Can Suu Kyi stand up to the lawsuit avalanche?


Bangkok Post December 2nd, 2019

Myanmar-Aung San Suu Kyi

Photo: AFP

International pressure to rehabilitate the Rohingya and reform Rakhine is unlikely to dissipate

Myanmar’s top leaders — both military and civilian — have been shell-shocked by the avalanche of international legal cases they are now facing. In the space of days, three cases have been lodged in separate courts, all intended to make the Myanmar government and the country’s military leaders accountable for the horrendous events that unfolded in strife-torn western Rakhine state during military operations over the last three years.

But the key case — at the International Court of Justice (ICJ) brought by Gambia on behalf of the 57-nation member Organisation of Islamic Cooperation (OIC) — has finally propelled the Myanmar government to take decisive action. The State Counsellor, Aung San Suu Kyi, announced late last week that she will lead the country’s defense team, supported by a panel of prominent international lawyers to contest the case submitted by Gambia.

“The Myanmar government is taking this case very seriously,” the minister for international cooperation and deputy foreign minister, Kyaw Tin told the Bangkok Post in the sidelines of a major economic conference in the capital Naypitaw on Friday. In fact, as Myanmar is a signatory to this convention — which the democratic government of U Nu’s signed in 1956 — it cannot ignore the process.

This move on the part of the government came as a complete surprise to most diplomats and international observers, as most had expected Suu Kyi and her government to ignore this move at the ICJ, much in the same way as they have ignored the plethora of UN reports alleging forced evictions, the razing of Muslim villagers’ homes, rape and summary executions. But mounting a vigorous defense at the court in the Hague will not be enough to win the case nor sway international public opinion, according to many diplomats and legal experts.

“The State Counsellor, as foreign minister, will defend Myanmar’s interests,” he said. “Myanmar is looking forward to appearing in the court and using the opportunity to fully explain the country’s position.”

The minister, Kyaw Tin, went on to say that it is crucial for the international community to understand that Myanmar was only defending itself against terrorist attacks. This was not a premeditated campaign to expel the Muslims from Rakhine. “It was a matter of self-defense,” he stressed.

The major exodus of refugees started in October 2016, after an unexpected attack by the Arakan Rohingya Salvation Army (Arsa) on several border checkpoints left several security personnel dead. Some 70,000 Muslims fled across the border into Bangladesh in the wake of a draconian military “clean up”, in which thousands of houses were razed and civilian villagers forced to flee. In August 2017, another Arsa attack — which left a score of policemen and border guards dead — saw a similar pattern of military operations and even more refugees fleeing and accusing the military of intimidation, rape, and summary executions.

Successive UN reports accused the military of conducting a campaign of ethnic cleansing with genocidal intent. The Myanmar government and the military have persistently denied these accusations.

Earlier this month the ICJ accepted a case filed by Gambia — a largely Muslim country in West Africa and a member of the OIC — intended to bring the Myanmar government to book for the army’s atrocities against the Muslim population in Rakhine. It asks the ICJ to investigate whether Myanmar’s government has violated the Geneva Convention, which prohibits genocide. In particular, it charges that Myanmar is responsible for “killing, causing serious bodily and mental harm, inflicting conditions that are calculated to bring about physical destruction, imposing measures to prevent births, and forcible transfers, [which] are genocidal in character because they are intended to destroy the Rohingya group in whole or in part”.

Gambia has also called for the court to impose precautionary measures to prevent further genocide. It requested that the ICJ issue an urgent temporary injunction ordering Myanmar to halt all actions that could aggravate or expand the existing situation. That could involve demands to stop further extrajudicial killings, rape, and levelling of the homes where the Rohingya once lived in Rakhine state.

“It is clear that Myanmar has no intention of ending these genocidal acts and continues to pursue the destruction of the group within its territory,” the lawsuit said. The government “is deliberately destroying evidence of its wrongdoings to cover up the crimes,” it added. 

The first public hearing is set to open in the Hague on December 10, at which Suu Kyi will appear, leading a legal team under Attorney General Htun Htun Oo. Three international barristers are included as part of the panel. At the moment, the state counsellor’s office is working overtime to gather evidence, testimonies, and arguments to bring to the court, according to a government insider.

“This is the highest sanction the government can level against Myanmar, with both the civilian government and the army implicated,” a diplomat told the Bangkok Post, on condition of anonymity. As the case is likely to drag on for 10-15 years, it gives Myanmar time to get things right, they suggested. “They can soften the blow with mitigating circumstances, but they need to act now,” said a legal expert, who declined to be identified. “The government needs to tackle the root causes of the conflict in Rakhine, and initiate a number of administrative reforms.”

Pressure will mount on the army to straighten their act, and there is increasing pressure on the civilian authority to ensure the army acts professionally. In due course, the army will have to carry out internal reforms, giving a greater impetus to bring the military under direct civilian rule.

“Myanmar is in the dock, so it’s time to put ‘substance to the rhetoric’” said an Asian diplomat. “Start with giving unfettered access to Rakhine, especially for the UN and NGOs — both local and international.”

What is needed is an agreed, credible, consistent, and coordinated strategy to improve the situation on the ground. Creating conditions which are conducive for the refugees to return from Bangladesh in the future must also be prioritized.

While this is an essential starting point for any long-term development and reconciliation in Rakhine, some form of credible accountability and justice for the Rohingya’s suffering is also needed, whether through an international mechanism or a local process. 

Larry Jagan is a specialist on Myanmar and a former BBC World Service News editor for the region. A version of this article was previously printed in the Bangkok Post. This is being reprinted under special arrangement.