Briefing: What’s behind a flurry of legal bids to prosecute Myanmar for genocide?

‘The net is tightening around the Myanmar military and civilian leadership.’

A Bangladeshi man helps Rohingya Muslim refugees to disembark from a boat on the Bangladeshi shoreline of the Naf river after crossing the border from Myanmar in Teknaf on 30 September 2017.
A Bangladeshi man helps Rohingya refugees to disembark from a boat after crossing the border from Myanmar in Teknaf on 30 September 2017. (Fred Dufour/AFP)

A burst of legal action across the globe this month has provided fresh impetus for efforts to examine atrocity crimes allegedly committed by Myanmar against its Rohingya minority.

Starting on 10 December, the International Court of Justice (ICJ), the UN’s highest court, is scheduled to hold public hearings in a lawsuit accusing Myanmar of genocide.

In an unexpected move, the office of de facto Myanmar leader Aung San Suu Kyi announced on Wednesday that she planned to personally “lead a team” at The Hague, where the court is based, “to defend the national interest of Myanmar”.

It’ll be the first time Myanmar has faced legal action for the crime of genocide, more than two years after the military purge of more than 700,000 Rohingya beginning in August 2017.

UN investigators have said the violent ouster was committed with “genocidal intent”. Myanmar has dismissed allegations of rights abuses and claimed its army’s 2017 campaign was a proportionate response to attacks on border areas by Rohingya insurgents.

The ICJ case, filed last week by the West African nation of The Gambia on behalf of the 57-member Organisation of Islamic Cooperation, was part of a flurry of legal manoeuvres that have accelerated accountability efforts after years of inaction.

Separately, on 14 November, judges at the International Criminal Court (ICC), which also sits in The Hague, authorised an investigation into alleged deportation and persecution – considered crimes against humanity under international law.

A day earlier, in yet another legal challenge, a Rohingya rights group launched a case calling on courts in Argentina to prosecute military and civilian officials – including Aung San Suu Kyi – under the concept of universal jurisdiction, which pushes for domestic courts to investigate international crimes.

Myanmar has largely shrugged off attempts at examining its actions, blocking UN investigators from entering the country and rejecting ICC jurisdiction.

This briefing explores what’s behind the latest legal moves and what they might accomplish.

Why is the ICJ case significant?

It opens up a parallel road to examining alleged crimes against the Rohingya. Myanmar has rejected the jurisdiction of the ICC, a war crimes court, as the country has not signed on to the Rome Statute – the treaty that established the ICC.

However, such objections disappear when it comes to the ICJ, which is the UN’s highest legal authority used to settle disputes between nations. The Gambia is accusing Myanmar of violating the 1948 Genocide Convention, and Myanmar is a party to that convention: if the court decides that Myanmar committed the gravest offences under international law, there could be diplomatic consequences.

“If a party fails to perform any of the obligations set out in a judgment, the matter can be referred to the UN Security Council, which may recommend or decide upon necessary measures,” said Kingsley Abbott, a senior legal advisor at the International Commission of Jurists.

Myanmar now faces the prospect of a damning judgment against the state itself. The ICJ case, filed on 11 November, heaps further pressure on Myanmar’s leaders: government spokesman Zaw Htay told The Irrawaddy newspaper that his country’s reputation had been “severely damaged”.

Is Aung San Suu Kyi actually going to lead the defence?

It’s unclear whether Suu Kyi will literally lead Myanmar’s defence team.

While Suu Kyi has promised to “lead a team to The Hague”, a statement from her office notes that Myanmar is enlisting unnamed “prominent international lawyers to contest the case”.

If Suu Kyi intends to lead her country’s defence, she can be appointed as Myanmar’s “agent” and have the opportunity to address the court, likely with a speech prepared by lawyers and advisors, said Matthew Smith, who heads the Bangkok-based activist group Fortify Rights.

Priya Pillai, a Manila-based lawyer who specialises in international law and transitional justice, said it would be “highly unusual” for such a high-ranking government official to appear before the ICJ.

“I can only surmise that in this instance it is to refute the case on the international stage as a matter of foreign policy and domestic politics, but will have little impact on the arguments and court proceedings,” said Pillai, who also heads the Asia Justice Coalition, a group of legal experts working to advance accountability in the region.

“I hope the ICJ uses the opportunity of her presence in the court to put her in the witness box.”

The ICJ also does not examine individual responsibility, but weighs disputes between states.

“The characterisation that Aung San Suu Kyi is ‘facing charges’ at the ICJ, which may be the way it is being spun for political reasons, is incorrect,” she said.

