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.
Rohingya refugees shout slogans at a protest against a disputed repatriation program at the Unchiprang refugee camp, Bangladesh, November 2018. Photo: AFP/Dibyangshu Sarkar
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.
Aung San Suu Kyi (R) defends her country against accusations of genocide at the top UN court in The Hague, Netherlands, December 11, 2019.  Photo: Handout/ Anadolu Agency
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.
Supporters of Myanmar State Counselor Aung San Suu Kyi line up a street for her arrival from Naypyidaw International Airport, December 14, 2019. Photo: AFP/Thet Aung
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.
Myanmar’s soldiers march in a formation during a parade to mark the country’s 74th Armed Forces Day in Naypyidaw on March 27, 2019. Photo: AFP/Thet Aung
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.