Aung San Suu Kyi’s Hague Performance Impresses Few Beyond Myanmar Loyalists

Leader Aung San Suu Kyi came up short in defending Myanmar before the U.N.’s top court this week on genocide charges for the army’s brutal expulsion of Rohingya Muslims, an international NGO and a former war crimes attorney said Friday, while her supporters defended her performance.

The case, launched by the West African nation of Gambia, charges that the military-led crackdown on the Rohingya in northern Rakhine state in August 2017, which killed thousands and forced more than 740,000 others to flee to safety in neighboring Bangladesh, amounted to genocide.

During the three-day hearing that ended Thursday, Gambia called on the International Court of Justice (ICJ) in The Hague to order provisional measures to prevent further violence against the minority group.

Aung San Suu Kyi, who led Myanmar's defense, and other lawyers on the team denied that the violence meted out against Rohingya — which included killings, mass rape, torture, and village burnings — was done with genocidal intent.

Repeating Myanmar’s stock response to overwhelming evidence presented since the events of 2017, she said the army had conducted a clearance operation to sweep northern Rakhine of Muslim insurgents who carried out deadly attacks on police outposts, and asked the ICJ to drop the case.

Human rights groups who had championed Aung San Suu Kyi’s pro-democracy campaign during her 15 years under house arrest were aghast at her decision to defend the same army that held her captive. They also criticized her for repeating a discredited account of the Rohingya exodus.

“Unfortunately for Suu Kyi, that narrative is at odds with voluminous evidence compiled by the United Nations’ Independent International Fact-Finding Mission on Myanmar, Physicians for Human Rights (PHR), and other rights monitors,” wrote Phelim Kine, PHR's director of research and investigations.

“That documentation demonstrates a vicious, widespread, and systematic targeting of Rohingya civilians by security forces in a weeks-long violence spree that began on August 25, 2017,” Kine wrote in the online Asia Times website.

“Suu Kyi’s patent falsehoods and doublespeak would be laughable if the stakes were not so high,” he added.

Stephen Rapp, former U.S. ambassador-at-large for war crimes issues in the State Department's Office of Global Criminal Justice, attended the hearing and told RFA’s Myanmar Service afterwards that Aung San Suu Kyi’s request that the ICJ remove the case from the docket because her country's legal system would handle it did not hold up in light of past treatment of the Rohingya.

“They’ve been denying the reality of what’s happened for a long period of time,” he said. “In her response, she said, ‘Well, trust us [and] our legal system to respond to it. We don’t need interference from abroad on this.’”

“But let’s keep in mind what’s happened since this major crime unfolded in August of 2017,” he said.

“And keep in mind that it’s not the first time there have been terrible crimes against the Rohingya — much earlier with the burning of their homes and livelihoods in Sittwe, which had driven tens of thousands into squalid camps within Myanmar,” Rapp said, referring to 2012 communal violence in Rakhine’s capital.

“The government never responded to any of the international requests to hold anyone to account,” he said.

Jurisdiction is key

In Myanmar, which staged large rallies during the ICJ hearing, Aung San Suu Kyi’s performance got better reviews, but not everyone thought Myanmar prevailed.

Shwe Maung, a former lawmaker who represented Rakhine’s Buthidaung township in Myanmar’s lower house of parliament from 2011 to 2016, said he thought Gambia’s team ran circles around Myanmar.

“Gambia’s attorneys presented very strong and accurate evidence, while the defense by Myanmar attorneys was lame,” he said.

Kyee Myint, chairman of Myanmar’s Union Attorney and Legal Aid Association, said that though both sides submitted information, facts, and figures relevant to the proceedings, the main focus of the case is whether the court has legal jurisdiction in the matter.

“The main decision in this case is whether the court has jurisdiction or not,” he said. “If the [ICJ judges] accept the arguments by Myanmar’s attorneys, this case will be revoked. The legal proceedings will be over. If they rule that the court has jurisdiction, the proceedings will go on.”

“If the court has jurisdiction, I am certain that the judges will approve the provisional measures because I know the attributes of this case,” he added.

Gambia, which needs to nine votes from the ICJ’s 15 judges for the court to order provisional measures, is likely to succeed, Kyee Myint said.

“Whether we win or lose the case, we should pay more attention to human rights violations in the country,” he said. “If Myanmar wins, I am worried that the rights violations will continue.”

“International actors will impose sanctions on Myanmar whatever the court ruling is,” he said. “If Myanmar loses this case, it will be much worse.”

'A strong defense'

But Hau Do Suan, Myanmar’s permanent representative of Myanmar to the United Nations, said his nation delivered a strong defense against Gambia’s allegations.

“Our state counselor has made clear statements on what happened in the country without blaming any parties,” he told RFA. “She presented the real-life situation about the ongoing challenges and need to reform the justice system.”

“But, she clearly denied that there was genocide just as they had alleged,” he said. “What she said as a state counselor is complete and sufficient. From a legal perspective, I think she gave a strong defense against the accusations.”

Hau Do Suan also took issue with comments by Rapp, who said he views the 2017 crackdown and violence that it entailed as genocide and backed Gambia’s request for emergency provisions to prevent further acts of genocide against Rohingya still living in Myanmar.

“[Gambia] was not able to show evidence that pointed to ongoing genocide in Myanmar,” the diplomat said. “In the past two years, there have been no more armed conflicts, reports of torture, or deaths. Our attorneys made strong arguments that there is no reason to approve the emergency measures.”

Mandalay-based attorney Thein Than Oo said he agreed with Myanmar’s legal team that the country’s military forces did not intend to commit genocide.

“They argued that they [the military] targeted a particular group during the operation but didn’t intend to wipe out the entire group and commit genocide,” he said. “This is the best chance for Myanmar’s defense.”

“They cannot deny what happened or rule it out as fabrications since this tribunal is composed of international legal experts,” he said. “I totally agree with Myanmar’s defense.”

Photo courtesy of Ye Thein/Facebook

In a more dramatic response to the ICJ hearing, the Arakan Army (AA), a Buddhist armed ethnic group fighting Myanmar forces in Rakhine state, abducted the chairman of the ruling National League for Democracy (NLD) party in Buthidaung township as he organized a public rally in support of Aung San Suu Kyi's defense at the court.

AA spokesman Khine Thukha told RFA Friday that the ethnic army detained the NLD’s Ye Thein and that his family and the party had issued appeals for his release.

“We have taken Buthidaung’s NLD chairman because we have to interrogate him,” he said.

Khine Thukha didn’t specify why Ye Thein was being questioned or when he would be let go.

Ye Thein was organizing a support rally for Aung San Suu Kyi’s trip to the ICJ to defend Myanmar when he disappeared, forcing others to cancel the event on Thursday.

Soe Lay, vice chairman of the NLD in Rakhine state, said the AA should free Ye Thein because he was performing regular party duties.

“For us, he was performing the party’s regular duties,” he said. “We are organizing the rallies to support our leader who is doing the right thing. He was contributing to these efforts, and he caused no problems. He should be released.”

The Buddhist Rakhine AA is one of several ethnic armed groups supporting the case against Myanmar at the ICJ over genocide and war crimes, though a statement issued earlier by the AA and others did not mention the Rohingya, who are viewed as illegal immigrants in Myanmar, by name.

Reported by Khin Maung Soe, Nay Myo Htun, Min Thein Aung, and Phyu Phyu Khine for RFA’s Myanmar Service. Translated by Ye Kaung Myint Maung. Written in English by Roseanne Gerin.