International justice versus Myanmar

Let’s cut to the chase – there is no question, no doubt, that the government of Myanmar and the army which controls it have committed the most vile atrocities against the Rohingya people, a Muslim minority that lives in the West of the Buddhist-dominated country.

The International Court of Justice (the World Court) which ruled last week against the Myanmar government, may not have concluded it was genocide as some say but it did unreservedly condemn the government for its atrocious sowing of violent mayhem against the Rohingya.

The Court has ordered Myanmar to take steps to prevent acts of genocide against the 700,000 or so Rohingya that remain in exile, mainly in overcrowded, insanitary refugee camps and the 500,000 who still reside in Myanmar, and to prevent the destruction of any evidence of genocide. The Court will continue to gather evidence of attempted genocide.

The UN Secretary-General, Antonio Guterres, said that the Court’s decision would be transmitted to the Security Council which could decide to sanction Myanmar by both word and deed. The conventional wisdom, at least as expressed by Western media, is that Russia and China will veto any tough economic sanctions. This is perhaps unfair to these two countries. Russia founded the original court and many influential Russians are proud of that. Post-Soviet Russia and post-Mao Zedong China have never thrown their weight behind other genocidal-minded regimes such as Rwanda and Sudan. Both countries have judges on the court and the decision on the Myanmar case was unanimous. There is no strong geo-political reason for reticence by either country in this case. China and Russia need Myanmar much less than vice-versa.

Myanmar’s former political prisoner and Nobel Prize winner, and now nominal leader, Aung San Suu Kyi, has long defended the generals’ repression, to the consternation of her erstwhile supporters. In an attempt to preempt the Court’s decision she admitted in the Financial Times, just hours before the Court delivered its verdict, that war crimes “may have been committed” and that they “will be prosecuted through our military justice system”. The deliberations of the Court have clearly had an impact.

In an attempt to outflank the Court, Myanmar set up its own Independent Commission of Enquiry. According to Aung San Suu Kyi, this commission did find that war crimes had been committed. The report, she said, “details killing of civilians, disproportionate use of force, looting of property, and the destruction of abandoned homes of Muslims”. Nevertheless, she accused outsiders of exaggeration and distortion. It remains to be seen how much the situation on the ground is affected by the Court’s ruling.

The World Court does have an influence on international conduct, even though the United States withdrew from it because it didn’t like its decision on the US military intervention in Nicaragua. Early in this century President Olusegun Obasanjo of Nigeria referred a dispute with neighbouring Cameroon for arbitration by the Court. The issue was the oil-rich Bakassi Peninsular which Cameroon claimed but Nigeria ruled. The Court ruled in Cameroon’s favour and Obasanjo duly returned the territory to it, despite the opposition of his minister of defence and a good slice of public opinion.

Another fairly recent case has been that of the former president of Chad, Hissene Habre, who was overthrown and then fled to Senegal, a democracy. Senegal, although it was the first country in the world to ratify the creation of the International Criminal Court, inexcusably gave Habre refuge.

The New-York based Human Rights Watch decided to go into action. It meticulously gathered evidence about Habre’s crimes. But Senegal’s top court ruled that Senegal did not have jurisdiction over crimes committed by Habre in another country.

Then in a remarkable initiative Belgium decided to take the case to the World Court. It sought an order for Senegal to agree to the extradition of Habre. In March, 2012, the Court convened. Days later Senegal elected a new president, Macky Sall. He announced that he was committed to the rule of law and Habre would be tried in Senegal. The then justice minister Aminata Toure told the New York Times, “We have to walk the talk”.

Then on July 20th the Court announced a unanimous decision ordering Senegal “without further delay submit the case of Mr Hissene Habre to its competent authorities for the purpose of prosecution if it does not extradite him”.

Habre was arrested and charged with crimes against humanity, torture and war crimes. The trial ended in May 2006. He was convicted of ordering torture, rape and the execution of thousands of his opponents. He is now in prison serving a life sentence. It was the first time a former head of state has been found guilty of rape. It was also the first time that a former head of state has been prosecuted for human rights abuses in a country other than his own.

Without the intercession of the World Court it is arguable that the trial would never have happened. It gave the case a telling push at a critical moment.

We wait and see if the case against Myanmar comes to an equally satisfactory conclusion. The Court has demanded that the government report back within four months on what steps it has taken. That is more than long enough for Myanmar to put its house in order.