by Lotty Clare

Last month The Gambia, with the support of the Organisation for Islamic Co-operation (OIC), filed a lawsuit in the International Court of Justice against Myanmar, accusing the state of breaching the Genocide Convention due to the systematic violence carried out against Rohingya. Public hearings will take place on 10-12 of December in the Hague and will be attended by a team headed by State Councillor and de facto head of state Daw Aung San Suu Kyi.

A history of persecution

Led by the democratically elected National League for Democracy (NLD) government, the country has entered a democratic transition after decades of civil conflict and military authoritarian rule. The Burma Army, known as the Tatmadaw, spent decades strategically and systematically targeted ethnic populations with warfare, rape, torture, forced labour and land grabs. The treatment of Rohingya worsened in these years, as did the situation for millions of people from other ethnic nationalities. The tyranny of the Tatmadaw continues in many areas in Myanmar, particularly in Kachin state, northern Shan, and Rakhine state. The Rohingya have never been given citizenship even though they have been present in Myanmar since the 12th century, and are widely reviled as illegal immigrants.

In 2017, Tatmadaw offensives in Rakhine intensified with ‘clearing operations’ supposedly part of a counterterrorism strategy against the Arakan Rohingya Salvation Army (ARSA). Almost 1 million people have fled to neighbouring Bangladesh. After a 2018 United Nations Fact Finding mission, Myanmar was accused of ethnic cleansing with genocidal intent and the report called for the trail of top Tatmadaw generals. Gross human rights violations such as burning villages, hacking people to death and burning people alive, and rape on a mass scale have been committed. Amnesty International has described Military operations against the Rohingya as crimes against humanity

The Rohingya are a historically marginalised ethnic group. Their movement is restricted, cultural history erased, and they have been subjected to discriminatory policies such as the ‘two child’ policy. They are often referred to with the derogatory terms ‘Bengali Muslims,’ and there are many false and xenophobic stereotypes that are propagated in Myanmar society, which is worsened by lack of free independent media, and the dominance of Facebook.


Aung San Suu Kyi’s irreparable reputation in the lead up to the ICJ

The announcement that Suu Kyi will lead Myanmar’s defence in the ‘world court’ is the nail in the coffin for her international reputation. The global human rights icon, who spent decades committed to the struggle for democracy in Myanmar, is now seen by many as an enabler of ethnic cleansing perpetrated by the military. 

For one, she holds a position of moral leadership for the country

Her supporters argue that she has no real power in her position, because the constitution mandates a 25% military representation in both houses of parliament, and the atrocities committed by the Tatmadaw cannot be placed on her shoulders. However, her position as State Counsellor does hold power. For one, she holds a position of moral leadership for the country due to her symbolism, and she also controls important government ministries. Discriminatory bills, statements, policies and laws targeting Rohingya have occurred on her watch, and with her support. She has repeatedly defended the Tatmadaw’s actions in Rakhine and denied the extent of the violence, allowing them to act with impunity. 


Why run to the Tatmadaw’s defence?

With international reputation already in tatters, she has not got much to lose in that regard. However, domestically, there is a lot to politically play for. The NLD party was elected on the promise of amending the 2008 constitution and standing up for the rights of ethnic people. Since the election the NLD has failed to meet many of its promises.

The rationale behind the State Councillor’s decision could be to increase her bargaining power with the Military, in terms of amending the constitution. Earlier this year, the NLD and other civilian parties initiated parliamentary proceedings to amend the constitution with the vision of gradually reducing the Tatmadaws role in national politics. Suu Kyi also seeks to amend the constitution to allow her to become president. Needless to say, these proceedings were openly protested by military lawmakers. The Tatmadaw can veto amendment proceedings. By leading the military’s defence so publicly at the ICJ, some of the damage to the Tatmadaw’s ‘image’ could be repaired or at least deflected onto Suu Kyi. In return, it is likely that Suu Kyi hopes Generals will be more willing to give political concessions regarding constitutional amendment.

…attacks on Aung San Suu Kyi could disrupt a very fragile political situation in the country…

Aung San Suu Kyi is also looking to repair her own public image. After losing several NLD seats in last years by-election and with a general election approaching in 2020, one can speculate that she is attempting to use this ICJ case to garner national unity and support for her and her party. In the past 4 years, the conflict has flared up in ethnic states, defamation cases of civil society and journalists have risen, and there is rising discontent relating to megaprojects such as the Chinese Belt Road Initiative. Her decision to appear at the ICJ is a move to secure her party’s and personal electoral future. It is often perceived that Aung San Suu Kyi is the best hope for democratic reform in Myanmar, and attacks on Aung San Suu Kyi could disrupt a very fragile political situation in the country and risk handing power back to military generals with a potential coup. But the military are continuing to commit atrocities in many parts of the country, frequently breaching the National Ceasefire Agreement and acting with impunity: they have power without accountability. If the already stalling peace process is dependent on protecting Suu Kyi’s status and symbolism, then cost of peace is allowing genocide. 


