People back Suu Kyi’s bid to appear before ICJ, but diplomats disapprove
There has been a strong reaction in Myanmar to Aung San Suu Kyi’s decision to appear at the International Court of Justice (ICJ) to defend the country against charges of genocide.
While Western diplomats have tried to tell the civilian leader that she is embarking on a very high-risk strategy, and should reconsider, Myanmar’s intellectuals, politicians, MPs and civil society either give her vociferous or measured support.
Myanmar’s civilian government and the country’s military leaders are accused of crimes against humanity, ethnic cleansing and genocide of its Muslim population in the strife-torn western Rakhine state in the last three years of military operations.
These ‘clearance campaigns’ forced nearly a million Muslims — or Rohingya as they call themselves — to flee to neighbouring Bangladesh for safety.
While SuuKyi’s move came as a surprise to most people in the country, including foreign diplomats, the response was swift. Demonstrations of support –– organized by the governing party, the National League for Democracy (NLD), ‘spontaneously’ took place in the commercial capital Yangon and other urban centres within hours after the official announcement of the State Counsellor’s planned trip.
More demonstrations are planned in the coming weeks before hearing opens on December 10.
Support is snowballing throughout the country. Enormous bill boards saying “Together with the State Counsellor to defend Myanmar’s national interest” have sprung up in Yangon and in many other cities. Others, showing Aung San Suu Kyi standing in front of the top three generals with the same message: “We stand with you” also adorn urban transport networks.
Some travel agents are organizing VIP five-day package tours to the Netherlands in support of the State Counsellor.
But despite the bold announcement more than a week ago, the trip was immediately thrown into doubt, because of issues of diplomatic immunity, travel arrangements and security concerns.
Although Aung San Suu Kyi planned to attend the court in her role as Foreign Minister, she was in fact going in a ‘private capacity’. It would not be a State visit as the Netherlands had not invited the minister for an official trip.
This immediately raised doubts about her status and security, particularly whether the general protocol as a Foreign Minister afforded her sufficient protection, in the unlikely event of international arrest warrants being issued to her.
According to European diplomatic sources as Foreign Minister, even on a private visit, she would be covered by diplomatic immunity. A negotiated “agent of the court” would have guaranteed her protection.
Then there was the added problem of travel to The Hague, as there are no direct flights from Myanmar. But this seems to have been overcome, with the Myanmar government reportedly hiring a charter flight.
The other issue was security while in the Netherlands. As this was not an official visit, the Netherland’s could not provide the usual beefed up security that protocol dictates for Heads of State or government. This has now been resolved, according to diplomat sources, with minimum but “top grade” police escort assigned.
Throughout last week there has been intense diplomatic shuttling – from capital to capital –but the State Counsellor remained undaunted and determined to keep her appoint in The Hague. Government insiders told the South Asian Monitor that she was ‘gung ho’ about the visit.
Although she has reaffirmed her personal participation in the hearing, many remain worried about the possible implications and ramifications.
Several western embassies have tried to dissuade her from going and appearing in the court for fear of worsening the country’s international reputation –adding to Myanmar’s tarnished image and further discouraging Western investment – and even implicating herself or the military in war crimes, ethnic cleansing and genocide.
The major exodus of refugees – at the centre of the allegations of genocide — started in October 2016, after an unexpected Arakan Rohingya Salvation Army (ARSA) attack on several border checkpoints that left several security personnel dead. Some 70,000 Muslims fled across the border into Bangladesh in the wake of a draconian military ‘clean up’ operation in which thousands of houses were razed and civilian villagers forced to flee.
In August 2017, a further ARSA attack, leaving a score of policemen and border guards dead, saw a similar pattern of military operations with even more refugees fleeing and accusing the military of intimidation, rape and summary executions.
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.
Earlier this month, the ICJ accepted a case filed by the West African country Gambia – a largely Muslim country — on behalf of the 57-member Organization of Islamic Cooperation (OIC), with the intention of bringing the Myanmar government to book for the army’s atrocities against the Muslim population in Rakhine.
Gambia asked the ICJ to investigate whether the Myanmar government has violated the Geneva Convention, which prohibits genocide. As a signatory to the Convention, Myanmar cannot ignore the challenge this case currently presents.
Aung San Suu Kyi and her administration are relishing the opportunity to put their side of the story to the world, by appearing at the court and outlining the government’s position. The view in the government, as it prepares its case, is that they need to put the record straight.
What happened in Rakhine was not genocide or ethnic cleansing, several senior government officials have told SAM. It was a standard strategy of counter terrorism. The government is clearly hoping for understanding, and as one official put it, “and to be able to correct the international narrative”.
But what the government needs to understand is that they will be judged more on whether they show any remorse. And that the corrective measures they have implemented to address the root causes of the discrimination and conflict in Rakhine state have been adequate. Rhetoric alone will not be enough.
The danger here is that the Myanmar side does not understand the nature of this international court.
“This is not about justice but jurisdiction,” said a former German diplomat who has had experience at the ICJ. “This is not a criminal court. It is not a prosecutorial process. There will be no cross-examination of witnesses, at least at this stage. The ICJ adjudicates between state parties — in this case Myanmar and Gambia. So Myanmar is not there as a defendant but as a State party to the Genocide Convention. The hearing will deal largely with legal issues.”
Both parties will be represented by advocates – international lawyers with experience at these types of tribunals. Both countries will present their case – on separate days – and then the court is expected to decide whether and how to proceed.
The December hearings are not intended to deal at length with the substance of the case. That will come later. It is expected to take up to ten years before it is completed.
“It’s more organizational and intended to deal with Gambia’s request for preliminary measures to prevent further acts of genocide,” Laetitia van den Assum, a former Dutch Ambassador in Myanmar and Thailand told the SAM.
“How the court plans to deal with an array of procedural questions is as yet mostly unknown,” she added.
Myanmar is also facing two other international legal cases – at the International Criminal Court (ICC) in The Hague. One is a lawsuit against Aung San Suu Kyi and other is against senior Myanmar leaders in Argentina under the principle of ‘universal jurisdiction’.
This makes SuuKyi’s performance in The Hague, in terms of the adequacy of her statement, the content of her arguments and her demean our throughout the proceedings even more critical.
But Myanmar and the former democracy icon are facing even more powerful judges in the court of international opinion. The hope is that her performance at The Hague will start to turn the tide of international condemnation around into a qualified understanding. But the danger is that she may inadvertently implicates herself and her civilian government.
The evidence given at the forthcoming hearing can also be used at either or both of the other international courts with possibly more immediate and dire consequences.
The Hague hearings are certainly not the end of the story, but only the start of a long drawn out saga.