To
much of the world, Myanmar’s nominal leader Aung San Suu Kyi is a Nobel
Peace Prize laureate turned genocide denier. At home, she is seen as a
heroine who went to the International Court of Justice (ICJ) to defend
and uphold her country’s honor, though not necessarily in defense of the
powerful military with which she has been at loggerheads for years.
The case brought to the ICJ by Gambia “to protect and preserve the
rights” of Myanmar’s Muslim Rohingya minority under the United Nations
Genocide Convention will likely be a drawn-out and inconclusive legal
process. That’s in part because all five permanent members of the UN’s
Security Council may veto the enforcement of any verdict, which Myanmar
allies China and Russia will likely do.
Neither is an investigation ordered by the International Criminal
Court (ICC) in November into alleged “crimes against humanity” committed
during a Myanmar army campaign against the Rohingyas in 2017, which
killed thousands and forced hundreds of thousands to flee across the
border into neighboring Bangladesh, expected to succeed in prosecuting
the perpetrators.
While the ICJ handles disputes between countries — it cannot indict
Myanmar’s military leaders of crimes, only decide whether Myanmar as a
state is responsible for committing genocide — the ICC, which is also
located in The Hague, investigates and prosecutes individuals.
But those to be tried and convicted would have to be arrested and
handed over by authorities in their own countries, provided they are
signatories to the statute regulating the ICC’s work, which Myanmar is
not.
Rather than easing the plight of those who fled the 2017 carnage and
bring justice to the Rohingyas, the cumbersome and largely ineffectual
legal procedures may actually lead to the refugees rather than the
perpetrators once again being victimized.
Neutral observers in Myanmar’s commercial capital Yangon who
requested anonymity because of the sensitivity of the issue fear that a
ruling in favor of Gambia could unleash a new wave of “revenge” violence
and that the victims would not be confined to Rohingyas who lie mainly
in three remote townships in the northern tip of Rakhine state, but
rather Muslims in general.
That, the same sources say, is an increasingly likely scenario with
the rise of extreme Burman-Buddhist nationalist movements in recent
years.
On the other hand, if the ICJ eventually dismisses the case, as
proposed by Suu Kyi in her country’s defense, or concludes that a
genocide was not committed, the ruling could provoke anger among the
Rohingyas and their supporters worldwide.
The most militant of the Rohingyas’ political organizations, the
Arakan Rohingya Salvation Army (ARSA), which is known locally not by
that innocuous-sounding name but rather as the al-Yaqin, the Faith
Movement, is already involved in killing Rohingya village headmen
suspected of being government informants and local villagers of other
faiths including Hindus.
Meanwhile, as over 700,000 refugees languish in squalid and miserable
camps in Bangladesh, both sides are squabbling over legal
technicalities, definitions of what constitutes what and even outright
semantics.
It began in September 2017 when Zeid Ra’ad Hussein, the then-UN High
Commissioner for Human Rights, described the Myanmar army’s action as “a
textbook example of ethnic cleansing”, for which he was criticized even
from people in his own organization.
“What textbook? This one or that one?” said a legal expert affiliated
with the(Office of the High Commissioner of Human Rights (OHCHR).
Furthermore, while genocide, crimes against humanity and war crimes are
recognized as crimes under international law, “ethnic cleansing” is a
term that has no legal bearing and therefore should not be used by UN
officials.
First used by various parties during World War Two, it was widely
popularized by the media during the Yugoslav wars in the 1990s and may
or may not amount to crimes against humanity.
At the ICJ, Suu Kyi and her legal team concentrated their defense on
two major issues: that atrocities may have been committed but those did
not constitute genocide under international conventions, and that the
Gambia illegitimately lodged a complaint on behalf of the Organization
for Islamic Cooperation (OIC).
Firstly, Suu Kyi’s lawyers argued it is unheard of for an
international organization or a nongovernmental organization to submit a
case to the ICJ through a non-affected country. Second, several of the
OIC’s 57 member states have not ratified the 1948 Genocide Convention,
or are not noted for respect of their own ethnic and religious
communities.
Nevertheless, Gambia’s legal team presented a wealth of documentation
and witness accounts of mass killings, rape and the destruction of
entire villages for which they claimed the Myanmar military responsible.
The question which puzzles many foreign observers, and especially
those who hailed Suu Kyi as a pro-democracy icon and champion of human
rights, is why she chose to go to The Hague to defend what many view as
indefensible. Her homecoming to Myanmar after her presentation at The
Hague provides insight to her reasoning.
After spending several months, if not a couple of years, on the
sidelines of Myanmar politics, she has bounced back and there are few
observers in Yangon who think that she and her National League for
Democracy (NLD) will not score another election victory in November next
year.
Thousands of spirited supporters greeted Suu Kyi on her return, while
social media was full of praise for her performance at the ICJ. Indeed,
while many foreign observers thought her presentation was lacking if
not embarrassing, people at home saw it in an entirely different light.
She, not the generals who stand accused of genocide, had stood up for
the country.
Equally important, she used her appearance at The Hague not to defend
the generals, but rather to strengthen her own position vis-à-vis the
military, perhaps hoping that it would make them agree to the changes in
the country’s 2008 constitution which she and her NLD are advocating.
Under that constitution the autonomous military can veto any attempt
to amend it and thus reduce the now overwhelming power of the generals.
Those autonomous powers include the sole right to order and carry out
out military operations, such as the fateful one in Rakhine state in
2017.
If that was Suu Kyi’s intent, it may not work. On the contrary, on
December 17, only three days after her return to Myanmar,
representatives of the military-backed Union Solidarity and Development
Party (USDP) quit the parliament’s Charter Amendment Committee to
protest the drafting of a bill to amend the constitution.
In a remarkable muscle-flexing exercise in the evening of December
12, armored vehicles and soldiers with guns showed up in the streets of
downtown Yangon. The military said the mobilization was a mere rehearsal
for an upcoming Myanmar Navy anniversary but did not explain why
armored vehicles were on the streets. By coincidence or not, the move
was made on the last day of the hearings in The Hague.
Suu Kyi said in her presentation at The Hague that Myanmar has the
right to prosecute any soldier found to have committed atrocities
through courts martial. That prompted Zeid Ra’ad Hussein, in an
interview with CNN on December 13, to refer to the comment as
“farcical”, as he and few international legal experts have confidence in
the impartiality of Myanmar’s legal system, especially when it comes to
trying the military.
But what was farcical for Zeid Ra’ad Hussein would not have been
perceived as such by the Myanmar military. To them, no civilian has the
right to interfere in military matters, and the very mention of a court
martial, even if it may never happen, has always sent shivers down the
spines of Myanmar’s generals.
The unprecedented show of force in Yangon on December was most likely
meant to remind Myanmar’s people of the inescapable fact that the
military is still and ultimately in charge.
To underscore the point, the military called this month for the first
time since 2016 a meeting of the Defense and Security Council, which
brings the military and elected officials together and wields big
influence over security and defense affairs.
The proceedings at ICJ may be welcomed by the Rohingya refugees in
camps in Bangladesh and those who live precarious existences in Rakhine
state. But the actual victims may in the end be lost amid legal
squabbles with uncertain outcomes and the intricacies of
military-civilian politics in Myanmar.
And that, in turn, will likely lead to further polarization of a
country which has been troubled with ethnic and political strife ever
since it became an independent nation in 1948.
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