Gambia Presents Genocide Case Against Myanmar at ICJ Over Rohingya Expulsion

Updated at 9:02 a.m. ET on 2019-12-11

Gambia on Tuesday began arguing its genocide case against Buddhist-majority Myanmar at the United Nations’ top court, asking that the court ensure that atrocities against the Rohingya Muslim minority not continue.

Lawyers for the mostly Muslim West African country recounted to the International Court of Justice (ICJ) in The Hague the indiscriminate killings, mass rapes, torture, and village burnings that Myanmar military-led forces inflicted upon Rohingya communities as part of their “clearance operations,” beginning in August 2017.

They cited information from the report of a U.N.-mandated fact-finding commission that concluded the attacks on the Rohingya were carried out with “genocidal intent,” and warned that the roughly 600,000 Rohingya currently living in Myanmar face a “serious risk of genocide.”

Thousands of Rohingya perished as a result of the 2017 violence, and more than 740,000 others fled to safety in neighboring Bangladesh where they live in massive displacement camps.

Myanmar leader Aung San Suu Kyi, who is heading the country’s defense team, dispassionately observed the proceedings during the first day of the three-day hearings.

“All that The Gambia asks is that you tell Myanmar to stop these senseless killings, to stop these acts of barbarity and brutality that have shocked and continue to shock our collective conscience, to stop this genocide of its own people,” said Gambian Justice Minister Aboubacarr Marie Tambadou in opening comments.

Gambia’s lawyers asked the ICJ to order special measures to protect Myanmar’s Rohingya until the full case is heard, including requiring government forces to immediately stop acts of violence that could contribute to genocide.

“We appeal before you today because there is still time to save the Rohingya,” said Payam Akhavan, an international law professor and member of the Permanent Court of Arbitration who has spoken out against the alleged genocide of the Rohingya.

“We turn to this court as the guardian of the Genocide Convention,” he said.

Gambia, which brought the lawsuit against Myanmar in November on behalf of the 57-member Organization for Islamic Cooperation, alleges that Myanmar breached the Genocide Convention, adopted by the U.N. in 1948, with its military-led campaign targeting the Rohingya.

The West African nation, which ratified the convention in 1978, brought the case under Article 9 of the convention, which allows parties to the treaty to submit to the ICJ disputes between signatories that relate to “the responsibility of a State for genocide,” according to a primer on the case issued by Human Rights Watch (HRW).

The case that Aung San Suu Kyi will address at the ICJ in The Hague on Wednesday is not a criminal case against individual alleged perpetrators, but a “state-to-state” litigation between U.N. member states under the U.N. Charter, HRW said.

Sanctions against generals

The United States, meanwhile, announced Tuesday that it had added Myanmar military commander-in-chief Senior General Min Aung Hlaing and other commanders to its list of individuals sanctioned under the Global Magnitsky Act, initially crafted to deal with rights abuses in Russia and to apply targeted sanctions to culpable officials.

“This sanction of Burma’s army chief, Min Aung Hlaing, is an announcement very fitting for December 10th, Human Rights Day,” said Simon Billenness, executive director of the International Campaign for the Rohingya, in a statement.

“We urge other countries to join the United States in sanctioning Burmese army leaders and the Myanmar’s military’s extensive business empire,” he said.

“There can be no ‘business as usual’ with the perpetrators of genocide,” added Billenness.

Myanmar human rights attorney Min Lwin Oo said he doubted that the targeted sanctions would have any effect on the country’s top military brass.

“Myanmar military leaders must have calculated the possibility of these kinds of actions,” he said about the sanctions. “It would have direct impact on their overseas bank accounts [and] block transactions of foreign currencies into their bank accounts.”

“Regardless, it is known that the military leaders have kept their wealth under the names of their spouses and relatives, so this action will not have much of an effect on them,” he said. “It will only damage their image.”

On Monday, seven Nobel Peace laureates urged Aung San Suu Kyi to publicly acknowledge the atrocities against the Rohingya as genocide at the ICJ and demanded that she be held accountable for the crimes.

The signatories included Shirin Ebadi of Iran, Laymeh Gbowee of Liberia, Tawakkol Karman of Yemen, Mairead Maguire of Northern Ireland, Rigoberta Menchu Tum of Guatemala, Jody Williams of the United States, and Kailash Satyarthi of India.

