Gambia v. Myanmar

Gambia has initiated proceedings in the International Court of Justice over Myanmar's treatment of the Rohingya minority. Nobel laureate Aung San Suu Kyi says her country's military justice system should instead be allowed to function:

In her closing remarks Thursday, Suu Kyi appealed to the court not to supplant Myanmar's military justice system by imposing international justice, saying that to do so "in effect surgically removes a critical limb from the body. The limb that helps armed forces to self-correct, to improve, to better perform their functions within the constitutional order.”

She said international tribunals often take at least four to eight years to investigate serious crimes. She said a second court martial of a senior officer is expected in coming weeks over the events in August 2017.

“I’m confident that there will be further courts martial,” she said.

Ms. Suu Kyi testified, in part:

Under its 2008 constitution, Myanmar has a military justice system. Criminal cases against soldiers or officers for possible war crimes committed in Rakhine must be investigated and prosecuted by that system. On Nov. 25, 2019, the Office of the Judge Advocate General announced the start of a court-martial for allegations linked to the Gu Dar Pyin village incident, one of the 12 main incidents referred to earlier. The office also let it be known that there will be additional courts-martial if further incriminating evidence is brought by the Independent Commission of Enquiry. The ICOE is an independent special investigation procedure established for Rakhine allegations by the president of Myanmar, chaired by a former deputy foreign minister from the Philippines, with three other members, including a former undersecretary-general of the United Nations from Japan.

On Nov. 26, 2019, this commission announced that it had taken about 1,500 witness statements from all affected groups in Rakhine and that it has interviewed 29 military personnel who were deployed to the affected townships in northern Rakhine during the military operations from Aug. 25, 2017, to Sept. 5, 2017, as well as 20 police personnel who were stationed at the police posts that were attacked on Aug. 25, 2017. There is currently no other fact-finding body in the world that has garnered relevant firsthand information on what occurred in Rakhine in 2017 to the same extent as the Independent Commission of Enquiry and the Office of the Judge Advocate General in Myanmar.

This fact reinforces my sense that I should refrain from any action or statement that could undermine the integrity of these ongoing criminal justice processes in Myanmar. They must be allowed to run their course. It is never easy for armed forces to recognize self-interest in accountability for their members, and to implement a will to accountability through actual investigations and prosecutions. I respectfully invite the members of the court to consider for a moment the record of other countries. This is a common challenge, even in resource-rich countries.
Recent cases in the news headlines illustrate that even when military justice works, there can be reversals. This can also happen in Myanmar. As part of the overall efforts of the Myanmar government to provide justice, a court-martial found that 10 Muslim men had been summarily executed in Inn Din village, one of the 12 locations of serious incidents referred to earlier. It sentenced four officers and three soldiers each to 10 years in prison with hard labor. After serving a part of their sentences, they were given a military pardon. Many of us in Myanmar were unhappy with this pardon.

Other cases are undertaken without controversy. In the Mansi case, for example, a court-martial sat close to the location in Kachin state where three internally displaced civilians were killed. It sentenced six soldiers, each to 10 years in prison, in January 2018. Relatives of the victims and local civil society representatives were invited to the sentencing.

The Office of the Judge Advocate General in Myanmar is by our standards well resourced, with more than 90 staff and a presence in all regional commands throughout the country. I am encouraged by the Gu Dar Pyin court-martial, and I expect the office to continue its investigations and prosecutions based on reliable evidence collected in Rakhine and from persons who witnessed what happened there.

Can there be genocidal intent on the part of a state that actively investigates, prosecutes, and punishes soldiers and officers who are accused of wrongdoing?Can there be genocidal intent on the part of a state that actively investigates, prosecutes, and punishes soldiers and officers who are accused of wrongdoing? Although the focus here is on members of the military, I can assure you that appropriate action will also be taken against civilian offenders, in line with due process. There will be no tolerance of human rights violations in the Rakhine, or elsewhere in Myanmar. 

Mr. President, there are those who wish to externalize accountability for alleged war crimes committed in Rakhine, almost automatically, without proper reflection. Some of the United Nations human rights mandates relied upon in the application presented by the Gambia have even suggested that there cannot be accountability through Myanmar’s military justice system. This not only contradicts Article 20(b) of the Constitution of Myanmar, it undercuts painstaking domestic efforts relevant to the establishing of cooperation between the military and the civilian government in Myanmar, in the context of a constitution that needs to be amended to complete the process of democratization. That process is now underway at the Pyidaungsu Hluttaw, the Union Parliament.

Principle 9 of the 2006 UN Draft Principles Governing the Administration of Justice Through Military Tribunals (the Decaux Principles) provides:

In all circumstances, the jurisdiction of military courts should be set aside in favour of the jurisdiction of the ordinary courts to conduct inquiries into serious human rights violations such as extrajudicial executions, enforced disappearances and torture, and to prosecute and try persons accused of such crimes.

The 2018 "Yale Draft" of Principle 9 includes an IHL exception:

With the exception of circumstances permitted by international humanitarian law, the jurisdiction of military courts should be set aside in favour of the jurisdiction of the ordinary courts to conduct inquiries into serious human rights violations such as extrajudicial executions, enforced disappearances and torture, and to prosecute and try persons accused of such crimes.