Myanmar and Gambia concluded the opening phase of arguments at the International Court of Justice (ICJ) on Thursday, leaving the court’s 17-judge panel to decide if provisional measures are necessary to prevent what Gambia says is a continued attempt to destroy the Rohingya.

Gambia accused Myanmar of violating its obligations under the 1948 Genocide Convention during and since its 2017 “clearance operation” in Rakhine state, which forced more than 740,000 Rohingya to flee from their homes to refugee camps in neighbouring Bangladesh. It is only the third such case brought before the court in its history.

“We turn to this court, as the guardian of the Genocide Convention, to prevent (the Rohingyas’) further destruction at the hands of Myanmar”, international lawyer and professor of law Payam Akhavan said in an opening statement for Gambia.

While the court could take years to determine a final ruling, Gambia has asked the court to order provisional measures be put in place to protect Rohingya groups in the interim—a decision expected much more quickly. When Bosnia and Herzegovina asked for such measures against Yugoslavia in March of 1993, the ICJ issued an order within a few weeks.

Gambia has asked that the court require Myanmar give international investigators access to Rakhine state—something Myanmar has so far refused—as well as increased cooperation on repatriation and the preservation of sites of alleged abuses.

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State counsellor Aung San Suu Kyi represented the country’s leadership in The Hague. In opening remarks, she argued that the case failed to consider the complexity of the ongoing conflicts in Rakhine state and that the court’s intervention would undermine Myanmar’s sovereignty and ongoing efforts to transition to a stable democracy.

The operation in question dealt with “an internal armed conflict, started by coordinated and comprehensive attacks by the Arakan Rohingya Salvation Army (ARSA), to which Myanmar’s defence services responded”, she said. “Please bear in mind this complex situation and the challenge to sovereignty and security in our country when you’re assessing the intent of those who attempted to deal with the rebellion”.

“If war crimes have been committed by members of Myanmar military services, they will be prosecuted through our military justice system, in accordance with Myanmar’s constitution,” she added. “No stone should be unturned to make domestic accountability work.”

Gambia, however, argued Myanmar is unable to hold soldiers to account.

"How can anyone possibly expect the Tatmadaw to hold itself accountable for genocidal acts against the Rohingya, when six of its top generals including the commander-in-chief, Senior General Min Aung Hlaing, have all been accused of genocide,” said Paul Reichler, Gambia’s lead lawyer.

Myanmar’s defence did not argue that grave crimes against humanity—including the gang-raping of women and girls, the widespread slaughter of civilians, including children and the elderly, and forced deportation—did not occur, but that they did not amount to genocide.

Gambia’s case “fails utterly to address the essential issue of the specific intent to perpetrate genocide,” said Canadian lawyer William Schabas.

“It is this subjective intent that is the critical element distinguishing genocide from other violations of international law such as crimes against humanity and war crimes, for which in this case the Court obviously lacks jurisdiction,” he said.

Responding to that argument, Sands said that not the certainty but only the possibility of genocidal intent need be considered at this stage, as the judges decide on whether or not to order provisional measures.

Rallies

As the trial began on Tuesday, thousands of people gathered in downtown Yangon’s central Maha Bandoola Park in support of Aung San Suu Kyi.

Streaming down streets waving Burmese flags and posters of the state counsellor’s face, they met at the park in front of city hall to watch on a jumbo screen a live feed of the trial. But the feed had no Burmese language translation, and participants soon thinned out and disappeared, local media reported.

Myanmar Mix did find three young dissenters at the rally, who sat at a booth displaying a banner that read, “I stand against genocide, change my mind.”

“We expected people to be sensitive and aggressive to us, but when we got there, they didn’t understand what genocide is, what the ICJ accusations are, or even what the ICJ is. They just came to support Aung San Suu Kyi,” one activist told Myanmar Mix.

Human rights activists and ethnic rights groups across Myanmar made similar claims, accusing the military and the NLD government of taking advantage of a public with little understanding of the trial. Powerful state actors are ginning up support for themselves by falsely claiming the people of Myanmar are on trial, rather than themselves, they say.

“Today, the ruling political party and powerful organizations are organizing public gatherings against the lawsuit. This is a manipulation of the public to protect the human rights violations of the Tatmadaw,” a letter by one coalition of ethnic groups read.

Karen Women’s Union president Naw Ohn Hla also put the blame on Aung San Suu Kyi and her ruling NLD party.

“I think they are using a public that doesn’t understand the case, and are offering misinformation to confuse them,” she told Myanmar Now.

That same day, the United States announced Min Aung Hlaing and other top Tatmadaw commanders had been added to its list of those sanctioned under the Global Magnitsky Act, which targets human rights abusers.

Throughout the trial, Myanmar citizens, expats and refugees gathered outside of The Hague to show support for both Aung San Suu Kyi and Gambia.