Aung San Suu Kyi herself was awarded the Nobel Peace Prize in 1991 for her nonviolent struggle for democracy and human rights.

The state counselor, her government administration under the ruling National League for Democracy (NLD) party, and the military have denied responsibility for the atrocities.

In response to the call by the other Nobel laureates, NLD spokesman Myo Nyunt said he objected to the Nobel laureates’ statement that the atrocities had occurred on Aung San Suu Kyi’s watch.

“We don’t accept the statement that these crimes occurred on her watch,” he told the Myanmar Service of Radio Free Asia (RFA), a sister entity of BenarNews. “There is no way she will publicly acknowledge that. Since it is not something that will happen, I will not comment anything on it.”

But Aung Zaw Oo from the Human Rights Defenders and Promoter’s Group said Aung San Suu Kyi’s government was responsible for the human rights violations that occurred during its term, regardless of the violators, and that failing to prevent the rights violations was abetting the crimes.

“We welcome the acknowledgement of the violations,” he said. “It’s not a problem for us. Punishing the violators is a different story.”

Opponents and supporters

Both opponents and supporters of Aung San Suu Kyi, meanwhile, demonstrated outside the ICJ on Tuesday, the 71st anniversary of International Human Rights Day.

“The reason we are here is because we Rohingya have been victims of genocide for many years,” said Hla Kyaw, chairman of the European Rohingya Council. “Now, Gambia has prosecuted Myanmar for justice and accountability. We are here to show support for the lawsuit in the first day of the hearing today. We are here to show that we want justice.”

Khun Htwe of the Kachin National Council said he hoped the genocide case before the ICJ would also bring justice for other ethnic minority groups that have suffered at the hands of the government army that ruled the country formerly known as Burma for more than five decades.

“We are very glad that the ICJ lawsuit goes as far as genocide charges,” he said. “The justice for the atrocities that the Rohingya people have endured will not just be for the Rohingya. I believe it will also bring justice for all ethnic groups that have been persecuted.”

“Gambia made an excellent plea at the hearing today,” Khun Htwe said. “We Rohingya have been through the atrocities committed by the military such as killings, rapes, and the massacres of children, especially in 2017 when they [the military] killed thousands of Rohingya in Rakhine state. So we are very satisfied about making it known today.”

Rohingya activist Ro Nay San Lwin said he watched Aung San Suu Kyi sitting in the front row of benches in the court during the hearing.

“I believe she will come to know all the crimes committed against us and that these crimes amount to genocide,” he said.

“We must wait and see if she will admit or deny these crimes,” he added.

But Murray Hiebert, senior associate of the Southeast Asia Program at the Center for Strategic and International Studies in Washington, doubted that Aung San Suu Kyi would confess to the genocide accusation, given her unwavering denial of most of the atrocities.

“I think she will admit that a few bad things happened in Rakhine and that the perpetrating officers have been tried and imprisoned for their crimes,” he wrote in an email.

In a rare court-martial case in 2018, a military court sentenced seven soldiers to 10-year prison terms for killing a group of Rohingya amid the larger crackdown. The military opened a second court-martial in late November to try soldiers accused of committing atrocities near another Rohingya village in Rakhine state.

“What the military did in Rakhine is generally wildly popular among the [ethnic] Burman majority, so the general public would not support her throwing the generals under the proverbial ‘bus,’” Hiebert said.

“She has made clear since the offensive against the Rohingya started in late August 2017 that she does not accept what happened as genocide, and for this she is receiving overwhelming support from the Burman Buddhist population which is her political base,” he added.

Hiebert also noted that Aung San Suu Kyi met with Chinese Foreign Minister Wang Yi the day before she left for The Hague, and he offered full support against the charges of genocide against the Rohingya.

‘Hiding in the shadows’

Back in Myanmar, thousands of people marched in support of Aung San Suu Kyi in the commercial capital Yangon, Mandalay, Taungdwingyi and Pakokku in Magway region, and in other towns across Myanmar.

