How Should Myanmar Handle Prosecution at the ICJ Over the Rohingya Issue?

By The Irrawaddy 23 November 2019

Kyaw Zwa Moe: Welcome to Dateline Irrawaddy! Before introducing the topic we’re going to discuss, I’d like to name the topic “Will Myanmar be able to scale this mountain?” As most people know, recently [it was announced that Myanmar will be] prosecuted at the International Court of Justice [ICJ] for human rights violations. Myanmar leaders including State Counselor Daw Aung San Suu Kyi, President U Win Myint, former presidents, and Commander-in-Chief of Defense Services Senior General Min Aung Hlaing [are also being] prosecuted at a court in Argentina. So we will discuss how Myanmar should respond and what will happen if Myanmar can’t respond properly. One of the leaders of the Federal Democratic Force, Ko Mya Aye, and political commentator Ko Chit Win Maung join me to discuss this. I’m The Irrawaddy English editor Kyaw Zwa Moe.

As I’ve said, Myanmar [began to be] prosecuted at the ICJ [this month]. It is bad news for Myanmar. But allegations have been made since 2017, and before then, that 700,000 Rohingya Muslims were forced to flee from Myanmar. It is quite a complex and delicate issue. The situation is already very bad. How much worse can it get for Myanmar, Ko Mya Aye?

Mya Aye: Let’s set aside the prosecution in Argentina. Though it is serious, it is not as serious as [the prosecution at] the ICJ. As the issue has been raised at the ICJ, what is sure is that the image of our country has been affected. Again, the prosecution is brought against the country. So, the image of the people living in the country is ruined for sure. There are human values. People must be treated with humanity even in times of armed conflict, according to the Geneva Convention. If we were able to think about what country we would like to build and what values we will uphold to build the country, the problem would not have been this serious. But now, the [country’s] image is already tarnished. And the issue will be further raised with the UN Security Council and a veto may be used. It will have a considerable impact on the politics of the country. To make a long story short, it is bad for the country, and it is certainly not a thing that we should be happy about.

KZM: The issue has developed into the current situation over time. There have been many criticisms of the government concerning its handling of the issue. It happened once under U Thein Sein’s administration and it also happened before that. Speaking of the latest developments, it has surely affected the image of the country. But for the time being, the current government is most responsible for this. According to the statement issued by the ICJ, it will start hearing the case on Dec. 10. It will hear from the Gambia—the complainant—on Dec. 10, and hear from Myanmar after that. So, it appears it is taking swift action. Ko Chit Win Maung, how should the government respond to this? The military regime in the past denied human rights violations. But I think the current government can’t do so. So, what is your view, Ko Chit Win Maung?

Chit Win Maung: This is the first case in which Myanmar has been brought before an international court. And we can’t evade it. We have been summoned by the ICJ for a hearing and we have to go. Government spokesperson U Zaw Htay said the government will handle it. He said the government had predicted the current situation and has made preparations for over a year to handle it according to international law and in response to the extent of the ICJ’s mandate. Our country has to face it anyway. As the ICJ is the court intended to settle disputes between UN members, we have to face the trial. I am sorry for our country for that. I was interested to learn about whether there were similar problems before, so I checked the history of the ICJ. The ICJ was established in 1946 and since then it has received 178 cases. The 178th case is Myanmar’s case. The prosecution was initiated under the Application of the Convention on the Prevention and Punishment of the Crime of Genocide. The case is treated as genocide rather than human rights abuses. There was a [previous] genocide case the ICJ handled. It was the prosecution by Bosnia and Herzegovina against Yugoslavia. The ICJ consists of 15 judges and the president. The current president of ICJ is from Somalia. Somalia is a member of the Organization of Islamic Cooperation [OIC]. And the prosecution was initiated by the Gambia on behalf of the OIC, which has 57 member countries. But then, the ICJ president is from Somalia, which is a member of the OIC. So, the question is the extent to which the trial can be fair. And for our defense against genocide allegations, we also need the help of good lawyers and legal experts.

KZM: But then it will be quite difficult. The problem arose from human rights issues. Our country has historically been infamous for human rights abuses. And the latest case even serves as a record of human rights abuses. The fact that over 700,000 people have fled from their villages serves as evidence. Things have happened. How can the government handle it? Taking a look at the internal politics of our country, there is the elected government on one hand and there is the Tatmadaw [Myanmar’s military] on the other. And we don’t know whether or not the two are coordinating to address this issue. Ko Mya Aye, what are your suggestions for handling this complicated issue?

