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Aung San Suu Kyi defends Myanmar in Rohingya genocide case at the World Court in The Hague

Today, on International Genocide Day, 30 human rights, academic and professional organisations from ten countries jointly launched an international “Boycott Myanmar Campaign” in order to bring to bear economic, cultural, diplomatic and political pressure on Myanmar’s coalition government of Aung San Suu Kyi and the military.

The launch of the campaign coincides with the arrival in the Hague of Myanmar’s de facto head of state, Suu Kyi, as this week, the case against Myanmar for alleged genocide against its Muslim Rohingya minority will begin at the International Court of Justice (ICJ). Lawyers pressing the case will ask judges to order immediate action to protect the Rohingya from further violence with Suu Kyi present at the hearing, which will take place from 10 to 12 December, to lead the country’s defence herself.

The ICJ, also called the World Court, is the highest legal body of the United Nations, established in 1945 to deal with disputes between states. It should not be confused with the treaty-based International Criminal Court, also in The Hague, which handles war crimes cases against individuals.

“If the court feels there is sufficient threat and it needs to step in, it can … order Myanmar to cease and desist in terms of military operations and violence so that civilians are protected,” said Priya Pillai, an international lawyer with the Asia Justice Coalition, an NGO.

The case against Myanmar

The case was brought forward against Myanmar by the West African nation of Gambia in November under the 1948 Genocide Convention. Both countries are signatories and the convention obliges the 150 signatory countries not to commit genocide, but also to prevent and punish genocide. It defines genocide as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”.

“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, adding that the government “is deliberately destroying evidence of its wrongdoings to cover up the crimes.”

More than 730,000 Rohingya Muslims have fled Myanmar to neighbouring Bangladesh since a 2017 military crackdown, which UN investigators found in August to have been carried out with “genocidal intent”. Myanmar vehemently denies allegations of genocide.

The hearings at the ICJ will at this stage not consider whether Myanmar is guilty of genocide but will focus on a request for so-called provisional measures against Myanmar seeking to halt any ongoing abuse or violations before the case can be heard in full. The Gambia’s request for a provisional injunction is the legal equivalent of seeking a restraining order against a country.

The office of Myanmar’s civilian leader Aung San Suu Kyi, a Nobel peace prize laureate, has said she will lead her country’s defence personally. Myanmar’s legal team is expected to argue that genocide did not occur, that the top UN court lacks jurisdiction and that the case fails to meet a requirement that a dispute exists between Myanmar and Gambia.

Suu Kyi’s office said last month that she would lead her country’s team in The Hague to “defend the national interest”.

Why did the Gambia bring forward the case?

According to the New York Times, the African nation of Gambia was chosen to file the genocide lawsuit on behalf of the 57-nation Organization of Islamic Cooperation (OIC), which is also paying for the team of top international law experts handling the case. The application has also been drafted with the help of British lawyer and professor Philippe Sands QC.

The Gambia is predominantly Muslim and its lawsuit against Myanmar was born out of a series of meetings of the Organisation of Islamic Cooperation at which Gambia’s attorney general, Abubacarr M. Tambadou, assumed a position of leadership because of his special expertise: he had worked more than a decade as a lawyer at the United Nations tribunal dealing with the 1994 genocide in Rwanda.

In addition, one of the earliest and ostensibly concrete responses from the wider international community in regards to the Rohingya crisis came in 2015 from Gambia’s (then leader) Yahya Jammeh, who offered to accept all Rohingya fleeing persecution.

The non-governmental organisations supporting the initiative are No Peace Without Justice, the Association pour la Lutte Contre l’Impunité et pour la Justice Transitionnelle, the European Center for Constitutional and Human Rights, the International Federation for Human Rights (FIDH), Global Centre for the Responsibility to Protect, the Global Justice Center, Human Rights Watch, the International Bar Association Human Rights Institute, Parliamentarians for Global Action, and the Women’s Initiatives for Gender Justice.

What is the likely outcome?

A decision on provisional measures is expected within weeks and harings dealing with the core allegation of genocide could begin in 2020, but cases at the ICJ often take years and the legal threshold for a finding of genocide is high. Just three cases have been recognised under international law since the Second World War: Cambodia in the late 1970s, Rwanda in 1994 and Srebrenica in Bosnia in 1995.

“Proving genocide has been difficult because of the high bar set by its ‘intent requirement’ – that is showing the genocidal acts, say killings, were carried out with the specific intent to eliminate a people on the basis of their ethnicity,” Richard Dicker, head of the international justice programme at New York-based Human Rights Watch, told Reuters.

As part of IOHR’s new series Spotlight on Statelessness, we interviewed Saiful Huq Omi, a documentary photographer who has documented the Rohingya people for the past twelve years as well as Hafsar Tameesuddin and Sujauddin Karimuddin, two Rohingya activists, about the repercussions of the Rohingya crisis. You can watch them below.


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