But Suu Kyi’s potential appearance in The Hague could still be a chance to further examine rights abuses in Myanmar, said Chris Sidoti, an international human rights lawyer and one of three investigators appointed to a UN rights probe on Myanmar, which concluded its work in September.

“I hope the ICJ uses the opportunity of her presence in the court to put her in the witness box and question her under oath on what she knew, when she knew it, and what she did and did not do,” Sidoti told The New Humanitarian.

What impact is the ICJ case likely to have?

The simple fact that the case has now been filed and is in the public eye may act as a deterrent against further abuses, Sidoti said.

His UN investigation, officially called the Fact-Finding Mission on Myanmar, found that “egregious” abuses – including sexual violence, persecution, and segregation – are continuing against Rohingya and other minorities still in Myanmar.

“The net is tightening around the Myanmar military and civilian leadership. They must realise that,” Sidoti said. “In one week there have been developments in three jurisdictions: the International Criminal Court, the International Court of Justice, and the domestic courts of Argentina. I have no doubt that this will have a deterrent effect.”

“It will take years, but a ruling against Myanmar would be proof that Myanmar committed genocide.”

In the upcoming ICJ hearings, scheduled for 10-12 December, lawyers for The Gambia will argue for “provisional measures” to protect the Rohingya – essentially the equivalent of a legal injunction against Myanmar, calling on the state to stop actions that continue the alleged crimes. Myanmar would be bound by international law to comply.

If the court agrees, such an order could happen relatively quickly, analysts say.

Others see the potential for substantial longer-term impacts.

“It will take years, but a ruling against Myanmar would be proof that Myanmar committed genocide,” said Smith. “The court would likely issue remedies and there would be significant pressure on Myanmar to comply.”

These could include measures targeting government policy and practices that have marginalised and disenfranchised Rohingya for generations, including a controversial law that has made it nearly impossible for most Rohingya to attain citizenship.

“For example, if the court issued a ruling finding Myanmar responsible for genocide, then the court would consider how to remedy the genocide, and that could lead the court to demand Myanmar amend the 1982 citizenship law, lift restrictions on movement, and so forth,” Smith said. “The court could also call for reparations for Rohingya.”

What about the ICC probe?

The ICJ is mandated to settle disputes between nations, while the ICC is a war crimes court that examines atrocity crimes involving individual suspects.

Last week, ICC judges gave the go-ahead for prosecutor Fatou Bensouda to open an official investigation, but any resulting case will have a relatively narrow focus constrained by jurisdiction: Myanmar is not a member of the court, though neighbouring Bangladesh is.

Bensouda’s case hinges on deportation and other crimes that allegedly happened on Bangladesh soil, where nearly one million Rohingya now live in refugee camps.

But victims’ groups in particular believe the focus on cross-border crimes is unacceptably narrow – Bensouda isn’t explicitly investigating the separate crime of genocide, for example. And the investigation won’t examine abuses against other civilians in conflict zones across the country, including minority communities in northern Myanmar.

What about Argentina?

Sandwiched between last week’s two separate moves in The Hague was a third attempt to examine anti-Rohingya violence, using courts in Argentina.

The Burmese Rohingya Organisation UK advocacy group is urging Argentinian courts to prosecute military and civilian officials in Myanmar – including Suu Kyi. The case is based on the legal concept of universal jurisdiction, where domestic courts are used to investigate international crimes.

This has been controversial in practice, opening the door to criticisms that prosecutions can be politically motivated. However, the case’s backers, which include Tomás Ojea Quintana, the former UN special rapporteur for rights in Myanmar, argue otherwise.

“States have an obligation to pursue these crimes no matter where they have been committed, and to make sure that no country becomes a safe haven for perpetrators,” said Quintana, who is representing the Rohingya group.

What are Rohingya saying?

Rights campaigners and Rohingya organisations have welcomed this month’s sudden spate of legal developments.

The Rohingya Youth Association, a group based in Bangladesh’s refugee camps, said the pursuit of genocide prosecutions after years of inaction might prevent further atrocities: “Myanmar has enjoyed international impunity and felt emboldened to intensify their campaign against us and other ethnic minorities,” the group said in a statement.

Other Rohingya have taken to social media to support the ICJ case.

What are the next steps?

There’s still a long road ahead.

The ICC case, for example, remains in a pre-trial investigation phase, which can take years on its own.

And, as with any legal case, the end results are far from certain. Abbott of the International Commission of Jurists warned: “The expectations of victims should be managed carefully as the process is likely to be long and complex, and the outcome is not guaranteed.”

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