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The fight for justice over Myanmar’s Rohingya ‘genocide’

The Rohingya garner little sympathy inside Myanmar

The fight for justice over Myanmar’s Rohingya ‘genocide’
Photo: AFP

YANGON: Myanmar is facing a barrage of legal challenges in an attempt to hold it accountable over the alleged genocide against its Rohingya Muslim population.

West African nation Gambia last month launched a case at the International Court of Justice (ICJ), the UN’s top court in The Hague, while rights groups have filed a separate lawsuit in Argentina.

The International Criminal Court (ICC) also approved an investigation 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 routes down the difficult path to justice:

– The Gambian gambit –

The UN’s top court, the International Court of Justice (ICJ), is 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.

Gambia, a tiny, mainly-Muslim state, filed a complaint 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 first hearings will be on December 10-12, when the court is expected to order interim measures to prevent any further genocide or destruction of evidence.

In a shock move, Myanmar civilian leader Aung San Suu Kyi announced she will personally travel to the court to lead the defence team. 

The case will likely take years.

A ruling against Myanmar could mean an order to remedy the genocide and to offer reparations to the Rohingya.

But it would be largely symbolic and difficult to enforce.

– Generals in the dock? –

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

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.

On November 14 judges backed a request for a full probe into allegations of crimes against humanity over the crackdown. 

This 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 Argentina option –

On November 13, a case was filed by rights groups in Argentina against members of the Myanmar military and, notably, civilian leader 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.

Dozens 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.

Parties from across the political spectrum, many ethnic groups and vast swathes of the population are rallying behind Suu Kyi as she heads to The Hague to defend the nation at the ICJ.

Myanmar insists its own investigative committees are adequate to look into alleged atrocities — even though critics dismiss the panels as toothless and biased.

The country refuses to recognise the authority of the ICC, reiterating that the investigation is “not in accordance with international law”.

The Rohingya garner little sympathy inside Myanmar with many people buying the official line the 2017 military campaign 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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