for Democracy, at a time when some analysts believe it was waning. Some leading political figures fear her move is largely a political ploy — though they all support her cause at the ICJ.

Nevertheless, the most important aspect of Ms Suu Kyi’s testimony will concern what she says about the army’s role in the Rakhine crisis. Will she throw them under the bus, as many analysts and diplomats suspect? It was very noticeable that no military representatives are accompanying her delegation to The Hague. Whatever the Myanmar leader says needs to be credible — something that has been sorely lacking in official statements so far.

There have been considerable hints over the last two weeks that the Myanmar government and the military have developed a new narrative to explain what went wrong in Rakhine. This would involve admitting that on the ground the “rules of engagement” were not followed, though this would then involve the military and government taking disciplinary action against those who were deemed to be responsible.

Last month several military men were facing court-martial for their involvement in a mass execution of villagers near Gu Dar Pyin village two years ago, after a battle in the area with Arsa. No details of these hearings have been made public, but apart from being cashiered from the army, they are expected to be given stiff prison sentences. These charges stemmed from a recent internal military investigation, said a military spokesman. There are several other military investigations in progress, according to military sources.

For this to be proof that the government is serious about making those guilty of transgressing the military’s code of conduct, their sentences will have to be tougher and more transparent than the last military effort at accountability. In March 2018, a military court sentenced four officers and three soldiers to 10-year prison sentences for the indiscriminate killing of 10 Rohingya men and boys in Maungdaw township’s Inn Din village, but they were released nine months later after the army commanderin-chief pardoned them.

Circumstances have changed since then with the army clearly increasingly under the hammer and facing international legal challenges, including at the ICJ. For the sake of preserving the institution of the army, the commander-in-chief, Min Aung Hlaing, will have to make concessions to the country’s civilian leader. It seems he is trying to insulate himself by pushing the blame for Rakhine down the ranks to the officers in charge of the operations on the ground.

But there is no doubt that Ms Suu Kyi now has the upper hand over the army, and especially Min Aung Hlaing. Even within the army there are growing concerns that only compromise can preserve the future role of the army. Many now accept that the military must come under civilian authority — something Ms Suu Kyi has been constantly demanding. This may be one of many changes that affect civilian-military relations in the future as an indirect result of the barrage of international legal action. And Ms Suu Kyi’s presentation at the ICJ may give significant clues as to how that is going to play out after the court hearings.

‘‘ This will be the first real opportunity to hear Myanmar’s side of the story.