MA: Rather than arguing over whether it is genocide or not, there are yardsticks by which to measure if an act amounts to genocide or not.  And there are also facts. When the case is brought to the court, the two sides will submit facts. I have concerns; for example there was the Inn Dinn Village case, and there was another case in a village whose name I don’t remember. We don’t know if the complainant side has gathered such facts. How can Myanmar defend against those? This is very important. Again, let’s set aside the questions of citizenship and “Rohingya” terminology.

KZM: They are of secondary and tertiary importance.

MA: Yes, let’s put aside those questions. They are human. Foreigners have lived in Myanmar for a long time. Even the foreigner registration certificate [holders] enjoy legal protection provided by the government. 700,000 were pushed to the other side suddenly. The international community will not be happy if they are put into a camp instead of being resettled in their original places. Those 700,000 people have their own villages and lands. Let’s put aside their religion. But we haven’t even been able to resettle them so far. And the repatriation process is stalled. Our country fails to think about how we can cooperate with the international community. We only care to reject the allegations. Over time, we have suffered more and more losses. Whether we win or lose the lawsuit is not important. It is already difficult to recover the image of the country.

KZM: What Ko Mya Aye says is right. It is a human rights issue. No human being in this world, regardless of their citizenship and religion, should have his rights violated.

MA: There are values. We shouldn’t ignore those values.

KZM: As you have said, we have constantly denied those allegations, and asked if there is any proof. But those who fled are the evidence itself. Government and military leaders are concerned that there are political factors at play. There may be political leaders, politicians and government officials who are concerned that there will be demands for a liberated area for Rohingya, stemming from the argument that the two societies can no longer co-exist in Rakhine State due to genocide. If the Rohingya demand [recognition as a national] ethnicity, they may demand a part of the country and secede. It appears that there are such concerns. What is your assessment, Ko Chit Win Maung?

CWM: The issue in northern Rakhine took place some years ago. To ethnic Rakhine people, they are Bengali [meaning illegal immigrants from Bangladesh] who have illegally entered and occupied their land over time. Their population has increased compared to that of ethnic people. Ethnic people can’t accept that. But taking a look at history, there were many Bengalis who had settled there since World War II, before independence in 1948. Generations of them have lived there. However, the Myanmar government didn’t give them national IDs or any identity documents. So, they become automatically illegal though they lived there. The government said they can return to Myanmar if they have documents. But how can they [without documents]?  This case is concerned with Rakhine ethnic leaders, parties and lawmakers. There is a need to find an answer in consultation with them. Initially, measures were taken according to the report of the Kofi Annan Commission. Later, we introduced a repatriation process. This is just on paper, and as it is not realistic, the process has reached a stalemate.

KZM: Ko Mya Aye, do you have any idea for how to mitigate the Rohingya issue in the short term?

MA: Many commissions and committees have been formed regarding the Rakhine issue. Speaking frankly, none of them work.

KZM: Why?

MA: Because they don’t bother to look for workable solutions. They approach problems based on rigid stances. We can’t approach it like that. And the issue is not only the Union issue, but it is also concerned with the Rakhine people. The wishes of Rakhine politicians must be taken into account as a priority.

KZM: I think it is even more important to consult with leaders of the Rohingya community.

MA: The problem must be solved in consultation with leaders of the Rakhine and Rohingya communities. It is indisputable that the two societies have lived together. Saya Chit Win Maung I would like to point out that it is not true that Rohingya do not have [identity] documents. They do. The problem started and developed because the government confiscated white cards [temporary ID cards] and did not give any ID cards back to them. This is one of the factors. People may say there is no discrimination in Myanmar. But go to the passport office at the center of Yangon, and you will see that there is a separate counter for people of mixed blood. This is discrimination. To criticize openly, you can’t tell the world there is no discrimination while you do such things shamelessly. According to the 1982 Citizenship Law, those who have lived in Myanmar since before 1824 are classified as ethnic people. But things are different on the ground, and [ethnicity eligibility] is quite complicated even in the mainland. I am not talking about whether or not they are eligible for citizenship or whether or not they are Rohingya as they claim, but I want actions taken properly according to the 1982 Citizenship Law. Why can’t they [Rohingya] be settled back to their original places? We are talking about those 700,000 people who fled from Rakhine. But even those in Aung Mingalar [Ward] in Sittwe still can’t travel freely. So, there is no way to solve this problem. Rakhine and Rohingya people have lived together for a long time ago. Rather than making decisions on their behalf, we should consult with Rakhine politicians and Rohingya community leaders, and take actions step by step.