Defending ‘The Lady’  

The Irrawaddy reports that the recent news was welcomed by the ‘majority of social media users [in Myanmar].’ There is a widespread view that this accusation is an example of foreign countries ‘attacking’ The Lady, as Suu Kyi is known, and hence the unity and sovereignty of the nation. As the daughter the national hero Aung San, she is a powerful national symbol. In recent weeks, there have been waves of demonstrations organised by the NLD showing support. The Bangkok Post reported that the demonstration organiser said: ‘we must show our unity…If a country’s leader says a lemon is sweet, we have to say it is sweet.’ 

Despite a history of violent persecution against ethnic populations in Myanmar, ethnic political parties and armed groups have already publicly announced their support: UWSA, NDAA,and SSPP SSA-N and RCSS SSA-S have expressed the same sentiment. PNLO leaders have also been vocal in their support of the government’s position. By backing Aung San Suu Kyi going to the ICJ, ethnic organisations are backing the Tatmadaw, defending and allowing ethnic cleansing of the Rohingya, as well as excusing and legitimising 70 years of systematic warfare, torture, rape and persecution of many other ethnic groups in Myanmar. 

Other ethnic organisations have expressed condemnation such as the Karen National Union (KNU) who released a statement in November urging the government to abide by international humanitarian principles. Almost 50 international and domestic groups under the Worldwide Karen Community put out a statement declaring solidarity with Rohingya people and that Karen people stand with those suffered from systematic human rights violation by the Tatmadaw.


Starting to turn the wheels of justice

The jurisdiction for the ICJ case arises from both The Gambia and Myanmar being parties to the Genocide Convention, and therefore the court has the ability to decide whether the state of Myanmar has committed genocide (this is unlikely to be decided by the ICJ). However, the ICJ cannot prosecute individuals and cannot indict Myanmar’s military generals or government officials. The court hears cases between nation states and can issue advisory opinions. They will not be examining witnesses. The December hearings will discuss ‘provisional measures’ submitted by The Gambia which demand Myanmar take immediate steps to prevent genocide, as outlined in the Genocide Convention. Although the ICJ decision will be binding, they have limited power to enforce the decision, so if the provisional measures are approved, the case will go to the Security Council. China is likely to use its veto power to dismiss further action. This is the start of a very long process of procuring justice. 

The application to the ICJ was preceded by a request by the Prosecutor at the International Criminal Court (ICC), to launch an investigation into crimes committed by Myanmar. As Myanmar is not a member the ICC, the court only has narrow jurisdiction over deportation crimes committed in Bangladesh, who is an ICC member. 

In addition, Myanmar government officials including Aung San Suu Kyi and army chief Min Aung Hlaing have been named in an Argentinian lawsuit under the grounds of universal jurisdiction. This is a concept that is based on the principle that some acts such as war crimes and crimes against humanity are so severe that they can be tried in any court. This lawsuit has been submitted by Latin American and Rohingya human rights groups. The lawsuit seeks criminal sanction of the perpetrators, accomplices and enablers of genocide. 

The December hearings in the Hague will be another blow to Myanmar’s global standing, and may finally convince some international actors that the civilian government is not worth collaborating with for the peace process in Myanmar. 

Any ‘national unity’ inclusive of the Tatmadaw and orchestrators of ethnic cleansing is the path to more conflict, not peace. It is high time that the environment of domestic and international impunity for the Tatmadaw ends. Justice not only for the Rohingya, but for Myanmar’s ethnic and indigenous people who have suffered under the violent oppression of the military for generations. Aung San Suu Kyi’s publicity in this case should not distract from the fact that the Tatmadaw are the primary actor responsible for ethnic cleansing of the Rohingya. That said, Suu kyi is using a genocide for her political gain, and it is time the civilian government, is held accountable and face justice for enabling ethnic cleansing. The government’s decision on how to deal with the ICJ case is a calculated one and it seems that justice will not be delivered anytime soon.  

Featured image credit: President of Russia website.

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