Last month, the world was struck by an unusual image — that of a Nobel Peace Prize laureate, Aung San Suu Kyi — standing in court to defend and deny genocide. What was striking was not only what she and Myanmar’s legal team said but also what wasn’t said: the total failure of Myanmar to respond to the allegations of mass sexual violence against the Rohingya, including rape.
As Prof. Philippe Sands, counsel for The Gambia, which brought the case against Myanmar, said, “Madame agent, your silence says far more than your words.”
In fact, the words “sexual violence” passed through the lips of Myanmar’s team just once during the three-day hearings at the International Court of Justice in December, only to say that it is “a phenomenon that regrettably occurs in many parts of the world and that we all condemn unequivocally.”
On Jan. 23, The Hague-based court will issue its ruling on “provisional measures” in the case against Myanmar for accusations of genocide of the Rohingya. Provisional measures are legal injunctions that would place immediate obligations on Myanmar. The Gambia has asked the court to issue specific measures to prevent the commission of genocidal acts, including “rape or other forms of sexual violence.”
For the more than 600,000 Rohingya who remain in Rakhine State in Myanmar under threat of genocide, these measures are imperative. This is because, as the United Nations’ fact-finding mission on Myanmar found, “sexual and gender-based violence was a hallmark” of the Myanmar military’s genocidal campaign against the Rohingya. Rape and sexual violence were widespread, pervasive and often committed in public.
The UN mission found that 80 percent of the incidents of rape were perpetrated by gangs, some by as many as 10 rapists, and that in some instances, up to 40 women and girls were gang-raped together. And while these acts were disproportionately carried out against Rohingya women and girls, the mission also documented sexual and gender-based violence against men and boys, as well as transgender Rohingya.
While the scale and brutality of these crimes were shocking, their use by the military is not new: Myanmar’s armed forces have long used rape as a weapon of war and oppression in its conflicts with ethnic groups. This was a fact recognized by none other than Aung San Suu Kyi herself in a video message she delivered at a conference on ending sexual violence in conflict in 2012, saying:
“Rape is used in my country as a weapon against those who only want to live in peace, who only want to assert their basic human rights. Especially in the areas of ethnic nationalities, rape is rife. It is used as a weapon by armed forces to intimidate the ethnic nationalities and to divide our country. This is how I see it: every case of rape divides our country. Every case of rape divides our country between peoples, between genders, between the armed forces and ordinary citizens, between ethnic nationalities, so we must do everything we can to put an end to this.”
Where was this Aung San Suu Kyi in The Hague in December? In the court, she instead asserted that attempts to ensure justice for such crimes, like the International Court of Justice case, divides the country. And she’s not alone in her denials of sexual violence. Myanmar’s civilian government has consistently denied the validity of the reports of sexual violence, going as far as saying to the UN Committee on the Elimination of All Forms of Discrimination Against Women, in February 2019, that “there is no evidence to support these wild claims.”
Similarly, the recently completed final report of the Independent Commission of Inquiry categorically dismissed rape, finding “no credible statements on allegations.”
During the hearings, Aung San Suu Kyi urged the court to let the domestic system, particularly Myanmar’s military justice arm, deal with what she branded as the use of “disproportionate use of force” and potential violations of human rights. Even leaving aside the significant flaws of Myanmar’s domestic criminal system, military or not, it’s hard to see how a government that fails to acknowledge or outright rejects the occurrence of a particular subset of crimes can be trusted to render justice for them.
The international community, regardless of whether the court issues provisional measures on Jan. 23, still needs to ensure accountability for the crimes committed against the Rohingya. Otherwise, Aung San Suu Kyi’s silence will end up shutting down all Rohingya who have suffered sexual and gender-based violence at the hands of Myanmar’s military.
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Akila Radhakrishnan is president of the Global Justice Center. She received her J.D. degree, with a concentration in international law, from the University of California, Hastings. She has worked for the International Criminal Tribunal for the Former Yugoslavia; DPK Consulting; and Drinker, Biddle & Reath LLP.