It was the most anticipated court hearing in years, drawing interest from all corners of the globe. The spectacle of a Nobel Peace Prize laureate defending her country against accusations of having committed the most heinous of crimes, genocide, certainly isn't a common sight. But in the figure of Aung San Suu Kyi, the celebrated Burmese democracy icon, leading her country's legal team in three days of proceedings at the International Court of Justice in The Hague on December 10-12, that is what we got. Livestreamed around the world for a global audience, it made for compelling viewing.
The case was brought before the court by the Gambia, a predominantly Muslim west African state that alleges Myanmar has breached the 1948 genocide convention enacted after the Holocaust. The claim states that Myanmar has perpetrated "manifest" contraventions of the convention through the acts of its military, and continues to do so. On the first day, Suu Kyi sat impassively through graphic accounts of mass murder and rape perpetrated by Myanmar's military against its Rohingya population starting in August 2017.
"I stand before you to awaken the conscience of the world and arouse the voice of the international community," Abubacarr Marie Tambadou, the Gambia's attorney general and justice minister, said as he opened the case. "In the words of Edmund Burke: 'The only thing necessary for the triumph of evil is for good men to do nothing.'
"Another genocide is unfolding right before our eyes yet we do nothing to stop it," he said. "This is a stain on our collective conscience. It's not only the state of Myanmar that is on trial here, it's our collective humanity that is being put on trial."
The military's acts, as part of its clearance operations, the court was told, included "extrajudicial killings, rape or other forms of sexual violence, burning of homes and destruction of livestock ... calculated to bring about a destruction of the Rohingya group in whole or in part".
Detailing events at the village of Min Gyi, the Gambia's lawyer Andrew Loewenstein drew on witness accounts recorded in a report by UN investigators, who estimated 750 people were killed there, including more than 100 children under the age of six.
"There were dead bodies on the floor; young boys from our village," Loewenstein quoted from one survivor's testimony to the UN fact-finding mission. "As we entered the house, the soldiers locked the door. One soldier raped me. He stabbed me in the back of my neck and in my abdomen. I was trying to save my baby, who was only 28 days old, but they threw him on the ground and he died."
Suu Kyi's alleged personal responsibility for the military's clearance operations was raised by Paul Reichler, a US lawyer speaking on behalf of the Gambia. He showed the court a photograph of billboards that appeared across Myanmar in which she featured in front of three leading generals above the caption "We stand with you".
"This shows - it can only have been intended to show - that they are all in it together and that Myanmar has absolutely no intention of holding its emboldened military leadership to account," Reichler said.
Prof Philippe Sands QC, the last lawyer to make submissions for the Gambia on the first day, told the ICJ that it was "the ultimate guardian of the  genocide convention; it's on you the eyes of the world are turned". Sands quoted from the UN fact-finding mission which said Aung San Suu Kyi had not used her "de facto power or moral authority to stem or prevent the unfolding events or to protect the civilian population".
Among those in court were several Rohingya survivors who had flown in from Kutupalong refugee camp, the largest such camp in the world. Hamida Khatun, Yousuf Ali and Hasina Begum were supported by the human rights organisation Legal Action Worldwide, which was founded by a former UN investigator of the violence, Antonia Mulvey.
"This is a momentous occasion. They have travelled a long way to be here," Mulvey said outside the court. "They are seeking justice and this is the first and most important step. Aung San Suu Kyi did nothing to stop the killing. She could have asked for help from the international community at the time. And now, as the final insult, she's defending the army's behaviour in court."
Hamida, 50, is a leader of the Shanti Mohila, a group of 400 Rohingya women in the Kutupalong camp. Her family and friends were murdered in the 2017 military operations. Hasina, 22, was attacked by soldiers; and Yousuf, 46, was beaten and sexually tortured by police in detention because he was accused of supporting the Arakan Rohingya Salvation Army, or ARSA, which the Myanmar army describes as a terrorist organisation. Indeed, much of Myanmar's defence the next day was built around the 'internal armed conflict' between the military and ARSA.
