A three-day hearing on Gambia’s case against Myanmar for allegedly committing genocide against Rohingya Muslims during a military-led crackdown that began in August 2017 wrapped up on Thursday at the International Court of Justice (ICJ) in The Hague. Lawyers for Gambia presented copious evidence of atrocities against members of the minority group and requested that the U.N. court issue “provisional measures” to prevent further violence targeting them.
Leading the defense team, Myanmar leader Aung San Suu Kyi countered that Gambia presented “an incomplete and misleading factual picture” of what had occurred during the crackdown. She blamed the violence and the resultant exodus of more than 740,000 Rohingya on an internal armed conflict started by Muslim insurgents whose deadly assaults on police outposts prompted government security forces to conduct a clearance operation to remove the attackers from the area.
Stephen Rapp, an American lawyer and the former U.S. ambassador-at-large for war crimes issues in the State Department's Office of Global Criminal Justice, attended part of the hearings at the U.N.’s highest court. He talked to RFA Myanmar Service reporter Khin Maung Soe about the genocide charge, Myanmar’s denial of the alleged crimes, and Aung San Suu Kyi’s performance during the hearing. The Q&A has been edited for length and clarity.
RFA: What is your main comment on the hearing?
Rapp: State Counselor Aung San Suu Kyi together with her legal team appeared and resisted, and basically in my view denied the reality of massive atrocities that have been committed by the Tatmadaw [Myanmar military].
RFA: What’s your take on the Myanmar legal team’s statements and presentation at the ICJ?
Rapp: It’s positive that the issue is in court and that the government is appearing and defending itself, but its position is basically indefensible. Now to a large extent it denies the facts of what happened — thousands of people killed, thousands of women and children raped, people burned up alive in their homes, 392 villages destroyed in whole or part according to satellite imagery, 37,700 structures destroyed — basically in response to an attack of a small group of ARSA [Arakan Rohingya Salvation Army] that might have killed 13 people. And it all seemed to be there even before that. [More than] 700,000 Rohingya went over the border into [Bangladesh] into situations where their survival was far from uncertain before aid arrived, and even now it’s a very challenging living situation.
So, Aung San Suu Kyi and the government are denying the reality of what happened, the reality that we heard from the victims whom I was with yesterday in a presentation that they made in response to her. Many of them have been seen by doctors and interviewed and their stories verified. We’ve got the images from satellites and the horrible incitement that was used through Facebook to incite the killings of the Rohingya. And the refusal to call them Rohingya and insisting that they had no place in Myanmar. The crucial legal question is do these mass atrocities count as genocide? That’s an issue because it involves the crime that is a specific intent to destroy a specific people in significant part — whether that was the intent or whether it was to drive them off to where they could live peacefully on their own. Of course, the way they did it wasn’t certainly conducive to them surviving. And certainly all the language that was used, including by [Myanmar military commander-in-chief] Senior General Min Aung Hlaing referred to this as a Final Solution to the problem, which reminds us very much of the Holocaust.
I work with the [U.S] Holocaust Museum and its Center for the Prevention of Genocide that’s very dedicated to that hard-to-keep promise of “Never Again,” and that’s why the museum responded in terms of documenting [Myanmar’s] crimes two years ago. Last year it issued a statement that there was compelling evidence of genocide. So, I think it’s a strong case. It’s just the beginning, but I hope that the court will issue temporary measures, including a requirement that the government to comply with the U.N. investigations [under] the new mechanism established by the U.N. to gather evidence and to build cases. The government can hardly say nothing happened if they deny the opportunity for independent people to verify the documents. It’s important that the court enter that order, and then we’ll proceed eventually to hearings in this case, and this one will take a number of years. Of course, it’s not about prosecuting anybody; it’s about the response to the state of Myanmar. The prosecution may happen in the International Criminal Court with deportation [charges] and third countries using universal jurisdiction to file criminal cases, like what happened in Argentina.
RFA: U.S. attorney Paul Reichler, who is part of Gambia’s legal team in the case against Myanmar, said Myanmar did not deny most of the accusations or the violence by the military. But Aung San Suu Kyi’s government did deny that it amounted to genocide. How will that play out?
Rapp: They’ve been denying the reality of what’s happened for a long period of time. 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. 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. The government never responded to any of the international requests to hold anyone to account.
