THE first time I set foot at the International Court of Justice (ICJ) in The Hague, The Netherlands, was in July 1973. As a recipient of a United Nations fellowship to study at the Hague Academy of International Law, I had ample opportunity to spend my time at the world court.
My thoughts turned to those unforgettable days last week as I read news of Nobel Prize winner Aung San Suu Kyi’s intentions to attend the ICJ hearing on behalf of her country. She arrived at Schipol Airport, Amsterdam, on Sunday. On Tuesday, she made her appearance at the world court.
In an eerie twist of fate, she is defending the same military government who denied her basic human rights, placing her under house arrest for 15 years until she was freed in 2010.
The case against Myanmar was filed on Nov 11 by Gambia (on behalf of 57 Muslim countries), accusing Myanmar of violating the 1948 Genocide Convention (to which Myanmar is a party).
It is the first legal attempt to bring this Asean state to justice over alleged mass killings of the Rohingya minority since 2017.
UN investigators have concluded that the atrocities were carried out by the Myanmar army with “genocidal intent”. As a result, some 740,000 Rohingya had fled to Bangladesh.
Gambia’s objective is to move the world court to grant “provisional measures” to protect the Rohingya before the case is heard in full by the court.
Myanmar has consistently denied these allegations of genocide, saying that its military actions were meant to protect the country against Rohingya “militants”. It has, however, promised to punish those responsible for any “wrongdoing”.
Gambia insisted that the anti-Rohingya attacks by the Myanmar army are “genocidal in character because they are intended to destroy the Rohingya group in whole or in part”.
If Myanmar chooses to fight these charges to the bitter end, the legal battle can very well take the next five years.
A law professor at the University College London said that the ICJ is the correct forum because it is “the guardian” of the Genocide Convention. Two decades ago, the ICJ had ruled that genocide had been committed in the 1995 Srebrenica massacre in Bosnia. The question is whether it will do the same in the case of Myanmar.
The panel of judges will have to decide, based on evidence presented by Gambia, whether genocidal acts against the Rohingya “have occurred and are continuing to occur”. If satisfied, they can grant the provisional measures sought by Gambia.
In his opening statement, Abubacarr Tambadou (Gambian justice minister) told the judges that, “All that Gambia asks is that you tell Myanmar to stop these senseless killings, to stop these acts of barbarity that continue to shock our collective conscience, to stop this genocide of its own people.”
Tambadou, a former prosecutor at the tribunal into Rwanda’s 1994 genocide, said: “Another genocide is unfolding right before our eyes, yet we do nothing to stop it… Every day of inaction means more people are being killed, more women are being raped and more children are being burned alive. For what crime? Only that they were born different.”
Suu Kyi, 74, sat quietly as she listened to graphic accounts of murder and rape by several victims, including by a mother whose 1-year-old son was beaten to death and another eight-month pregnant woman who was stamped on and then repeatedly raped by Myanmar soldiers.
Outside the court, a small group of Suu Kyi supporters held a banner showing the Myanmar civilian leader’s face on it and saying: “We love you, we stand with you!”
In defence of her country, Suu Kyi is expected to tell the judges that her government was conducting legitimate operations against “Rohingya militants”, that it has carried out its own investigations into the bloodshed and that the court has no jurisdiction in the case.
Apart from the hearing at the ICJ brought by Gambia, Myanmar faces a possible prosecution for genocide at the ICC (International Criminal Court) and another case filed in Argentina under its “universal jurisdiction” principle.
Some quarters have described Suu Kyi’s action in continuously denying the genocide allegations as “defending the indefensible”. Commenting on Suu Kyi’s presence at the ICJ this week, Cecily Rose, a law professor at Leiden University, described it as “unprecedented and also very unwise”.
An Asian newspaper has recently published her photo with a caption, “Aung San Suu Kyi: From Peace Icon to Pariah”. Very sad.
The proceedings at the ICJ are adversarial in nature — one party will win, and another will lose. Its decision is final and binding. If its decision is ignored, the Security Council has the exclusive power to enforce it.
The writer, a former federal counsel at the Attorney-General’s Chambers, is deputy
chairman of Kuala Lumpur Foundation to Criminalise War