Suu Kyi at the ICJ

Leaders currently in office rarely make an appearance before either the International Court of Justice or the International Criminal Court. International law remains affixed to the notion that heads-of-state are, at least for the duration of their time in office, safe from prosecution. Matters change once the time in office expires.

Be that as it may, Myanmar’s Aung San Suu Kyi, with an ever dwindling number of peace prizes and awards to her name for questionable responses to the plight of the Rohingya Muslim minority, has a plan. She intends to personally plead the case of her country against charges of genocide being made in the International Court of Justice. As the Ministry of the Interior has claimed, the argument against state brutality against the Rohingya has arisen due to ignorance about “the complexities of the issue and the narratives of the people of Myanmar.”

The case itself is drawn from the well of universal jurisdiction, a concept that Henry Kissinger finds so troubling to the freedom of flexible statecraft. The former US secretary of state, in 2001, warned that subjecting international relations to judicial procedures came with risks. “The danger lies in pushing the effort to extremes that risk substituting the tyranny of judges for that of governments; historically, the dictatorship of the virtuous has often led to inquisitions and even witch-hunts.”

Kissinger ignores a lingering point stretching back to Roman law that universal jurisdiction, or at least the rhetoric of it, can be exercised against certain crimes that might revolt the tender conscience humanity. Piracy, for instance, might be punished as an extra-territorial offence, though it should not be confused as being on all fours with international criminal law. “I need not tell you the heinousness of this offence,” came the pre-deliberation address to the jury in the piracy trial of Capt William Kidd in 1701. “Pirates are called ‘Hostes humani generis’ the enemies of the people.”

In this instance, the threat to Myanmar’s authority does not come from an internal action, but from the West African country of The Gambia as a representative of the 57-member Organisation of Islamic Cooperation. Last month, a 46-page application was submitted by the Muslim-majority state to the ICJ, alleging the commission by Myanmar’s authorities of mass murder, rape and the destruction of communities living within Rakhine State, ostensibly as part of a “clearing” program. “The genocidal acts committed during these operations were intended to destroy the Rohingya as a group… by the use of mass murder, rape and other forms of sexual violence, as well as the systematic destruction by fire of their villages, often with inhabitants locked inside burning houses.”

Excerpted from: 'Going to the ICJ: Myanmar, Genocide and Aung San Suu Kyi’s Gamble'.

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