The initial ruling by the International Court of Justice on the case brought by Gambia against Myanmar over its treatment of Rohingya Muslims gives a first look at what the U.N. top legal body's final judgment might look like.
Opinions are split on what the ruling and provisional demands by the court actually mean, and which side has the upper hand. The ICJ case will take years to unfold. Whatever the outcome of the trial, Aung San Suu Kyi, Myanmar's de facto leader, looks set to emerge as the biggest winner.
Contrary to what many have asserted, the ICJ ruling, including the provisional measures, does not actually constitute a finding that Myanmar committed genocide. That judgment will not be made until the end of the case, after extensive collection and adjudication of evidence and arguments by the two sides
In its preliminary ruling on Jan. 23, the ICJ recognized the extreme vulnerability of the Rohingya in Myanmar and the irreparable harm they have suffered, and it orders Myanmar to take all measures within its power to prevent: a) killing members of the group; b) causing serious bodily or mental harm to the members of the group; c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and d) imposing measures intended to prevent births within the group.
Among better-informed legal experts and analysts, the pursuit of a genocide verdict is perhaps the biggest weakness in Gambia's case. To meet that standard, Gambia will have to prove that the Myanmar security forces acted with genocidal intent against the Rohingya. Precedent is not in Gambia's favor. In the genocide case against Serbia in 2006, the ICJ did not find such intent and dismissed the genocide charge. Had Gambia adopted a more realistic strategy of focusing on war crimes, or even ethnic cleansing, it would probably have a better chance of winning.
Suu Kyi responded to the ICJ ruling on the same day with a commentary published in the Financial Times. Her rebuttal and recent actions show the new strategy that Myanmar has adopted: disputing the evidence presented and what it calls the "unsubstantiated narratives" that the U.N. and nongovernmental organizations have relied upon to draw conclusions about the Rohingya issue.
Efforts are under way to investigate the widespread claims of systematic mass murder and rape. A recent report by the Independent Commission of Enquiry, a body set up by the Myanmar government, points to "inaccurate and exaggerated information" provided by some refugees and the lack of evidence of genocide. Additional investigations and the release of more information are expected in the months to come that will challenge Myanmar's critics.
Whether the provisional measures granted by the ICJ in its preliminary ruling constitute an implicit finding that Myanmar had committed genocide is the subject of heated debate. Supporters of Gambia's case say the demand by the court that the Myanmar government prevent acts of genocide implies that genocide has taken place. Supporters of Myanmar, on the other hand, say it merely reaffirms Myanmar's treaty obligations as a member of the ICJ and signatory to the Genocide Convention that all countries should prevent acts of genocide. The demand that Myanmar to protect evidence and submit a list of actions within the next four months is anything but harsh or significant. No one doubts that Myanmar will provide a long list of actions, useful or not, by May.
Outside the international arena, the true battle stemming from the case lies within Myanmar itself. By taking on the allegations of the ICJ case in a most direct and defiant manner, Suu Kyi has reemerged as the protector of the Burmese people, the nation and indeed the Myanmar military. That gives her power in her struggle with the military over democratic reform, constitutional revision and the fight to bring the military back under civilian control.
For people who look beyond the legal case to its political impact, Suu Kyi's commitment to hold the military accountable for its actions through Myanmar's own military justice system is a clear sign that she is using the case to tame the military. Given the vast popular support she has gained among the people of Myanmar by taking on the ICJ case, and given the broad international condemnation and isolation the military is suffering, the Rohingya case may alter the balance of power between the military and the civilian government.
What remains unclear is whether Suu Kyi's legal strategy received buy-in from the military. The generals may have decided to sacrifice a few midlevel officers as a way of pulling themselves out of their quagmire, fearing that if they did not she would throw them under the bus.
Aung San Suu Kyi smiles with army members during the handover ceremony at the presidential palace in March 2016: what remains unclear is whether Suu Kyi's legal strategy received buy-in from the military.
© Reuters
The case has particularly important implications for Myanmar's general election to be held later this year. Humiliated and sidelined, the military's ability to sway the vote has been severely impaired. The military-backed Union Solidarity and Development Party, already in a precarious position, has been further weakened. People had expected Suu Kyi's National League for Democracy to win the election, but with a smaller margin. However, the ICJ case has introduced a new dynamic that could reinvigorate her and propel the NLD to new heights.
Yun Sun is a senior fellow and co-director of the East Asia Program and director of the China Program at the Stimson Center in Washington.