Indeed, the only case in which the government has taken any action was the one that was revealed in a very well-documented story by Reuters reporters on the four Burmese military soldiers that murdered 10 young [Rohingya] men. Eventually they prosecuted that case, and those men were sentenced, but they were released in less than a year despite cold-blooded murder. Then the journalists themselves were prosecuted based upon evidence that was planted on them, and even though a police officer appeared in their defense saying that he was involved in planting the evidence, they were nonetheless convicted and imprisoned and separated from their families for a couple of years. Aung San Suu Kyi didn’t release them despite the abundance of evidence until every part of the proceeding was done. She was slower than many of the judicial people would have been. So this is the idea to trust this system to respond to these massive crimes when it hasn’t to date! This is why the international community has reacted. I want to really salute Gambia, a small country in West Africa. I know their justice minister, Abubacarr Tambadou very well, and he’s done an impressive job and brought in a lot of Islamic countries [to back the ICJ case against Myanmar]. It’s a great thing that they are doing that. I heard today that Canada and the Netherlands will join with them in doing this in the case.
I’m expecting justice to be done, but this will be a process that will be slow and, obviously, in the end will depend upon the presentation of facts. Myanmar can’t walk away from it. It’s not going to go away. As Aung San Suu Kyi said in her last words in court today, “Please remove this case from the list.” No, the case is on file. It involves the [Genocide] Convention, one of the most important conventions in international law. It’s been with us for 71 years. Myanmar and Gambia and 150 other countries are a part of the convention to punish and prevent genocide.
RFA: Do you consider what Myanmar is alleged to have done to the Rohingya genocide or crimes against humanity?
Rapp: Do keep in mind that crimes against humanity are horrible atrocities as well. An example of how you look at these crimes is in Cambodia where they finally have an internationalized court that rendered judgments just a few months ago in regard to the massive crimes committed by two leaders of the Pol Pot government in the 1970s, basically finding that they had been involved in killing 2 million of their citizens. But they killed them on a political basis. That’s not genocide. Genocide has to be a racial or ethnic or religious bias. But the court also found that the crimes against the Cham, the small Muslim community in that country, were in fact genocide. It’s not a question of numbers that make the genocide; it’s the intent to destroy a people because of who they are, not because of what they’ve done, as such and in part.
Certainly, what we have here is the destruction of the Rohingya people in an insignificant part. [Myanmar] may have been motivated by a desire to drive them off, but then also in the sense of driving them off, it was creating conditions of life that were really not conducive to their survival. Genocide can be committed in ways other than killing — rape and seriously wounding women to prevent them from bearing children that have profound injuring effects on them are one of the ways that a group is humiliated and destroyed. Reducing the ability of a group to reproduce and continue is also a genocide. I think that we’ve got that.
There’s always the possibility — and this has happened in other situations like in Darfur in Sudan where some people actually said it wasn’t genocide but rather crimes against humanity — that the judges could find that a genocide hasn’t been committed. But there’s no question that they will find there is a profound danger of genocide, given the hate speech, the marginalization of, and the refusal to recognize the Rohingya as a people and call them by name and recognize them as part of that society; that in all of the conduct that has gone on in terms of all the destruction of other communities and livelihoods, the discrimination, and preventing them from finishing university and not even being able to take a degree because they are seen as foreigners. That whole situation will engender genocide. It’s not only a danger of genocide, the government has an obligation to act against genocide, and certainly this government has done nothing — nothing — to prevent genocide. In fact, it’s acting in concert with those who are killing the Rohingya. So, I expect that at the end of the day there will at least be a win in the finding that the government failed in its duty to prevent genocide, but I’m more hopeful that they will find that genocide has been committed and that there was a failure to punish that genocide. In my view, it is a genocide and a without question a threat of genocide that the government failed to prevent.
RFA: What’s your take on Aung San Suu Kyi?
Rapp: I’m extremely disappointed in her. I’m reminded of Nelson Mandela who instead of being under house arrest [like Aung San Suu Kyi] was under hard labor for 25 years in prison. When he came out, he did everything he could to reconcile the people of his country, to extend the message that people who had been enemies in the past — black South Africans, South Africans of Indian heritage, the white population, the so-called Afrikaners — that everyone was welcome in that society. There was to be no ethnic or racial discrimination whatsoever, and he only held power for a relatively short period of time. He had no desire to continue to extend his power. Aung San Suu Kyi wants the military to back down and make her president and to continue in power for as long as she lives. That kind of personal commitment over the commitment of the future for all the people of Myanmar is what profoundly disappointments me, and I think she’s now unworthy of the Nobel Prize which she won almost 30 years ago.
Reported by Khin Maung Soe for RFA's Myanmar Service. Edited by Roseanne Gerin.