The de facto leader of Myanmar, who was placed under house arrest by the country’s then military rulers off and on over more than 20 years, is not on trial at the ICJ, which settles disputes between countries. The International Criminal Court (ICC) has the responsibility of trying individuals, and in November, the ICC authorized its own investigation into alleged crimes against humanity, namely deportation, committed against the Rohingya.
“If war crimes have been committed, they will be prosecuted within our military justice system”, the Nobel peace laureate Ms. Suu Kyi said in court, during the second day of preliminary proceedings at the ICJ.
In her opening statement in front of judges in The Hague, Ms. Suu Kyi outlined decades of tensions between Rakhine’s mainly Rohingya Muslim community and their Buddhist neighbours.
These boiled over on 25 August 2017, when the country’s military – often referred to as the Tatmadaw – carried out a sweeping crackdown against Rohingya communities, in response to deadly attacks on police and security posts by separatists known as the Arakan Rohingya Salvation Army.
The result was the exodus of more than 700,000 people to neighbouring Bangladesh, many of whom told UN-appointed independent investigators that they had witnessed targeted violence of extreme brutality.
Numerous alleged human rights abuses took place, with the then UN human rights chief describing it as bearing all the hallmarks of a “textbook example of ethnic cleansing”.
It could not be ruled out that the Tatmadaw had used disproportionate force, Ms. Suu Kyi told the Netherlands-based court, while also suggesting that “surely, under the circumstances, genocidal intent cannot be the only hypothesis” – the same phraseology used around a 2019 UN report by independent experts on the circumstances leading up to the Rakhine mass exodus.
According to the report by the UN Fact-Finding Mission on Myanmar, the country’s military were responsible for the “widespread and systematic killing of women and girls, the systematic selection of women and girls of reproductive ages for rape, attacks on pregnant women and on babies, the mutilation and other injuries to their reproductive organs, the physical branding of their bodies by bite marks on their cheeks, neck, breast and thigh, and so severely injuring victims that they may be unable to have sexual intercourse with their husbands or to conceive and leaving them concerned that they would no longer be able to have children.”
Highlighting that Myanmar’s own military justice system “must” be responsible for investigating and prosecuting allegations of possible war crimes by soldiers or officers in Rakhine, Ms. Suu Kyi regretted that the case brought against her country by The Gambia was “an incomplete and misleading factual picture in Rakhine state and Myanmar”.
If war crimes have been committed by members of Myanmar’s defence services, Ms Suu Kyi added, “they will be prosecuted through our military justice system, in accordance with Myanmar’s constitution”.
In addition, she said that “it would not be helpful” for the international legal order if the impression takes hold that only resource-rich countries can conduct adequate domestic investigations and prosecutions”.
The Myanmar representative also insisted that it was of the utmost importance that the ICJ also assess the situation “on the ground in Rakhine dispassionately and accurately”.