Suu Kyi gears up for genocide hearing

Suu Kyi gears up for genocide hearing

There has been strong reaction in Myanmar to Aung San Suu Kyi's decision to appear at the International Court of Justice (ICJ) to defend the country against charges of genocide. While Western diplomats have tried to persuade the civilian leader that she was embarking on a high-risk strategy, and should reconsider. Attitudes amongst the intellectuals, politicians, MPs and civil society range from animated support to more measured approaches.

Myanmar's civilian government and its military leaders are accused of crimes against humanity, ethnic cleansing and genocide towards its Muslim population in the strife-torn western Rakhine state during the last three years of military operations. These "clearance campaigns" forced nearly a million Muslims -- or Rohingya as they call themselves -- to flee to neighbouring Bangladesh for safety.

While the move came as a surprise to most people in the country including foreign diplomats, the response was swift. Demonstrations of support -- organised by the governing party, the National League for Democracy (NLD), "spontaneously" took place in the commercial capital Yangon and other urban centres almost hours after the official announcement of the State Counsellor's planned trip. More demonstrations are planned in the coming weeks before hearing opens on Dec 10.

Support is snowballing throughout the country. Enormous billboards -- "Together with the State Counsellor to defend Myanmar's national interest" -- have sprung up in Yangon and in many other cities. Others, showing Ms Suu Kyi standing in front of the top three generals with the same message: "We stand with you" also adorn various sites along the urban transport networks. Some travel agents are organising VIP five-day package tours to the Netherlands in support of the State Counsellor.

But despite the bold announcement more than a week ago, the trip was immediately thrown into doubt, because of issues of diplomatic immunity, travel arrangements and security concerns. Although Ms Suu Kyi planned to attend the court in her role as foreign minister, she was in fact going in a "private capacity" -- it would not be a state visit as the Netherlands had not invited the minister on an official trip.

This immediately raised doubts about her status and security, particularly whether the general protocol as a foreign minister afforded her sufficient protection, if in the unlikely event international arrest warrants were issued for her arrest. According to European diplomatic sources, as foreign minister, even on a private visit, she was in fact covered by diplomatic immunity. But to make certain Myanmar and the Netherlands negotiated making her "an agent of the court", which guaranteed her protection at least while she was there attend the court.

As there are not direct flights there from Myanmar to The Hague, the Myanmar government reportedly hired their own charter flight to take the delegation to and from the Netherlands. That left one final complication -- security while in the Netherlands. As this was not an official visit, the Netherlands could not provide the usual beefed-up security that protocol dictates for heads of state. This has now been resolved, according to diplomat sources, with a minimum but "top-grade" police escort assigned.

Throughout last week there has been intense diplomatic shuttling from capital to capital, but the State Counsellor remained undaunted and determined to keep her appointment in The Hague. Government insiders told the Bangkok Post that she was "gung ho" about the visit. Although she has reaffirmed her personal participation in the hearing, many remain worried about the possible implications and ramifications.

Several Western embassies have tried to dissuade her from going and appearing in the court for fear of worsening the country's international reputation -- adding to Myanmar's tarnished image and further discouraging western investment -- and even implicating herself or the military in war crimes, ethnic cleansing and genocide.

Since October 2016 nearly a million Muslims have fled the violence in Myanmar's western region of Rakhine to escape the military's clean-up operations in the wake of unexpected Arakan Rohingya Salvation Army (Arsa) attacks that killed scores of border security guards. The fleeing refugees accused the military of intimidation, rape and summary executions. Successive UN reports documented large-scale human rights abuses against the Rohingyas and labelled it a campaign of ethnic cleansing with genocidal intent. The Myanmar government and the military have persistently denied these accusations.

On the basis of these UN reports, Gambia -- on behalf of the 57-member Organisation of Islamic Community (OIC) -- recently filed a case asking the ICJ to investigate whether Myanmar's government has violated the Geneva Convention, which prohibits genocide. As a signatory to the Convention, Myanmar is bound by the court's decisions.

Ms Suu Kyi and her administration are relishing the opportunity to put their side of the story to the world, by appearing at the court and outlining the government's position. The view in the government -- as it prepares its case -- is that they need to put the record straight.

What happened in Rakhine was not genocide or ethnic cleansing, several senior government officials have told the Bangkok Post. It was a standard strategy of counterterrorism. The government intends to defend the country and the state, including the military, against the charges of genocide. The government is clearly hoping for understanding, and as one official put it, "and to be able to correct the international narrative".

But what the government needs to understand is that they will be judged more on whether they show any remorse and the corrective measures they have implemented to solve the root causes of the discrimination and conflict in Rakhine state. Rhetoric alone will not be enough.

The danger here is that the Myanmar side do not understand the nature of this international court. "This is not about justice but jurisdiction," said a former German diplomat who has had experience at the ICJ. This is not a criminal court: it is not a prosecutorial process -- there will be no cross-examination of witnesses, at least at this stage. The ICJ adjudicates between state parties -- in this case Myanmar and Gambia -- so Myanmar is not there as a defendant, but as a state party to the Genocide Convention. The hearing will deal largely with legal issues.

Both parties will be represented by advocates -- international lawyers with experience at these types of tribunals. Both countries will present their case -- on separate days -- and then the court is expected to decide whether and how to proceed.

The December hearings are not intended to deal at length with the substance of the case. That will come later and is expected to take up to ten years before its completed. "It's more organisational and intended to deal with Gambia's request for preliminary measures to prevent further acts of genocide," Laetitia van den Assum, a former Dutch ambassador in Myanmar and Thailand told the Bangkok Post.

"How the court plans to deal with an array of procedural questions is as yet mostly unknown, she added.

Myanmar is also facing two other international legal cases -- at the International Criminal Court (ICC) in The Hague, and lawsuit against Ms Suu Kyi and other senior Myanmar leaders in Argentina under the principle of "universal jurisdiction". This makes her performance in The Hague, in terms of the adequacy of her statement, the content of her arguments and her demeanour throughout the proceedings even more critical.

But Myanmar and the former democracy icon are facing even more powerful judges in the court of international opinion. The hope is that her performance at The Hague will start to turn the tide of international condemnation around into qualified understanding.

But the danger is if she misjudges her presentation and inadvertently implicates herself and her civilian government in the events that unfolded, or lays the blame firmly at the military's door.

The evidence given at this forthcoming hearing can also be used at either or both of the other international courts with possibly more immediate and dire consequences. The Hague hearings are certainly not the end of the story, but only the start of long drawn out saga.

Larry Jagan is a specialist on Myanmar and a former BBC World Service News editor for the region.

Larry Jagan

A specialist on Myanmar

Larry Jagan is a specialist on Myanmar and a former BBC World Service News editor for the region.

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