She might have been saving her best defence for the highest stage of all. But the arguments advanced by Aung San Suu Kyi at The Hague in response to allegations including genocide were much the same as the Burmese leader has been making for years. Most had been discredited long before she delivered her 20-minute address at the international court of justice on Wednesday morning.
There had undoubtedly been violence in the country’s restive northern Rakhine state, Aung San Suu Kyi told the judges. Armed groups had attacked the Burmese army, which had responded with force, sending more than 700,000 Rohingya fleeing to Bangladesh. But she challenged the idea that the military’s actions were carried out with genocidal intent – “to destroy the Rohingya as a group, in whole or in part”.
She cited Myanmar’s efforts to investigate the alleged crimes. Soldiers had been jailed and an extensive special inquiry was under way, she said. In addition, Myanmar has been negotiating with Bangladesh’s government for the “voluntary, safe and dignified” return of the hundreds of thousands of Rohingya who fled to Cox’s Bazar starting in August 2017.
“How can there be an ongoing genocide or genocidal intent when these concrete steps are being taken?” she asked.
Yet far from absolving the country, each of these steps has been sharply criticised as delaying justice, at best, and denying it at worst.
Seven Burmese military personnel were indeed sentenced to 10 years in prison with hard labour after being found guilty of murdering 10 Muslim men. But they were released after serving less than a year behind bars. (In contrast, two Reuters journalists who exposed the killings were jailed for more than 500 days.)
Aung San Suu Kyi herself pointed to the inadequacy of the justice system in this case, noting on Wednesday: “Many of us in Myanmar were unhappy with this pardon [of the seven military personnel].”
It is also true that a special investigation has been established. Myanmar announced an international commission of enquiry (ICOE) in May 2018. But the rule of law in the country is notoriously patchy, and the independence of the judiciary has been in question for decades.
The Myanmar government explicitly said it was establishing the ICOE in response to “false allegations” of violence against the Rohingya. At a press conference in August 2018, the commission’s chair made clear “there will be no blaming of anybody, no finger-pointing of anybody”.
Organisations such as the International Commission for Jurists have concluded the ICOE “cannot reasonably be seen as having any chance of being independent, impartial or making an effective contribution to justice or accountability for the crimes under international law”. A UN investigation has said the same.
Aung San Suu Kyi said the ICOE had conducted the most extensive investigation of any group into the events in Rakhine state. That may be correct, but only because her government continues to deny access to Rakhine to any other investigators.
She was also correct when she said her government had been negotiating with Bangladesh for the voluntary, dignified and safe return of Rohingya refugees from their dire encampments in Cox’s Bazar. But so far, only a handful of people have returned, precisely because Rohingya leaders do not yet believe they can go back to Myanmar safely or with dignity – still lacking full citizenship, the rights to study, work and travel, and without reparations for the property stolen from them.
Among the signs of progress in Rakhine state Aung San Suu Kyi pointed to was that camps of internally displaced people, including the Rohingya, were being closed and their residents moved to permanent housing. But conditions in these new settlements are so restrictive that the UN in June declared it would start to restrict its funding for the closure process, fearing the international community was helping to entrench a “policy of apartheid” in Myanmar.
Aung San Suu Kyi sought to put the violence in Rakhine state in the context of fighting between the Burmese military and armed militia groups such as the Arakan Rohingya Salvation Army. If civilians were being harmed, she said, it was not part of a genocide but a desperate civil war.
“Please bear in mind this complex situation and the challenge to sovereignty and security in our country when you are assessing the intent of those who attempted to deal with the rebellion,” Aung San Suu Kyi told the judges. “Surely, under the circumstances, genocidal intent cannot be the only hypothesis.”
Except the violence against the Rohingya did not commence in October 2016, when militant groups staged attacks on the Burmese army, drawing a brutal response. The Rohingya have been marginalised for decades in Myanmar: slurred as invading “Bengalis” from the north, banned from leaving their villages without permission, unable to attend universities and restricted in accessing health and education services. Even their ethnic status as Rohingya people is not recognised by the Myanmar government.
Of this ongoing, systematic discrimination – and whether it rises to the level of genocide – Aung San Suu Kyi had nothing to say. The judges will.