It was another
reprehensible act of Genocide denial. While defending the indefensible at the
world court, the International Court of Justice, housed at the Peace Palace in
the Dutch city The Hague, the once globally revered Peace laureate,
Aung Sun Suu Kyi was remarkably unashamed. She and her legal team did not deny
all those facts of wrongdoings mentioned in the petition filed by Gambia
including of atrocities, brutalities, forced mass-deportation, use of sexual
violence, spreading hate and discrimination against an ethnic minority group,
Rohingyas. Their strategy was based on three Ds – denial, distraction and
deflection.
First was denial
of the intent to commit genocide. Comparisons made with other genocides were so
pathetic, that inference could be drawn that the numbers of the killed were not
sufficient to call it a genocide. Admitting brutalities, Ms Suu Kyi said, ‘it
cannot be ruled out that disproportionate force was used by members of the
defence services in some cases in disregard of international humanitarian law’.
But, her defence was ‘surely, under
the circumstances, genocidal intent cannot be the only hypothesis’. She argued
that the Genocide Convention came into being on the backdrop of killing of six
million Jews. In Rwanda 70 percent Tutsis were slaughtered. Prof William
Schabas of Middlesex University cited the court’s verdict on Croatia v Serbia
case on the premise of attempting to destroy an ethnic group on whole or a
part. He argued, ‘Killing non-combatants in an armed conflict may violate right
to life. But, 10,000 deaths out of a population of well-over one million might
something other than intent to physically destroy the group’.
It was quite a surprise to hear Prof Schabas, the author of
the book ‘Genocide in International Law’, who is better known for his analysis
of the Rohingya plights in Myanmar dating back to 2013 in an Al Jazeera
documentary ‘The Hidden Genocide’ defending the same genocide as an outcome of
a conflict. Prof Schabas, however, justifying his service to Myanmar, later
told Reuters, that everyone has a right to defend before a court. But, at the
hearing his defence was blaming Al Jazeera for using his words selectively.
Prof Schabas was put into this embarrassing defensive position by another
famous academic Professor Philip Sands of Oxford, who on behalf of Gambia,
submitted to the court that the petitioner would not object if the court in its
order includes preventative measures prescibed by Prof Schabas in ‘The Hidden
Genocide.’
The second element
of the strategy of Myanmar was to try to distract by questioning Gambia’s locus
standi or right to move the court, by claiming it was a proxy of the
Organisation of Islamic Conference, OIC and questioning about the financing of
the case suggesting something suspicious.
The third and
final tactics was to deflect the world’s attention to Bangladesh which so far
has been giving emphasis on repatriation and not pro-actively seeking justice
for genocide or preventing further genocidal acts. In the words of Professor Phoebe
Okowa of Queen Mary University: ‘Bangladesh, the country that has borne the
brunt of the crisis, has also entered into a MOU with Myanmar to provide
organised framework for repatriation of displaced persons.’ In her argument she
continued: ‘This is proof of the fact that Bangladesh, as Myanmar’s closest
neighbour, is not of the view that Muslims are at risk of imminent genocide
should they return’.
The Gambia v.
Myanmar hearing at the ICJ was an exceptional battle over defining the
genocidal intent between leading legal experts to make 17 judges rule on
whether any interim measures were necessary to protect 6 lakh Rohingyas trapped
in camps built for IDPs (Internally displaced people) and secluded villages
under harsh restrictions on movement, livelihood, practicing faith and so on.
It would be a frivolous exercise to try to narrate here the nine hours of
deliberations with full of legal jargons and references of past cases under
international law. But, that does not deter anyone to analyse those core issues
put forward by both the parties and reflect on some crucial aspects of our
policies.
As Bangladesh was
not a party to the dispute under consideration of the ICJ, it did not have any
opportunity to explain its position. Experts representing Gambia kept their
focus on establishing its rights to institute the legal action as a signatory
to the Genocide Convention and remained almost silent about Bangladesh’s role.
Myanmar in its concluding submissions again tried to exploit the issue of
inaction and the views of the directly-affected party. Christopher Staker even
argued with citation (case reference) that according to the International Law
Council (ILC), any state could not seek enforcement of erga omnes rights or obligations owed toward
all in the same way as directly injured state. Whether the court accepts or
rejects this argument we will find it out in few weeks. But, the question about
the silence on calling genocide by its name by Bangladesh is not an ignorable
one.
There’s no doubt that repatriation of more than one million
refugees should get priority in Bangladesh’s policy towards Rohingya crisis.
But, it does not mean, a nation born through the most horrific genocide in our
part of the world should refrain from its moral obligation to denounce such
genocidal acts and do utmost to prevent such crimes. Myanmar’s attempt to
shield itself from the egregious charges
using Bangladesh’s affable position certainly demands some serious
contemplation. Maintaining diplomatic links and negotiations do not require top
level exchanges until and unless there is a breakthrough. Luckily, such a top
level exchange during the hearing was not mentioned before the court which
otherwise could have caused some discomfort, especially when Gambia referred
the US imposition of further sanctions against Myanmar’s four top
generals.
Another striking
point to note from the trial was the most outrageous claim made by Myanmar that
if the ICJ were to order any interim measures sought by Gambia that would
adversely impact on the repatriation, reconciliation and their domestic justice
system. Paul Reichler representing Gambia termed this so-called repatriation
process a ‘fraud’ and pointed out the state policy of hate towards Rohingyas
citing Ms Suu Kyi’s refusal to use the ethnic identity of the victim community.
The ICJ proceedings have also proven how valuable contribution the UN Fact
Finding mission has done and whose conclusion, of genocidal intent of Myanmar
reflected through seven indicators, has given hope for justice to the world’s
one of the most persecuted ethnic group, the Rohingyas.
(Published in the Daily Star on December 23, 2019.)
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