More than 3,000 demonstrators, including Yangon region’s chief minister Phyo Min Thein and other government officials, chanted slogans of support, while Buddhist leaders prayed for the success of Aung San Suu Ski.

Film director Kyi Phyu Shin who participated in the rally said the ICJ case is important for the entire country.

“Some people think this issue is not relevant to them,” she told RFA. “In fact, this is relevant to the entire country. I want everyone to know this is a critical moment for the entire country.”

Retired military officer Zaw Hein who attended the demonstration said he welcomes Aung San Suu Kyi’s decision to defend the country, but is unhappy that those responsible for the crimes are eschewing their own defense.

“It is rational that the state counselor must face trial in the lawsuit filed against the country, but those who are actually responsible for the charges have never come into the spotlight,” he said. “The prosecutors have video files as very cogent evidence.”

“I am very disappointed that the real offenders of the crimes are still hiding in the shadows,” he said. “I am a military veteran. As soldiers, they should man up to admit what they have done.”

Some young people staged a parallel campaign near the Yangon rally, distributing pamphlets stating that they do not support the country’s denial of the genocide charges.

“The organizers of these rallies are complicating this lawsuit by bringing in everyone in the country,” said Zin Linn, an activist from the New Society Youth Group who arranged the parallel campaign.

“The truth is that only a handful of people are responsible for the crimes,” she said. “They are misusing the people’s credibility of, admiration for, and support of Daw [honorific] Aung San Suu Kyi for a different cause.”

B. Esther Ze Naw, a young woman participating in the same campaign, said it is still too early to hold support rallies for Aung San Suu Kyi.

“It is too early to hold rallies for her appearance at the ICJ court since it is just the first day of the hearing,” she said. “We should not act prematurely.”

Several government employees attended rallies Mandalay in support of Aung San Suu Kyi, who also serves as Myanmar’s foreign affairs minister.

“This is not just politics,” said Thidar Win, rector of Mandalay University. “The foreign minister of the country is going to the ICJ court to defend the country.

“This issue is relevant to everyone in the country,” he said. “Regardless of whether they are government employees, teachers, or students, everyone should join the cause.”

Rohingya ‘at grave risk’

As the case at the ICJ begins to unfold, the Rohingya still living in Myanmar continue to face hardships and in some cases abuse.

The Immigration Department in Rakhine’s capital Sittwe is stepping up the issuance to Rohingya of National Verification Cards (NVCs) — a precursor to applying for citizenship for those who qualify — which are highly unpopular with displaced Rohingyas who say the cards identify them as “Bengali,” a term they reject because it implies they are immigrants from Bangladesh.

Some Rohingya who have applied for citizenship with newly issued NVCs have reported that no progress has been made on their applications, even after a year. The Myanmar government has not explained such delays in the citizenship applications process for NVC holders.

Authorities from the National Registration and Citizenship Department under the Ministry of Labor, Immigration and Population, began issuing household records and birth certificates in Sittwe’s township’s Thetkalpyin village on Monday to about 100 households, local residents said.

Though applications for household records do not ask about ethnicity, the household records issued Monday listed the Rohingyas’ ethnic identity as “Bengali” and noted that the document could not be used for proof of ownership of land, housing, apartments, or property. The birth certificates noted that the documents could not be used as proof of citizenship.

On Dec. 7, Southeast Asia-based Fortify Rights meanwhile said that new evidence indicated that Myanmar authorities were using Rohingya for slave labor, including child labor, systematically restricting their freedom of movement.

The group interviewed a dozen Rohingya survivors of rights violations in Rakhine state about instances of forced labor by Myanmar army battalions and Border Guard Police as recently as September in Buthidaung township.

Rohingya men and boys were forced to porter military equipment for hours without food or water, with some of them beaten and kicked.

Fortify Rights also said that the Myanmar government continues to deny Rohingya freedom of movement and arbitrarily detains those who travel outside their villages without official permission.

“Rohingya in Myanmar are at grave risk,” said Matthew Smith, the group’s chief executive officer. “The government continues to deny any violations against Rohingya and is using the ICJ case to rouse nationalistic, anti-Rohingya sentiment at home, which could easily turn deadly. Provisional measures are certainly needed.”

CORRECTION: Gambia began its argument on Tuesday.