By P.K.Balachandran/Ceylon Today
In her recent presentation before the International Court of Justice (ICJ) on the Gambian complaint about Myanmar’s committing genocide against the Rohingya Muslims, State Counselor and Foreign Minister Aung San Suu Kyi argued that the term “genocide” cannot be used in the said case, and added that it would be wrong to devalue domestic accountability processes.
Suu Kyi, who had won the Nobel Prize for fighting against military rule in Myanmar, said that it would be inappropriate to apply the 1948 Genocide Convention to the happenings in Myanmar. That Convention came into being following the systematic killing of more than six million European Jews by the Nazis. Subsequently, it was applied in some cases and not in others, she pointed out.
It was applied to the mass-killing of 70% of Tutsis in Rwanda, but it was not applied by the Tribunal for the former Yugoslavia to the displacement of one million people of Kosovo in 1999. It was not applied by that Tribunal or by the ICJ when deciding on the exodus of the Serb population from Croatia in 1995.
In both the latter situations, international justice resisted the temptation to use the term genocide “because the requisite specific intent to physically destroy the targeted group in whole or in part was not present,” Suu Kye recalled.
She accused The Gambia of placing before the court an “incomplete and misleading picture of the situation in Rakhine State in Myanmar (where the Rohingyas live).” She stressed that it is of the utmost importance that the court assesses the situation obtaining on the ground in Rakhine “dispassionately and accurately,” as she put it.
Suu Kyi did not deny that mass displacements of Rohingyas had taken place and that the community had suffered enormously. But she argued that the solution to the problem does not lie in a one-sided accusation against the State of Mynamar and its armed forces. She told the accusers of understand that the troubles of Rakhine State and its population go back into past centuries and one person cannot be held accountable.
The international community’s emphasis has been on the sufferings of the Rohingyas, while ignoring another on-going armed conflict in Rakhine State, that between the Buddhist Arakan Army, and the government forces.
“The Arakan Army seeks autonomy or independence for Rakhine – or Arakan as it was called. This conflict has led to the displacement of thousands of civilians in Rakhine, “ Suu Kyi pointed out.
The Myanmar leader recalled that it was the Arakan Rohingya Salvation Army – known as ARSA – and not the Myanmar army, which kicked off the latest round of conflicts in that area in October 2016.
“ARSA claimed responsibility for these attacks, which led to the death of nine police officers, more than 100 dead or missing civilians, and the theft of 68 guns and more than 10,000 rounds of ammunition. This was the start of an internal armed conflict between ARSA and Myanmar’s Defense Services which lasted until late 2017,” Suu Kyi said.
ARSA had executed suspected army informers. According to the International Crisis Group, the Muslim group received weapons, explosives and training from Afghan and Pakistani militants, she added.
Admits Disproportionate Force
However, Suu Kyi admitted that disproportionate force might have been used by the government forces. “It cannot be ruled out that disproportionate force was used by members of the Defense Services in some cases in disregard of international humanitarian law, or that they did not distinguish clearly enough between ARSA fighters and civilians. There may also have been failures to prevent civilians from looting or destroying property after fighting or in abandoned villages,” she said.
Bu she pleaded that the world should bear in mind the challenge to sovereignty and security of Myanmar from these militant groups while assessing the role of those defending the law, sovereignty and integrity of the State.
“ Under the circumstances, genocidal intent cannot be the only hypothesis,” she argued.
She informed the court that under its 2008 Constitution, Myanmar has a military justice system. Criminal cases against soldiers or officers for possible war crimes committed in Rakhine must be investigated and prosecuted by that system.
On November 25, 2019, the Office of the Judge Advocate General announced the start of a court-martial for allegations linked to the Gutar Pyin village incident, one of the 12 main incidents referred to earlier. The Office also let it be known that there will be additional courts-martial if further incriminating evidence is brought by the Independent Commission of Enquiry (ICOE). “
“The ICOE,” she explained, “is an independent special investigation procedure established for Rakhine allegations by the President of Myanmar, chaired by a former Deputy Foreign Minister from the Philippines, with three other members, including a former Under-Secretary-General of the United Nations from Japan.”
Suu Kyi further said that on November 26, 2019, the ICOE announced that it had taken about 1500 witness statements from all affected groups in Rakhine and that it has interviewed 29 military personnel who were deployed to the affected townships in northern Rakhine during the military operations from August 25, 2017, to September 5, 2017, as well as 20 police personnel who were stationed at the police posts that were attacked on August 25, 2017.
“There is currently no other fact-finding body in the world that has garnered relevant first-hand information on what occurred in Rakhine in 2017 to the same extent as the Independent Commission of Enquiry and the Office of the Judge Advocate General in Myanmar,” Suu Kyi pointed out.
She then went to state that this fact reinforces her sense that she should refrain from any action or statement that could undermine the integrity of these ongoing criminal justice processes in Myanmar. “They must be allowed to run their course.”
Suu Kyi drew the court’s attention to the fact that it is never easy for armed forces to recognize self-interest in accountability for their members, and to implement a will to accountability through actual investigations and prosecutions.
“I respectfully invite the members of the court to consider for a moment the record of other countries. This is a common challenge, even in resource-rich countries,” she pleaded.
She then rhetorically asked: “Can there be genocidal intent on the part of a State that actively investigates, prosecutes and punishes soldiers and officers who are accused of wrongdoing?”
Suu Kyi assured that there will be no tolerance of human rights violations in the Rakhine, or elsewhere in Myanmar.
The Myanmar leader drew attention to the internationally accepted norm that the domestic criminal justice system must be given priority.
“Only if domestic accountability fails, may international justice come into play. A rush to externalize accountability may undermine professionals in domestic criminal justice agencies. No stone should be left unturned to make domestic accountability work. “
She further said: “It would not be helpful for the international legal order if the impression takes hold that only resource-rich countries can conduct adequate domestic investigations and prosecutions, and that the domestic justice of countries still striving to cope with the burden of unhappy legacies and present challenges is not good enough. The Gambia will also understand this challenge with which they too are confronted.”
However Suu Kyi conceded that Myanmar could also have done more since the 1980s to emphasize the shared heritage and deeper layers of unity among the diverse peoples of the country. But it should also be noted that the government has taken several steps to bring about communal harmony; given opportunities to marginalized communities in Rakhine; and closed refugee camps.
While the majority Burmese Buddhist community in Myanmar is fully backing Aung San Suu Kyi’s line, there is no sign of endorsement by the minorities, least of all the Rohingya Muslims. They think that all she had done at the ICJ was to whitewash the situation in Rakhine and the government’s responsibility for the suffering of the Rohingya Muslims and others.
(The featured image at the top shows Aung San Suu Kyi at the International Court of Justice at The Hague)