Defending the indefensible
Suu Kyi, Myanmar's state counsellor, opened her defence with a 25-minute speech which placed primary responsibility for the violence on a terrorist uprising by ARSA. The attacks were initiated by members of ARSA, she told the court, as she displayed detailed maps of Rakhine state showing, she claimed, where the first assaults began in late 2016.
"The situation in Rakhine state is complex and not easy to fathom," she said. "The troubles in Rakhine state ... go back into past centuries and have been particularly severe. ARSA has received weapons and explosives-training from Afghan and Pakistani militants."
Although a final decision of the court may take years, the emergency legal hearing was convened to consider whether protective "provisional measures" that the Gambia asked for (see next story) should be imposed to prevent further killings and destruction in Myanmar.
Suu Kyi said an initial phase of violence began in October 2016 when ARSA attacked police stations near the border with Bangladesh. "This led to the deaths of nine police officers and more than 100 civilians as well as the theft of 68 weapons and thousands of rounds of ammunition."
She said a second wave of ARSA assaults launched in August 2017 aimed to seize the township of Maungdaw. Myanmar's army had been forced to respond with "counter-insurgency operations",she said.
Responding to the accusation that the military's actions were "calculated to bring about the destruction of the Rohingya group in whole or in part", Suu Kyi told the court: "We are dealing with an internal armed conflict, started by coordinated and comprehensive attacks by the Arakan Rohingya Salvation Army.
"Tragically, this armed conflict led to the exodus of several hundred thousand Muslims from the three northernmost townships of Rakhine into Bangladesh - just as the armed conflict in Croatia [in the 1990s] led to the massive exodus of first ethnic Croats and later ethnic Serbs."
Under the rules of the ICJ, member states can initiate actions against fellow member states over disputes alleging breaches of international law - in this case, the 1948 convention on the prevention and punishment of the crime of genocide.
Aung San Suu Kyi said the principle of international law is that it should complement domestic justice. If war crimes or human rights violations had been committed, she said, they would be dealt with by Myanmar's justice system, adding that in one case soldiers had already been punished for the execution of civilians.
"There will be no tolerance of human rights violations in Rakhine or elsewhere in Myanmar," she said. "No stone has been left unturned to make domestic accountability work ... We are dealing with an internal conflict started by ARSA to which Myanmar responds."
Suu Kyi conceded that her country had made some mistakes. "Myanmar could have done more to emphasise our shared heritage and deeper layers of unity between the different peoples of our country," she said.
"It cannot be ruled out that disproportionate force was used by members of the defence services in some cases in disregard of international humanitarian law, or that they did not distinguish clearly enough between ARSA fighters and civilians," she told the court. "There may also have been failures to prevent civilians from looting or destroying property after fighting or in abandoned villages."
One of the lawyers representing Myanmar, Prof William Schabas of Middlesex University, said the Gambia had not addressed the issue of intent to conduct genocide or stated the number of victims.
He said a figure of 10,000 used by some commentators was an "exaggeration", but, even if true, the suggestion of 10,000 deaths out of a total of more than one million Rohingya residents could not constitute an attempt to "completely destroy this [ethnic] group".Christopher Staker, a London-based barrister at 39 Essex Chambers also appearing for Myanmar, alleged Gambia was not the true driving force behind the claim but the Organisation of Islamic Cooperation (OIC) of which Gambia is only one member. It amounted to questioning The Gambia's standing to invoke the jurisdiction of the court.
Phoebe Okowa, professor of international rights at Queen Mary University in London, who is also representing Myanmar, told the court that the fact that the UN's refugee agency, UNHCR, was meeting with Myanmar to prepare to return Rohingya people meant that they could not be facing a risk of genocide. There was an attempt to pass off the military's acts as "forced deportation", and thus falling under the lesser crime of "ethnic cleansing" or "crimes against humanity", not genocide.
A strong closing
Each of the arguments put forward by Myanmar were systematically dismantled by the counsels for The Gambia on day 3, when each side got the opportunity to respond to the other's claims in a sort of rebuttal round. And in arguably the most poignant moment of the hearings, Aung San Suu Kyi was told that her silence over allegations of sexual violence and rape carried out against the Rohingya "says far more than your words".
