Lawyers for Gambia lambasted Myanmar leader Aung San Suu Kyi on Thursday for her defense of the country against genocide charges at the U.N.’s highest court, despite credible and copious evidence of military-led atrocities against the country’s Rohingya Muslims, and repeated their call for “provisional measures” to prevent further atrocities against the minority group.
An army-led crackdown in 2017 on the Rohingya left thousands dead and forced more than 740,000 others to flee to safety in neighboring Bangladesh.
The West African nation brought the lawsuit accusing Myanmar of violating the 1948 Genocide Convention during its expulsion of Rohingyas to Bangladesh on behalf of the Organization of Islamic Cooperation.
On the last day of a three-day public hearing at the International Court of Justice at The Hague, lawyers for Gambia took Aung San Suu Kyi to task for her silence over the Rohingya's plight, failing to mention the ethnic group by name and ignoring testimony on indiscriminate killings, mass rape, torture, and community burnings during the campaign of violence.
They presented maps, satellite imagery of burned Rohingya villages, and photos of the atrocities as they argued that Myanmar conducted a deliberate campaign of genocide against the Muslim group.
“Madame agent, your silence said far more than your words,” said Gambia’s lawyer Philippe Sands, referring to the state counselor who acted as her country’s agent in the case, during the West African nation’s rebuttal of Myanmar’s arguments.
“The word ‘rape’ did not once pass the lips of the agent,” he told the court.
Aung San Suu Kyi on Wednesday said that the Rohingya exodus was the result of “an internal armed conflict” started by Muslim insurgents who carried out coordinated attacks on police outposts in Rakhine state in August 2017 to which Myanmar forces responded with a clearance operation to remove the attackers from the area.
The state counselor, who spoke before the ICJ in her capacity as foreign affairs minister, also said Gambia’s legal team painted “an incomplete and misleading factual picture” of what occurred during that time.
But Paul Reichler, another attorney representing Gambia, pointed out that Myanmar did not deny the conclusions of a 2018 U.N. investigation of the crackdown that found Myanmar had acted with “genocidal intent” against the Rohingya.
“What is most striking is what Myanmar has not denied,” he told the court.
He said that the Rohingya who were killed included “infants beaten to death or torn from their mothers' arms and thrown into rivers to drown. How many of them were terrorists?”
“Armed conflict can never be an excuse for genocide,” Reichler said.
“There is no reasonable conclusion to draw other than the inference of genocidal intent from the state’s pattern of conduct,” he said.
Reichler also dismissed the credibility of Myanmar’s assertions that it was taking action to prosecute soldiers accused of wrongdoing.
"How can anyone possibly expect the Tatmadaw [Myanmar military] to hold itself accountable for genocidal acts against the Rohingya, when six of its top generals including the commander-in-chief, Senior General Min Aung Hlaing, have all been accused of genocide by the U.N. fact-finding mission and recommended for criminal prosecution," he told the panel of 17 judges.
Aung San Suu Kyi was to give final remarks before the court later on Thursday.
It could take weeks or months for the ICJ to issue a decision to impose provisional measures to protect the Rohingya currently living in Myanmar to prevent further atrocities.
Evidence is ‘overwhelming’
Earlier this week a bipartisan group of 10 U.S. senators in Washington expressed concern over Aung San Suu Kyi’s plan to publicly excuse the actions of the Myanmar military at the ICJ.
“Evidence of crimes committed by the Burmese military is overwhelming,” the senators wrote in a letter to Aung San Suu Kyi.
“Representing the Burmese military’s interest before The Hague and defending the mass atrocities committed against the Rohingya and other ethnic minorities would undermine what remaining credibility you have before the international community, including in the U.S. Congress,” they wrote.
“A defense of the Burmese military at this high-profile international forum is also an affront to the inclusive, multi-cultural, multi-ethnic and democratic Burma that you claim to champion,” they wrote.
On Tuesday, the U.S. government imposed new targeted sanctions over the Rohingya crisis, including travel bans and asset freezes, on Myanmar military commanders, including Senior General Min Aung Hlaing.
The move by the U.S. senators prompted observers in Myanmar to weigh in on the issue in light of Aung San Suu Kyi’s performance at The Hague.
Myo Nyunt, spokesman of the ruling National League for Democracy (NLD) party, told RFA that he believes that the lawmakers’ letter does not represent the sentiments of the U.S. government and American people.
“Our country is currently struggling with a number of challenges politically and economically,” he told RFA’s Myanmar Service. “It is inappropriate to say to a country in such a condition: ‘You should abide by what we suggest.’”
“In the state counselor’s speech, she explained the history of the country and didn’t cover up for or defend the military’s wrongdoings.”
Myanmar political analyst Maung Maung Soe said he believed Aung San Suu Kyi and the rest of Myanmar’s legal team had the upper hand during the hearings.
“She was not blindly defending the military saying that what they have done doesn’t amount to genocide,” he said. “She was also speaking about the military’s need for accountability.”
But Zin Linn, an activist from the New Society Youth Group who participated in a rally in Yangon on Tuesday in support of the genocide charges at the ICJ, said Aung San Suu Kyi’s arguments had holes.
“The military and the successive governments before her have committed atrocities against the ethnic minorities, especially the Rohingya. It is undeniable,” she said.
“Her pleas are critically flawed since she cannot defend all the instances of persecution against minorities and riots like the one that occurred in 2012,” Zin Linn said, referring to widespread communal violence between Buddhists and Muslims in Rakhine that left more than 200 dead and resulted in the internment of tens of thousands of Rohingya in displacement camps.
‘Working to bring justice’
Aung San Suu Kyi’s supporters gave their own interpretations of the hearings.
UK-based activist Poe Phyu Thant claimed that the state counselor did not deny that government forces committed atrocities against the Rohingya in her testimony.
“If you listen to her speeches carefully, she didn’t deny the military committed these killing, rapes, or village burnings,” he said.
“She clearly conceded that these incidents occurred during the armed conflict,” he said. ”She also confirmed that the ruling government is trying to take action against these offenders. She clearly demonstrated that the Myanmar government is trying to improve the rule of law.”
Aung Loon, an ethnic Kachin youth from Germany, said he also admired Aung San Suu Kyi, but wanted her to speak the truth.
“I see this court trial positively,” he said. “They are working to bring justice.”
“Since there are inhumane acts and killings in Myanmar, the suggested provisional measures will prevent that,” he said. “I also admire Daw Aung San Suu Kyi. … Despite my admiration for [her], I want to appeal to her to reveal the truth.”
But Rohingya activist Wai Wai Nu said Gambia’s request that the ICJ order provisional measures to prevent any further atrocities against the Rohingya indicates that the situation is critical.
“That’s why it mainly focused on demanding that the court issue a decree for the provisional measures as an interceptive mechanism,” she said.
“Whatever you call it — genocide or ethnic cleansing — there is ample evidence to prove that these atrocities occurred and are continuing,” she said.
“Gambia is doing the right thing to present this evidence and demand that [the court] do what it is supposed to do,” Wai Wai Nu added. “If we take time to decide whether what happened amounts to genocide or not, more and more tragedies will occur.”
Reported by Nayrein Kyaw and Phyu Phyu Khine for RFA’s Myanmar Service. Translated by Ye Kaung Myint Maung. Written in English by Roseanne Gerin.