Fight for justice over Myanmar's Rohingya 'genocide'

AFP . Yangon | Update:

The President of The Burmese Rohingya Organisation UK (BROUK), Tun Khin (L) and Argentine human rights lawyer Tomas Ojea Quintana (R) leave Argentine federal court in Buenos Aires on 13 November 2019. Photo: AFPMyanmar is facing a barrage of legal challenges from all over the world in an attempt to hold it accountable over the alleged genocide against its Rohingya Muslim population.

West African nation The Gambia this week launched a case at the UN's top court while rights groups have filed a separate lawsuit in Argentina.

Meanwhile investigations at the International Criminal Court (ICC) in the Hague continue into the 2017 military crackdown that forced some 740,000 Rohingya to flee into Bangladesh.

UN investigators last year branded the bloody expulsion a genocide, and called for the prosecution of top generals -- including the powerful army chief.

They also accused civilian leader and one-time democracy icon Aung San Suu Kyi and her government of complicity in the atrocities.

Here are some of the different legal challenges in the complex search for justice:

Generals in the dock? 

The International Criminal Court (ICC) in the Hague investigates war crimes and is focused on individual, not state, responsibility.

The United Nations Security Council needs to refer Myanmar to the court for full proceedings to start.

But geopolitics has so far stymied attempts, with China and Russia describing the Rohingya crisis as an internal matter.

Myanmar has not signed up to the ICC, but last year the court launched preliminary investigations on the basis that Bangladesh -- where the Rohingya are refugees -- is a member.

This photo taken on 1 October 2019 shows a boat passenger with belongings riding a bull cart to the shore at Japanma jetty in Kyaukphyu in Rakhine state. Myanmar has declared Rakhine state -- associated by many worldwide with the military`s 2017 crackdown on Rohingya Muslims -- open for business. Photo: AFPThis could ultimately lead to arrest warrants being issued for Myanmar's generals.

But the process is lengthy, requiring participation from Bangladesh and -- somewhat implausibly -- Myanmar to hand over suspects.

Another option could be for the ICC to create an ad hoc or mixed tribunal similar to ones created for Rwanda, Yugoslavia, Lebanon and Cambodia.

But again this would, in theory, require cooperation from Myanmar authorities.

The Gambian gambit 

The UN's top court, the International Court of Justice (ICJ), is also based in The Hague and was set up after World War II to rule on disagreements between member states.

It normally deals with issues of international law such as border disputes, but can also rule on alleged breaches of UN conventions.

The Gambia, a tiny, mainly-Muslim state, filed a case on behalf of the 57-nation Organisation of Islamic Cooperation (OIC) accusing Myanmar of breaching the 1948 UN Genocide Convention.

Leading the charge is Gambian justice minister Abubacarr Tambadou, a former genocide prosecutor at the International Criminal Tribunal for Rwanda.

The case will likely take years -- a previous genocide case brought by Bosnia against Serbia lasted 14 years.

A ruling against Myanmar could mean an order to remedy the genocide and to offer reparations to the Rohingya -- although how that would be enforced is unclear.

The Argentina option 

On Wednesday, a case was filed by rights groups in Argentina against members of the Myanmar military and, notably, civilian leader Aung San Suu Kyi.

The activists say Suu Kyi and her government are complicit in atrocities for failing to condemn the army's actions and helping cover them up.

On board -- and a reason for the faraway location -- is heavyweight Argentine human rights lawyer Tomas Ojea, who was previously UN Special Rapporteur on human rights in Myanmar.

Under a legal principle called "universal jurisdiction", the premise is that some crimes are so horrific they are not specific to one nation and can be brought to trial anywhere.

Gambia`s justice minister Abubacarr Tambadou speaks during an interview at his office in Banjul, Gambia on 5 April 2017. Reuters File PhotoDozens of such cases are under way around the world, many in relation to alleged atrocities in Syria with several suspected war criminals already charged and arrested.

How is Myanmar responding? 

Myanmar has long denied accusations it committed ethnic cleansing or genocide.

It has yet to comment on the latest cases filed at the ICJ and in Argentina, but has previously condemned such action as "interference".

The country insists its own investigative committee is able to look into alleged atrocities -- even though critics dismiss the panel as toothless and biased.

The Rohingya garner little empathy inside Myanmar with many people supporting the 2017 military campaign, buying the official line it was a necessary defence against militants and that the Muslim minority are not citizens.

Kingsley Abbott from the International Commission of Jurists warns of a "long and challenging" legal road ahead -- and that victims' expectations must be carefully managed.

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