The lead lawyer in the upcoming genocide hearings against Myanmar wants the United Nations’ International Court of Justice (ICJ) to push for investigators be allowed into the country.
“We will be asking the court to order Myanmar to allow access to UN agencies that are duly authorized by the UN to gather the facts,” said Paul Reichler, head of International Litigation and Arbitration practice at U.S.-based law firm Foley Hoag. “We hope that the court will order Myanmar to allow access to its territory for this purpose.”
Foley Hoag was hired by Gambia to lead its legal team at The Hague in the Netherlands, where the opening hearings in a case alleging genocide against the Rohingya, a Muslim minority in Myanmar, will take place from Dec. 10-12.
Myanmar will be represented by State Counselor and Foreign Minister Aung San Suu Kyi, who will “defend the national interest of Myanmar,” according to a government statement. Suu Kyi won the 1991 Nobel Peace Prize and was a political prisoner of Myanmar’s military junta for 15 years, during which she was admired internationally for her fight against dictatorship.
Myanmar has restricted access to conflict-hit areas of the country, leaving them off-limits to most foreign journalists and international organizations, meaning that Reichler “would certainly be obtaining evidence in Bangladesh and elsewhere.”
Reichler’s team will draw upon a series of older United Nations reports and award-winning journalism documenting atrocities against the Rohingya.
“We will be relying on evidence already collected by highly credible international bodies,” Reichler added, citing the work of the UN Special Rapporteur on Myanmar Professor Yanghee Lee, and the Human Rights Council’s Independent International Fact-Finding Mission on Myanmar, which earlier this year accused the army of “genocidal intent to destroy the Rohingya population.”
Over 700,000 Rohingya fled Myanmar into Bangladesh during 2016 and 2017 after the Myanmar military launched a series of scorched-earth reprisals for militant attacks on border police and military outposts. Almost all of the Rohingya left in Myanmar are confined to camps and ghettos to where they fled after earlier attacks in 2012. Nearly 100,000 Rohingya have also gone to Malaysia.
However, the legal proceedings filed on Nov. 11 by The Gambia, on behalf of the Organization of Islamic Cooperation (OIC), claim that the military operations in Rohingya-populated areas near the Myanmar-Bangladesh were “genocidal acts” and “were intended to destroy the Rohingya as a group.”
As well putting Myanmar on the stand on charges of genocide, the OIC is requesting the ICJ order “provisional measures” it says are needed to prevent further harm to the Rohingya people while the case is pending. “It is extremely urgent to seek these measures to prevent additional loss of life,” Reichler explained.
Both Myanmar and Gambia are party to the UN’s post-World War II Convention on the Prevention and Punishment of the Crime of Genocide, under which the case, which is expected to last at least three years, is being brought to the ICJ.
While Myanmar and its once-iconic leader Suu Kyi have been criticized internationally for the expulsion of the Rohingya, there is scant support in the country for a beleaguered minority deprived of citizenship rights since 1982 and which has borne the brunt of several military assaults since the late 1970’s.
The UN has pinned the blame the Rohingya crackdown on several leading generals, and though Aung San Suu Kyi does not control the military, which has 25 percent of seats in parliament and holds the three main security ministries, the former dissident has shown scant sympathy for the Rohingya since assuming control of Myanmar’s government in 2016.
“Daw [a Myanmar honorific] Suu has proved she would go any distance to protect the genocidal Burmese generals in order to secure harmony with these military generals,” said Kyaw Win, founder of the Burma Human Rights Network.
Suu Kyi and her National League for Democracy (NDL) are approaching an election year with voting in parliamentary polls due to take place by November 2020. The previous 2015 election, Myanmar’s first free and fair vote since 1990, came after nearly six decades of military rule and saw Suu Kyi’s NLD win a landslide.
While Myanmar’s economy continues to grow, with an impressive 6.5 percent expansion expected for 2018/19 and 6.7 percent for 2020/21, this growth is from a low base after decades of military rule that saw Myanmar’s economy isolated. And although continuing poverty and disappointments over the slow pace of reforms have not led to predictions that the domestically-revered Suu Kyi could lose the election, the ICJ case is a chance to burnish her image ahead of the vote by defending the country against meddling foreigners.
“She wants to create a splash at the ICJ itself, to turn that court into a political soapbox,” said Khin Zaw Win, a Myanmar political analyst who was, like Suu Kyi, a prisoner of the old military junta.
Hundreds of supporters of the government turned out last weekend at a rally backing Aung San Suu Kyi’s decision to travel to The Hague for case. “The rallies in support of Aung San Suu Kyi are picking up steam. It’s a heaven-sent gift for the election campaign,” said Khin Zaw Win.