Myanmar in the Dock  Larry Jagan

Tomorrow Myanmar embarks on the daunting task of defending itself against charges of genocide brought in the world's top judicial court, the International Court of Justice (ICJ) in The Hague. But the focus on international legal issues has obscured another critical aspect of this crisis, the growing economic degradation of Rakhine, which is having an impact on the country as a whole.

The ICJ hearing has galvanised Myanmar's top leaders -- both military and civilian -- forcing them to cooperate and synchronise their approach to the ongoing crisis in the western state of Rakhine. Unfortunately, this will be of little consequence if the government does not address the fundamental problems of reconciliation and accountability in troubled regions of Myanmar.

More crucially, what happens in The Hague this week and Myanmar's practical response on the ground in Rakhine will have enormous ramifications on foreign investment, international aid and trade, especially from the West. Foreign businesspeople, already hesitant about investing in Myanmar, will be further discouraged, and Western governments may even resort to "informal" sanctions.

Meanwhile, military top brass, leading ministers -- including State Counsellor Aung San Suu Kyi -- and top civil servants have been busy preparing the groundwork to counter accusations of genocide brought against them by The Gambia, on behalf of the 57-member Organisation of Islamic Cooperation (OIC).

Aung San Suu Kyi will lead the Myanmar delegation, and has been appointed an agent of the court, which gives her standing to speak at the hearing. Prof William Schabas, a Canadian human rights lawyer and expert on genocide and international law, with substantial experience at the international courts in The Hague, is the chief legal representative. He will be joined by two other international legal experts on the team. The Myanmar legal team will be led by Attorney General Htun Htun Oo, with two senior military officers also on the team.

The hearings in The Hague are a wake-up call that the civilian government can no longer ignore, especially as Myanmar is a signatory to the Convention on the Prevention and Punishment of the Crime of Genocide and is thus bound by the decisions of the court. The hope is that the government will heed the importance of this development and engage with the international community that it has so far tended to shun, preferring to shelter behind its powerful friends -- China and Russia -- especially at the UN.

The government has been dogged by growing international criticism of its handling of the Rakhine crisis, and its failure to make the army accountable for its actions. The Rakhine troubles won't go away despite repeated efforts of government and military leaders to change the narrative. What is needed is a detailed plan for reconciliation, and to tackle the root causes of the problems that gave rise to the crisis.

The army has repeatedly been accused of leading a campaign of ethnic cleansing against the Muslim Rohingya in Rakhine, forcing nearly a million to flee to neighbouring Bangladesh over the last three years. They are currently languishing in squalid camps as Bangladesh and Myanmar bicker over who is responsible for the failure to start an agreed repatriation programme.

The government and military leaders have repeatedly denied the accusations of ethnic cleansing and genocide, arguing that they were defending themselves against an insurgency. They have dismissed numerous UN reports alleging forced evictions, the razing of Muslim villagers' homes, rape and summary executions. They argue that it was a standard counter-insurgency clearance operation in response to terrorist attacks -- two deadly assaults by the Arakan Rohingya Solidarity Army (ARSA) in which 25 border guards and soldiers were killed: in October 2016 and August 2017.

But The Gambia has turned up the heat by going before the ICJ to assert that Myanmar is responsible for "killing, causing serious bodily and mental harm, inflicting conditions that are calculated to bring about physical destruction, imposing measures to prevent births, and forcible transfers, [which] are genocidal in character because they are intended to destroy the Rohingya group in whole or in part".

LENGTHY LEGAL PROCESS

This week's three-day public hearing is only the start of a legal process that could take 10 to 15 years to complete. The Gambia and Myanmar will present their cases on the first two days respectively. On the third day both states will make further "observations", and are expected to focus on preliminary measures that would be precautionary in effect. If adopted by the court they must be immediately implemented. The proceedings will all be streamed, live and on demand, on the ICJ website and UN Web TV.

Above all The Gambia is calling for an end to all further genocidal acts against members of the Rohingya group: "[including] extrajudicial killings or physical abuse; rape or other forms of sexual violence; burning of homes or villages; destruction of lands and livestock, deprivation of food and other necessities of life, or any other deliberate infliction of conditions of life calculated to bring about the physical destruction of the Rohingya group in whole or part"

The Muslim-majority west African country insist that all military, paramilitary or irregular armed units under Myanmar's control be effectively muzzled. It is also calling for a prohibition on the destruction, changing or hiding ("by physically altering locations") of evidence.

