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Key Figures Assess the Myanmar Legal Team’s Performance in The Hague

By The Irrawddy 12 December 2019

On Wednesday, Myanmar’s legal team presented oral arguments in response to the genocide lawsuit filed against the country by The Gambia at the International Court of Justice (ICJ) in The Hague.

Myanmar State Counselor Daw Aung San Suu Kyi and advocates for Myanmar including Professor William Schabas, Dr. Christopher Staker and Professor Phoebe Okowa presented counter-arguments.

The Irrawaddy interviewed several prominent Myanmar figures to acquire a range of views on the arguments put forward by Myanmar and The Gambia at the ICJ.

Dr. Myint Zan

Legal expert 

 

I think Myanmar put forward a good defense. The Myanmar team made two good points in its counter-arguments. It pointed out that The Gambia has no right to file a lawsuit on behalf of the OIC [Organization of Islamic Cooperation]. It also talked about the inappropriateness of the provisional measures requested by The Gambia.

In her statement, Daw Aung San Suu Kyi quoted U Thant’s concept of the planetary citizen. He articulated it some 45 years ago. She quoted U Thant as saying there is only global citizenship, rather than nationalities, in the 21st century.

U Thant was the third secretary general of the United Nations, and he served longer than any other secretary general. By presenting the concept of the planetary citizen, Daw Aung San Suu Kyi was at least able to challenge the theory that the nationality barrier can undermine our common humanity, and asserted that Myanmar also respects this common humanity.

I don’t mean to say that the arguments by the complainant side are not strong; their arguments are based on extensive research. I think the majority of the judges, if not all, have yet to make a decision. They have to read the statements as well as hundreds of pages of [legal] precedent.

Bertil Lintner (born 1953) is a Swedish journalist, author and strategic consultant who has been writing about Asia for nearly four decades.[1] He was formerly the Burma correspondent of the now defunct Far Eastern Economic Review and currently works as a correspondent for Swedish daily Svenska Dagbladet and Denmark’s Politiken. (Photo – Sai Zaw)
Bertil Lintner

Swedish journalist and veteran reporter on Myanmar

There is no doubt that horrendous things did happen in Rakhine State in 2017 but after listening to both sides in the court in The Hague, I believe that it would be extremely difficult to prove that it constitutes genocide. And I think some of those who support The Gambia’s case are doing the refugees an enormous disfavor by standing outside the courthouse shouting “Allahu Akbar!” and making speeches in Bengali.

Dr. Hkalam Samson

President, Kachin Baptist Convention

 

From the religious point of view, my view is that everyone knows that something is wrong in Myanmar. And we hope that [the authorities] will take responsibility and confess their faults, and work for a better future.

We have no desire to see particular individuals suffer. But there were systems and persons who made mistakes, and as the complainant side has collected a lot of evidence—and so has the UN Fact-Finding Mission—I think the government will be able to overcome [the legal challenge] only when it has stronger evidence. If [it does not], things might be different.

There is an obvious comparison with the displacement in Kachin and northern Shan states. In our region, people have fled to the border and the KBC [Kachin Baptist Convention] churches. When you ask them why they flee, everyone says they flee because they are afraid of Tatmadaw troops. It is undeniable that there was a breach of discipline by the Tatmadaw. So, we can make guesses in comparison with what happened in Kachin and northern Shan states. But at the same time, it is also possible that the news reports were exaggerated and that [the Rohingya] fled out of fear.

In Kachin, residents from villages which are far from clashes also flee. They flee when there is no clash [immediately] near them because they can’t stand the sounds of artillery fire and shooting from helicopters [from clashes some distance away]. So, comparing it to what happened in Kachin State, there is a possibility that in Rakhine State [the Rohingya fled for the same reason].

I respect the leadership of the State Counselor, as she said she would take ultimate responsibility for it. She is the most appropriate person to contest the case on the international stage. As she is both the foreign minister and State Counselor, we have nothing to say. From a religious point of view, we acknowledge her forgiveness, as she faced the case with great tolerance toward the military, which [in earlier years] detained her and gave her trouble. But we want her to face the truth. We don’t want her to hide the things that happened. We want her to face the truth as it is and take responsibility.

And regarding the Tatmadaw, many know the feelings of we ethnic people over the past 70 years. We have said these things throughout our lives. And regarding the lawsuit against Myanmar, some ethnic armed organizations support it, and some keep silent. The KIO [Kachin Independence Organization] didn’t even issue a statement. Personally, I have some sympathy for the Tatmadaw, now that they are in trouble. But to be frank, they will reap what they have sown. So, I want the Tatmadaw to face it for the sake of peace and stability in Myanmar. I want to say that their sacrifice will help recover peace and stability in Myanmar.

Dr. Maung Maung Lay

Vice President, Union of Myanmar Federation of Chambers of Commerce and Industry

[Myanmar’s defense team] made a strong argument. Mainly, it will depend on the remarks of the 15 members of the defense team. And the advocates of Myanmar put forward a strong defense.

It is important that the counter-argument at the ICJ is powerful. Daw Aung San Suu Kyi and the legal professor made compelling arguments that were apparently acceptable to the judges. But as The Gambia will present counter-arguments [on Thursday], I don’t know what will happen.

U Thein Than Oo

Lawyer

The message [Daw Aung San Suu Kyi] sent today is that she will not tolerate any acts of inhumanity, and that anyone who breaks the law will be punished. The problem is that the practice of justice and the rule of law in our country are still poor. And the process of punishing those who are guilty is too slow. The military also has rules and laws, but they are seldom put into practice and we need to push forward to achieve justice.

The situation in our country is complex. However, we should not refuse or deny what has happened and what is happening in the country, because there is a lot of evidence of the brutality of the military. There are many locals suffering—not only the Rohingyas in Rakhine State, but also many other locals in that area and the locals of Kachin and Shan states are in a state of misery.

On the other hand, she does not care about how the international community treats her. She is facing the ICJ and it’s political. She is now wining the hearts of her supporters and she and her party will win in the upcoming election. Meanwhile, the image of the military and its supporters has suffered because they have not faced the ICJ as she has done. It is a win-win situation for her, domestically.

Brigadier-General Zaw Min Tun

Tatmadaw True News Information Team

When [the government] formed the defense team, we dispatched two military officers to join the team, and we acted on the instructions of the government.

[Daw Aung San Suu Kyi], in the short time available, was able to inform the international community about the root causes of the Rakhine issue and the terrorist acts by ARSA [the Arakan Rohingya Salvation Army], which were previously concealed from the international community.

She was also able to explain that the government and the Tatmadaw [Myanmar’s military] are working responsibly and with accountability in accordance with the Tatmadaw’s judicial system. She also clarified the misunderstanding on the part of international community about the clearance operation [by the military that triggered the 2017 Rohingya exodus].

We are not versed in legal issues. But what I want to say is that we are optimistic about it. 

Dr. Myo Nyunt

Spokesperson, National League for Democracy

We believe the team led by the State Counselor will be able to present legally strong arguments in accordance with the dignity of the country. The ICJ’s view will depend on the reasoning of the judges. The Myanmar team’s presentation has been based mainly on the facts of the [UN] Fact-Finding Mission, and it has been able to argue against the genocide allegations. The advocates for Myanmar were able to argue that there are no grounds to uphold a lawsuit alleging genocide.

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