We can now begin to digest the remarkable spectacle that played out in The Hague this week, as The Gambia and Myanmar took their places in the Great Hall of Justice of the Peace Palace. Myanmar faces allegations that atrocities committed against the Rohingya minority in Rakhine State since 2016 amount to genocide and that Myanmar is thus in violation of the 1948 Genocide Convention. As a party to the Genocide Convention, The Gambia has asked the International Court of Justice (ICJ), the principal judicial organ of the United Nations, to hold Myanmar responsible. Last week’s public hearings marked only the first step in the case, as The Gambia asked the ICJ to grant provisional measures—that is, interim relief while the case is being heard—on the grounds that the Rohingya who remain in Myanmar live under a constant threat of further violence and that Myanmar is poised to conceal or destroy evidence that is relevant to the case. The Court can be expected to issue a decision on provisional measures early next year. The case on the merits will take much longer to decide—years, not months.
These initial hearings were remarkable and revealing in several ways, however.
First, the hearings provided a preview of the legal arguments that Myanmar will develop as the case progresses. These included several jurisdictional arguments that seem unlikely to succeed. For example, Myanmar focused on the fact that The Gambia has brought the case with the support of the 57-state Organization for Islamic Cooperation (OIC), and that it may be receiving financial support or legal advice from OIC states. Even if this is true, it should have no legal relevance whatsoever. The Gambia has acted in a sovereign capacity to bring the case, and it can receive help from whomever it wishes. Myanmar’s argument that the ICJ may only exercise jurisdiction over a case brought by a state that is directly affected by the situation of the Rohingya—such as Bangladesh—is also unlikely to hold water. Nonetheless, Myanmar may seek to further litigate these jurisdictional objections at the next phase of the case, which will delay a reckoning with the merits of The Gambia’s claims. And it is entirely within Myanmar’s rights to press these arguments, as weak as they appear to most observers.
Secondly—and of greater interest—the hearings highlighted the thrust of Myanmar’s defence on the merits. Specifically, Myanmar sought to regain control of the narrative and frame the situation in Rakhine State as an internal armed conflict—thus laying the foundation to claim that the ‘clearance operations’ carried out by the Tatmadaw against the Rohingya were part of a legitimate military response to suppress a ‘rebellion’ and a terrorist threat. Alternatively, Myanmar’s legal team suggested that the difficult conditions imposed upon the Rohingya are not meant to kill them—but rather to force them to leave. From a legal perspective, these arguments are important. One of the central challenges to proving any genocide claim in a court of law is establishing the existence of genocidal intent. It is not sufficient to prove that acts falling with Article II of the Genocide Convention—for example, killing members of a protected group, such as the Rohingya—took place. For these to be genocidal acts, the killings must have been committed with an intent to destroy the protected group in whole or in part. Myanmar has seized upon the fact that the case law of the ICJ is very narrow on this point. In principle, the Court accepts that genocidal intent can be inferred from a pattern of conduct, but the intent to commit genocide must be the only conclusion that can reasonably be drawn from that evidence. This sets a high bar and means that Myanmar has every incentive to argue that the actions of its militarywere not genocide but were, instead,counter-insurgency (or even counter-insurgency run amok).
These arguments are unlikely to dissuade the ICJ from granting provisional measures, but they will be a central theme of the case as it moves forward. However, Myanmar will eventually be forced to answer a series of questions on this point (the ‘counter-insurgency’ explanation) that counsel for The Gambia posed, but that were left unanswered at this stage—namely, how can a counter-insurgency campaign require the deliberate killing of Rohingya children (including infants), the mass rape and savage mutilation of Rohingya women and girls, and the burning to the ground of thousands of homes, sometimes with Rohingya families trapped inside? What inference can be drawn from that pattern of conduct if not genocidal intent?
Finally, the hearing was fascinating because of the presence of Aung San Suu Kyi in the courtroom. On the first day, the former Nobel Peace Prize winner had no choice but to sit in silence as The Gambia’s legal team made out its case, including brutal descriptions of the atrocities that have been exacted upon the Rohingya people, include rape and other forms of sexual violence. But it was Madame Suu Kyi’s address to the Court on the second day that was more remarkable, as she attempted to defend her government against allegations that many will consider indefensible.
It did not go unnoticed that she pointedly did not use the word “Rohingya” (except in one instance, when she referred to the Arakan Rohingya Salvation Army). Her decision not to use that word (a policy that Myanmar’s entire legal team followed) came across poorly. Its pettiness seemed beneath the dignity of a human rights icon (albeit one whose stature has already been largely demolished outside Myanmar) and it only served to reinforce the idea that Myanmar’s entire approach has been to de-humanize the Rohingya—to deny their existence. Aung San Suu Kyi also failed to respond in any way to the allegations ofsexual violence that The Gambia had presented as a key feature of its case. This also served to undermine the credibility of Myanmar’s overall response. Instead, Aung San Suu Kyi warned against efforts to “externalize accountability”, pointed to recent programmes aimed at fostering inter-faith reconciliation in Rakhine, and urged the ICJ to allow Myanmar to handle its own affairs and to investigate its own wrong-doers. Given the gravity of the allegations that Myanmar faces, these arguments will likely be seen asfar too little, far too late.
*Michael A Becker is Adjunct Assistant Professor of Law, Trinity College Dublin