"It is clear that Myanmar has no intention of ending these genocidal acts and continues to pursue the destruction of the group within its territory," warns the lawsuit. The government "is deliberately destroying evidence of its wrongdoings to cover up the crimes", it added.

These measures, if ordered by the court, would severely constrain the military, especially if restrictions are placed on current military operations. It would especially affect the current campaign against the Arakan Army (AA), who are Buddhist rather than Muslims -- a conflict that has already caused massive dislocation of Buddhist Rakhine residents, with thousands forced to flee the fighting.

But with or without preliminary measures, Myanmar must finally take the bull by the horns when it comes to Rakhine, Yangon-based diplomats told Asia Focus. They believe the ICJ will not impose travel bans or formal sanctions, which takes some pressure off the government. Since the case is likely to drag on for some time, it gives Myanmar time get things right, they suggested. "They can soften the blow with mitigating circumstances, but need to act now," said a western legal expert, who declined to be identified.

Pressure will mount on the army to get its act straight, and on the civilian authority to ensure the army acts professionally. "This is now so serious, the government can no longer deflect, it must act," said a western diplomat on condition of anonymity. "Myanmar is in the dock, it's time to put substance to the rhetoric, starting with unfettered access to Rakhine, especially for the UN and NGOs -- both local and international."

But what is needed above all is an agreed, credible, consistent and coordinated strategy to improve the situation on the ground, including conditions that could be conducive for the return of refugees from Bangladesh. For the strategy to be successful, the strategy must apply to the whole of Rakhine -- including all religious communities. This is not a Rohingya issue, this is not a religious issue, this is a Rakhine issue.

ECONOMY SUFFERING

The Rakhine are also suffering as a result of the devastation that the mass exodus of Muslims has caused, and it is affecting the whole of the state, with an economic impact on the country as well. There has been an exodus of young Rakhine from the region: at least 30% have sought better opportunities in Myanmar and abroad, according to researchers doing fieldwork there, who also want to remain anonymous for fear of possible repercussions. Many Rakhine villages are depopulated, with only children and grandparents left, said one researcher.

The construction business in Rakhine is at a virtual standstill as most of the casual labourers who kept the industry going were Rohingya. Fishmongers in Sittwe and Yangon are complaining that for many months, none of the famous Rakhine dried fish has been in the market. This highly sought-after food is no longer available, as the Muslim fishermen have also disappeared. And the previously thriving tourism industry is virtually non-existent now.

As a result, alcoholism is rife throughout most of the communities. The sales for Grand Royal whisky -- the country's most popular and indigenously produced liquor -- are by far the highest in Rakhine, which is one of the least populated of the country's states or regions. Drug use is also on the increase, according to local aid workers.

The government already has in hand a credible and internationally endorsed roadmap for reconciliation and development. It was prepared by a Myanmar government-appointed commission headed by former UN secretary-general Kofi Annan and released shortly before the August 2016 ARSA attack that led to the military's draconian crackdown. The Annan report should form the basis for any solution in Rakhine.

In the meantime, all eyes will be on Myanmar's performance -- and particularly that of Aung San Suu Kyi -- in The Hague this week. Much is resting on a good outcome, especially the broader optics. Western governments, some of which are flirting with a stronger engagement with Myanmar, and foreign businesses will be anxiously following developments.

If Myanmar's defence goes off the rails, it will adversely affect international investor confidence. If it appears Myanmar was in fact engaged in "genocidal" acts and shows no signs of remorse, it could create a stampede of international investors out of the country. Even very supportive Asian investors -- from Japan, Korea, Singapore and Thailand – will be forced to have second thoughts.

At worst, Western governments in their haste to distance themselves from the Myanmar government -- if it is further tainted with genocide -- may adopt "informal" sanctions, warning or even pressuring their businesspeople and companies to disinvest. It would also be another death blow to tourism, though the growing hordes of Chinese tourists would be undaunted.

Larry Jagan is a Myanmar specialist and former Asia news editor for BBC World Service.

This article was published in Bangkok Post dated 9 December 2019. Reproduced with permission.