A watershed legal battle will take place at the UN’s highest court today to hold Myanmar accountable over the alleged genocide against its Rohingya minorities.
Myanmar leader and Nobel Peace prize laureate Aung San Suu Kyi, who arrived in the Netherlands on Sunday, will defend her country’s record during three days of hearings initiated after a lawsuit was filed with the International Court of Justice (ICJ).
West African nation Gambia last month launched the case with the top UN court while rights groups 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 Rohingyas 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 one-time democracy icon Suu Kyi and her government of complicity in the atrocities.
Suu Kyi’s office posted a picture of her arrival at Amsterdam’s Schiphol airport where she was greeted by the ambassador to the Netherlands and then headed to The Hague, where the World Court is located.
The Kingdom of the Netherlands and Canada in a statement yesterday said The Gambia rightfully brought the case of Rohingyas to the ICJ.
They called upon all the state parties to the Genocide Convention to support The Gambia.
A 12-member Bangladesh delegation led by foreign secretary Shahidul Haque will be present as observers at the peace palace where the hearing is taking place.
A team of Rohingya representatives from cox’s bazar and some civil society members from Dhaka are also attending the hearing.
Several demonstrations are planned in coming days in the Dutch city by Rohingya survivor groups, as well as by government supporters.
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.
Besides, on November 13, a case was filed by rights groups in Argentina against members of the Myanmar military and, notably, Suu Kyi.
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.
MEMORY OF RWANADA
The UN’s top court 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 today and tomorrow, when the court is expected to order interim measures to prevent any further genocide or destruction of evidence. 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.
The genocide case brought against at the ICJ -- the first of its kind initiated since the 1990s -- may not have happened at all but for a scheduling conflict.
In May last year, Gambia’s foreign minister pulled out at the last minute from the annual conference of the Organisation of Islamic Cooperation (OIC) in Bangladesh, sending Tambadou instead.
For Tambadou what he saw and heard in Bangladesh jogged some painful memories.
He joined an OIC delegation visiting overcrowded refugee camps in Cox’s Bazar, where some of the hundreds of thousands of Rohingyas who had fled Buddhist-majority Myanmar since August 2017 recounted how, they said, security forces had burnt Rohingya children alive, raped women and killed men.
“I saw genocide written all over these stories,” Tambadou said in an interview in Gambia’s capital, Banjul.
Tambadou introduced a resolution to create an OIC committee to examine alleged abuses against the Rohingya, and this year convinced the 57-member organisation to back a formal case against Myanmar - thrusting his tiny West African homeland into the centre of one of the most high profile international legal cases in a generation.
When arguments are presented in The Hague next week, Gambia’s legal team will face off against a Myanmar delegation led by Suu Kyi.
Tambadou will ask the judges to immediately order Myanmar to cease violence against Rohingya civilians and preserve evidence that could eventually form the basis of a finding that Myanmar committed genocide. Myanmar has vowed to contest the case.
Authorities in Myanmar reacted swiftly to Gambia’s submissions, which cite UN investigators’ findings that Myanmar’s military acted with “genocidal intent”.
The country has long denied accusations it committed ethnic cleansing or genocide. It insists its own investigative committees are adequate to look into alleged atrocities -- even though critics dismiss the panels as toothless and biased.
The country also refuses to recognise the authority of the ICC, reiterating that the investigation is “not in accordance with international law”.
‘USE OUR VOICE’
Gambia’s role in the case would have been unthinkable until three years ago.
For 22 years, former President Yahya Jammeh’s security forces had killed and tortured scores of real or perceived political opponents, according to evidence presented to an ongoing truth commission.
But a 2016 election unexpectedly ended in defeat for Jammeh, who fled into exile. Opposition leader Adama Barrow took power promising to restore human rights and stem corruption.
“Twenty-two years of a brutal dictatorship has taught us how to use our voice,” said Tambadou, seated behind a desk stacked with legal texts, his shirtsleeves rolled up as he sweated through a power cut.
“We know too well how it feels like to be unable to tell your story to the world, to be unable to share your pain in the hope that someone out there will hear and help.”
The son of a businessman from Banjul, the 46-year-old Tambadou studied law in Britain before returning to Gambia in the late 1990s to practice.
In April 2000, security forces killed 14 student protesters, an event Tambadou credits with pushing him toward human rights work.
Friends tried to steer him away from the kind of work that could have landed him in one of Jammeh’s notorious jails or worse, but Tambadou was committed, said Emmanuel Joof, who co-founded a coalition of human rights defenders with him in 2000.
In 2003, he left Gambia to join the United Nations’ Tanzania-based International Criminal Tribunal for Rwanda (ICTR), where he successfully prosecuted some of the genocide’s most notorious figures, including former army chief Augustin Bizimungu, who was sentenced in 2011 to 30 years in prison.
As justice minister since 2017, his decisions have occasionally put him at odds with former colleagues, such as when he ordered members of a Jammeh-era hit squad released from prison on technical grounds.
“Sometimes we don’t agree with him,” said Joof, who is now chairman of the independent National Human Rights Commission. “But the fact that it’s (a) person who is passionate about these issues gives someone like me great comfort.”
Tambadou said that after several years in which Myanmar had refused to engage with international organisations over its handling of the Rohingya crisis, he was pleased his initiative had elicited such a strong response.
“I am glad that very senior members of the government will be at the court,” he said.
“It shows the seriousness ... with which they are taking this case.”