Prof Philippe Sands QC told the court: "Not a word about the women and girls of Myanmar who have been subjected to these awful serial violations. Madame Agent [Aung San Suu Kyi], your silence says far more than your words."
Myanmar has not disputed at the ICJ hearing reports that 392 villages were destroyed in military clearance operations, or commented on widespread allegations of organised sexual violence and rape, the court was told.
Sands told the tribunal that one of the lawyers representing Myanmar - Prof Schabas - said during an interview with Al Jazeera in 2013 that the situation in Myanmar was approaching genocide. Sands read from Schabas's interview, in which he said it wouldn't be "frivolous" to start using the word [genocide] in the case of the Rohingya.
"Of course, everyone is allowed to change their mind, but the obvious question is: how could that which was "not frivolous" in 2013, before the "clearance operations", before the killings, before the rapes, somehow become implausible in 2019?" Sands asked.
Sands said genocide was "not a numbers game. The intent to destroy a group in part is sufficient [for the charge to be proved]. Entire Rohingya villages have been destroyed. Such destruction of an entire community in a limited area on the grounds of ethnicity or religion can properly be characterised as acts of genocide."
Sands said evidence of the killings was being destroyed by the Myanmar authorities as Rohingya villages were bulldozed flat. He said the world would be shocked if the court declined to grant the provisional measures. On Myanmar's contention that in order for the court to do so, genocide must be the only plausible intent, Prof Sands, after dispelling the legal standing of such a contention, for good measure added: "The thrust of the Convention and this Court's Statute is to require you to act protectively, to err on the side of caution. If it is plausible that a finding of genocide might be made, on the basis of the evidence and material that is before you, then you have to order provisional measures."
Earlier, the court heard Myanmar's military courts system was incapable of investigating alleged human rights violations or delivering justice. Paul Reichler, an American lawyer speaking for the Gambia, said six of Myanmar's most senior army officers have been accused of genocide by a UN fact-finding mission and recommended for criminal prosecution.
A photograph of 10 Rohingya Muslim men with their hands tied behind their backs under the guard of Myanmar soldiers was shown to the judges, followed by a second photograph of the men's bloodied bodies lying in a ditch.
"After the photos were published worldwide, the Tatmadaw made an arrest," Rechler told the court. "Not of the soldiers who committed these brutal murders. But of the Reuters reporters (who published the photographs). They were tried by a military court, convicted of violating the Official Secrets Act, and sentenced to seven years of imprisonment. The international community came down hard on Myanmar for this, and the Tatmadaw eventually put the killers on trial and sentenced them, but gave them full military pardon after serving only seven months. The message was not that soldiers would be held accountable for crimes against the Rohingya, but exactly the opposite."
Aung San Suu Kyi, in a defiant closing address, pleaded with the 17 international judges to dismiss the allegations that Myanmar has committed genocide and urged them instead to allow the country's court martial system to deal with any human rights abuses.
The 74-year-old leader informed the court that she expected a report by an internal inquiry to recommend more prosecutions of Myanmar soldiers soon. "I can confirm there will be further court martials after the submission of the report ... in a few weeks," she said. "It's vital that our civil and military justice system functions in accordance with our constitution." This would surely have rung hollow in light of the evidence presented by Paul Reichler.
In an attempt to impose a final positive image of Myanmar's progress towards reconciliation, she showed the court photographs of a recent football match in Maungdaw, a city in Rakhine province, which she said included spectators and players from different communities and demonstrated moves towards reconciliation.
In light of the accusations, it amounted to a pretty weak attempt to win over the judges, invoking the mention of football by the Gambian law minister in his opening statement, where he had prayed for measures that allow the Rohingya children, among other things, 'to play football'. Were it to succeed however, it would surely shock the conscience of the world, and cast the 'world court' as it is sometimes called, into the wilderness for decades. The ruling on provisional measures, going by precedent, is expected in around a month.
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